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company of all its road, rolling stock and franchises, for which no authority is given in the charter, is ultra vires and void, that the general power to contract with other companies for the mutual transfer of goods and passengers did not include the power to lease. It was further held that any contract, by which the company renders itself incapable of performing its duties to the public, or which attempts to absolve itself from its obligation, without the consent of the State, violates its charter and is forbidden by public policy.

In this we concur, but cannot see its application to the case at bar. It is not even pretended that this railroad, has, by this contract, rendered itself incapable of performing its duties to the public, or that it has attempted to absolve itself from any obligation to the State, or to the public as a public carrier, under the act of incorporation.

The State v. Consolidation Coal Co., 46 Md. 1, was decided on the same principle, where it was held, that the power to sell and convey all its property and franchises, and thus escape its obligations to the public, could only be conferred by express legislation.

To the same effect are: Beach v. The Delaware & Raritan Canal Co, 24 N. J. 455, S. C. 22 N. J. Eq. R. 130; Middlesex R. R. Co. v. Boston & Chelsea R. R.Co., 115 Mass. 347; Richardson v. Sibley, 11 Allen 65.

These, and other cases that might be cited, rest upon the principle that the corporation owes duties to the public, that the franchises granted to it, impose a trust, and that without express authority, it cannot disable itself from the performance of these duties, or the faithful execution of the trust.

For aught that appears, or is even suggested, the plaintiff in error has performed all its corporate duties to the public, and has faithfully discharged the trust reposed in it by the grant of its franchises, to the satisfaction of the State and of the public. The existence of this ten year contract has not, so far as we are advised, incapacitated the corporation from the performance of all such duties and trusts.

Neither the State, nor the public who are benefitted by this public highway, nor the stockholders are complaining. Why should the corporation be allowed to absolve itself from a contract, fairly made, of mutual obligation and advantages when made, supported by a valuable consideration received in great part, and free from any discrimination, simply because it may prove less profitable than was anticipated.

What effect such a contract would have on the rights of other shippers, we have not considered, as they are not here complaining.

We hold that the making of this contract was in the exercise of the sound discretion of the board of directors, granted to them in the charter of the company, and is not ultra vires and void. Judgment affirmed.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

PENNSYLVANIA COMPANY

v.

JOHN WENTZ.

1. The power of a railroad company to make and enforce a regulation that one or more designated passenger trains on its road shall not stop at specified stations or places, is subject to legislative control; and by the act of 1852, 26, as amended in 1867 (S. & S. 114; Rev. Stats.

23320), such power is taken away as to municipal corpor

ations containing three thousand inhabitants.

2. Where one traveling on a passenger train of a railroad company, presents to the conductor a ticket issued by such company, authorizing him to ride from one to another designated station, "only on such trains as stop regularily at both stations," and is ejected from the cars by such conductor between such stations, it will be no defense to the passenger's action against the company for damages, that by the regulations of the company, the train on which he was traveling did not stop at the latter station, if the ticket was issued since the passage of the act of 1867, and such station was in a municipal corporation which, at the time the ticket was issued, had a population of three thousand inhabitants, and the passenger believed when he took passage on the train that it stopped at both stations.

