author: Shauck, J.

text:
    Marvin et al. v. Tusch.

      One of several owners of alley-way right — Erects building on both sides of alley — Carrying archway over alley — Abutting owner cannot maintain ejectment, when.

    When pne of several persons, 'owning 'land upon an alley devoted to the purposes of a private right of way in common by all of 4bem, erects a substantial building upon his ground lying on both sides of such alley by carrying his building over the alley by means of an archway, leaving sufficient space for the ordinary uses of such alley and improving the alley for the benefit of all the abutting owners, ejectment cannot thereafter be maintained against him by an abutting owner who had Icnowledge of the improvement at its inception and during its progress, and Who made no objection thereto until after its completion.
    No. 12312
    Decided April 2, 1912.
    Error to the Circuit Court of Lucas county.
    In .the court of common pleas Tusch brought ejectment against the plaintiffs in error to recover possession of an alley ten feet in width, extending from 17th street in the city of Toledo one hundred feet in the direction of 16th street, dividing ground owned by Marvin lying along 17th street, the alley also passing along the rear of ground owned by Tusch facing Adams street, which is parallel with the alley. The prayer of the petition is for the recovery of said strip, the averments being that the plaintiff was the owner thereof, and that the defendant unlawfully kept him out of possession. The first defense of the answer was a denial of the averments of the petition. In the second defense it was alleged that said strip had, for more than twenty-one years, been continuously and uninterruptedly set apart for the uses of an alley by these parties, and other abutting and adjoining owners, as a private right of way in common.
    It was further alleged that Marvin is the owner in fee of land fronting twenty feet on Adams street and extending along 17th street one hundred feet to the strip of land fronting forty-five feet on 17th street and extending the same width one hundred feet alongside, the strip. Said second defense also contained the following averments: “And defendants further say that they have improved said properties by erecting thereon a four story brick building with a business room on the first floor fronting on Adams street and balance of said building designed and built in flats for residence purposes. That said building extends from one of said properties' to the other by means of a high and suitable arch ten feet wide over and across said ten-foot strip described in the petition of the plaintiff and thus preserving unobstructed the said private way. That said building was so erected by the defendants with the full knowledge of the plaintiff, who was conducting business every day within a few feet of defendants’ property during the time of the erection of said building as aforesaid; and that said plaintiff witnessed the erection of said improvement each day from its commencement to its completion and observed and had full knowledge of the plan and construction of said building with reference to said ten-foot strip; and that said plaintiff did not at any time personally or otherwise object in any manner to the construction of said building by the defendants in the manner aforesaid, from the commencement thereof until its substantial completion.
    “Wherefore, defendants pray that the petition of the plaintiff be dismissed herein and that they have all other relief to which they may be equitably entitled.”
    In the reply it was admitted that the plaintiff’s place of business was near the building so erected by Marvin, and that he had knowledge thereof without alleging that he made any objection thereto. It was also admitted that Marvin had acquired title to his land from one Wittich, to whom it had been conveyed May 29, 1886, and by subsequent stipulation it was admitted that the grant included the right to use the strip in controversy as a private right of way, and that the right had subsequently become vested in Marvin.
    It was further admitted that the title of Tusch did not vest in him until March 13, 1889, and that by the terms of the deed to him, said strip was expressly made “subject to an easement for use as a private alley by lots abutting on each side of the same.” It was also shown upon the trial, without objection or contradiction, that Marvin at the time of erecting his building improved the alley with brick and cement, so that it became practicable for all the tenants to drive over it, whereas it had been practicable before only to drive one way and back the other, and that Tusch with knowledge of all that was done interposed no objection, but talked of renting the property from Marvin.

      The common pleas court rendered judgment for. the plaintiff that he recover possession of the property described in the petition, together with his costs of the suit. On petition in error the circuit court affirmed the judgment.

      Mr. F. M. Dotson, for plaintiffs in error.
    The improvement made by the plaintiffs in error is no hindrance or obstruction to the use of the ten foot strip of land by Tusch. but on the other hand has made the use of the land available as a private alley, with freedom of ingress and egress, a condition that did not exist prior to the construction of said improvements. The defendant instead of being prejudiced by the improvement has been benefited. He stood by and watched every step of the work that was done by Marvin, from the commencement to the close, had full and daily knowledge of every detail, knew the character and purpose of the improvement, talked with Marvin about renting part of it, and by his every act and conversation unqualifiedly consented thereto and approved the acts of the plaintiff in error in the premises, and as we claim thereby estopped himself from gainsaying the same thereafter. This we believe to be a well settled principle of equity which is clearly applicable to the case at bar. Beardsley v. Foot, 14 Ohio St., 414 ; Welland Canal Co. v. Hathaway, 8 Wend., 483; Pennsylvania Co. v. Platt et al., 47 Ohio St., 367; Castalia Trout Club Co. v. Sporting Club et al., 8 C. C., 194; Kellogg v. Ely, 15 Ohio St., 64; Tee garden v. Davis, 36 Ohio St., 601; Tone v. Columbus, 39 Ohio St., 281; Seeds v. Simpson & Knox, 16 Ohio St., 321; Tarkington v. Purvis, 9 L. R. A., 321, n; 2 Pomeroy’s Eq. Jur. (3 ed.), p. 1787; Peabody v. Flint, 6 Allen, 52; Tash v. Adams, 10 Cush., 252; Mondle v. Plow Co., 6 O. N. P., 294; Redmond v. Savings Fund, 194 Pa. St., 643; Kintz v. Zwisler, 7 O. N. P., 15; Ackerman v. True, 66 N. Y. Supp., 140; N. & W. Ry. Co. v. Perdue, 40 W. Va., 442, 21 S. E. Rep., 755; Hoskins v. Wathen Bros. Co., 20 Ky. Law Rep., 814, 47 S. W: Rep., 595.

      Messrs. Rhoades & Rhoades, for defendant in error.
    Mr. Tusch never gave to Mr. Marvin any permission or authority, either written or verbal, to occupy this property as he has.
    The doctrine of estoppel has no application where the party claiming to have relied upon the conduct of the other to his injury himself had equal knowledge, or the means of obtaining knowledge, of the rights of each. 11 Am. & Eng. Ency. Law (2 ed.), 434.
    It is agreed in the stipulation that the deeds were matters of record, and, in such case, the record of a deed is notice to those bound to search for it including parties subsequently dealing with the property or concerned with its title. Pattison v. Jordan, 3 C. C, 233; Leiby v. Wolf, 10 Ohio, 83; 11 Am. & Eng. Ency. Law (2 ed.), 435.
    But Mr. Marvin had more than. constructive notice. He actually knew that his only right in this ten foot strip was to use it as an alley. His deed so informed him; his opinion of title so informed him. It informed him also that Mr. Tusch owned the strip. Pennsylvania Co. v. Platt, 47 Ohio St., 366; Fowler v. Delaplain, 79 Ohio St., 279; Yeager v. Tuning, 79 Ohio St., 121.
    Ejectment will lie to recover possession of land subject to an easement. The recovery in such case is of the land subject to the easement. 10 Am. & Eng. Ency. Law (2 ed.), 473.
    Ejectment will lie for the recovery of possession although the plaintiff is not disturbed in his possession of the surface of the ground but is dispossessed by something above or below the surface. Butler v. Telephone Co., 186 N. Y., 491; Wachstein v. Christopher, 128 Ga., 229; Murphy v. Bolger, 60 Vt, 723; Johnson v. Minnesota Tribune Co., 91 Minn., 476.
   Shauck, J.

Throughout the progress of the case it has been taken for granted by the courts below, and by counsel on both sides, that although Marvin’s title to an easement in the strip for the purposes of a private right of way is of unquestioned validity and older in point of time than the title of Tusch, he might by a suit in ejectment be wholly excluded therefrom; and that Tusch although taking a later title expressly limited to a private right of way in common with other abutting owners might, as against one of them, be awarded the exclusive possession of the strip. Whether there is a solid basis for this concord, the case does not require us to determine.

Answering the petition in ejectment Marvin by authority of the provision of the code of civil procedure that a defendant may interpose as many defenses as he may have, whether they were previously denominated legal or equitable, introduced the real ground of contention between the parties. The facts as shown by his answer, the reply of Tusch, the stipulation and the undisputed evidence are that Marvin being about to erect a substantial building of several stories in height covering his ground, which was divided by the strip of ten feet in width devoted to the purpose of a private right of way for the use of all abutting owners, so planned and executed his enterprise as to carry his building across the strip by an arch, leaving ample room beneath for the ordinary uses of such a way, and clearing and paving the alley so that it would be capable of actual use throughout its entire length, which it had not previously been. It does not appear whether Marvin took this course in the exercise of a right which he supposed to have become conferred upon him by the deeds under which he and his neighbors held their property, or in reliance upon their acquiescence in the course which he chose. Nor is it material in the present case.

