author: Dickman, J.

text:
    Atwood et al. v. Whipple.

      Order of Judge at Chambers — Review on error.

    1, The appellate jurisdiction of the circuit court is such only as is expressly conferred upon it by statute.
    2. Under section 6109 of the Revised Statutes, enacting that a judgment rendered, or final order made by the common pleas court, may be reversed, vacated, or modified by the circuit court, for errors appearing on the record, an order of a judge of the court of common pleas at chambers, overruling a motion to dissolve a temporary injunction, is not reviewable on error by the circuit court.
    (Decided May 5, 1891.)
    Error to the Circuit Court of Defiance county.

      Henry Newbegin, for plaintiffs in error.
    That orders made at chambers are final orders, which the judges have jurisdiction to make, is recognized by the Statutes, sec. 5226, allowing an appeal from an order of a judge at chambers, dissolving an injunction. Burke v. Ry. Co., 45 Ohio St. 631; C. S. & C. R. R. Co. v. Sloan, 31 Ohio St. 1; King v. King, 38 Ohio St. 370; sections 6707 and 6709, Revised Statutes; Young v. Gerdes, 42 Ohio St. 102; Seville v. Wagner, 46 Ohio St. 52.

      Hill Hubbard, for defendant in error.
    The question presented is not whether the order of the common pleas judge is or is not a final order, within the terms of Revised Statutes, 6707, which may be vacated, •modified or reversed, but whether or not jurisdiction has been given by law to the circuit court to review such an order, when made by a judge at chambers, for the circuit court has only such jurisdiction, in error, as is expressly conferred upon it by statute, as part of its appellate jurisdiction.
    This question is not determined by the decision in Burk v. Ry. Co., 45 Ohio St. 631, for the order complained of in that case was made by the court of common pleas.
    Article IV., sec. 6, of the Constitution provides that: “ The circuit court shall have like original jurisdiction with the Supreme Court, and such appellate jurisdiction as may be provided by law.”
    The only provision of statute which confers jurisdiction upon the circuit court, to vacate, reverse, or modify a judgment or final order for errors appearing on the record, is found in Revised Statutes, sec. 6709.
    Unless, then, the order of the judge of the common pleas court, at chambers, was a final order made by the common pleas court, the circuit court had no jurisdiction to reverse, vacate or modify it. We think that it was not.
    The distinction between the common pleas court and the judges thereof is drawn by the constitution itself. Article' IV., sec. 4; Sheldon v. McKnight, 34 Ohio St. 316, 319; Revised Statutes, sec. 5580.

      We ask the court to examine the statutes, in this respect, as they stood prior to the revision of 1880, and compare them with the law as it now stands. We think this will throw great light on the true interpretation of the present law.
    It will be seen that sections 511 and 512 are identical in terms with sections 6707 and 6708 of the present statutes. Section 513 and section 514, Revised Statutes: Powers v. Reed, 19 Ohio St. 189.
    But in the revision of 1880, this general power of review is wholly omitted from sec. 6710, which defines the powers of this court, and its jurisdiction is limited to that given by sections 6708 and 6709, to the common pleas and district courts, while under these sections, as amended and now in force, the jurisdiction of this court is expressly limited to the review of judgments and final orders of the circuit, common pleas and probate courts, and the superior courts of cities.
    ■ The only case cited by counsel, that seems to have any bearing upon this question, is the case of King v. King, 38 Ohio St. 370; this decision was made before the last amendment of the statute defining the powers of this court, and we think is not parallel to the case at bar. In that case the order was made by a district judge, and error taken to the supreme court.
   Dickman, J.

The Backus Portable Steam Heater Company, a corporation duly incorporated under the laws of the state of New York, filed its petition in the Court of Common Pleas of Defiance county, against Orville E. Atwood, John O. Bowman, and E. H. Whitney, praying for an injunction and other relief. On motion it was ordered that Rodney M. Whipple — the defendant in error — be made a party defendant in the original action, with leave to file an answer and cross-petition; and it was further ordered, that Quimby S. Backus be also made a party defendant. A temporary injunction, as prayed for by Rodney M. Whipple in his cross-petition, was granted by the court of common pleas against The Backus Portable Steam Heater Company, and all the co-defendants of Whipple. The defendants, Orville E. Atwood, John O. Bowman and E. H. Whitney, moved the court of common pleas to dissolve the injunction so granted, which motion was heard by the judge of the court at chambers, and was by him overruled. By petition in error in the circuit court, it was assigned as error, that the judge of the court of common pleas erred in his order overruling the motion to vacate the injunction granted on the cross-petition of Whipple. The circuit court dismissed the petition in error, holding, that it had no jurisdiction to review on error the order of the judge of the court of common pleas made at chambers. To reverse the judgment of the circuit court, a petition in error is filed in this court by Orville E. Atwood, John O. Bowman, E. H. Whitney, Quimby S. Backus, and The Backus Portable Steam Heater Company.

It is contended in behalf of the defendant in error, that on the face of the record, there was a misjoinder of plaintiffs in error in the circuit court, and on that ground alone, the petition in that court was properly dismissed. As, in our view, the circuit court had no jurisdiction of the subject matter of the petition in error, it becomes unnecessary to consider the question of misjoinder.

It is provided by section 6, article IY. of the Constitution that: “ The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction as may be provided by law.” Courts of appellate jurisdiction are defined as those which take cognizance of causes removed from another court by appeal or writ of error. The jurisdiction of the circuit court being fixed by statute, it can exercise none other than that which is expressly conferred. In Haywood v. Collins, 60 Ills. 328, it was held, that where a court of superior jurisdiction exercises statutory powers, it stands on the ground, and is governed by the same rules as courts of limited jurisdiction, which is, that nothing shall be intended to be within the jurisdiction but that which is so expressly alleged. And in Edmiston v. Edmiston, 2 Ohio, 251, it is said by the court: “ The maxim, est boni judiéis ampliare jurisdietionem, does not apply to courts of a limited jurisdiction, much less to cases of which the jurisdiction is wholly dependent on statutory provision. He would be malus judex who would thus apply it, as it would confound a distinction without which there can be no limits to the power of courts.”

Apply these principles to the case under consideration.

By section 6709 of the Revised Statutes: “A judgment rendered, or final order made by the common pleas court, may be reversed, vacated, or modified by the circuit court, for errors appearing on the record.” Obviously, in the absence of statutory enactment to the contrary, the words “ common pleas court ” do not mean a judge of that court in vacation or at chambers; and an order in a special proceeding made by that court in regular session during the term, is not an order by a judge thereof in vacation or at chambers. The constitution, in section 4, article IV., distinguishes between the common pleas court and the judges thereof, in providing that: “The jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law.” The distinction is further; indicated in section 18, article IV. of‘ the constitution, which ordains that, “ The several judges of the common pleas, and of such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by law.” In commenting upon the technical phrase “ at chambers,” this court in Pittsburgh, Fort Wayne & Chicago Railway Company v. Hurd, 17 Ohio St. 144, said: “ Jurisdiction at chambers is incidental to, and grows out of the jurisdiction of the court itself. It is the power to hear and determine, out of court, such questions arising between the parties to a controversy, as might well be determined by the court itself, but which the legislature has seen fit to intrust to the judgment of a single judge, out of court, without requiring them to be brought before the court in actual session.” And section 5584 of the Revised Statutes, under which the motion was made to dissolve the injunction granted on the cross-petition of the defendant in error, establishes a .jurisdiction of the judge independent of that of the court, for it enacts that: “ When an injunction has been granted, a party may, at any time before the trial, apply to the court in which the action is pending, or a judge thereof, to vacate or modify the same.”