Error to the District Court of Crawford County. In 1876, John Wentz commenced an action in the Court of Common Pleas of Crawford County, against the Pennsylvania Company, operating the Pittsburgh, Fort Wayne and Chicago Railroad, to recover damages sustained by being ejected from a train of cars of the Pennsylvania Company in which he was riding as a passenger. The facts are as follows: Wentz has resided since 1859 on his farm one and a half miles from Bucyrus, a municipal corporation containing in 1870, and ever since, more than three thousand inhabitants, and being the county seat of Crawford County. He desired to attend the Centennial Exhibition at Philadelphia, and seeing that the Pennsylvania Company was selling railroad tickets to and from Philadelphia, at reduced rates, he applied at the office of the company, in Bucyrus, for a ticket to Philadelphia. He was informed, however, that he could not obtain such ticket there, but could obtain it at Crestline, twelve miles further east on the company's road. He then bought a ticket from Bucyrus to Crestline and return. That ticket contained these words: "In considera.tion of the reduced rate at which this ticket is sold, the purchaser agrees to use it only on such trains as stop regularly at both stations named (Bucyrus and Crestline), and for a continuous trip each way only." He went to Crestline on August 11, 1876, presenting his ticket, which was a sufficient voucher for his fare to that place, and retaining such ticket as a voucher that his fare was paid for his return from Crestline to Bucyrus. At Crestline he purchased of the company a ticket to Philadelphia. He remained at Philadelphia until August 21, 1876, when he purchased of the company a ticket from Philadelphia to Crestline, and took passage for the latter place. At Pittsburgh he and the other passengers were required to change cars, and were placed in what was called the limited mail, a passenger train of the company running from

New York through Pittsburgh, through Crestline, thence through Bucyrus, and on to Chicago. Arriving at Crestline, where the train was stopped for a few minutes, he retained his seat, and when the cars had reached a point about four miles from Crestline, and within eight miles of Bucyrus, the conductor came to him for his fare. He presented the ticket he had purchased at Bucyrus, but the conductor informed him that the limited mail, on which he was then riding, did not stop at that place, and that he would be carried to Forest, which is twenty-eight and onehalf miles west of Bucyrus, on payment of eighty-five cents. He said he was willing to pay eighty-five cents, but not willing to go to Forest, and he insisted on stopping at Bucyrus. The conductor then stopped the train and told him he must get off or be put off, and thereupon he left the train. This was about one o'clock at night. He walked home arriving there at five o'clock in the morning. Soon afterward he brought suit against the company and obtained a verdict and judgment for eighty-seven dollars and fifty cents. That judgment having been affirmed in the District Court, this petition in error was filed to reverse both judgments.

By the printed rules and regulations of the company, the limited mail did not stop at Bu

cyrus.

By the 26th section of the act relating to incorporated companies, as amended in 1867 (S. & S. 114; Rev. Stats. § 3320), it was provided as follows: "Sec. 26. That every railroad company in this State shall cause all its trains of cars for passengers to entirely stop, upon each arrival at any station, at any town or village having a population of three thousand, and all trains advertised by such company to stop at any station for the receiving of passengers shall stop the same at such station for a time sufficient to receive and let off passengers; and every company, and every person in the employment of such company, that shall violate, or cause, or permit to be violated the provisions of this section, shall forfeit and pay for each offense not more than one hundred, nor less than twenty-five dollars, to be recovered in a civil action, on complaint of any person before any justice of the peace of the county in which the violation shall occur, and in all cases of violation of the provisions of this section the company whose agents shall cause or permit such violation, shall be liable for the amount of such forfeiture, and in all cases the conductor upon euch train shall be held prima facia to have caused the violation of this section, which may occur by the train in his charge, and said forfeiture to be recovered in the name of the State of Ohio for the use of common schools." J. T. Brooks, for plaintiff in error. S. R. Harris, for defendant in error. OKEY, C. J.

The claim is urged that when Wentz purchased the ticket at Bucyrus, and also when he retained his seat in the limited mail at Crestline, he knew that train did not stop at Bucyrus; and hence, that in making the agreement the parties were

in pari delicto, and that in retaining his seat at Crestline, Wentz was guilty of negligence, either of which facts should defeat a recovery. But we need not determine how far such knowledge should affect a recovery. It is sufficient to say the court charged the jury that such knowledge, if he had it, would defeat Wentz's action, and that the jury found in his favor. This, therefore, was in effect a finding of the jury that he did not have have such knowledge; and, after a careful examination of the evidence, we cannot say such-finding was clearly wrong.