The title ad coelmn of one who has but a right of way is ordinarily of practical value only to the height of the vehicle in which he travels it. If Tusch had made a timely assertion of his invaded right, its insignificant character might not have justified a court in refusing to interfere in his behalf; but his own estimate of the value of the right may have justified him in deliberate acquiescence in the Marvin improvement and in accepting the improvement of the alley as of greater value to him than the right which by-acquiescence he was surrendering. In any view, his presence at the site of the improvement and his assent thereto with full knowledge of all that was being done is admitted in the record. Since he did not, when the improvement was undertaken and its character made obvious to him, consider the right of sufficient importance to justify its prompt assertion, or even to prompt objection to Marvin’s plan, the plainest considerations of justice require the court to inform him that he cannot now be heard to say that it is so important as to justify a judgment which would require Marvin to make terms with him on pain of being compelled to reconstruct his building. The principles upon which one is required to make a timely assertion of rights upon which he proposes to insist are familiar, and they are sufficiently illustrated in the cases cited in the briefs. It is quite clear that the proper administration of the law does not require so wide a departure from the administration of justice as the case of the original plaintiff invites.

Judgments of the circuit and common pleas courts reversed and judgment for plaintiff in error.

Judgments reversed.

Davis, C. J., Spear, Price, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Smith et al., Trustees, v. Fuller et al., Assignees.

      Dtides of trustees in settling affairs — Of insolvent savings company— Trustee no power to loan trust funds — Deposit in bank by trustee of trust funds — Taking certificate of déposit therefor — Presumed deposit was special and not general — Court of equity may engraft trust upon such deposit, when — Trustee regarded as preferred creditor.

    1. It is the duty of a trustee appointed to wind up and settle the affairs of an insolvent savings company to protect the trust property in every reasonable way; to get possession of the assets, reduce them to money, and under the direction • of the court appointing him, after the payment of expenses, apply the funds to the satisfaction of the claims of creditors of the insolvent company.
    2. Such trustee has not, in the absence of a proper order of court, the right or power to loan the funds of the trust coming into his hands as such trustee.
    3. A general deposit by such trustee of the trust funds in a bank is in legal effect a loan to the bank, and unless authorized by the court, is a violation of duty by the trustee.
    4. Where a trustee deposits trust money in a bank, taking as evidence thereof a certificate of deposit certifying that he as trustee has deposited the fund payable to self on return of the certificate properly indorsed, the same not' being subject to check, and no stipulation for interest made, a presumption will be indulged, in the absence of proof to the contrary, that the trustee intended to perform and not violate his duty, and that the deposit was intended as a special, and not a general, deposit.
    5. Where, in such case, the bank fails and makes an assignment for the benefit of creditors before such fund is withdrawn, and it appears that the bank, upon receiving such deposit, had mingled the trust money with its own funds, money paid out from such fund for its own purposes will be presumed to have been paid from its own money, and not from the trust fund. And if it be shown that at all times from the making of the deposit to the time of the assignment by the bank, there was in its vaults money of amount and value equal to the amount so deposited, a court of equity may engraft a trust upon such money, and the trustee will become a preferred creditor to the amount of such deposit.
    No. 12996
    Decided April 2, 1912.
    Error to the Circuit Court of Lucas county.
    A statement of the case will be found in the opinion.

      Messrs. Sheets, West & Game, for plaintiffs in error, cited and commented upon the following authorities:

      United States v. Waterborough, 2 Ware, 154; Halle v. Bank, 140 Ill., 413; Bank & Bros. v. Rice, 8 Colo. App., 217; Elizalde v. Elizalde, 137 Cal., 634; Byrne v. McGrath, 130 Cal., 316; Frith v. Cartland, 2 H. & M., 417; Independent District v. King, 45 N. W. Rep., 908; Harrison v. Smith, 83 Mo., 210, 53 Am. Rep., 571; Lincoln v. Morrison, 64 Neb., 822; Holmes v. Gilmore, 138 N. Y., 369; People v. Bank, 96 N. Y., 32; Cavin v. Gleason, 106 N. Y., 256; 28 Am. & Eng. Ency. Law (2 ed.), 1115, 1116; National Bank v. Insurance Co., 104 U. S., 54, 26 L. Ed., 693; Knatchbull v. Hallett, L. R., 13 Ch. Div., 696; Bank v. Weems, 69 Tex., 489; Boone County National Bank v. Latimer, 67 Fed. Rep., 27; Massey v. Fisher, 62 Fed. Rep., 958; State v. Foster, 38 Pac., 926; Shaw v. Bauman, 34 Ohio St., 25.

      Mr. Eugene Rheinfrank and Messrs. Swayne, Hayes & Fuller, for defendants in error, cited and commented upon the following authorities:

      M’Afee v. Bland, 11 Ky. L. Rep., 3; 3 Pomeroy’s Eq. Jur. (3 ed.), Sec. 1067; 5 Cyc., 514;
      Fletcher v. Sharpe, 108 Ind., 276; Odd Fellows’ Ben. Assn. v. Ferson, 3 C. C, 84; Ramsey v. McGregor, 1 C. S. C. R., 327; Orme v. Baker, 74 Ohio St., 337.
   Spear, J.

The plaintiffs in error are Trustees of The Imperial Savings Company, an insolvent concern whose affairs are being wound up under the orders of this court, the said' Trustees acting by virtue of an appointment by this court. The defendants in error are Assignees of The East Side Bank Company, an insolvent banking corporation organized under the laws of this state, and are engaged in winding up the affairs of that institution.

The suit in the common pleas was by the plaintiffs in error against the defendants in error to have a trust impressed upon moneys that remained in the vaults of the bank at the time of the assignment. It is shown by the record that upon two separate occasions the Trustees, plaintiffs in error, deposited with the bank, trust money coming into their hands, to the amount in one instance of three thousand five hundred and ninety-four and seventy-six hundredths dollars and later the sum of four thousand dollars, taking in each instance a certificate of deposit expressing that the deposit was made by E. B. Smith and A. B. Baumann, Trustees; that the same was not subject to check, and the money payable on return of the certificate properly indorsed. No interest was promised. It further appears by the record that the bank failed before the money was withdrawn, having funds in its vaults amounting to over eleven thousand dollars, and that at all times, after the first deposit and to the date of the assignment, the bank had in its vaults money in amount and value more than sufficient to pay the sum of seven thousand five ’hundred and ninety-four and seventy-six hundredths dollars so deposited by said Trustees. The Assignees refused to allow the claim of the Trustees as a preferred claim but did accept it as a claim against the general assets of the bank.

The cause was heard on a demurrer to the petition and amendment thereto. The demurrer was sustained, both courts holding that the facts alleged presented only the usual case of a general deposit, thus holding that the relation of debtor and creditor arose between the Trustees and the bank, and therefore no trust was established. Judgment was thereupon rendered against the plaintiffs.

In support of the judgment counsel for the bank argue that simply the' relation of debtor and creditor existed; that no decision is to be found in the books sustaining the opposite view,” that the cases relied upon by plaintiffs in error are all cases where some tortious act of the trustee, or some misappropriation of' the trust fund, is involved, while in this case, it is insisted, the deposit was not tortious or a wrongful conversion of the money. The act of the Trustees in making the deposit was not contrary to any law, statute or usage, and was in accordance with the requirements of ordinary prudence and of a careful administration of trust funds. Therefore the relation of debtor and creditor arose, and no trust would follow. Hence the demurrer was properly sustained. The claim against this holding, urged by counsel for plaintiffs in error, is that the bank officers being aware of the fact that they were receiving on deposit trust money (as distinctly shown by the certificates of deposit) they were therefore bound to know that the Trustees had no power to contract with the bank to assume the relation of debtor and creditor; that while they might lawfully deposit trust money in the bank for safe keeping, such deposit would become a bailment and not a loan. The effect of the deposit in such case, it is urged, would be to create the bank a voluntary trustee bound to preserve the fund intact and account for it on demand, and the fact that the bank had at all times up to the assignment, more than enough money in its vaults to satisfy the claim of the Trustees, the presumption is that the bank, in conducting its usual business, used its own funds and not those as to which it was thus a trustee. Therefore the Trustees’ claim ought to be allowed as a preferred claim against the money in the hands of the Assignees of the bank, and the trial court erred in sustaining the demurrer.

• We are thus required to determine whether, upon the foregoing facts, the Trustees are entitled to payment of their claim out of the assets of the insolvent bank in the hands óf the Assignees before any distribution to other creditors, or whether the character of their claim is such that they are merely general creditors of the estate, entitled only to their pro rata share of the fund for distribution. In determining this final question the first query presented is whether or not the deposit by the Trustees was, in the eyes of the law, in the nature of a special deposit, or a mere general deposit. If the former, then a second question arises which is, has the fund been kept in such a way as to permit a court of equity to engraft a trust upon it ?