The act to regulate the practice of the delivery of fugitives from justice, when demanded by another state or territory (72 Ohio L. 79), required the fugitive, when arrested, to be taken before “ any judge of the supreme court, or any judge of the court of common pleas of this state, in whose district or jurisdiction such person so charged may be found, to be examined on such charge; ” and if, on such examination, the proof was adjudged sufficient, such judge was required to commit, etc. In Sheldon v. McKnight, 34 Ohio St. 316, a judge Of the court of common pleas had ordered the sheriff to deliver up Sheldon, as a fugitive from justice, to the duly authorized agent of the state of Missouri. But this court held that the order of delivery sought to be reversed was not made by the court of common pleas, and being an order made by the judge thereof, was not reviewable on error.

Mr. Chitty, in his “ Practice,” vol. 3, p. 19, has observed, that although it would be difficult if not impracticable to trace the inception of the practice, jmt, by long established usage, each of the judges of the courts of King’s Bench, Common Pleas, and Exchequer, has, at common law, and independently of any legislative authority, at his chambers, exercised a very extensive jurisdiction over certain proceedings that arise in conducting an action or defense, and this as well in the vacation as during the four terms.

Judges, as such, being thus permitted to exercise certain of their functions independently of the court in regular session, in determining the appellate jurisdiction of a court authorized to review on appeal or on error an order of the court below, it is not to be inferred, that the legislature intended to embrace under the term “ court ” the independent action of the judge or judges thereof at chambers.

The statute conferring jurisdiction to vacate or modify an injunction, leaves it to a party’s election, to apply for a dissolution of the injunction either to the court in which the action is pending, or to a judge thereof. He is presumed, however, to move with full knowledge of the remedy, whatever it maj»- be, which the law gives, for the correction of any error on the part of the court or judge. If his application to the judge at chambers to vacate the injunction be overruled, in very many cases, it would not operate in furtherance of justice to allow a review on error of the order made at chambers, for, before such review could be had, the court in which the action is pending might determine on final hearing all the issues between the parties.

It will be seen upon an examination of the statutes regulating jurisdiction and procedure in error, that the legislature has defined the appellate jurisdiction of the circuit court in terms significant, when compared with the stated jurisdiction in error of the court of common pleas. By section 6708 of the Revised Statutes, a judgment rendered or final order made by “ a probate court, justice of the peace, or any other tribunal, board, or officer, exercising judicial functions, and inferior in jurisdiction to the court of common pleas,” may be reversed, vacated, or modified by the court of common pleas. But section 6709, which provides that a judgment rendered, or final order made by “ the common pleas court,” may be reversed, vacated, or modified by the circuit court, for errors appearing on the record, contains no language, we think, which, by a liberal interpretation, might be held to include an order made by a judge of the court of common pleas in vacation or at .chambers.

In view of promoting effectiveness in the judicial service, it seems to have been the design of the legislature to withhold from the circuit court, the particular and varied jurisdiction in error conferred on the court of common pleas in authorizing it to review the final orders of any other tribunal, board, or officer, exercising judicial functions, and of inferior jurisdiction.

The decisions in this state, to which our attention has been called in the argument in behalf of the plaintiffs in error, do not militate with the views which we have herein expressed. The case of Burke v. Railway Company, 45 Ohio St. 631— holding that an order of the court of common pleas overruling a motion to dissolve an injunction, is an order affecting a substantial right made in a special proceeding, which maybe reviewed on error by the circuit court — did not involve the question of an order in a special proceeding made by a judge of the court of common pleas at chambers.

In King v. King, 38 Ohio St. 370, it was decided, that an allowance of temporary alimony by a judge at chambers is a final order which may be reviewed on error. In that case, the order was made by a judge of the district court at chambers, and was brought on error to this court. It is contended, therefore, that under authority to review on error a final order made by the district court, an order made by a judge thereof at chambers was reviewable. But, when the petition in error was filed in that case, in this court, to wit, on January 24, 1879, section 514 of the Code of Civil Procedure (now amended as in section 6710 of the Revised Statutes) read as follows: “ A judgment rendered, or final order made, by any court, board, or tribunal mentioned in the three preceding sections, may be reversed, vacated, or modified by the supreme court, for errors appearing on the record; but the petition in error, in such case, can be filed only by leave of the supreme court or a judge thereof.” Among the preceding sections 'was section 512, in which a final order was mentioned and defined, and made subject to being vacated, modified or reversed. By virtue of the ample power thus given by section 514, whereby the court might review on error, an order affecting a substantial right made in a special proceeding and mentioned in section 512, the supreme court was clothed with jurisdiction to review the order of the judge of the district court, without confounding the judge at chambers with the court in actual session.

Our opinion is, that the judgment of the circuit court should be affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Pennsylvania Co. v. Langendorf.

      Negligence — When one may risk his own life, to rescue another from danger — When such risk not contributory negligence.

    1. It is not negligence per se for one to voluntarily risk his own safety or life in attempting to rescue another from, impending danger. The question whether one so acting should be charged with contributory negligence, in an action brought by him to recover damages for injuries received in attempting the rescue, is one of mixed law and fact, and . should be submitted to the jury upon the evidence, with proper instructions from the court.
    2. While one who rashly and unnecessarily exposes himself to danger cannot recover damages for injuries thus brought on himself, yet, where another is in great and imminent danger, one who attemps a rescue may be warranted by surrounding circumstances in exposing his limbs or life to a very high degree of danger. And in such cases he should not be charged with the consequences of errors of judgment resulting from the excitement and confusion of the moment.
    3. In such cases, if the rescuer does not rashly and unnecessarily expose himself to danger, and is injured, the injury should be attributed to the party that negligently, or wrongfully, exposed to danger, the person who required assistance.
    (Decided May 5, 1891.)
    Error to the Circuit Court of Lucas county.
    The defendant in error recovered a judgment against the plaintiff in error, in the Court of Common Pleas of Lucas county, for damages resulting from an injury received by him while rescuing a child of tender years, who had fallen in front of an advancing freight train of the plaintiff in error. This judgment was affirmed by the circuit court, and thereupon these proceedings were brought to obtain a reversal of the judgments of both courts. Any further statement of facts necessary to understand the questions decided, will be found in the opinion.

      JS. W. Tolerton, for plaintiff in error.
    To the charge of the court, the defendant below excepted. And this exception and the overruling of the demurrer to the petition fairly present the question, is it negligence per se for a person to throw himself in front of a moving train for the purpose of rescuing a child from danger ? Ilott v. Wilkes, 3 B. & Ald. 311; Corwin v. N. Y. & E. R. Co., 3 Ker. 42; Evansville R. Co., v. Hyatt, 17 Ind. 102.
    I claim that it was the duty of the court to say to the jury that as a matter of law it was a rash act for the plaintiff to throw himself upon the track, knowing that a train was coming, with his back towards the train, and without any attempt to look or observe it. In the cases where this question has been brought to the consideration of the courts, and where they have held uniformly that such an act is not negligence, as a matter of law, they also say that the law will impute negligence to the act “ if made under such circumstances as to constitute rashness in the judgment of prudent persons.” Ecker v. Long Island Ry. Co., 43 N. Y. 502.
    If the plaintiff could have, by the use of ordinary care, prevented the child from going upon the track in the first place, or might have, by the use of ordinary care, followed the child across the track, and prevented it from returning to a place of danger, then it was his duty to do so, and his neglect to do so, and his omission to act until the child was in extreme peril, was an act of negligence which bars his right to recover. Ecker v. Railway, supra; Evansville & Crawfordsville Ry. Co. v. Hyatt, 17 Ind. 102.