A further claim is made, that there was a special contract between Wentz and the company. No doubt a special agreement between the parties that Wentz should only use the ticket he purchased at Bucyrus upon a particular train would have been valid, whether made before or after the passage of the act of 1867. But no such agreement was proved. Nobody testified to any thing of the sort. Indeed, there was no evidence whatever that any conversation concerning any special agreement between the parties was ever held. The only facts to show such agreement were the words on the ticket, the printed time table posted in the offices of the company, showing that the limited mail did not stop at Bucyrus, and the residence of Wentz in the neighborhood of Bucyrus for several years. But it is perfectly well settled that these facts do not prove any special agreement. Railroad Co. v. Campbell, 36 Ohio St. 647. Indeed, there is no evidence that the attention of Wentz was ever directed to the words on the ticket or the time table, or that he ever saw such table.

Conceding, however, the claim of the company that when Wentz purchased the ticket at Bucyrus, he consented to the conditions appearing thereon, the question remains whether, even then, his right of action is defeated, the jury having found, as already stated, that he did not know, when he presented the ticket, that the limited mail did not stop at Bucyrus. The place at which he was ejected was not at. a station, nor at any habitation, but in or near woodland, and the time was one o'clock at night. The sole ground for ejection was that he could not consent to be carried twenty-eight miles beyond the station named on the ticket. Even laying out of view the statute, it would be difficult to maintain the proposition that such ejection was justifiable. Thompson's Car. of Pas. 340.

But the right to recover may be placed on broader ground. The stipulation on the ticket was, as we have seen, that the holder would not use it on trains which did not regularly stop at Bucyrus. In the absence of statutory provision to the contrary, a railroad company may adopt a regulation that a certain train or trains of passenger cars running regularly on its road, shall not stop at designated stations or places, and one traveling as passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going. Pittsburgh, etc. R. Co. v. Nuzum, 50 Ind. 141; Ohio, etc. R. Co. v. Applewhite, 52 Ind. 540;

Ohio, etc. R. Co. v. Swarthout, 67 Ind. 567; Chicago, etc. R. Co. v. Randolph, 53 Ind. 510. And, in the absence of any statutory provision, where the conductor of a road which has made such regulation, finds, after the train has started, a passenger who holds a ticket for a station at which such train does not stop, he may, in a proper manner, be removed from such train, Thompson's Car. of Pas. 375. But the power of a railroad company to adopt or enforce such regulation, is subject to legislative control. Com. v. Eastern R. Co. 103 Mass. 254; Shields v. The State, 26 Ohio St. 86, S. C. 95 U. S. 319; The State v. New Haven, etc. Co., 43. Conn. 351; New Haven, etc. Co. v. The State, 44 Conn. 376; Pierce on Rail. (ed. of 1881) 450.

The act of 1867, set forth in the statement of this case, is such legislative control. While it is clear that this actoin was not prosecuted under this section, it is equally clear that the alleged contract, whereby Wentz purchased a ticket from Bucyrus to Crestline and return, must be construed with reference to such section. Lindemann v. Ingham, 36 Ohio St. 1, 10. This is an action for the alleged wrong done to Wentz, and it is not material whether it should be regarded as in tort or on contract, for in either case the question is whether he had a right to retain his seat on production of his ticket. Sometimes it is difficult to determine whether a matter is so far illegal that it cannot be the subject of an agreement. But in this case 'the provision is express, that all passenger trains shall stop on arrival at a municipal corporation having a population of three thousand; this is a statutory regulation for the benefit of the public; and moreover, a penalty is provided for a failure to comply with the requirement. An agreement-assuming that one was made-recognizing the validity of a regulation to disregard such statutory provision, is, according to the authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio, 442; The State v. Findley, 10 Ohio, 51; Bloom v. Richards, 2 Ohio St 287; Huber v. Ger. Con. 16 Ohio St. 371; Delaware Co. v. Andrews, 18 Ohio St. 49; Hooker v. De Palos, 28 Ohio St. 251; Leake on Con. 723.

