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V.

company of all its road, rolling stock and fran

SUPREME COURT OF OHIO. chises, for which no authority is given in the charter, is ultra vires and void, that the general

PENNSYLVANIA COMPANY power to contract with other companies for the mutual transfer of goods and passengers did not

JOHN WENTZ. include the power to lease. It was further held that any contract, by which the company ren- 1. The power of a railroad company to make and enders itself incapable of performing its duties to

force a regulation that one or more designated passenger

trains on its road shall not stop at specified stations or the public, or which attempts to absolve itself places, is subject to legislative control; and by the act from its obligation, without the consent of the of 1852, 2 26, as amended in 1867 (s. & S. 114; Rev. Stats. State, violates its charter and is forbidden by

3320), such power is taken away as to municipal corpor

ations containing three thousand inhabitants. public policy.

2. Where one traveling on a passenger train of a In this we concur, but cannot see its applica

railroad company, presents to the conductor a ticket istion to the case at bar. It is not even pretended

sued by such company, authorizing him to ride froin onc

to another designated station," only on such trains as that this railroad, has, by this contract, rendered stop regularily at both stations," and is ejected from the itself incapable of performing its duties to the

cars by such conductor between such stations, it will be public, or that it has attempted to absolve itself

no defense to the passenger's action against the company

for damages, that by the regulations of the company, the from any obligation to the State, or to the pub- train on which he was traveling did not stop at the latter lic as a public carrier, under the act of incorpo

station, if the ticket was issued since the passage of the act

of 1867, and such station was in a municipal corporaration.

tion which, at the time the ticket was issued, had a popThe State v. Consolidation Coal Co., 46 Md. 1,

ulation of three thousand inhabitants, and the passen

ger believed when he took passage on the train that it was decided on the same principle, where it was stopped at both stations. held, that the power to sell and convey all its property and franchises, and thus escape its ob

Error to the District Court of Crawford County. ligations to the public, could only be conferred

In 1876, John Wentz commenced an action in

the Court of Common Pleas of Crawford County, by express legislation. To the same effect are: Beach_v. The Dela- the Pittsburgh, Fort Wayne and Chicago Rail

against the Pennsylvania Company, operating ware & Raritan Canal Co, 24 N. J. 455, S. C. 22 road, to recover damages sustained by being N. J. Eq. R. 130; Middlesex R. R. Co: v. Boston & ejected from a train of cars of the Pennsylvania Chelsea R. R.Co., 115 Mass. 347; Richardson v.

Company in which he was riding as a passenger, Sibley, 11 Allen 65.

The facts are as follows: Wentz has resided These, and other cases that might be cited, since 1859 on his farm one and a half miles from rest upon the principle that the corporation owes Bucyrus, a municipal corporation containing in duties to the public, that the franchises granted 1870, and ever since, more than three thousand to it, impose a trust, and that without express inhabitants, and being the county seat of Crawauthority, it cannot disable itself from the per- ford County. He desired to attend the Centenformance of these duties, or the faithful execu- nial Exhibition at Philadelphia, and seeing that tion of the trust.

the Pennsylvania Company was selling railroad For aught that appears, or is even suggested, tickets to and from Philadelphia, at reduced the plaintiff in error has performed all its cor- rates, he applied at the office of the comporate duties to the public, and has faithfully pany, in Bucyrus, for a ticket to Philadeldischarged the trust reposed in it by the grant phia. He was informed, however, that he of its franchises, to the satisfaction of the State could not obtain such ticket there, but could oband of the public. The existence of this ten tain it at Crestline, twelve miles further east on year contract has not, so far as we are advised, the company's road. He then bought a ticket incapacitated the corporation from the perform- from Bucyrus to Crestline and return. That ance of all such duties and trusts.

ticket contained these words: “In consideraNeither the State, nor the public who are ben-.tion of the reduced rate at which this ticket is efitted by this public highway, nor the stockhol-sold, the purchaser agrees to use it only on such ders are complaining. Why should the corpora- trains as stop regularly at both stations named tion be allowed to absolve itself from a contract, (Bucyrus and Crestline), and for a continuous fairly made, of mutual obligation and advan- trip each way only.” He went to Crestline on tages when made, supported by a valuable con- August 11, 1876, presenting his ticket, which sideration received in great part, and free from was a sufficient voucher for his fare to that place, any discrimination, simply because it may and retaining such ticket as a voucher that his prove less profitable than was anticipated. fare was paid for his return from Crestline to Bu

What effect such a contract would have on the cyrus. At Crestline he purchased of the comrights of other shippers, we have not considered, pany a ticket to Philadelphia. He remained at as they are not here complaining.

