Ravenna v. Pennsylvania Company. etc. Regarding signals, section 3336, Rev. Stats., 83 Ohio L. 153, provides that every company shall attach to each locomotive a bell and a steam whistle, and requires the engineer in charge, on approaching a road crossing or other travelled place, to sound the whistle at a distance of at least eighty and not further than one hundred rods, and ring the bell continuously until the engine passes; these provisions not to interfere with the proper observance of any ordinance passed by any city or village council regulating the management of railroad locomotives and steam whistles thereon within the city or village limits. Having in mind the test hereinbefore indicated, viz.: that grants of power to municipal corporations must be either in express terms, or by clear implication as necessary to carry into effect those expressly granted, and that questionable claims are resolved against the corporation, it may be doubted whether any grant of power is given to councils by this section. But if any is granted, it could have relation only to the subject-matter of the section, and its extent could not exceed what is necessary to give full effect to the whole section. The purpose of the law is to require the use of steam whistle and bell upon locomotives approaching a road-crossing or other travelled place, and the utmost that can reasonably be claimed for the language used is to give municipal corporations authority to regulate the management of locomotives and steam whistles in those respects within corporate limits. There would be no warrant whatever for the conclusion that the section in any way confers power to require a watchman at such crossings. The other statutory requirements above mentioned control the company when operating its road through municipalities, as in the open country, although more stringent regulations as to some of them may be needed within the limits of cities and villages than without. We may perceive no reason why, as to the general regulation of the operation of locomotives and trains through cities and villages, power might not have been safely committed to municipal councils. It is enough to say that, for reasons known to the general assembly, which we are not Chappelear v. Martin. called upon to inquire into or question, that body has thus far seen fit not to confer that power. But we are not discussing the question whether the legislature, in the exercise of its broad police power over railroad corporations, which are its creatures, should require watchmen at crossings, or whether power to so provide can be properly delegated to municipal corporations. As stated at the outset, the only question is whether under existing legislation they possess such power. We think they do not, and that the demurrer was properly sustained. Judgment affirmed. CHAPPELEAR v. MARTIN. Promissory note-Payment to bearer-Notice. 1. Payment by the maker to the bearer of a note will not avail as against the owner, where upon the facts of which the maker had notice, the bearer had no right to receive payment, although the note was drawn payable to bearer.. 2. Where a note was taken by a wife payable to herself or bearer, with the design that, in case of her death, it might be collected by her husband without the expense of administration, the fact that after her death it was presented by him to the maker, who paid it, supposing that the husband, by reason of the intention of the wife at the time the note was executed, was entitled to receive payment, will not constitute a defense as against the administrator of the wife's estate. (Decided April 26, 1887.) ERROR to the District Court of Muskingum County. J. Buckingham and John O'Neill, for plaintiff in error. The evidence would have not only tended to prove, but have proven the issue, had it not been shown also that Huldah J. Turner, when the notes were made, was the wife of P. F. Turner, and that she died before the payments were made, and that Chappelear knew those facts. Chappelear v. Martin. It is to be noticed, however, that there was no evidence tending to show that Mrs. Turner owned the notes when she died, or that Chappelear knew it, if she did own them; nor any evidence tending to show fraud or bad faith in Chappelear. Prima facie, possession of mercantile paper is honest possession. 1 Par. Bills & N. 255; 2 Par. Bills & N. 280. The holder of a note, payable to one or bearer, is presumed to be the owner, and, on producing the note, is not required further to show title. Starling v. Kious, 7 Ohio, 2 pt. 237. Possession is also prima facie proof that the holder obtained the note before maturity, and paid value. 1 Par. Bills & N. 255. It is well settled that one who takes a note that is transferable by delivery acquires an absolute property in it, although it may have been stolen or fraudulently put in circulation, if he took it in good faith and for value, even if he was guilty of gross negligence in taking it. If the burthen of proving good faith is on him, it is implied from his possession and must be overcome by proof of fraud. 