The purchase of the ticket, authorizing Wentz to travel on passenger trains of the compauy from Bucyrus to Crestline and return, was manifestly lawful, and that purchase was fully executed when Wentz paid the money and received the ticket as his voucher that such fare was paid, It is true that the ticket contained a stipulation that the purchaser thereof "agrees to use it only on such trains as regularly stop at both stations named," that is, Bucyrus and Crestline. But as the law required all passenger trains to stop at Bucyrus, and as the train upon which he was riding was a passenger train, he might well and properly assume that the law would be obeyed. Such limitation on the use of the ficket, being in violation of the statute, should be disregared, while the payment of fare for a passage from Bucyrus to Crestline and return, should be held to create an obligation on the part of the company to perform such service for Wentz on any pass

enge train of the company. This is in accordance with Pigot's case, 11 Čoke, 27 b, in which it was resolved, "that if some of the covenants of an indenture, or of the conditions indorsed upon a bond, are against law, and some good and lawful; that in this case the covenants or conditions which are against law are void ab initio, and the others stand good." This principle has been reasserted in many cases. The whole subject is ably considered in Wald's Pollock on Con. ch. VI.

If there was any error in the rulings in the court of common pleas, it was not to the prejudice of the plaintiff in error. In any view that can be taken of the case, the judgment below is right.

Judgment affirmed.

[This case will appear in 37 O. S.]

SUPREME COURT OF OHIO.

JACOB TAYLOR

v.

JOSHUA BINFORD.

November 15, 1881.

C., being the owner of land, conveyed it, for a valuable consideration, to a Township Board of Education, its successors and assigns, for the use of school purposes only. Afterward the board, wishing to change the school-house site, sold the land at public outcry to T.

C. having conveyed to B., entered-under his permission -as upon condition broken. In an action of trespassby T. against C

Held, that the entry or C. was unlawful, the sale to T. not being in violation of the terms of the grant to the Board of Education by which the estate was expressly made assignable.

Error to the Cour of Common Pleas of Ma

honing County. Reserved in the District Court. The facts are sufficiently stated in the opinion of the court.

LONGWORTH, J.

The original action was brought by Jacob Taylor against Joshua Binford and Emmor Cobbs, to recover damages for a trespass upon lands which the plaintiff claimed to own. Binford answered, traversing all the allegations of the petition. Cobbs admitted his entry upon the land but justified under a permit from Binford who was, he averred, at the time the owner of the land. The ownership of the land was the sole question at issue.

Upon the trial the court rendered judgment for the defendants.

The pleadings, together with the separate findings of fact and law by the court, constitute the record.

From this record it appears that in 1854 Cobbs, who was then the owner of the land, conveyed it to the Board of Education of Smith township, by deed as follows:

"This indenture, made the fourth day of April, one thousand eight hundred and fifty-four, between Robert Cobbs and Mary Cobbs, his wife, of the county of Mahoning, in the State of Ohio, parties of the first part, and John Sheffer, Mor

decai D. Tanneyhill, Stephen Miller, John Allerton, Enoch Shreeve, Nathan Ball, Jesse Stanley, J. W. Satterthwait, James Hoiles, and Seth Pennock, Chairman, and Samuel Cobbs, Clerk, as the township Board of Education of the township of Smith, county and State aforesaid, party of the second part, witnesseth:

That the said parties of the first part, in consideration of fifty dollars to them duly paid before the delivery hereof, have bargained and sold, and by these, presents do grant and convey to the said party of the second part, its successors and assigns forever, the following lot of land, in range five, township eighteen, section thirtysix: beginning at the south-west

corner

of the north-west quarter of said section, and running north ten rods, thence east eight rods, thence south ten rods, thence west eight rods, to the place of beginning, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein, for the use of school purposes only; and the said parties of the first part doth hereby covenant and agree with the said party of the second part, that at the time of the delivery hereof the said parties of the first part were the lawful owners of the premises above granted, and seized thereof in fee simple absolute; and that they will warrant and defend the above granted premises in the quiet, peaceful possession of the said party of the second part, and its successors and assigns forever, for the above named purposes.