Philadelphia until August 21, 1876, when he We hold that the making of this contract was purchased of the company a ticket from Philain the exercise of the sound discretion of the delphia to Crestline, and took passage for the latboard of directors, granted to them in the char- ter place. At Pittsburgh he and the other paster of the company, and is not ultra vires and void. sengers were required to change cars, and were Judgment affirmed.

placed in what was called the limited mail, a [This case will appear in 37 O. S.]

passenger train of the company running from

a

care

New York through Pittsburgh, through Crest- in pari delicto, and that in retaining his seat at line, thence through Bucyrus, and on to Chicago. Crestline, Wentz was guilty of negligence, either Arriving at Crestline, where the train was stop- of which facts should defeat a recovery. But we ped for a few minutes, he retained his seat, and need not determine how far sueh knowledge when the cars had reached a point about four should affect a recovery. It is sufficient to say miles from Crestline, and within eight miles of the court charged the jury that such knowledge, Bucyrus, the conductor came to him for his fare. if he had it, would defeat Wentz's action, and that He presented the ticket he had purchased at the jury found in his favor. This, therefore, was Bucyrus, but the conductor informed him that in effect a finding of the jury that he did not the limited mail, on which he was then riding, have such knowledge; and, after did not stop at that place, and that he would be ful examination of the evidence, we cannot say carried to Forest, which is twenty-eight and one- such.finding was clearly wrong, half miles west of Bucyrus, on payment of A further claim is made, that there was a eighty-five cents. He said he was willing to pay special contract between Wentzand the company. eighty-five cents, but not willing to go to Forest, No doubt a special agreement between the parand he insisted on stopping at Bucyrus. The ties that Wentz should only use the ticket he conductor then stopped the train and told him purchased at Bucyrus upon a particular train he must get off or be put off, and thereupon he would have been valid, whether made before or left the train. This was about one o'clock at after the passage of the act of 1867. But no such night. He walked home arriving there at agreement was proved. Nobody testified to any five o'clock in the morning. Soon afterward he thing of the sort. Indeed, there was no evidence brought suit against the company and obtained whatever that any conversation concerning any a verdict and judgment for eighty-seven dollars special agreement between the parties was ever and fifty cents. That judgment having been af- held. The only facts to show such agreement firmed in the District Court, this petition in er- were the words on the ticket, the printed time ror was filed to reverse both judgments.

table posted in the offices of the company, showBy the printed rules and regulations of the ing that the limited mail did not stop at Bucycompany, the limited mail did not stop at Bu- rus, and the residence of Wentz in the neighborcyrus.

hood of Bucyrus for several years. But it is perBy the 26th section of the act relating to in. fectly well settled that these facts do not prove corporated companies, as amended in 1867 (S. & S. any special agreement. Railroad Co. v. Camp114; Rev. Stats. $ 3320), it was provided as follows: bell, 36 Ohio št. 647. Indeed, there is no evi“Sec. 26. That every railroad company in this dence that the attention of Wentz was ever di. State shall ca use all its trains of cars for passen- rected to the words on the ticket or the time gers to entirely stop, upon each arrival at any table, or that he ever saw such table. station, at any town or village having a popula- Conceding, however, the claim of the company tion of three thousand, and all trains advertised that when Wentz purchased the ticket at Bucyby such company to stop at any station for the rus, he consented to the conditions appearing receiving of passengers shall stop the same at thereon, the question remains whether, even such station for a time sufficient to receive and then, his right of action is defeated, the jury let off passengers; and every company, and every having found, as already stated, that he did not person in the employment of such company, that know, when he presented the ticket, that the shall violate, or cause, or permit to be violated limited mail did not stop at Bucyrus. The place the provisions of this section, shall forfeit and at which he was ejected was not at a station, pay for each offense not more than one hundred, nor at any habitation, but in or near woodland, nor less than twenty-five dollars, to be recovered and the time was one o'clock at night. The sole in a civil action, on complaint of any person be ground for ejection was that he could not confore any justice of the peace of the county in sent to be carried twenty-eight miles beyond the which the violation shall occur, and in all cases station named on the ticket. Even laying out of violation of the provisions of this section the of view the statute, it would be difficult to maincompany whose agents shall cause or permit such tain the proposition that such ejection was jusviolation, shall be liable for the amount of such tifiable. Thompson's Car. of Pas. 340. forfeiture, and in all cases the conductor upon But the right to recover may be placed on euch train shall be held prima facia to have broader ground. The stipulation on the ticket caused the violation of this section, which may was, as we have seen, that the holder would not occur by the train in his charge, and said for- use it on trains which did not regularly stop at feiture to be recovered in the name of the State Bucyrus. In the absence of statutory provision of Ohio for the use of common schools."