      Bissell Grorrill, for defendant in error.
    The charge of the court throughout was in strict accordance with the law. Donahue v. Wabash R. R. Co., 83 Mo. 560; Wharton on Negligence, section 314; Pierce on Railways, page 328; Rohrer on Railroads, page 1029; Shearman & Redfield on Negligence, sec. 85 and note; Beach on Contributory Negligence, pages 42 to 49; Eckert v. The Long Island R. R., 43 N. Y. 503; R. R. v. Hanlon, 53 Ala. 70; 3 American Reports, 721; Linnehan v. Sampson, 126 Mass. 506; Peyton v. Texas & C. R. R., 41 Albany Law Journal, page 32; Hart v. Devereaux, 41 Ohio St. 565; Burns v. North Chicago R. R., 65 Wis. 312; Railway Co. v. Schneider, 45 Ohio St. 678; 45 Ohio St. 478; Lynch v. Nurdin, 1 Q. B. 29; Railway Co. v. Stout, 17 Wallace 657; Thompson on Negligence, vol. 2, page 1174; Railroad Co. v. Mowry, 36 Ohio St. 418, 422; Stokes v. Saltonstall, 13 Peters 181; Eldridge v. R. R. Co., 1 Sandf. 89; R. R. Co. v. Pauls, 24 Geo. 356; Petterson v. Wallace, 1 McQueen’s House of Lords’ Cases, page 748; Mangham v. Brooklyn R. R., 38 N. Y. (11 Tiff.) 455; Detroit etc., R. R. Co. v. Von Steinburg, 17 Mich. 99.
   Bradbury, J.

The defendant in error, in June, 1885, while passing along one of the streets in East Toledo, stopped at a point where the track of the railway of plaintiff in error crossed the'street, and engaged in conversation with a woman who had in charge two children, one an infant in arms, the other a girl about four years old. The plaintiff in error had constructed a safety gate at this point, and during the greater part of the day kept there a watchman to close the same when trains were approaching, as a warning to travelers. The accident that caused the injury occured about seven o’clock in the evening, or a little latter, but while it was yet light; the watchman had finished his day’s labor, and gone away, and the gate was raised (or open), though the street was, perhaps, as extensively used at that hour as at any other part of the day. A local freight train was past due, and approaching at a higher rate of speed than that prescribed by the ordinances of the city.

The defendant in error and the nurse were engaged in conversation at a point from which the approaching train was in view for a considerable distance, though exactly how far away it could be seen is left in some doubt. The little girl, while her nurse and defendant in error were conversing, wandered across the railroad track, and seeing or hearing the approaching train, became excited by the sight or noise, or both, and by clapping her hands and other manifestations of surprise and delight, attracted the attention of- her nurse certainly, and, probably, that of the defendant in error also. The nurse, excitedly, called the child to her, and while crossing the railroad track, in obedience to the call, it tripped and fell in front of the rapidly approaching train, whereupon the defendant in error, observing its imminent peril, sprang to its rescue, caught it in his arms, and leaped onward, but was struck by the locomotive,before he could pass beyond its reach, and received the injuries of which he complains. That the safety gate was raised and the watchman absent,was not disputed at the trial, so far as the record discloses, and the evidence is amply sufficient to warrant the jury in finding that the train was being run at an unlawful rate of speed, so that in both these particulars the negligence of the railroad company was established.

It is contended, however, that the negligence of the railroad company should have related to the party injured, and that the jury in passing upon the case of the defendant in error, should not have taken into consideration the rights of the rescued child, but should have confined itself to considering the relations existing between him and the railroad company. And in this connection the plaintiff in error requested the court of common pleas to charge the jury as follows:

“ The plaintiff’s right to recover depends entirely upon the fact that the defendant was guilty of negligence in its relations to this plaintiff. The jury, in deliberating upon your verdict, must not consider the rights of the child. This action has nothing to do with her rights. The sole questions here are, was the defendant guilty of negligence which caused the plaintiff’s injuries, and was the plaintiff himself guilty óf contributory negligence ? ”

This request was properly refused. Negligence does not usually relate to any one in particular, and does not in any case so relate, unless there is some special duty owing to the individual affected by the negligent act or omission. In the case under review the railroad company owed no special duty to either the rescuer or the rescued, that it would not have owed to any individuals similarly situated; the obligation was to the public generally, and any person who, without fault on his part, received an injury in consequence of its failure to discharge this obligation, may recover from it compensation therefor. No other relation is necessary, where the obligation is to the public, than that the one, by its negligence, has caused injury to the other without the latter’s fault.

It is also objectionable in another particular, that of requiring the jury to ignore the rights of the child. It is true that the child in its relations to the railioad company might have, a right of action for injuries received by it, and yet no right accrue to the defendant in error for those received by him in the same accident. The circumstance that the child had a right of action could not be conclusive that the defendant in error had one also, though the same blow of the locomotive injured both, for the negligence of the latter might contribute to the result in a manner to defeat his recovery, while no negligence could be imputed to the child. If it was the object of this request to impress upon the minds of the jury the proposition above stated, that the rights of action of the child and its rescuer against the railroad company were distinct, the language selected was not well chosen. The phrase, “ The jury, in deliberating on your verdict, must not consider the rights of the child. This action has nothing to do with her rights,” was well adapted to mislead the jury into the belief that the imminent danger of the child, and its right to be rescued therefrom, were to be excluded from their consideration. This view would have defeated the recovery, for the very ground upon which the defendant in error founded his claim, was that the imminent peril of the child warranted the risk he assumed in undertaking its rescue.

This brings us to the consideration of the main question. Plaintiff in error contends that it was negligence per se for the defendant in error to throw himself in front of a moving train in his. effort to rescue the child from danger.

The petition of the plaintiff below discloses that he received the injury of which he complained, by voluntarily passing in front of a moving train to rescue a child, who had fallen in fpont of it; therefore.if such an act is negligence per se the petition disclosed that the negligence of the plaintiff below, contributed to the injury and he was not entitled to maintain an action therefor. The same question was raised by an exception taken to the following part of the charge of the court:

“ It appears that the plaintiff was struck by the engine and injured while in the act of passing across the track and rescuing a little child from danger and saving its life. To hold the railroad company responsible in damages for this injury, it must be shown, (1) that the child was in danger of being run over and injured by the approaching engine, and that such danger was caused or created by the negligence of the railroad company; and (2) that in making the effort to rescue the child the plaintiff was not guilty of contributory negligence. These are questions of fact which will be your duty to determine from the evidence.....
“If you find that the peril to which the'child was exposed was caused by such negligence of the company, you will then inquire whether the plaintiff, in passing across the track and attempting to rescue the child, was guilty of contributory negligence. The law will not impute negligence to an effort to preserve human life, unless made under such circumstances as to constitute rashness in the judgment of prudent persons.....
“ If he believed, and had good reason to believe, that he could save the life of the child without serious injury to himself, the law will not impute to him blame for making the effort.”

Plaintiff in error insists that the court of common pleas instead of leaving the question, as it did, to the jury to say whether the act of the defendant in error, under all the circumstances and according to the rules laid down by the court, was or was not negligent, should have told them that to pass in front of a rapidly moving train, as it was admitted the defendant in error did, even to rescue from danger a child of tender years, was in law an act of negligence that defeated his right of recovery. It is said that the defendant in error voluntarily assumed the risk, that the danger attending his act was apparent, and that however commendable his conduct may have been when viewed from the standing point of humanity, the law will grant no relief for an injury thus brought upon himself. It is apparent that the defendant in error was under no legal obligation to rescue the child; if he had chosen to stand by and permit the approaching train to run over and kill the child, he would have violated no rule of law, civil or criminal; therefore what he did in the matter, was a voluntary act in the sense of that term that he was under no legal'obligation to perform it. That, however, is not a conclusive test of the question. To entitle one to relief for the consequences of the negligence of another it is by no means necessary that the party injured should have been at the time, in the discharge of any duty whatever. His rights in this respect are perfect when he is in the performance of any lawful act, and even, in some instances and in some states, when the act is, in some respects, not strictly lawful.