Consideration of the first question leads to an inquiry as to the duty of these Trustees in the settlement of the trust. Speaking generally, the trustee is bound to protect the trust property in every reasonable manner. He must use due diligence to obtain possession of it, and retain it securely under his own control. He cannot divest himself of the trust by conveying or assigning the property to third persons save where the trust is for the purpose of sale, or other disposition. The main duty in the present instance, therefore, was to get hold of the assets, reduce them to money, and under the direction of the court apply the money so collected, after payment of expenses, to the satisfaction of the claim of creditors of the insolvent company. It cannot, we think, be seriously contended that the Trustees had, in the proper discharge of their duties as such, the right or power, by express contract, to create the relation merely of debtor and creditor; that is, to loan out the trust funds. Such act would, in the absence of authority from the court, clearly be inconsistent with, and a violation of, their plain duty; and if they had no right to make such loan generally it would seem clear that a loan to a bank by way of a general deposit would be equally beyond their power. So that, in the absence of a ¡clear showing that the latter was the purpose in the present instance, the court would not be justified in attributing such purpose to the Trustees in placing this money with the bank. The fact that the account was not subject to check itself indicates that the deposit lacked one feature usually to be found present in case of a mere general deposit, and the fact that no interest was to be paid negatives in a measure the idea that it was the purpose of the Trustees to loan out the money. The expressed obligation incurred by the bank was to return the money, or like money, on the presentation of the certificates properly indorsed; its implied obligation was to have funds sufficient at all times to satisfy these obligations, and this promise the bank kept. Knowing as the officers did, as shown by the terms of the certificates themselves, that the money thus deposited was not the money of the Trustees, but was the money of the trust which they represented, it is fair to conclude that the bank was put upon inquiry and that it should be held bound by the legal effect of knowledge which might have been so acquired. Therefore it is to be charged with knowledge of the rple which forbade the Trustees loaning out the trust funds generally, or, as in this specific instance, making a mere general deposit, for such act would be nothing other than creating by special agreement the relation merely of debtor and credit,or. Of course the bank became a debtor because it had incurred obligations which were to be satisfiecfby the payment of money. But whose debtor was it? Not the Trustees’, for the Trustees held the money in trust, and the obligations, although running to the Trustees in form, were the property of the trust. This conclusion, we think, justifies the holding that these parties must be held to have understood that the deposits were to be in the nature of special deposits. The bank thus became itself, by its voluntary action, a trustee; not a trustee of the Trustees, because they did not own the money, but a trustee for the trust which those Trustees represented. If so, such deposits imposed upon the bank the duty to treat the money as trust funds, and to fulfill its contract with the Trustees accordingly.

We are aware that there are opinions of text-writers, Pomeroy for instance, that “trust monies may be deposited for a reasonable time in a bank having good credit, if the deposit is made to the credit of the trust estate, and not in the trustee’s individual name ; and the trustee does not become liable for a loss occasioned by a failure of the bank.” This statement should be taken merely as a general rule; otherwise it seems to us in some features too broad; nor does it in terms involve the question whether the deposit may or not be general. If treated as relating to a special deposit only probably no criticism is to be made upon it. Manifestly, though, each case must stand on its own facts, and 'the question of the liability of the trustee in case of failure of the bank in any case must depend upon the circumstances of that case. A deposit in his own name by the trustee is condemned because it is held to be a mingling of funds and thus a conversion, from which liability usually follows. But however viewed, the rule above stated affords but little if any help in determining the question we have in the case at bar, because our inquiry relates to the rights of depositing Trustees to a certain fund as against the claims of general creditors. The question of personal liability on the part of. the Trustees is not presented by the record, and is therefore not here considered. But if it should be determined that the Trustees would not be liable individually, still it would not follow that the fund in the bank vault may not be reached; and it is difficult to see how the doctrine of the text, if accepted, helps us to understand the nature of these deposits, or to arrive at the intent of the parties in making and receiving them.

The insistence of counsel for defendants in error that the authorities cited by plaintiffs in error are predicated upon some tortious act of the trustee, performed or threatened, or some misapplication of the trust fund, has not been overlooked. Those cases concede and the counsel concede that where the deposit is wrongful the relation merely of debtor and creditor between the bank and the trustee does not arise. So that the case turns after all upon whether the deposits in the present instance were wrongful in the sense of being unauthorized. The question whether the deposits, if treated as general, would be unauthorized acts by the Trustees, is the very crux of the case, and a question akin to that is disposed of in some of the cases cited by the holding that the making of a general deposit of a trust fund by a trustee in a bank in good credit is entirely proper, which is simply a holding by those courts that the Trustee has the right generally to loan the trust money, only making sure that the borrower is then in good credit, and is, with due respect, but a begging of the question. Of the cases cited by qounsel for defendants in error in support of the contention that one “who makes a general deposit of trust funds in a bank, thereby creating the relation of debtor and creditor between himself and the bank, both acting in good faith, is not entitled to any preference over other general depositors in the event the bank becomes insolvent,” M’Afee v. Bland, 11 Ky. L. R., 1; Officer v. Officer, 120 la., 389; and Fletcher v. Sharpe, 108 Ind., 276, are pertinent examples. They do appear to support the counsels’ claim in a measure. But in the opinion in the latter case is found this significant remark: “If in receiving a trust fund a bank acted with knowledge that it was taking the fund in violation of the duty of the trustee, the rights of the cestui que trust might be different. In respect to such a case we decide nothing here.” And the point made in our case is that the Trustees were without power to make a mere general deposit of trust funds, in other words without power to loan out the trust money, and that the bank must be held to have had knowledge of that fact.

A review of the cases cited, and many others, leave us still of the opinion that the Trustees had no power or authority to make a general deposit of the trust funds, the same being in legal effect, if so made (as held in Shaw v. Bauman, 34 Ohio St., 25, and in Ind. District v. King, 80 la., 498), but a loan by the Trustees to the bank of the trust funds; and that, giving effect to that settled principle of equity that wherever a duty rests upon an individual, in the absence of evidence to the contrary, it shall be presumed that he intended to do right rather than wrong, to perform his duty rather than to violate it, it must be presumed that the Trustees and the bank officers intended these deposits to be special rather than general, and that in such case the relation of mere debtor and creditor did not arise.

This brings us to a consideration of the second question. Has the fund been kept in-such a way as to 'authorize a court of equity to engraft a trust upon it? The facts are clearly stated and the question simple. The deposits were in the name of the persons as trustees; and, as we have found, the character of trust money was thus stamped upon them; and there was at all times after the first deposit and until the assignment, funds in the vaults of the Bank more than sufficient to satisfy the certificates. Under earlier holdings there was some question as to the effect of the mingling of funds, the blending of the trust money with the money of the trustee being suffered to defeat the owner’s title and compel him to stand as a mere' unsecured creditor; this upon the idea that tne money was not earmarked and therefore could not be recovered in specie. But there seems to be now, under the practically unanimous rulings of the courts as well as on principle, no serious question arising from that fact. It is not the identical dollars that may be pursued any more than it is the identical grains of vffieat put in a warehouse of elevator that the depositor may follow, but equivalent dollars, and the rule now is, as held in Board of Comrs. v. Strawn, 157 Fed. Rep., 49, opinion by Lurton, J., that where a bank has mingled trust money with its own funds, money paid out from such fund for its own purposes will be presumed to have been paid from its own money and not from the trust fund in a situation where, as in this case, the mingled fund has not been reduced at any time below the amount of the trust fund. The presumption above referred to rests upon • the idea that the drawings out from time to time were monies which the bank had a right to expend in its own business, and that the balance which remained included the trust fund which the bank had no right to so use. To have used it would have been a violation of - the trust, and that will not be presumed in the absence of evidence to that effect. The same conclusion is expressed in Massey v. Fisher, Receiver, 62 Fed. Rep., 958, thus: “The fact that the money was not marked, and by a mingling with other funds of the bank, lost its identity, does not affect the right to recover in full, if it can be traced to the vaults of the bank, and it appears that a sum equivalent to it remained continuously within those vaults until removed by the receiver.” • See, also, Elizalde v. Elizalde, 137 Cal., 634. Numerous other cases to like effect cited by counsel will be found in the Reporter’s notes, and we regard the principle as not only consonant with reason and fair dealing but as abundantly supported by authority.

Our conclusion therefore is that the Trustees are entitled to have their claim allowed as a preferred claim, and that therefore the demurrer of the Assignees to the petition and amendment thereto of the Trustees was not well taken. Nor is there any inequity in this conclusion. The funds of the bank in its vaults were increased by these deposits to the full amount thereof and nothing is asked to be taken away except what, by these deposits, was put there. The general creditors are entitled only to so much of the estate of an insolvent bank as remains after liens paramount to their claims and other preferred charges are satisfied. And, considering the privacy which attaches to the method of doing banking business, the general creditor can not reasonably claim that he had given credit to the defaulting Bank by reason of the trust deposit.