to the contrary, a railroad company may adopt J. T. Brooks, for plaintiff in error.

a regulation that a certain train or trains of pasS. R. Harris, for defendant in error.

senger cars running regularly on its road, shall OKEY, C. J.

not stop at designated stations or places, and one The claim is urged that when Wentz purchased traveling as passenger on such road is bound to the ticket at Bucyrus, and also when he retained inquire whether the train upon which he takes his seat in the limited mail at Crestline, he knew

passage stops at the station or place to which he is that train did not stop at Bucyrus; and hence, going. Pittsburgh, etc. R. Co. v. Nuzum, 50 Ind. that in making the agreement the parties were 141; Ohio, etc. R. Co. v. Applewhite, 52 Ind. 540;

v.

Ohio, etc. R. Co. v. Swarthout, 67 Ind. enge train

of the company. This is in accord567 ; Chicago, etc. R. Co. v. Randolph, 53 Ind. ance with Pigot's case, 11 Coke, 27 b, in which it 510. And, in the absence of any statutory pro- was resolved, “ that if some of the covenants of vision, where the conductor of a road which has an indenture, or of the conditions indorsed upon made such regulation, finds, after the train has a bond, are against law, and some good and lawstarted, a passenger who holds a ticket for å sta- ful; that in this case the covenants or conditions tion at which such train does not stop, he may, which are against law are void ab initio, and the in a proper manner, be removed from such train, others stand good.” This principle has been reThompson's Car. of Pas. 375. But the power of asserted in many cases. The whole subject is a railroad company to adopt or enforce such reg- ably considered in Wald's Pollock on Con. ch. ulation, is subject to legislative control. Com. VI. v. Eastern R. Co. 103 Mass. 254 ; Shields ‘v. The If there was any error in the rulings in the State, 26 Ohio St. 86, S. C. 95 U. S. 319; The State court of common pleas, it was not to the prejuv. New Haven, etc. Co., 43. Conn. 351; New dice of the plaintiff in error. In any view Haven, etc. Co. v. The State, 44 Conn. 376; that can be taken of the case, the judgment below Pierce on Rail. (ed. of 1881) 450.

is right. The act of 1867, set forth in the statement of Judgment affirmed. this case, is such legislative control. While it [This case will appear in 37 O. S.] is clear that this actoin was not prosecuted under this section, it is equally clear that the alleged contract, whereby Wentz purchased a ticket

SUPREME COURT OF OHIO. from Bucyrus to Crestline and return, must be construed with reference to such section. Linde

JACOB TAYLOR mann v. Ingham, 36 Ohio St. 1, 10. This is an

JOSHUA BINFORD. 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

November 15, 1881. question is whether he had a right to retain his C., being the owner of land, conveyed it, for a valuable seat on production of his ticket. Sometimes it is

consideration, to a Township Board of Education, its difficult to determine whether a matter is so far il

successors and assigns, for the use of school purposes

only. Afterward the board, wishing to change the legal that it cannot be the subject of an agreeinent.

school-house site, sold the land at public outcry to T: But in this case the provision is express, that all

C. baving conveyed to B., entered--under his permission

-as upon condition broken. In an action of Trespassby passenger trains shall stop on arrival át a mu

T. against Cnicipal corporation having a population of three Held, that the entry or C. was unlawful, the sale to thousand; this is a statutory regulation for the

T. not being in violation of the terms of the grant to the benefit of the public; and moreover, a penalty is

Board of Education by which the estate was expressly

made assignable. provided for a failure to comply with the require

Error to the Coun of Common Pleas of Mament. An agreement-assuming that one was made-recognizing the validity of a regula- honing County. Reserved in the District Court

. tion to disregard such statutory provision, is, ac

The facts are sufficiently stated in the opinion

of the court. cording to the authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio, 442; The State v. LONGWORTH, J. Findley, 10 Ohio, 51 ; Bloom v. Richards, 2 Ohio

The original action was brought by Jacob St 287; Huber v. Ger. Con. 16 Ohio St. 371; Del- Taylor against Joshua Binford and 'Emmor aware Co. v. Andrews, 18 Ohio St. 49; Hooker v.