The act of the defendant in error was not only lawful, but it was highly commendable ; nor was he in any legal sense responsible for the emergency that called for such prompt decision and rapid execution. The negligence of the railroad company in having no watchman at this public crossing, and the unlawful rate of speed the train was running towards it, to which may, perhaps, be added that of the nurse in charge of the child, were the causes of its extreme danger. There was but the fraction of a minute in which to resolve and act, or action would come too late. Under these circumstances it would be unreasonable to require a deliberate judgment from one in a position to afford relief; to require one so situated to stop and weigh the danger to himself, of an attempt to rescue another, and compare it with that overhanging the person to be rescued, would be in effect to deny the right of rescue altogether if the danger was imminent. The attendant circumstances must be regarded; the alarm, the excitement and confusion usually present on such occasions, the uncertainty as to the proper move to be made, the promptness required, and the liability to mistake as to what is best to be done, suggest that much latitude of judgment should be allowed to those who are thus forced by the strongest dictates of humanity to decide and act in sudden emergencies. And the doctrine that one, who, under tho.se or similar circumstances, springs to the rescue of another, thereby encountering even great danger to himself, is guilty of negligence per se, is neither supported by principle nor authority.

In Evansville & Crawfordsville Ry. Co. v. Hiatt, 17 Ind. 102, language is used by the judge in deciding the case, which, to some extent, supports the doctrine, but the decision was not placed upon that ground, and what the learned judge said in that connection may be regarded as obiter dictum. The doctrine is repudiated by the text writers, and all the other cases that come to our notice. In Eckert, Adm'r, v. The Long Island Ry. Co., 43 N. Y. 502, it was held that “ the law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons.” In that case the rescuer lost his life in throwing a small child from the track of an approaching train, and a judgment in favor of his administrator, for damages resulting from his death, was affirmed by the court of appeals. The resemblance between that case and the one before us is very striking. This doctrine has received the sanction of the courts of last resort in Massachusetts and Missouri. Linnehan v. Sampson, 126 Mass. 506; Donahoe v. The Wabash, St. Louis & Pacific Ry. Co., 83 Mo. 560; Beach on Contributory Negligence, see. 15, page 45; Wharton on Negligence, sec. 314; Pierce on Railroads, 329. The doctrine that one is not necessarily chargeable with contributory negligence because he adopted a course of action that imperiled his safety, or even his life, finds support in other courts. Carroll v. The Minnesota Valley R. R. Co., 14 Minn. 57; Penn. Co. v. Roney, 89 Ind. 453; Cottrill, Adm'r, v. The Chicago, Milwaukee & St. Paul Ry. Co., 47 Wis. 634. We. think the court of common pleas did not err in leaving it to the jury to determine, from all the circumstances surrounding the defendant in error at the time he sprang to the rescue, whether the act was rash or not, and in saying to them that if they found it was not rash, then it did not constitute contributory negligence. It is difficult, if not impossible, to lay down in advance a rule by which to determine the extent to which one may risk his safety or his life in emergencies of this character and not be charged with rashness, but the emergency may be such as to warrant the assumption of a high degree of risk, and one so situated may rightfully expect his acts to be construed in the light afforded by all the circumstances that impelled him to their commission, and that he would not be charged with contributing to his own injury, so as to defeat a right of action, because the result showed that the risk he assumed was greater than in the excitement of the moment he had contemplated, or in some other respect his judgment had been faulty.

Judgment affirmed.


author: Speak, J.

text:
    Steinau v. Gas Company.

      Injunction — When not allowed, to prevent breach of contract.

    The Cincinnati Gas-Light & Colne Co. entered into a written contract with S., whereby, in consideration of the promise of the company that it would furnish him all the gas he might require to illuminate his place of business for a period of ten years at a reduced price, S. bound himself to receive from the company, during the period, all the gas necessary for the purpose named, to be paid for at the expiration of each month, and the amount of gas consumed not to fall below a certain specified amount each month; and further stipulated that he would not, during the term, introduce into or on said premises electric lights, or other material or power for general illuminating purposes.
    In a suit brought by the company against S., the contract is set forth in the petition, and it is alleged that the company has performed all of its stipulations, and is ready, able and willing to continue to do so, but that S. has refused and is refusing to receive from the company all the gas necessary for the proper illumination of the premises, and has introduced electric lights for the general lighting of the place, whereby the amount of gas consumed has been, and will continue to be, largely reduced below the amount stipulated to be used, if not wholly done away with, “ and the company will lose the benefit of said contract, and the gain and profit it is entitled to therefrom, and will suffer irreparable damage.” A perpetual injunction is asked against using the electric light, or any light other than the company’s gas.

      Held: That the petition does not show that the company may not have full, adequate relief in damages by a suit at law, and hence no case is made entitling the company to an injunction.
    (Decided May 5, 1891.)
    Ekkob to the Circuit Court of Hamilton county.
    Action was brought in the court of common pleas by the gas company against the plaintiff in error to obtain an injunction. In its petition the company alleged the execution of the following contract:
    “ This contract, entered into this 16th day of March, 1886 by and between The Cincinnati Gas-Light & Coke Company and Chas. J. Steinau, proprietor and occupant of the premises known as “The Palace,” and situated No. 80 West Fourth street, between Walnut and Vine streets, witnesseth:
    “ First. — The said The Cincinnati Gas-Light & Coke Company for and in consideration of the continued use of not less than three fourths the present average consumption of gas on said premises, or other premises which the party of the second part may occupy or remove to, hereby agrees and binds itself to supply, under existing rules and regulations, at the premises above described — except in eases of unavoidable accident, — all the gas which may be required to properly illuminate the same, for a period of ten years next ensuing. The gas so furnished shall at no time be of less power or purity than the present legal standard. That it will accept in full payment for gas so furnished in accordance with the terms of this contract the sum of one dollar and thirty cents per thousand cubic feet, if paid at the office of said gas company within the first three business days after presentation of bill for gas supplied during the period covered by said bill, but in case such payment is not made within the time specified, then the price shall be .one dollar and forty cents per thousand cubic feet.”
    “ Second. — That the said Charles J. Steinau for himself, his heirs, or assigns, for and in consideration of the reduction in price above specified, hereby agrees to receive from the said The Cincinnati Gas-Light & Coke Company all the gas necessary for the proper illumination of the premises above described, or of other premises to which he may remove, in quantity not less than three fourths of the present average consumption ; and that he will not, during the period above named, introduce into or use on said premises oil lamps, electric lights, or other material or power for general illuminating purposes, or any other gas than that supplied by the said The Cincinnati Gas-Light & Coke Company.”
    “ Third. — It is further agreed and understood by both parties to this contract, that if during the period above named, the city council shall pass, and the gas company accept, any ordinance by virtue of which the price of gas to all private consumers in said city is reduced below the price above specified, then in that case the said Chas. J. Steinau shall not thereafter be required to pay any price in excess of that named in said ordinance, but in all other respects this contract shall continue in force during the period aforesaid.”
    It further alleged, in substance, that at the date of the contract the regular price for gas to private consumers was one dollar and seventy cents per thousand cubic feet, with a discount of ten cents per thousand on monthly bills paid within five days after presentation. That price continued until February 28, 1887, when the price was fixed by the city council at one dollar and twenty-five cents, with same rate of discount as before.
    The average monthly consumption of gas for the current year on the premises would be over eighteen thousand cubic feet, if the defendant fulfilled his contract. The plaintiff duly performed all the stipulations and conditions of the contract on its part, and was ready, able and willing to continue to do so. But the defendant, disregarding his obligation under the contract, refused to receive all the gas necessary for the proper illumination of the premises, and has introduced and is using for general illuminating purposes, material or power other than the gas supplied by plaintiff, viz.: the Edison incandescent light. “ By means of the light so created the consumption of gas for illuminating purposes will be and has been largely reduced below the quantity agreed to be consumed on said premises, as stated in said contract, if not wholly done away with, and the company will lose the benefit of said contract and the gain and profit it is entitled to therefrom, and will suffer irreparable damage.” Wherefore plaintiff asks that defendant be enjoined from using said electric light, or any material other than gas supplied by plaintiff for general illuminating purposes on said premises, and for such other and further relief as the nature of the case may require.
    A demurrer to the petition was overruled and final decree of injunction entered against the defendant. This judgment was affirmed by the circuit court. To reverse both judgments this error proceeding is brought.