The judgments will be reversed and the cause remanded to the common pleas with direction to overrule the demurrer and for further proceedings.

Reversed.

Davis, C. J., Shauck, Price and Johnson, JJ., concur.


author: Davis, C. J. .

text:
    Glass, by next friend, v. The William Heffron Company.

      Answer denying allegations in petition — And that defendant was negligent — And averring that plaintiff was at fault — Does not raise issue of contributory negligence — Evidence of negligence by both sides — Question of proximate cause — Instructions to the jury.

    1. An answer which sets up, first, a general denial of the allegations in the petition, and, second, a denial that the defendant was negligent* followed by an averment that it was by the plaintiff’s own fault and negligence that he was injured, does not raise the issue of contributory negligence; but it is more than a denial that the plaintiff was without fault. It is an averment that the plaintiff's own negligence was the sole cause of his injury.
    2. But in such case, where there is evidence submitted to the jury which fairly tends to prove that the defendant was guilty of negligence and also that the plaintiff was negligent, it is proper for the court to instruct the jury that if they should find that the defendant was negligent and that such negligence was the proximate cause of the injury, and if they should further find that the plaintiff was guilty of some negligence the jury should then determine whether the plaintiff’s negligence was such as, combined with the negligence of defendant, contributed proximately to the injury complained of; and it is neither prejudicial to the defendant, nor erroneous, to instruct the jury that, “the burden of proving contributory negligence of the plaintiff is upon the defendant.”
    No. 12318
    Decided April 2, 1912.
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error sued to recover damages for a personal injury. The answer of the defendant consisted, first, of admissions that it was engaged in the business mentioned in the petition and that the plaintiff was employed by it for a certain purpose, and a denial of each and every other allegation in the petition contained and not therein admitted to be true; and, second, as follows : “Defendant further says that if the plaintiff was injured while in its employ it was not by any fault or negligence or any order of the defendant and that it was by plaintiff’s own fault and negligence in that the plaintiff carelessly and negligently and of his own volition placed his hand in such position with reference to the machinery operated by the defendant that his said hand was caught in such machine.”
    A trial of the action resulted in a verdict and judgment for the plaintiff, which judgment was reversed by the circuit court upon the ground that the court of common pleas erred in charging that “the burden of proving contributory negligence of the plaintiff below rested upon the defendant below;” and this proceeding is to reverse the judgment of the circuit court and affirm that of the common pleas.

      Messrs. Kinkead, Rogers & Ellis; Mr. Wade H. Ellis; Mr. Challen B. Ellis and Messrs. Cogan & Williams, for plaintiff in error.
    The allegation in the answer that the plaintiff was injured “by his own fault and negligence” is one that has frequently been used in setting up contributory negligence as a defense. Examples of such an answer, treated as a defense of contributory negligence without question, are found in the following cases: Van Duzen, etc., Engine Co. v. Schlies, 61 Ohio St., 298; Railway Co. v. Lynch, 69 Ohio St., 123; Railway Co. v. Murphy,
      50 Ohio St., 135; Rolling Mill Co. v. Corrigan, 46 Ohio St., 283.
    While it is true that when contributory negligence is neither alleged in the answer nor brought out in the defendant’s testimony the issue is not in the case and it is improper to charge on the subject, our contention is that it is not improper to charge on the subject when the answer is treated as setting up contributory negligence and the case is tried and testimony introduced on the theory that such issue is in the case. Railway Co. v. Frye, 80 Ohio St., 289.
    If the defendant in the case at bar had filed merely a general denial, but had presented the same evidence, raising the issue of contributory negligence by the evidence, it still would have been proper for the trial court to charge on the subject. It is well settled that when a party by his own evidence makes an issue it is proper for the court to submit that issue to the jury. Speer v. Bishop, 24 Ohio St., 602; Banta v. Martin, 38 Ohio St., 534; Benninger v. Hess, 41 Ohio St., 69; Brockway v. Jewell, 52 Ohio St., 187.
    We do not believe, considering plaintiff’s testimony, that the charge as to presumption of contributory negligence raised by plaintiff’s own testimony would have been proper, but even if it would have been proper the omission to give it was not error as no such charge was requested. Railway Co. v. Ritter, 67 Ohio St., 53; Schryver v. Hawkes, 22 Ohio St., 309; Smith v. Railway Co., 23 Ohio St., 10; State v. Schiller, 70 Ohio St, 1.

      Messrs. Littleford; Frost & Foster, for defendant in error.
    There being no issue of contributory negligence made by either the pleadings or evidence of the plaintiff or the defendant, it was error for the court to charge that “the burden of proving the negligence of the defendant is upon the plaintiff, and the burden of proving contributory negligence of the plaintiff is upon the defendant.” Traction Co. v. Forrest, 73 Ohio St., 1; Traction Co v. Stephens, 75 Ohio St., 171; List & Son Co. v. Chase, 80 Ohio St., 42.
    The master is not responsible as to matters beyond the scope of authority of a superior servant. The well known principle of law upon which this assertion is based is stated in the following authorities: 2 Labatt on Master and Servant, Sec. 537; Bradley v. Nash. C. & St. L. Ry. Co., 14 Lea (Tenn.), 374; Fisk v. Cent. Pac. Rd. Co., 72 Cal., 38, 13 Pac. Rep., 144; Nash. & Chattanooga Rd. Co. v. McDaniel, 12 Lea (Tenn.), 386; McGowan v. St. L. & I. M. Ry. Co., 61 Mo., 528; 2 Bailey’s Personal Injuries, 1194; O’Neil v. Great Northern Ry. Co., 51 L. R. A., 585.
    The court failed to properly state the issues to the jury. B. & O. Rd. Co. v. Lockwood, 72 Ohio St., 586.
   Davis, C. J. .

The circuit court reversed the judgment of the court of common pleas, upon the ground that the court of common pleas erred in charging the jury that the burden of proving contributory negligence of the plaintiff rested upon the defendant; and it expressly found that there were no other errors apparent upon the record. It is argued that in the pleadings there is no issue of contributory negligence, and that, therefore, such instruction was uncalled for, erroneous and prejudicial to the defendant.

The rule as to the burden of proof was stated correctly; and if there was any phase of the case, either upon the pleadings or the evidence, in which contributory negligence of the plaintiff might become important, it was not erroneous, and could not be prejudicial to the defendant, to charge the law correctly upon that subject.

The defendant may set forth in his answer as many defenses as he may have, provided that they are so far consistent that they may be verified by oath without swearing falsely. In this case, the defendant for its first defense denied wholly the plaintiff’s cause of action; and for its second defense denied that it was negligent and averred that plaintiff’s injury occurred by his own fault and negligence. In this respect there is a strongly marked distinction between the case at bar and the cases cited by the defendant, Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, and Cincinnati Traction Co. v. Stephens, 75 Ohio St., 171. In each of those cases the only defense was a general denial.

It is true, however, that the second defense in this answer does not raise the issue of contributory negligence. In substance it avers that the plaintiff’s injury resulted solely from his own carelessness. But it must not be forgotten that there were two sharply defined issues in the pleadings, upon the plaintiffs allegation that the defendant was negligent and upon the defendant’s averment that the plaintiff was the sole author of his own injury. The record discloses testimony tending to support the affirmative of both of these issues. Hence, the learned trial court, in submitting the case to the jury, very properly reminded them, that if they found that the defendant was not guilty of the negligence charged, they need go no further than to return a verdict for the defendant.

But in that connection it was necessary to consider another possibility. Therefore the court instructed the jury, that if they should find from the evidence that the defendant was negligent and that such negligence was the proximate cause of the injury; and if they should also find from the evidence that the plaintiff was negligent, then it would be necessary to determine whether the plaintiff was guilty of such negligence as, combined with the negligence of the defendant, contributed proximately to the injury complained of. We think that this was proper, inasmuch as evidence was before the jury tending to show negligence on the part of the plaintiff; and if the jury should find from the evidence that both the plaintiff and the defendant were negligent, the defendant’s liability would necessarily depend on the question whether the plaintiff’s negligence combined with that of the defendant and contributed directly to the injury. Then it naturally and necessarily followed that the court should say to the jury that, “the burden of proving contributory negligence of the plaintiff is upon the defendant/’ We áre of the opinion that there was no error in this, prejudicial to the defendant, for which the judgment against the defendant should have been reversed.

The judgment of the circuit court is reversed and that of the common pleas is affirmed.

Spear, Shauck, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    SCATTERGOOD v. INGRAM.

      One sustaining family relation to another — Cannot recover for services rendered the other, when — Guardian may claim for services rendered ivard, when — Allozvance for services under Section 10953, General Code.