In witness whereof the said parties of the first part have hereunto set their hands and seals, the day and year above written.

ROBERT COBBS, [SEAL.]
MARY COBBS,

[SEAL.] Signed and delivered in the presence of JOSEPH L. HANNA and JOSEPH COBBS."

}

The grantees took possession of the land and used it until the year 1874 as a school house site. In the fall of that year the board determined to change the location of the school house and to sell the house and lot. In pursuance of this resolution, after proper advertisement, the premises were sold to Taylor for $200, he being the highest bidder. Taylor, thereupon, entered into possession under a written agreement for a deed. which was afterwards delivered to him in April, 1875. In February, 1875, Cobbs conveyed to Binford, claiming that the title had reverted to him by reason of a breach of the condition that the premises should be used for "school purposes only."

On the one hand it is claimed that the limitation of the use is a condition of the grant, the breach of which works a forfeiture of the estate, while on the other hand it is claimed that a grant declared to be for a special purpose without other words cannot be held to be upon condition, but at most, creates only a trust. See Packard v. Ames, 16 Gray 327; Ayer v. Emery, 14 Alfen 69; Sohier v. Trinity Church,, 109 Mass. 1; Stanley v. Cobb, 5 Wallace 119, 146,

164.

We will assume, without however so deciding, that the grant is upon condition, the breach of which would work a forfeiture.

Has the condition been broken? Surely not by the sale to plaintiff. The estate conveyed was a fee, and of this estate the right to assign is an essential incident. Indeed by the terms of the instrument the estate is expressly made assignable, the grant being to the board "it's successors and assigns forever." The mere fact of a sale therefore would be no breach of the condition in the absence of a showing that the grantee diverted the land to other than school purposes only; and this fact nowhere appears. Judgment reversed.

[This case will appear in 37 O. S.]

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use.

3. The endorser of a note before utterance is a joint maker thereof in the absence of an agreement with the endorsee limiting his liability.

4. The doctrine of election only applies to cases where the plaintiff seeks to enforce the same right that the plaintiff is attempting to put in execution in another action which is then pending.

5. The plaintiff cannot be compelled to first exhaust the security which it holds from the principal, but it has a right to proceed against both at the same time, and to make the best it can of both. The remedy of the surety is to pay the debt, and he will then be subrogated to and may enforce all collateral security held by the bank for the payment of the debt.

This case was heard by the Court upon a demurrer to Morrison's answer to plaintiff's petition. The opinion states the case.

McMath, Weed & Dellenbaugh for the Second National Bank.

Willson & Sykora for David Morrison.

HAMILTON, J.

This case was brought by the bank as endorsee of a negotiable promissory note made by Martin Krejci and endorsed in blank by David Morrison and J. W. Sykora. Morrison alone answers, averring that he endorsed the note as an accommodation endorser and surety for Krejci and Sykora, without consideration, and that the plaintiff was well aware of and knew that there was no consideration for his signing the note at the time Sykora endorsed and delivered it to the plaintiff. To this answer the plaintiff demurs, upon the ground that it does not state facts sufficient to constitute a defense.

What is the form of the exact contract in suit in the case at bar? In form, it is a negotiable promissory note. Its legal effect is an unqualified agreement on the part of the maker to pay

to the payee or any endorsee of the instrument a sum certain on a day certain; while it is also a conditional promise on the part of the endorsers to the endorsee to pay the full face of the note upon default of the maker and due notice to themselves. The contract, therefore, is one which may lawfully exist between these parties. It is the exact contract which exists between the parties as to every note discounted by a bank in the usual and ordinary course of business. No claim is made that the bank did not pay a valuable consideration for it, or that any fraud was practised upon any party, or that it has been paid, or that under the form of a legitimate contract was hidden any usurious artifice or scheme, so that the contract itself has no stain of excessive interest, of fraud or illegality. Clearly, it is a well settled principle of law that Morrison, by endorsing said note before its delivery to the bank, for the accommodation of his co-defendants, loaned them his credit without any constraint as to the manner of its use. The want of consideration, and the further fact that Morrison was an accommodation endorser or surety, does not affect the rights of the bank as an endorsee, though taking it with notice. Thatcher v. West River National Bank, 19 Mich., 196; Fulweiler v. Hughes, 17 Pa. St., 448.