      Kramer Kramer, for plaintiff in error.
    1. Courts of equity will not grant injunctions to restrain breach of negative covenants, where 'the affirmative stipulations cannot be enforced specifically against the complaining party.
    2. There is no reported case in England or America where a breach of negative covenants in contracts for the sale of chattels has been enjoined, and there are several cases contra.
    3. In no case will a court of equity enjoixr the breach of covenant where the damages, by reasoxi of such breach, can be accurately estimated in money; in other words, whei’e the remedy at law is complete and adequate, axxd this is such a case.
    4. The cases where injunctions to restrain breach of covenants in executory contracts have been sustained, are cases where peculiar personal skill and labor are involved. They form a marked, well-defined exception to the general rule, and should be, and are restricted to that small class of cases where the element of personal and artistic skill renders the chances of damages at law uncertain and coxxjectural.
    5. The remedy by injunction against the breach of negative covenants is equivalent to a decree of specific performance, and equity never decrees specific performance unless there is a mutuality of remedy.
    These propositions are supported by the following authorities : Lumley v. Wagner, 1 De Gex, M. & G. 604; Kimberly v. Jennings, 6 Sim. 340; Kemble v. Keene, 6 Sim. 333; Baldwin v. Society, D. U. K. 9 Sim. 393; De Rivafinoti v. Corsetti, 4 Paige, 262; San Quirico v. Beneditti, 1 Barbour, 314; Hamblin v. Dinneford, 2 Edward Chancery, 529; Burton v. Marshall, 4 Gill, 487; De Pohl v. Sohlke, 7 Robt. 280; Ger vaise v. Edwards, 2 Dru. & War. 80; Hill v. Croll, 2 Phillips 60; Montague v. Flocton, 16 L. E. Eq. 189; Tipping v. Eckersly, 2 K. & J. 264; Leech v. Schweder, L. R. Chancery Appeals, 467-8; Dietrichsen v. Cabburn, 2 Phillips, 52; Bailey v. Collins, 59 N. H. 459; Chicago & Alton R. R. v. New York, Lake Erie & Western R. R., 24 Fed. Rep. 516; The Diamond Match Co. v. Roeber, 35 Hun. 421; Williams v. Western Union Telegraph Co., 49 N. Y. Superior Court, 149; Stewart v. Winters, 4 Sanford Chancery, 590; Singer Co. v. Union Co., 1 Holmes, 353; Bickford v. Davis, 11 Fed. Rep. 549; Stines v. Dorman, 25 Ohio St. 590; Fethergill v. Rowland, L. R. 17 Eq. 132; Heathcote v. The North Staffordshire R. R. Co., 2 Mack & G. 112; R. R. Co. v. R. R. Co., 16 L. R. Eq. 440; Pomeroy on Specific Perf., secs. 310, 311; Hahn v. The Concordis Society, 42 Md. 465; Acriel v. Sel den, 1 Barb. 316; Vincent v. King, 13 Howard Practice, 238; Burton v. Marshall, 4 Gill. 492; Parkhurst v. Kinsman, 6 New Jersey Eq. 608; Nessle v. Reese, 29 Howard Prac tice, 383; Mapleson v. Del Puente, 13 Abbott, New Cases, 144; Allegheny Base Ball Club v. Bennett, 14 Fed. Rep. 257; Stafford v. Hartreed, 62 Iowa, 526; Fredericks v. Meyer, 13 Howard Practice, 566; McCall v. Braham, 16 Fed. Rep. 38; Bickford v. Davis et al, 11 Fed. Rep., 549; Port Clinton R. R. Co. v. Cleveland & Toledo R. R. Co., 13 Ohio St. 544; Bourbon Cent. Sugar Refining Co. v. Leveritch, 37 Fed. Rep. 67; Pingle v. Connor, 66 Mich. 189; Pomeroy on Contracts, secs. 162 to 165; see cases cited in note 1, p. 231; Ib., pp. 231 and 232, and notes; Meason v. Kain, 63 Pa. St. 335; Fry oil Specific Performance, sec. 286; Richmond v. R. R. Co., 33 Iowa, 423; Luce v. Deitz, 46 Iowa, 205; Irwin v. Bailey, 72 Iowa, 467; Tyson v. Watts, 1 Md. Ch. 13; Duval v. Myers, 2 Md. Ch. 401; Broomly v. Jeffires, 2 Verm. 415; Benedict v. Lynch, 1 Johns. Ch. 370; Iron Age Publishing Co. v. Western Union Telegraph Co., 83 Ala. 498; 26 Cent. L. J. 129; Pullman Car Co. v. T. & P. R. R. Co., 4 Woods, Circuit Court Reports, 417; James v. Commissioner of Allen Co., 44 Ohio St. 226; Buzard v. Houston, 119 U. S. 347; Thompson v. Allen County, 115 U. S. 550.

      F. A. Ferguson, for defendant in error.
    I. The decision of the circuit court is amply sustained by the following authorities. Cincinnati Gas Light and Coke Company v. Steinau, 2 C. C. R. 286; Bispham’s Equity, secs. 461, 463; 2 Story’s Equity, 13th ed., note to sec. 861; Tipping v. Eckersly, 2 Kay and Johnson, 264, 273; Peto v. Railway Co., 32 L. J. (Eq.) n. s. 677; Dietrichsen v. Cabburn, 2 Phillip’s Chan. Rep. 52-60; Stimes v. Darmon, 25 Ohio St. 530-534; Stewart v. Winters, 4 Sandford’s Chan. Rep. 587-591; Singer Co. v. Union Co., 1 Holmes, 253-25; Chicago and Alt. R. R. Co. v. New York and L. E. R. R. Co., 24 Fed. Rep. 516; Diamond Match Co. v. Roeber, 35 Hun (N. Y.) 412; Bailey v. Collins, 59 N. H. 459, 462; Williams v. W. U. Tel. Co., 49 N. Y. Superior Ct. 140.
    II. The contention of the plaintiff in error that there is no mutuality of remedy between the parties in this case, even if it were the law of the case, is not well founded. The gas company was legally bound to furnish gas to Steinau, upon his complying with its reasonable rules and regulations, at the price fixed by an ordinance of the city. The company could not shut off the supply as long as he paid the ordinance price and complied with the rules. What he bargained for was a less price than the ordinance price, in consideration for which he covenanted that he would not during the period named in the contract introduce into or use on his premises oil lamps, electric lights, or other material for general illuminating purposes, or any other gas than that supplied by the Cincinnati Gas Light and Coke Company. Revised Statutes, secs. 2478, 2479, 2482, 3559; Shepard v. Milwaukee Gas Light Co., 6 Wis. 539; Same v. Same, 15 Wis. 318; Sickles v. Manhattan Gas Light Co., 64 How. (N. Y.) Practice, 33; Same v. Same, 66 How. (N. Y.) Practice, 305, 314; Williams v. Mutual Gas Co., 52 Mich. 499; Hayword v. The East London Water Works, L. R. 28 Ch. D. 138; McCrary v. Beaudry, 67 Cal. 120; The People v. Manhattan Gas Light Co., 45 Barb. 137; Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683, 692; The State ex rel. v. The Cincinnati Gas Light & Coke Co., 18 Ohio St. 262, 289.
    III. In this case, Steinau was using gas and electricity. In other words, he was seeking to hold on to the benefit of the contract without bearing its burden. The cause of action against him was continuous and the nature of the damages such as not to be' susceptible of proper assessment by a jury. The remedy at law was, therefore, not adequate. Cin. Gas, etc., Co. v. Steinau, 2 C. C. R. 286; Stines v. Dorman, 25 Ohio St. 580, 584; 3 Pomeroy’s Equity, secs. 1343, 1344, and notes.
   Speak, J.