    1. The doctrine that where two persons sustain to each other a family relation one cannot recover against the personal representatives of the other on account of services rendered in that relation except on proof of a contract to make compensation therefor, does not apply to a claim by a guardian for services rendered to an imbecile ward. p
    2. In such case allowance for services and compensation is by Section 109S3, General Code, to be determined by the court settling the guardian’s account, and, it not being a personal claim against the ward, it need not in case of his decease, be presented to his personal representatives.
    No. 121645
    Decided April 2, 1912.
    Error to the Circuit Court of Mahoning county.
    Facts are stated in the opinion.

      Messrs. Metzger & Smith, for plaintiff in error.
    Plaintiff in error contends that services rendered by Sarah E. Ingram in caring for and nursing her mother and for boarding her mother, while her mother was 'in her, Sarah E. Ingram’s home, is conclusively presumed to be rendered gratuitously unless there was an express contract entered into between the said mother and daughter, whereby one was to pay for such board, care and nursing, and the other to receive pay for the same. Hinkle v. Sage, 67 Ohio St., 256; Jurling v. Garner, 8 N. P., 277, 11 Dec., 439; McCollister v. Moore, Dayt., 247; In re Dunn, Goebel, 297; Drewry v. Rightmire’s Admr., Dayt., 112; Poorman v. Kilgour, 26 Pa. St., 372; Hertzog v. Hertzog, 29 Pa. St., 465; Finch v. Finch, 4 W. L. B., 908, 7 Dec. R., 673.

      Mr. K. L. Cobourn, for defendant in error.
    The courts of Ohio have not as yet decided that a guardian, whether she is a daughter or a stranger, is not entitled to be compensated for- the services rendered her ward, both in the care of her property and her person. Section 6288, Revised Statutes; Section 10953, General Code; 2 Rockel’s Probate Practice, Sec. 1490.
    The statute above cited clearly makes it the duty of the probate court to allow or fix the amount of the compensation, and in no other manner does the statute authorize a guardian to receive compensation except by the allowance of the probate court only. 2 Rockel Probate Practice, Secs. 1485, 1487-1490, 1518; Section 6304, Revised Statutes; Section 10991, General Code.
    In the case of Gorman v. Taylor, 43 Ohio St., 86, this court held that the probate court has exclusive jurisdiction in the settlement of such accounts, following the case of Newton v. Hammond, 38 Ohio St, 430.
   By the Court.

Sarah E. Ingram was appointed guardian of the person and estate of her mother, Rachel A. Scattergood, who had been adjudged an imbecile in July, 1904. She continued in the discharge of the duties of such guardian until the death of the ward in October, 1907. Thereafter she filed in the probate court her account as such guardian, and asked for the allowance of certain items which she deemed reasonable on account of services to the ward and in the care of her property and expenses in the care of her ward and her estate. The ward had lived with her daughter as a member of her household, and some of the items charged in the account were for services and for board. Exceptions to the account having been filed by the plaintiff in error they were in part overruled, and in part sustained and the ■rulings were affirmed by the circuit court. The exceptor prosecutes error here with respect to the overruling of certain of his exceptions, for the reason that it was admitted upon the original hearing that the guardian had no express contract with her mother for such care and services and that no claim on account thereof had been presented to the personal representatives of the mother after her death.

In support of his exceptions counsel for the plaintiff in error urges as though it were applicable here, the doctrine held in many cases, including Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, that there can be no recovery on account of services rendered to a deceased person by one who sustained to him the relation of a member of his family, except upon proof of an actual contract. But very obviously the doctrine invoked can apply only to a claim against one who is sui juris, for it would be absurd to require a contract with one incapable of making it. It would be equally absurd to require a presentation of the claim to the administrators of the ward, since, being her personal representatives, they are concerned only with claims against her. It is for such reasons as these that as to both expenditures incurred by a guardian and compensation to be paid to him the subject is by Section 10953, General Code, left to the determination of the court settling the account. That section is complete authority for the judgment under review.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    Sipe, Auditor, v. State, ex rel. Mansfield.

      Salary of common pleas judge — Sections 1284a and 1284, Revised Statutes — Method of computing additional compensatioiv — In judicial subdivisions composed of several counties — Limitations to amount of salary. ¡
    1. Where the county in which a common pleas judge resided at the time of his election, or appointment, is a part of a judicial subdivision composed of several counties, the amount of the salary to be paid such judge, under the provisions of Section 1284a, Revised Statutes, in addition to the salary provided by Section 1284, Revised Statutes, must be calculated upon the population of the county in which he resided at the time of his election or appointment, and when so ascertained is payable quarterly out of the treasury of the several counties in proportion to the ratio of the population of each to the total population of all the counties comprising the judicial subdivision.
    2. Where the amount so ascertained is less than $1,000, a judge is entitled, nevertheless, to receive as additional salary $1,000, or if it be more than $3,000, then his additional salary shall be $3,000 and no more, and this shall be paid him quarterly by the several counties in the subdivision in proportion to the ratio above stated.
    No. 13247
    Decided April 30, 1912.
    Error to the Circuit Court of Morrow county.
    Facts are stated in the opinion.

      Mr. J. C. Williamson, prosecuting attorney; Mr. Timothy S. Hogan, attorney general; Mr. Charles Follett, and Mr. Frank Davis, Jr., for plaintiff in error.

      Mr. Edwin Mansfield; Messrs. Booth, Keating, Peters & Pomerene, and Mr. John A. McMahon, for defendant in error,
   Donahue, J.

On the 9th day of May, 1911, Edwin Mansfield filed in the circuit court of Morrow county a petition which is in the words and figures following, to-wit:

“Your relator represents to the court that on the sixth of November, 1906, he was duly elected judge of the court of common pleas in and for' the second subdivision of the sixth judicial district of the State of Ohio, for the term of six years, from the ninth day of February, 1907, and that he duly qualified and entered upon his duties as such judge and has ever since said date and now is one of the judges of the common pleas court of said subdivision and district.

“That the defendant, Clifton Sipe, is now and at the time of the grievances hereinafter recited, was the duly elected, qualified and acting auditor of the county of Morrow and state of Ohio.

“That at the time of relator’s election and qualification as such judge as aforesaid, the statutes of Ohio, Section 1284a, provided, ‘that each judge of the court of common pleas shall receive in addition to the salary allowed by Section 1284 of the Revised Statutes, an annual salary equal to $16 per thousand for each one thousand population of the county in which he resided at the time of his election or appointment, as ascertained by the federal census next preceding his assuming the duties of his office, payable quarterly out of the treasury of the county of which he is a resident as aforesaid. if said county is a separate judicial subdivision, upon the warrant of the county auditor of said county, or if he resides in a judicial subdivision comprising more than one county out of the treasuries of the several counties, comprising such judicial subdivision in proportion to the population of the several counties of said judicial subdivision ascertained as aforesaid, upon the warrants of the county auditor of said counties.’

“That said subdivision of said judicial district at the time of relator’s election and qualification as aforesaid, was and now is composed of the following counties, to-wit, Ashland, Richland and Morrow counties.

“That said counties by the last federal census preceding the election and qualification of your relator, to-wit, the census of 1900, had the following population, to-wit:

Ashland county...........21,184
Richland county........... 44,289
Morrow county ...........17,879
Total ................ 83,352

“That on the ninth day of November, 1910, there was due to your relator as judge of said court of common pleas in and for said subdivision from the county of Morrow, the sum of $68 for the quarter ending on said ninth day of November, 1910; that your relator has made a demand upon the said defendant for said sum of $68 for payment of the same, but the defendant has neglected and refused to issue his warrant to your relator in payment of the same.

“Wherefore, your relator prays that a writ of mandamus, commanding the said auditor of Morrow county, Ohio, to issue a voucher to the relator for said sum of $68 and interest from November 9, 1910, and commanding said Clifton Sipe, the auditor as aforesaid, to deliver his warrant on the treasurer of Morrow county in favor of relator for said amount.”

To this petition the defendant Clifton Sipe, auditor of Morrow county, filed a general demurrer. This demurrer to the petition was overruled by the circuit court and the defendant not desiring to plead further, a peremptory writ of mandamus was allowed, and the defendant in that suit prosecutes this proceeding in error in this court to reverse the judgment of the circuit court.

The relator does not aver what basis of calculation has been used to arrive at the amount he claims is now due him from Morrow county. The averments of the petition would indicate that the amount had been determined upon the basis of the population of Richland county. A calculation shows, however, that it is really based upon the population of Morrow county, and this upon the theory that the relator is entitled to $16.00 per thousand for each one thousand population of the entire judicial subdivision composed of Richland, Ashland and Morrow counties, and that such amount must be paid him out of the treasuries of the respective counties in proportion to the population of each.