In the case at bar, Morrison endorsed said note at the time of the execution thereof, and the law presumes it to have been made for the same consideration as the note itself, and a part of the contract thereby expressed. Good v. Martin, 95 U. S., 90.

It is a well settled principal of law in Ohio that an endorser before the utterance of the note is a joint maker. In this case it is distinctly averred in plaintiff's petition (and not denied in Morrison's answer) that he endorsed said note at the time of its inception, and that subsequently it was transferred to the bank in the usual and ordinary course of doing business.

Morrison also avers in his answer to plaintiff's petition that "said plaintiff, at the time of the reception of said note by it, had and held and still has and holds, a note of $7,000 secured by mortgage upon the property of said Martin Krejci as collateral security to the note described in plaintiff's petition." He also avers the insolvency of his two co-defendants, and prays that the plaintiff may be required first to exhaust its remedy against Krejci in an action now pending

to foreclose said mortgage for $7,000 before obtaining judgment in the case at bar. True or false, the pendency of an action to enforce the payment of said mortgage will not prevent this plaintiff from obtaining the fullest measure of justice. The plaintiff cannot be compelled to elect as to which remedy it will pursue, for the reason that the doctrine of election only applies to cases where the plaintiff seeks to enforce against the defendant, the same right that the plaintiff is attempting to put in execution in an action which is then pending; as, where an action for an account is pending, and the plaintiff files a bill for an account. It is put upon this

ground: As the parties are the same, and the relief is the same, the second suit is merely for vexation and annoyance, and consequently will not be entertained by the court.

In Lord v. The Ocean Bank (20 Pa. St., 384), the opinion of the Court was delivered by the famous Chief-Justice Jeremiah S. Black, who "The fact that the holder had other said: collateral security for the same debt, more than sufficient to cover it, from which, however, the debt had not been realized, is not a ground of defense on the part of the maker."

In the case at bar the plaintiff is not seeking to put in execution the same remedy to recover its claim, and there is no reason why it may not, in good conscience, have recourse to all the means of reparation at its command which the courts of this country will give, and after ascertaining the extent of the relief which will be granted, then make its election and enforce the judgment or decree of this Court, which it may be advised metes out to it the fullest measure of justice. Notwithstanding the fact that a mortgagee has a double security, he has a right to proceed against both at the same time, and to make the best he can of both. It would be a strange anomaly not to allow the bank to pursue all of its remedies till it has obtained satisfaction of its debt. If Morrison is compelled to pay this plaintiff's claim, he will be subrogated to all of the legal and equitable rights of the bank. The auxilary equity, known as the doctrine of subrogation, will enable Morrison to reap the benefit of any securities which the bank holds against Krejci, and by the use of which he may thus be made whole. Equity will not interfere with the rights of the bank to enforce payment out of any of its securities, and therefore equity will substitute Morrison to the rights of the bank against other securities which it now holds. Bispham's Principles of Equity, Sections 335 to 342, both inclusive.

It is settled by a long continued and unvarying current of authorities that the bank cannot be compelled, before proceeding to enforce the payment of the note sued upon in this case, to first exhaust the security which it holds from the principal for the payment of the debt. Clearly, it is equally well settled that Morrison's remedy is to pay the debt, and he will then be subrogated to, and may enforce all collateral security held by the bank to secure the payment of the note upon which this action is predicated.

The demurrer, therefore, must be sustained.

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