In consideration of the continued use of not less than three fourths the present average consumption of gas by Steinau, the company stipulated that it would furnish him, for ten years, all the gas necessary for the lighting of his place of business, at a price much lower than the then regular price, to be paid monthly. Steinau stipulated to receive the gas in quantity not less than three fourths of the then average monthly consumption, for the time named, and further stipulated not to introduce or use electric lights or material for general illuminating purposes other than gas to be furnished by the company. No past consideration appears. The obligations of each party are wholly in covenant, and are wholly executory. In other words, they are promises merely. The prayer is for injunction to restrain Steinau from using the electric light, or any material for general illuminating purposes other than the gas to be furnished by the company.

Injunction is frequently resorted to as a means of obtaining specific performance. In this case the purpose intended is to prevent the use of electric lights in order that Steinau shall thus be compelled to comply with his contract, and use the company’s gas. The object thus sought is specific performance.

Against the demand of the company it is insisted that a court of equity will not grant an injunction to restrain a breach of negative covenants where the result will be to effect specific performance of affirmative covenants, unless the affirmative stipulations of the complaining party can be specifically enforced against him, and that the petition does not show but that the company has an adequate remedy at law. If either proposition is sound, the demurrer was improperly overruled.

As already stated, the object of the proceeding is, and the result reached, if it is successful, will be, to specifically enforce the contract as against Steinau. It seems plain that, if the situation of the parties were reversed, and specific performance were sought against the company, the court would have no power to compel a full compliance by the company with its stipulations to furnish all the gas needed for the period provided for in the contract. It might be in the power of the court to enjoin the company from turning the gas off from Steinau’s service pipes so long as he complied with its reasonable rules and regulations, and it is possible that the company could, by mandamus, be compelled to furnish gas to Steinau while it continued to use the franchises and privileges accorded it as a corporation by virtue of the statute and the ordinances of Cincinnati. But these partial remedies, if they might be available, would be wholly apart from the contract. And, be this as it may, it admits of no question that, upon any state of facts appearing by the allegations of this petition, it is beyond the power of any court to compel the company to manufacture and supply gas for a period of ten years. How can the court order the company to continue the manufacture of gas for the purpose of supplying this consumer ? How can it prevent this company from dissolving and going out of business, or from selling out to another which would not be bound by its personal contracts ? The inquiry, then, is, if the contract could not be specifically enforced against the company, may it be specifically enforced in its favor ?

The authorities on the point are numerous, and, to some extent, conflicting. Mr. Pomeroy, in his work on contracts, section 163, observes: “ The peculiarly distinctive feature of the equitable doctrine is, that the remedial right to a specific performance must be mutual. If, therefore, from the nature or from the contract itself, from the relations of the parties, from the personal incapacity of one of them, or from any other cause, the agreement devolves no obligation at all upon one of the parties, or if it cannot be specifically enforced against him, then and for that reason, he is not in general entitled to remedy of a specific performance against his adversary party, although otherwise there may be no obstacle arising, either from the terms of the contract or from his personal status and relations, to an enforcement of the relief against the latter individually.” Again, section 165, he says that “ it is a familiar doctrine that if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement.”

To this general rule the courts have made an exception where peculiar skill and labor are involved, and' this, apparently, upon the ground that the element of personal and artistic skill renders the chances of damages at law uucertain and conjectural. Of this class the case of Lumley v. Wagner, 1 De Gex M. & G. 604, is, perhaps, the leading case. The defendant was a celebrated singer. She was under contract to sing for a certain period at the plaintiff’s theatre, and not to sing at any other. The court restrained her from the threatened breach of this negative covenant. Later cases have followed this, and the exception appears to be quite well established.

There are cases, besides those above referred to, both in England and in this country, which sustain the holding of the circuit court, (2 O. C. C. R. 286,) that “ where there is a clear and continuing breach of a negative covenant in a contract, and where an injunction against the breach of it will do substantial justice between the parties by obliging the defendant to carry out his contract or lose the benefit of a breach of it, and the remedy at law is not adequate, or the damages for such a breach are not susceptible of proper assessment by a jury, a court of equity may properly restrain the defendant from such a breach, though the court might not be able to enforce a complete specific performance of the contract against the other party.” Singer Co. v. Union Co., 1 Holmes, 253; Railway Co. v. Railway Co., 24 Fed. Rep. 516; The People v. Gas Light Co., 45 Barb. 137; Dietrichsen v. Cabburn, 2 Phillips, 52.

However, after a somewhat careful examination of the numerous cases cited by counsel, and many others, we are inclined to the conclusion that the general doctrine laid down by Mr. Pomeroy is sustained by the apparent weight of authority. Hills v. Croll, 2 Phillips 60; Fothergill v. Rowland, L. R. 17 Eq. 132; Bailey v. Collins, 59 N. H. 459; Pingle v. Conner, 66 Mich. 187; Publishing Co. v. Tel. Co., 83 Ala. 498; Palace Car Co. v. Railway Co., 4 Wood’s C. C. R. 317; Meason v. Kaine, 63 Pa. St. 335; Tyson v. Watts, 1 Md. Chy. 13; Richmond v. Ry. Co., 33 Iowa, 422.

It is important to note that an essential element of the proposition quoted above is that the complaining party has no adequate remedy at law and that his damages are not susceptible of proper assessment by a jury. It goes without saying that if this element is found wanting, the rule laid down cannot apply. On the part of the company it is insisted that the condition referred to is present in the case at bar. Let us see.

The stipulation of Steinau was that he would receive gas in quantity not less than three fourths of the present average consumption. The contract was to continue for ten years. It had been in force at the commencement of the action about one year. The “ present average consumption ” was a quantity easy of ascertainment. So long as Steinau used the quantity of gas specified he was in full performance of his contract. When he ceased taking that quantity he violated the contract, and when he established electric lights in his place and proceeded to illuminate in that way, it was clear that he intended to wholly break and abandon the contract. The company had the right to regard the contract as at an end, and no pretense or claim of Steinau, so long as he refused to perform, could avail to prevent the company from so treating it. All contractual relations between the parties would then be terminated. By force of the ordinance, and at prices fixed bjr the ordinance, and subject to all reasonable regulations, the company might stil'l be bound to furnish gas, but it could not be required to furnish a foot of gas under the contract. The contract being thus, by the action of Steinau, at an end so far as he was concerned, the company’s cause of action was immediate; it could, if the damages were susceptible of proper assessment at any. time, have an action at once for its entire damages for the breach, and this remedy did not involve a multiplicity of suits. James v. Allen County, 44 Ohio St. 226, is a case, in principle, like this one. This court there held that where the offending party had wholly broken and abandoned the contract, the party injured by the breach could bring his action at once and recover his entire damages for the breach, and that one judgment upon such claim would be a bar to a future recovery. That rule, we think, applies to this case.