The only question presented by this record, and the briefs submitted by counsel for the parties to this cause, is the question as to whether the population of Richland county, or the population of the entire subdivision, shall be the basis for calculating this additional compensation of common pleas judges. The defendant in error does not challenge the constitutionality of the act, but insists that the total population of the county in which the relator resided at the time of his election is the basis upon which the calculation should be made, and if figured upon this basis the amount is less than one thousand dollars, then his additional salary shall be one thousand dollars, payable out of the treasuries of the different counties comprising the subdivision in proportion to the ratio of its population to the population of the whole subdivision. The contention on the part of the relator is that the additional salary should be calculated upon the basis of the total population of the entire judicial subdivision composed of the counties of Richland, Ashland and Morrow. The language of Section 1284a seems to be clear and unequivocal. There is some change in the language, punctuation and capitalization of this section as found in 97 Ohio Laws, page 558, and as it is now found in' General Code, Section 2252 and Section 2253, in this, that the words “payable quarterly out of the treasury of the county of which he is a resident as aforesaid,” immediately following the provision for the payment of an additional salary and the method of calculating the same as found in the original act, are ommitted in the General Code, and after the word “subdivision” there is a period instead of a comma, and then providing that such additional salary shall be paid quarterly, etc., but it would not appear that this change of arrangement and punctuation would lead to any different construction. In any event, the relator pleads the act as found in Section 1284a, Revised Statutes, and his rights must be determined upon the construction of this act as originally passed, for it further appears by the petition that he was elected to his office prior to the adoption of the General Code. Section 1284a contains but one provision for additional salary to be paid common pleas or superior court judges, and that provision is that they shall each receive “in addition to the salary allowed by Section 1284 of the Revised Statutes, an annual salary equal to $16.00 per thousand for each one thousand population of the county in which he resided at the time of his election or appointment as ascertained by the Federal census next preceding his assuming the duties of his office. * * * Provided that in no case shall such additional salary so payable to such judge out of the county treasury or treasuries be less than one thousand dollars or more than three thousand dollars.” There is a further provision with reference to expenses incurred while holding court in any county in which he does not reside, but that has nothing to do with the question now under consideration. All the remaining part of this section pertains to the payment of this salary, and it is provided first, that it shall be “payable quarterly out of the treasury of the county of which he is a resident, if said county is a separate judicial subdivision, upon the warrant of the county auditor of said county, or if he resides in a judicial subdivision comprising more than one county, out of the treasuries of the several counties comprising such judicial subdivision in proportion to the population of the several counties of said judicial subdivision ascertained as aforesaidThese words “ascertained as aforesaid” clearly relate to the amount of this additional salary to be paid to common pleas judges, and refer to some prior provision of the same section in reference thereto, and the only prior provision of this section in relation to this subject is that he shall receive “an annual salary equal to $16.00 per thousand for each one thousand population of the county in which he resided at the time of his election or appointment, as ascertained by the Federal census next preceding his assuming .the duties of his office.” So that while this section does provide that in case a judge is located in one of several counties of a judicial subdivision, that each of such counties shall contribute its proportionate share to his additional salary, yet the amount of that additional salary is still to be ascertained the same as if the county of his residence at the time of his election constituted a separate judicial subdivision. The fact that there are two counties in the state that constitute separate judicial districts and not separate judicial subdivisions does not create any ambiguity or raise any doubt as to the basis of calculation, or as to the manner of payment. These additional provisions for payment relate only to judicial subdivisions comprising more than one county, and where this condition does not obtain then the additional salary is payable out of the treasury of the county in which the judge resided at the time of his election or appointment.

Every argument urged by counsel for relator •in favor of the construction of this section that they are contending for, meets with much favor by this court, but the trouble is that these arguments are all proper ones to be directed to the legislative authority and not to a court construing a legislative act, for it is not the province of a court to improve or expand the language of an act, but to interpret it as it is written. True, the intent of the legislature is important in determining the proper construction to be given it, but that intent must be ascertained first, if possible, from the language used and where that language is clear and unambiguous courts have no authority to change it. King v. Greenwood Cemetery Association, 67 Ohio St., 244; Hough v. Dayton Mfg. Co., 66 Ohio St., 427; Slingluff v. Weaver, 66 Ohio St., 621; Smith Bridge Company v. Bowman, 41 Ohio St, 52; Moore v. Given, 39 Ohio St., 661; Wehrle v. Wehrle, 39 Ohio St., 365. It is insisted, however, on the part of counsel for relator, that it was the intention of the legislature to create in judicial subdivisions composed of more than one county, a different basis for calculating this additional salary of common pleas judges than the basis provided where a county constitutes a separate judicial subdivision, and very apt words are suggested that should be read into this statute, but if that was the intention of the legislature these “very apt words” must have occurred to the legislature just as readily as they would occur to a court, and the fact that it did not use these “very apt words” would indicate that it did not intend to make any different basis for calculating the amount in counties constituting a part of a judicial subdivision from the basis provided for the calculation,of the amount in counties constituting a separate judicial subdivision, and it would be a plain and palpable invasion of legislative authority for a court to write these words into the statute, or what is to the same effect, construe the statute as if they were written therein. There is language used in the early part of this section that clearly shows that the basis of calculation there fixed to determine the amount of the additional salary to be paid common pleas- judges is intended to cover the salary of all judges, including those residing in a subdivision composed of several counties, for the act contains the provision that the amount shall be calculated on the population of the county in which the judge resided at the time of his election or appointment. Section 3 of Article IV of the Constitution of Ohio provides that a judge must be a resident of the judicial subdivision. So that if this provision for additional salary was intended only to cover counties constituting a separate judicial subdivision, then the -provision that the amount of such salary should be calculated upon the population of the county in which he resided at the time of his election or appointment would be a vain and idle one. It is apparent that this provision is inserted for the direct and only purpose of preventing a change in salary by the removal of a judge from the county in which he resided at the time of his election or appointment to another county in the same judicial subdivision. It is also equally clear that the provisions of this statute that a judge of the common pleas court shall receive an annual salary in addition to the salary provided by Section 1284, Revised Statutes, of $16.00 for each one thousand population of the county in which he resided when elected or appointed as ascertained by the Federal census next preceding his assuming the duties of such office, relate to every common pleas judge and superior court judge in Ohio, and the other provisions of the .same section relate only to the manner of payment thereof.

It is suggested that the intention of this act was to secure uniformity of compensation, and, therefore, the construction contended for by counsel for relator should obtain. This court held in the case of State, ex rel. Guilbert, v. Yates, 6Ohio St., 546, that the uniformity-of compensation which is required is not uniformity in the total amount received, but uniformity in the rate of compensation. So that this law does apply uniformly to all judges and the salary of each is determined by a uniform rule, although the amount arrived at is not necessarily always the same.

From this petition it appears that there is something due to the relator from the treasury of Morrow county, and the amount that is due him must be determined by a calculation based upon the population of the county in which he resided at the time of his election, to-wit, Richland county, and if it should further appear by such calculation that this would be less than a thousand dollars he is, nevertheless, entitled to receive one thousand dollars payable out of the treasuries of the several counties constituting the judicial subdivision in the ratio of the population of each to the population of the whole. In an action for the recovery of money only, it is sufficient if the petition show that something is due the plaintiff, and if the defendant desires to dispute the amount claimed he must do so by answer. This is an action in mandamus to compel the auditor of Morrow county to issue his warrant on the county treasury for a sum certain, and for that reason it is necessary that the petition should show upon its face that the amount for which the relator demands a warrant is the true and correct amount due him, otherwise it is vulnerable to a general demurrer. This petition does not show on its face that there is $68.00 due the relator from Morrow county for additional salary for the time covered by his petition, and for -that reason the demurrer was improperly overruled.

The judgment of the circuit court is reversed and cause remanded with instructions to sustain demurrer to the petition and for further proceedings according to law.

Judgment reversed.

Davis, C. J., Shauck, Johnson and O’Hara, JJ., concur.


author: Johnson, J.

text:
    Third National Bank of Cincinnati v. Laidlaw.

      Contract of guaranty not construed against guarantor, when — Mutual intention of parties — Arrived at in circumstances of the transaction.