2 Par. Bills & N. 42; Mottram v. Mills, 1 Sandf. 37; 1 Greenl. Ev., sec. 34. If a note be payable to one or bearer, or indorsed in blank, any person having it in possession may be presumed to be entitled to receive payment, unless the payer have notice to the contrary; and a payment to such person will be valid, although he may be a thief, finder or fraudulent holder. 2 Dan. Neg. Inst., sec. 1230; Story Prom. Notes, secs. 381, 382, 454. It is not sufficient to defeat a recovery on a note taken by plaintiff before it matured and for value, to show that he took it under circumstances which ought to have excited suspicion; but to do so it must be shown that he took it under circumstances proving bad faith or dishonesty. Johnson v. Way, 27 Ohio St. 374; Rooker v. Rooker, 29 Ohio St. 1. In an action brought by a person who is the general agent of a corporation in his own name as plaintiff on a note payable to that corporation or bearer, the production of the note on the trial by the plaintiff, is sufficient proof of his title. Chappelear v. Martin. Notwithstanding he is such general agent, his possession raises a presumption that he is the owner, and it requires other evidence to overcome it. Pettee v. Prout, 3 Gray, 502. The same principle was applied in Ohio to the possession of a note by the maker, who was administrator of the payee. Larimore v. Wells, 29 Ohio St. 13, 19. The husband could acquire title to the notes by reducing them into his possession with the consent of his wife, by purchase from her, or merely by her gift. Lewis v. Baldwin, 11 Ohio, 352. If the fact of payment deprives a true owner of his money, so also does the acquisition of title by a careless purchaser. In truth, whoever causes a note to be made payable to himself or bearer, intends to make the mere possession of it evidence of ownership, and he authorizes and invites the maker of it to pay accordingly. If a loss occurs, and there be no fraud, it must fall upon the person who granted the authority and gave the invitation. A. W. Train, for defendants in error. Payment of a note must be made to the owner or to some person by him authorized to receive it. Under the pleadings, the burden was on Chappelear to prove that the payments were made to the lawful holder or owner of the notes. In the court below, he undertook to prove that the payments were made to the lawful owner or holder, by proving that the notes, being made payable to bearer, were paid to a holder of them and claimed that this raised a conclusive presumption that he was also the owner of them. We do not deny that persons in the ordinary course of business, for a valuable consideration before maturity, may acquire a good title to commercial paper, payable to bearer or indorsed in blank, although it be from a person not the owner; but this exception to the rule of the transfer of choses in action only applies to negotiable paper, and we do not deny that payment may be made of commercial paper indorsed in blank or payable to bearer, to a person holding the same, where there are no circumstances throwing Chappelear . Martin. suspicion upon the title, but the payments must be made at maturity and in full. We think the rule is correctly stated in Wheeler v. Guild, 20 Pickering, 545 (32 Am. Dec. 235) by Chief Justice Shaw. "If a bill be paid at maturity, in full, by the acceptor, or other party liable, to a person having a legal title in himself by indorsement, and having the custody and possession of the bill, ready to surrender, and the party paying has no notice of any defect of title or authority to receive, the payment will be good." But in this case, the notes were executed and delivered to Huldah J. Turner, the wife of P. F. Turner, and at the time of payment Huldah J. Turner was dead, and these facts were known to Chappelear. P. F. Turner, to whom payment was made, was the surviving husband, and no administrator having been appointed, was the person in whose custody the property of the deceased wife would be, and, as we insist, without the presumption of ownership. To hold that the possession of the husband under these circumstances, raises the presumption of ownership rather than that of custodian, is sticking in the bark; he could not release the mortgage, and he could not assign it. The mortgage has not the characteristics of negotiable paper, and is not subject to its rules. MINSHALL, J. The original suit was brought in the court of common pleas, and appealed to the district court of the county, where it was tried upon the pleadings and the evidence offered by the defendants below. The suit was brought to foreclose a mortgage executed by Chappelear and wife, securing certain notes executed by Chappelear to the plaintiff's intestate, Huldah J. Turner, on February 10, 1871. The notes amounted to $3,500the first maturing April 1, 1871, and the last April 1, 1874. They had been made to secure a portion of the purchase-money due upon the mortgage premises; and each was made payable to "Huldah J. Turner or bearer." VOL. 45-9 |