What would stand in the way of adequate damages being awarded by a jury ? The amount of gas agreed to be used each month, the duration of the time, the price to be paid per thousand, (subject to changes, if any produced by the new ordinance,) Were all shown by the contract. If, added to these facts, the jury should be put in possession of the amount of “ gain and profit ” the company were making per thousand, what would prevent a clear ascertainment of damages upon that basis, reduced, probably, on account of payment in advance ? Fothergill v. Rowland, L. R. 17 Eq. 132; Railway Co. v. Railway Co., 24 Fed. Rep. 516.

It is doubted by some members of the court whether a court of equity, in a case of specific performance, where the granting or refusal of relief may depend so largely upon the court’s discretion, should exercise it in favor of the enforcement of covenants which deprive a party of new and valu- ' able discoveries of science, and, in a measure, tend to create a monopoly by contract.

But a decision of this question is not necessary to a disposition of the case at bar, and that, as well as whether a court of equity should, in any case, where full performance cannot be enforced, decree performance of negative covenants of one party, may properly be left to be determined when a case arises which necessarily requires a decision upon them. We are content to rest the decision of this case upon the ..ground that the remedy of the defendant in error is at law, and not in equity.

Judgment reversed.


author: Williams, C. J.

text:
    Jaeger v. Hardy et al.

      Possession of land by purchaser before conveyance, constructive notice of his rights — Purchaser not affected by subsequent mortgage without actual notice — Payments to vendor, after actual notice of mortgage, unavailing as against mortgagee — What amounts to such notice.

    1. Possession of lands by a vendee, is constructive notice of his contract of purchase, and of his equity in the land.
    2. He is not bound to examine the records for subsequent encumbrances of the land by his vendor, nor is the record notice thereof to him.
    3. A mortgage on the lands, executed by the vendor while the purchaser is in possession, is subordinate to his rights under the contract; and, until actual notice of the mortgage, the purchaser may safely continue to make payments of the purchase money to his vendor.
    4. Such mortgage is, however, a valid lien on the interest remaining in the mortgagor at the time of its execution, which, before conveyance, is the legal title, and a beneficial estate in the land to the extent of the unpaid purchase money. And payments made on the purchase money, to the vendor, after the purchaser has notice of the mortgage, will be unavailing as against the mortgagee.
    5. In order to charge the purchaser with notice of the mortgage, it is not essential that the information be received from the mortgagee. If it is derived from a source entitled to credit, and is distinctly brought to the knowledge of the purchaser, it will be as effectual and binding as if it came directly from the mortgagee.
    6. Notice that the mortgage is uncanceled, is sufficient to put the purchaser upon inquiry, and to charge him with knowledge of such facts concerning the mortgage, and the indebtedness secured by it, as diligent inquiry would discover.
    (Decided May 5, 1891.)
    Error to the Circuit Court of Cuyahoga county.
    The defendant, J. H. Hardy, on the 1st day of April, 1873, was the owner in fee-simple, of a parcel of land known as lot No. 2 of James H. Hardy’s subdivision of part of lot No. 330, in Newburgh township, Cuyahoga county; and on that day, he entered into a written contract for the sale of the same to the defendant, E. M. Dixon, for thirteen hundred and fifty dollars, which sum, Dixon agreed to pay as follows : one hundred dollars on or before the 10 th of April, 1873; fifty dollars on or before May 10, 1873, and the balance in twelve semi-annual payments of one hundred dollars each, with interest from April 1,1873.
    Dixon also agreed to pay all taxes and assessments that should be levied on the premises after the date of the contract. Hardy bound himself by the contract to make and deliver to Dixon a good and sufficient deed for the premises upon the payment of the purchase money, interest, taxes, and assessments; and the contract further provides that be may, at any time before full payment, tender a deed, in which event Dixon agreed to give his notes secured by mortgage on the premises, for the then unpaid balance of the purchase money.
    Upon the execution of the contract, Dixon entered into the possession of the premises, and has continued in possession ever since, cultivating the same, and making some small improvements.
    On the 8th day of August, 1874, Hardy executed his promissory note to the plaintiff, Frank Jaeger, for the sum of $1,200, payable to his order, in one year thereafter, with 8 per cent, interest, and at the same time, to secure its payment, gave him a mortgage in due form, on the lot described in the Dixon contract. Hardy’s wife joined in the mortgage, releasing her right of dower. The mortgage was duly filed for record on the 13th of August, 1874, and properly recorded. The note not having been paid, the plaintiff, on the 1st day of March, 1884, commenced his action in the Court of Common Pleas' of Cuyahoga county, to foreclose the mortgage, making Hardy and his wife, and Dixon and his wife, parties defendant. The petition is in the usual form, and its averments are sufficient to entitle the plaintiff to the relief sought. It also alleges, that Dixon claims to have some title to the premises, and prays, that he may be required to set it up, or be forever barred. Hardy plead usury in the note. Dixon filed a separate answer, in which he set up his contract of purchase, and his possession under it, alleging that the plaintiff had full knowledge of the contract, and possession, when he took his mortgage. This answer also contains the following averment: “ The defendant further answering says, that he had paid upon said contract for said land to said Hardy before he had knowledge that said mortgage was placed on said property, the sum of $650, and interest, which amount he is entitled to have paid back to him before said mortgage shall be paid; and he avers that said sum so paid is a first lien upon said property, and superior to the lien or pretended lien of the plaintiff.”
    The reply controverts the allegations of both answers, and alleges that Dixon had notice of the mortgage, from the time he commenced dealing for the land, and that if he paid anything on his contract to Hardy, he paid with full knowledge of the mortgage and of plaintiff’s rights.
    The cause having been appealed to the circuit court, was there submitted upon an agreed statement of the facts, which, so far as they relate to the contract of sale to Dixon, and his possession of the premises under it, and to the execution and record of the plaintiff’s mortgage, are as above stated. The further facts contained in the agreed statement are, that there is due to the plaintiff on the note executed to him by Hardy, the sum of $1,215.23, with 8 per cent, interest from the 1st day of June, 1880; that the plaintiff did not examine the premises when he took the mortgage; that Dixon “ never knew that Hardy had placed a mortgage on said premises, until he came to settle with him in March, 1876; that on the 25th day of March, 1876, Dixon made his last payment upon said contract, at the office of Mr. Brand, in Cleveland, and that payment, was $700, and at the time he paid Hardy said $700, Hardy promised to have the Jaeger mortgage canceled by the following Monday. It was only a few days before, that he first discovered that said half of said sublot had a mortgage upon it given to the plaintiff by Hardy. Relying upon the promise of Hardy to cancel the mortgage, he paid said amount, and took Hardy’s warranty deed.”
    Mrs. Dixon holds a tax lien on the premises for $17.25, with interest from January 20, 1883, which, with the taxes paid since, constitute the first lien thereon.
    The circuit court held, that upon this state of facts, the plaintiff was not entitled to a decree of foreclosure; his petition was dismissed, and judgment was rendered against him for the costs.
    His motion for a new trial was overruled, to which he duly excepted, and he prosecutes error here, to reverse that judgment.

      Wilson $ Sylcora, for plaintiff in error.

      Geor.ge A. Groot, for defendant in error.
   Williams, C. J.

Possession of lands, by a vendee, under a contract for their future conveyance to him, is constructive notice of the contract, and of his equity in the land. Such vendee has an equitable estate in the land, equal to the amount of the purchase money paid by him, and which, upon full payment, may ripen into a complete equity, entitling him to the conveyance of the legal title according to the terms of the contract.