    A contract of guaranty is not subject to the rule that a promise will be construed against the promisor, and liability will not by construction be enlarged beyond the fair import of its terms, but in order to arrive at the mutual intention of the parties in the language used, resort may be had to the circumstances of the transaction and the situation in which the parties stood.
    No. 12739
    Decided April 30, 1912.
    Error to the Circuit Court of Hamilton county.
    The plaintiff bank brought suit in the court of of common pleas of Hamilton county to recover $17,616.29 for breach of contract of guaranty. Robert Laidlaw and L. M. Moraques were named as defendants in the petition, but Moraques was not found and the suit proceeded against Laidlaw alone. In its petition the plaintiff alleges that on January 4, 1905, it loaned to the International Mahogany Company the sum of $26,345.86, which company executed and delivered to the plaintiff its note for that sum due in four months after date, with interest after maturity at 8 per cent, payable semi-annually; that plaintiff took from said Mahogany Company warehouse receipts calling for Cuban mahogany lumber as collateral security for said loan, whereby said Mahogany Company pledged to plaintiff to secure the payment of said loan certain Cuban mahogany lumber then owned' by said Mahogany Company, and in possession of 'the Export Storage Company in Cincinnati, Ohio, as warehouseman of said Mahogany Company; that said Mahogany Company in making said loan, and in executing said promissory note therefor, and in pledging said lumber to secure the payment thereof, acted by and through the defendant Laid-law, who was its president, and plaintiff made said loan at the request of the defendants and on the faith of their guaranty whereby at and prior to the making of said loan they, for value received, jointly and severally guaranteed to plaintiff that if said Mahogany Company should default in paying said loan, and the plaintiff should sell its collateral, the proceeds of the sale of said lumber, after deducting all expenses, would not be less than the amount of money loaned by the plaintiff plus accrued interest, and they jointly and severally agreed to make good to the plaintiff any loss it might. suffer if the net proceeds of the lumber should be less than the plaintiff’s claim; that said Mahogany Company thereafter became and was duly adjudged bankrupt and did default in paying said loan and that plaintiff sold its collateral, and the net proceeds of the sale of said lumber pledged to secure the loan after deducting all expenses were less by the sum of $17,616.29 than the amount so loaned by plaintiff to said company, plus interest; that the plaintiff has suffered the loss of said sum which it has demanded of defendants who refused to nay it.
    The defendant, Laidlaw, answered, and in his answer admits that the plaintiff bank on or about January 4, .1905, renewed a loan to the International Mahogany Company in the sum of $26,-345.86, for which amount said company on said day executed and delivered its promissory note in favor of said bank, payable in four months with 8 per cent, interest; that by said note there was pledged by said Mahogany Company as collateral for its payment Export Storage Company receipts numbers 529, 378, 420, 541, 401, 472 and 593 calling for 377,520 feet of Cuban mahogany lumber, log run, by permitting to remain on deposit with said Third National Bank receipts calling for said 377,520 feet of Cuban mahogany lumber, log run, which receipts then were and for many years prior thereto had been in the exclusive possession of plaintiff; that at said time, and as part of the transaction of, making and delivering said note and extending said loan, and of pledging said warehouse receipts therefor calling for said .amount and kind of said lumber, this defendant did with his co-defendant, L. M. Moraques, sign and deliver to said bank a guaranty, being the same guaranty which the plaintiff attempts in its petition to describe. The defendant says that said guaranty was made at the time that said note was made, and wa&.part of said transaction, and was based upon there being 377,520 feet of Cuban mahogany lumber, log run, in possession of said Export Storage Company, called for by said warehouse receipts, and as specified in said note, to which notes said guaranty makes reference, and which is part of said guaranty as fully as if its terms were set forth specifically in said guaranty. Defendant further says that said warehouse receipts held by said bank as security for said note, called for 377.520 feet of Cuban mahogany lumber, log run, and that said receipts were and are a part of said guaranty as fully as if their terms were expressly set forth therein and that said guaranty refers to no other lumber. Defendant says that said guaranty was that the net proceeds of the sale of lumber, to-wit, 377,520 feet of Cuban mahogany lumber, log run, called for by the warehouse receipts aforesaid and by said note, should, after deducting all expenses of the sale of the same, in case said Mahogany Company made default in payment of said note, and in case said bank sold said amount of said lumber, be not less than the amount of said note with interest thereon, and that said guaranty applied only to said amount and kind of said lumber, and only to said note. Defendant says that said plaintiff did not sell said 377.520 feet of Cuban mahogany lumber, log run, called for by said warehouse receipts and by said promissory note, and that there has been no breach of his said guaranty. Defendant admits that said Mahogany Company executed said note by this defendant as its president, and that said Mahogany Company was thereafter adjudged a bankrupt, and did default in the payment of said note, and defendant denied all the other allegations.
    Plaintiff replied and admitted that the collateral security for the note described in the petition was evidenced by seven storage receipts reciting in the aggregate the storage of 377.520 feet of Cuban mahogany lumber, log run, the numbers of the receipts being the same as stated in the answer, which receipts had been in plaintiff’s possession for several years prior thereto, but that the lumber covered by said warehouse receipts and sold by plaintiff was in amount less and in quality inferior to that described in said receipts. The plaintiff denies each and every other allegation in the amended answer and particularly denies that defendant’s contract of guaranty was in any respect otherwise than as described in the petition.
    On the trial of the case at the conclusion of the plaintiff’s testimony, the court on motion of the defendant arrested the case from the ' jury and directed a verdict for the defendant. Plaintiff’s motion for a new trial being overruled, judgment was entered for the defendant. This judgment was affirmed by the circuit court and this proceeding is brought to reverse the judgments of the courts below. Further facts are stated in the opinion.

      Messrs. Maxwell & Ramsey, for plaintiff in error, cited and commented upon the following authorities:

      Cambria Iron Co. v. Keynes, 56 Ohio St., 501; Merchants National Bank v. Cole, 83 Ohio St., 50.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Messrs. Ernst, Cassatt & Cottle, for defendant in error, cited and commented upon the following authorities:

      Birdsall v. Heacock, 32 Ohio St., 177; Lent v. Padelford, 2 Am. Lead. Cas., 141; Cambria Iron Co. v. Keynes, 56 Ohio St., 511; United States v.
      Boecker, 21 Wall., 653; United States v. Freel, 186 U. S., 309; 2 Page on Contracts, Secs. 1115, 1116; Farmers & Mechanics’ Natl. Bank v. Lang, 87 N. Y., 209; McMurray v. Noyes, 72 N. Y., 523; Wallace v. Straus, 113 N. Y., 238; Clay et al. v. Edgerton, 19 Ohio St., 553; Norrington v. Wright, 115 U. S., 188; Bowes v. Shand, 2 App. Cas., 463; Filley v. Pope, 115 U. S., 213, 29 L. Ed., 372; Cleveland Rolling Mill Co. v. Rhodes, 121 U. S., 255, 30 L. Ed., 920; Mehurin v. Stone, 37 Ohio St., 49; Hull v. Myers, 90 Ga., 674; Bradford Belting Co. v. Gibson, 68 Ohio St., 442; Railway Co. v. Bank, 56 Ohio St., 386; Ensel v. Levy & Bro., 46 Ohio St., 255; 2 Herman on Estoppel & Res Adjudicata, 1240; M’Neil v. Hill, Wool. C. C, 96.
   Johnson, J.

The guaranty sued on was as follows:

“Cincinnati, January 3d, 1905.
“For value received we hereby jointly and severally guarantee to the Third National Bank of Cincinnati, Ohio,, in respect of any loans heretofore or hereafter made by it to the American Mahogany Company, or the International Mahogany Company, for which warehouse receipts calling for Cuban mahogany lumber, or logs, are taken as collateral security, that the net proceeds, after deducting all expenses, of the sale of said lumber or logs, should said company default in its payments and the bank sell its collateral, shall-not be less than the amount of money loaned by the bank plus any accrued interest and—
“We agree to make good to said bank any loss it may suffer should the net proceeds of the lumber or logs be less than the claim of the bank.
“This guarantee applies to a loan represented by note dated January 5th, 1905, amounting to $26,345.86,' and the renewal of same or any part thereof.
“L. M. Moraques, “Robert Laidlaw.”

The note referred to, and which is conceded to have been made when the guaranty was delivered, is on the ordinary form used by banks which include provisions for collateral security. It is for $26,345.86, dated January 4, 1905, payable to the bank and due four months after date with 8 per cent, interest, payable semi-annually, and with the following collateral security clause: “having pledged as collateral security for the payment of this note, and of every other liability of the undersigned to said Bank, whether as maker, endorser, surety, or otherwise, due or to become due, or which may hereafter be incurred, the following property, viz: Export Storage Co. Receipts Nos. 529, 378, 420, 541, 401, 472, 593, calling for 377,520 feet of Cuban mahogany lumber, log run. The market value of which is now $...........” On default by the Mahogany Company the bank sold the lumber, and it is conceded that it did not have, and did not sell, 377,520 feet, but a quantity much less, which when sold, realized a sum which was $17,616.29 less than the amount due on the note.

The question presented is, as to the construction of the conditional guaranty and, whether evidence is competent to show the circumstances surrounding the transaction, to aid in the construction and in arriving at the intention of the parties in the giving and accepting of it. Defendant contends that the guaranty related only to the value of 377,520 feet of Cuban mahogany lumber, log run, and was conditioned on the sale by the bank of substantially that quantity and quality. Plaintiff contends that by the terms of the guaranty defendant guaranteed (in respect of any loans plaintiff had made, or might thereafter make, secured by warehouse receipts for Cuban mahogany lumber, or logs) that the net proceeds of the collateral would pay the loan.