A mortgage executed by the vendor, on the premises, after the purchaser is put in possession, is subordinate to his prior equity. He is not bound to examine the records for such encumbrances, nor is the record constructive notice to him. Until actual notice of the encumbrance, he may safely continue to make payments of the purchase money to his vendor, in pursuance to the contract. Such payments, though made after the recording of the mortgage, will not be regarded as a fresh purchase, but are made effective for the protection of the purchaser, by relation to the original contract. Nor can the subsequent mortgagee be allowed to impede the progress of the legal estate to the purchaser, or intercept the conveyance. But the mortgage creates a valid lien On the interest remaining in the vendor at the time of its execution, which, before conveyance, is the legal title, and a beneficial estate in the lands to the extent of the urn paid purchase money; and payments made on the purchase money to the vendor, by the purchaser after he has knowledge -of the mortgage, will be unavailing as against the mortgagee. Lefferson v. Dallas, 20 Ohio St. 68; Ten Eick v. Simpson, 1 Sandf. Ch. 244; Young v. Guy, 87 N. Y. 457; Fasthold v. Reed, 16 Serg. & R. 266; Warvelle on Vendors, vol. 1, p. 188, and vol. 2, p. 687.

If it be conceded, as some authorities maintain, that, as the vendor is a mere trustee of the lands for the vendee, and the latter is the trustee of the purchase money for the former, the lien of á mortgage executed by the vendor after the contract of sale does not attach to the lands, but only to his claim against his vendee for whatever may then remain unpaid on the purchase, still, the mortgage would, at least, be operative to transfer to the mortgagee, for his security, the mortgagor’s claim against the purchaser. For, if it neither conveys any estate in the land, nor transfers the mortgagor’s right to the unpaid purchase money, it is without any validity whatever. No authority has been found which denies the validity of such a mortgage; and, if it be effective only as an assignment of the mortgagor’s claim against the vendee, the latter, after notice, is under the same obligation to pay to the mortgagee the balance owing by him on the land, that every debtor is under' to pay his debt to his creditor’s assignee, after knowledge of the assignment.

In this case, the possession of the defendant, Dixon, as shown by the agreed statement of facts, was sufficient notice of his rights under the contract of purchase; and the record was not constructive notice to him of the plaintiff’s mortgage. Before he had actual notice of the mortgage, Dixon made payments to Hardy, on the contract, to the amount of six hundred and fifty dollars. These payments, it is admitted, were valid, and to that extent, Dixon discharged his indebtedness on the purchase, without incurring any liability to the plaintiff. The controversy concerns the remainder of the purchase money. It is averred in Dixon’s answer, that he had paid six hundred and fifty dollars to Hardy on the contract, before he had knowledge that the mortgage of the plaintiff had been placed on the property; which sum, with interest, he alleges he is entitled to have paid back to him before any payment shall be made on the mortgage. This amount, is all that he alleges was paid on the purchase prior .to his knowledge of the mortgage, which is an admission that any further sum paid thereon was paid with such knowledge. Besides, it is set forth in the agreed statement of facts, upon which the cause was disposed of in the circuit court, that Dixon did not know that Hardy had placed a mortgage on the premises until they came to settle in March, 1876; that on the 25 th day of March, 1876, Dixon made his last payment upon the contract, to Hardy, which amounted to seven hundred dollars, and, at the time the payment was made, Hardy promised to have the plaintiff’s mortgage .canceled by the following Monday; and that it was only a few days before this payment was made, that Dixon discovered that the property had a mortgage upon it, given to the plaintiff by Hardy, and relying upon the promise of Hardy to cancel the mortgage, Dixon made the payment, and took Hardy’s warranty deed for the premises.

Dixon contends, that his knowledge of the mortgage as thus shown, does not entitle the plaintiff to charge him, or the property, with the amount of the last payment made to Hardy, because it does not appear that the notice of the mortgage came from the plaintiff, nor, that it apprised him that the mortgage was unsatisfied; and furthermore, that upon the authority of Zeller v. Bading, 43 Ohio St. 157, he had the right to continue to make payments of the purchase-money to Hardy, until the plaintiff should, by suit, or in some other unequivocal form, assert his claim to the money, and before this was done, he had completed his payments and received his deed. The general rule is, that in order to charge a party with notice- of the rights of another, it is not necessary that the information be received directly from the latter. If it is derived from a source entitled to credit, and distinctly brought to the knowledge of the person sought to be affected by it, the notice is as effectual and binding as if it came from the person himself who claims the benefit of it. Mere rumor is not sufficient. The information must be such as men commonly act upon in the ordinary affairs of life. A party who has sufficient information of that character, to lead him to a fact, is to be deemed conusant of the fact. He is put upon inquiry, and is chargeable with notice of those facts which diligent inquiry would reveal. The admitted facts show that the existence of the plaintiff’s mortgage was distinctly brought to the knowledge of Dixon before the last payment was made to Hardy. The information was regarded of such reliable character as to be made the subject of an agreement between them, and induce Dixon, before making the payment, to exact a promise from Hardy to obtain the cancellation of the mortgage. Dixon knew the mortgage was uncanceled, and it so appeared of record. Prima facie, it was therefore a subsisting and unsatisfied mortgage. It is not claimed that Dixon had any information to the contrary. Reasonable inquiry would have afforded him knowledge of the precise sum due on the mortgage. Under these circumstances, he chose not to make the inquiry, but rather to rely on the promise of Hardy to discharge the mortgage, and upon the faith of that promise to pay him the money which he knew rightfully belonged to the plaintiff. The promise was not fulfilled, and either Dixon, or the plaintiff, in consequence, must be the loser. The loss, we think, must fall upon Dixon, who not only had it in his power to prevent it, and did not, but whose conduct was the means of bringing it about, by reposing confidence in Hardy, and entrusting him with the money, when he knew the plaintiff was entitled, to receive it.

It is true, it is said in the case of Zeller v. Bading, supra, that a vendee of land, who is in possession, may safely, as against a subsequent mortgage executed by the vendor, continue to make payments on the contract of purchase, until the mortgagee, by suit, or in some other unequivocal form, asserts the right to receive the unpaid purchase money. In that case, the mortgagee sought by his suit, to foreclose the mortgage. It was found that the first notice the purchaser had of the mortgage was long after he had received his deed, and, he claimed, after he had paid the purchase money. It does not appear that he had any notice before the suit was commenced. There can be no doubt that the commencement of the action was effectual as notice of the mortgagee’s rights. But whether any other notice would be equally effectual, was not a question in the case. It was held, that the mortgage was valid, and that the mortgagee was entitled to foreclose for whatever balance remained unpaid on the purchase. What is said in regard to the right of the purchaser to continue to make payments on his contract until the mortgagee should by suit or in some other unequivocal form assert the right to receive the unpaid instalments of the purchase money, may not be inappropriate when confined to the circumstances of that case, but it is not applicable to the case before us. If, until a suit shall be instituted against the purchaser to subject any part of the purchase money that may then be unpaid to the satisfaction of the mortgage indebtedness, the mortgagee has no rights under the mortgage, against the land or the purchaser, which can otherwise be protected, of what validity is the mortgage ? Without its aid, the mortgagee could maintain a suit to subject his debtor’s choses in action to the payment of his debt. The same remedy would be equally open to any other creditor of the mortgagor.

This case is governed by the well settled rules of law to which we have referred, and in so far as Zeller v. Bading, supra, is in conflict with them, it is disapproved.

The judgment of the circuit court is reversed, and proceeding to render the judgment which that court should have rendered, a decree of foreclosure will he entered in favor of the plaintiff for the sum of $700, with interest from March 25th, 1876.