On the trial the plaintiff tendered testimony with reference to the whole course of dealings between the Export Storage Company, the lumber company and the plaintiff bank, to connect the defendant Laidlaw personally, with all the steps and all the transactions in order, as claimed, to show all the surrounding circumstances attending the transaction of January 5, 1905, for the purpose of aiding the court in the construction of the contract sued upon. Substantially the testimony offered tended to show, that Mr. Laidlaw, defendant, who was president of the Mahogany Company and Mr. Kellogg, president of the plaintiff bank, and who was also vice-president of the Storage Company had conducted the neeotiations with reference to the loans referred to in the note, and in the guaranty, and that during the time that the loans were in existence repeated conversations were had between them respecting all the matters connected with the lumber and the loans of the bank upon it; that at times the bank was apprehensive about the security, and that much correspondence was had with Mr. Laidlaw which was tendered in evidence; that on May 27, 1904, the president of the plaintiff bank requested by letter, to Mr. Laidlaw, that an inspection be made of the lumber by a reliable inspector, “in order that both you and ourselves should know something about what we have there”; that defendant Laidlaw replied on the following day, May 28, 1904, stating: “I see no reason why we should not find out exactly what we have in these piles of lumber which are security for the loans at your bank.” In the same letter he states that he does not know what the inspection will cost, but would find out and suggests that he would make an effort to sell some of the lumber to some purchasers under the arrangement between the parties and states: “They have really not had time to answer. Then if the Keith Lumber Company concludes to take ten or twenty cars of this lumber, as they have been talking of doing, and they come here about the first of the month as they promised, then it would not be necessary to go to the trouble of tearing down these piles and building them again when it could all be done if the lumber was sold.” The testimony tendered was rejected by the trial court, to which the plaintiff excepted.

A guarantor, like a surety, is bound only by the words of his contract. Other words cannot be added by construction or implication, but the meaning of the words actually used, is to be ascertained in the same manner as the meaning of similar words used in other contracts. The language used, is to be understood in its plain, ordinary sense, as read in the light of surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly conforms to the intention of the parties* Parol evidence is not admissible to enlarge or to limit the terms of the instrument. But evidence of the surrounding circumstances is competent, in order to arrive at the intention of the parties, as declared by the words employed, and as in 'construing all contracts, the words employed by the parties will be construed in the light of these circumstances. Morgan v. Boyer, 39 Ohio St., 324; Cambria Iron Co. v. Keynes, 56 Ohio St., 501; Merchants Natl. Bank v. Cole, 83 Ohio St., 50; 20 Cyc., 1439. In Morrell v. Cowan, 7 Ch. Div. (L. R.), 151, which involved the construction of a guaranty, it is said: “in determining the construction of this instrument the court is entitled to look at the surrounding circumstances; that is to say, it is entitled to consider, first, who the parties were; secondly, in what position they were; and, thirdly, what the subject-matter of the agreement was.” The trial court refused to permit this testimony on the ground that under the issues made by the pleadings, the knowledge of Laidlaw, or his good faith, were not put in issue, and that in the absence of such an issue made by the pleadings, such testimony was not competent. This view was adopted by the learned circuit court. It is true that there was no such issue in-the case, but the testimony was not offered with reference to any such issue, or for the purpose of showing- bad faith, or fraud on the part of the defendant, but for the purpose of putting the court in possession of the circumstances under which the transaction occurred, so as to better enable it to arrive at the intention of the parties in the making and accepting of the guaranty, and better to construe the language employed in it. It will be noted, that the guaranty itself does not stipulate, that the warehouse receipts calling for Cuban mahogany lumber should be issued by any particular company or for any particular quantity, or quality of such lumber, and it is to be particularly noted that the guaranty does not stipulate, that the bank and the Mahogany Company shall maintain any particular proportion, between the lumber and the amount of the loans, which might be made by the bank to the lumber company. So far as the guaranty itself goes, its language is broad and full.

It is in respect of any loans heretofore, or hereafter made, for which warehouse receipts calling for mahogany lumber are taken as collateral security; that the net proceeds after expenses shdll not be less than the amount of money loaned by the bank, with interest, and agrees to make- good to the bank any loss, should the net proceeds be less than the claim of the bank. The last clause which provides, “This guaranty applies to a loan represented by a note dated January 5, 1905, amounting to $26,245.86 and the renewal of same or any part thereof,” is claimed by the defendant to limit the guaranty to that note, and it is urged that the doctrine expressio unius est exclusio alterius, applies. That maxim is not of universal application, but is to be invoked as an aid in arriving at intention and not to defeat the intention of parties. The paper itself is dated January 3. The date of the note as given in this clause is January 5. The actual date of the note is January 4. It is conceded both the note and guaranty, were delivered at the same time. The evidence tendered showed that the guaranty had been prepared before that day, in anticipation of the arrangement, and the reasonable inference is that, that clause was added so as to specifically include the note which was expected to be, given soon in the future. We are forced to this conclusion by a consideration of the other terms of the guaranty, and by the terms of the note itself which recite: “having pledged as collateral security for the payment of this note and of every other liability of the undersigned to said bank * * * due, or which may hereafter be incurred the following property * * * Export Storage Company receipts * * * calling for 377,520 feet Cuban mahogany lumber.” This precludes the view that it was the intention of the parties that the 377,520 feet of lumber must be had and kept as security for this particular note. That is, defendant did not stipulate that that particular quantity of lumber should stand between him and liability on his contract.

We think it clear, from a careful consideration of these terms and conditions of the guaranty itself, and of the particular note referred to therein, that the evidence tendered should have been admitted for the purposes above stated. The position of the defendant as president of the lumber company, the position of. the president of the bank in the storage company, and the manner in which the entire transaction was conducted, as disclosed by that testimony, places the defendant in a different relation to this guaranty than that of a mere stranger. As was said in Iron Co. v. Keynes, 56 Ohio St., 514, in which some of the directors of the company signed the guaranty on behalf of their company: “They were not only pecuniarily interested in the successful operation of its business, but were charged with the general superintendence of its affairs. To give it power to buy, was to promote prospective personal gain to themselves.” In Luckenbach v. McDonald, 164 Fed. Rep., 296, defendants were respectively president and secretary of a corporation and endorsers of a note given by the company. The note not having been protested and not having been presented for payment to them, they claimed to be released for want of notice of dishonor, under the negotiable instruments’ law. Evidence was admitted showing their relationship to the company and to the note, and that it was in fact for their accommodation, and the court say: “If there was no other evidence in the case except the note itself, with these defendants appearing as they do upon the back of the note as endorsers, of course this section would apply, and they could not be held in any other capacity. It would then have been necessary for the plaintiff to prove presentment and notice.”

It is seriously contended by defendant, that he had a right to suppose from his contract that he had an ample security of 377,520 feet of lumber, between him and his ultimate liability, on the ground that the guaranty, practically incorporated all the terms of the note, in its own terms, and provided that substantially that amount of lumber should be held to secure the note. As above pointed out, no such definite intention can be found in the language used, because the note itself provided that the 377,520 feet of lumber had been pledged as collateral security for that note, and of every other liability which had been then, or might thereafter, be incurred. The learned circuit court took the view of the defendant’s counsel, and in its opinion cites the case of Farmers’ & Merchants’ Natl. Bank v. Lang, 87 N. Y., 209, in support of its conclusion. In that case the guarantor guaranteed to the bank “all pledges of property, warehouse receipts and other vouchers” given by the principal debtor, and further “that the property so transferred and set over to said bank shall not be ‘misapplied. or diverted’ to any other purpose.” The guarantor was in no way connected with the principal debtor. He was purely an outside party. The writing did not absolutely guarantee the payment of the money which was loaned by the bank, but on its face stated that the guaranty was that the property transferred and set over would not be “misapplied or diverted” to any other purpose while such loans remained unpaid, and if any “default or misappropriation of the property so pledged shall be made,” the guarantor was to make good any deficiency. In that case the defendant showed by evidence, that the cashier of plaintiff had consented with the principal debtor that he should not set aside or have on hand all of the property described in the receipts, and that the bank had waived its right by an arrangement with the principal debtor. In this case the note provided that the lumber was held for this debt, and any other debt, and the evidence tendered shows that the bank had requested the guarantor himself to join in an inspection of the property called for by the receipts, “in order that you and ourselves should know something about what we have there.” And the defendant Laidlaw had recognized his duty as president of the lumber company to assist in seeing that the lumber was present as “called” for, and had suggested methods of obtaining the information.

For these 'reasons we conclude that the trial court erred in instructing the verdict for the defendant, and the judgments of the courts below will be reversed.

Jtidgments reversed and cause remanded.

Davis, C. J., Shauck, Donahue, and O’Hara, JJ., concur.