Cobbs, to recover damages for a trespass upon De Palos, 28 Ohio St. 251; Leake on Con. 723.

lands which the plaintiff claimed to own. BinThe purchase of the ticket, authorizing Wentz

ford answered, traversing all the allegations of to travel on passenger trains of the compauy

the petition. Cobbs admitted his entry upon from Bucyrus to Crestline and return, was mani

the land but justified under a permit from Binfestly lawful, and that purchase was fully exe

ford who was, he averred, at the time the owner cuted when Wentz paid the money and received

of the land. The ownership of the land was the ticket as his voucher that such fare was paid, the sole question at issue. It is true that the ticket contained a stipulation

Upon the trial the court rendered judgment that the purchaser thereof “ agrees to use it only for the defendants. on such trains as regularly stop at both stations

The pleadings, together with the separate named," that is, Bucyrus and Crestline. But as findings of fact and law by the court, constitute the law required all passenger trains to stop

ains to stop the record. at Bucyrus, and as the train upon which he was

From this record it appears that in 1854 Cobbs, riding was a passenger train, he might well and who was then the owner of the land, conveyed properly assume that the law would be obeyed. it to the Board of Education of Smith' township, Such limitation on the use of the ticket, being by deed as follows: in violation of the statute, should be disregared, “This indenture, made the fourth day of April, while the payment of fare for a passage from Bu- one thousand eight hundred and fifty-four, becyrus to Crestline and return, should be held to tween Robert Cobbs and Mary Cobbs, his wife, of create an obligation on the part of the company the county of Mahoning, in the State of Ohio, to perform such service for Wentz on any pass parties of the first part, and John Shæffer, Mor:

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decai D. Tanneyhill, Stephen Miller, John Aller- We will assume, without however bo decidton, Enoch Shreeve, Nathan Ball, Jesse Stanley, ing, that the grant is upon condition, the breach J. W. Satterthwait, James Hoiles, and Seth of which would work a forfeiture. Pennock, Chairman, and Samuel Cobbs, Clerk, Has the condition been broken? Surely not as the township Board of Education of the by the sale to plaintiff. The estate conveyed township of Smith, county and State aforesaid, was à fee, and of this estate the right to assign party of the second part, witnesseth:

is an essential incident. Indeed by the terms That the said parties of the first part, in con- of the instrument the estate is expressly made sideration of fifty dollars to them duly paid assignable, the grant being to the board “it's before the delivery hereof, have bargained and successors and assigns forever.' The mere fact of sold, and by these presents do grant and convey a sale therefore would be no breach of the conto the said party of the second part, its succes- dition in the absence of a showing that the sors and assigns forever, the following lot of land, grantee diverted the land to other than school in range five, township eighteen, section thirty- purposes only; and this fact nowhere appears. six: beginning at

the south-west corner Judgment reversed. of the north-west quarter of said section, [This case will appear in 37 0. S.] and running north ten rods, thence east eight rods, thence south ten rods, thence west

CUYAHOGA COMMON PLEAS. eight rods, to the place of beginning, with the appurtenances, and all the estate, title and inter

SECOND NATIONAL BANK OF CLEVELAND, OHIO, est of the said parties of the first part therein, for the use of school purposes only; and the said

DAVID MORRISON ET AL. parties of the first part doth hereby covenant and agree with the said party of the second part, Accommodation endorsement-Anomalous endorsementthat at the time of the delivery hereof the said Doctrine of election-Doctrine of subrogation.–1. The parties of the first part were the lawful owners

taking by an endorsee of an accommodation negotiable of the premises above granted, and seized thereof

promissory note, with full notice that the note was a

mcre gift, does not prevent the endorsee for value before in fee simple absolute; and that they will war- maturity from taking a good title. rant and defend the above granted premises in

2. The endorser of accommodation paper lends his

credit without any constraint as to the manner of its the quiet, peaceful possession of the said party of the second part, and its successors and assigns 3. The endorser of a note before utterance is a joint forever, for the above named purposes.

maker thereof in the absence of an agreement with the

endorsee limiting his liability. In witness whereof the said parties of the first

4. The doctrine of election only applies to cases where part have hereunto set their hands and seals, the plaintiff seeks to enforce the same right that the the day and year above written.

plaintiff is attempting to put in execution in another ac

tion which is then pending. ROBERT COBBS, (SEAL] 5. The plaintiff cannot be compelled to first exhaust MARY COBBS,

. the security which it holds from the principal, but it bas

a right to proceed against both at the same time, and to Signed and delivered in the presence of

make the best it can of both. The remedy of the surety JOSEPH L. Hanna and JOSEPH COBBs."

is to pay the debt, and he will then be subrogated to and

may enforce all collateral security held by the bank for The grantees took possession of the land and the payment of the debt. used it until the year 1874 as a school house site. This case was heard by the Court upon a deIn the fall of that year the board determined to murrer to Morrison's answer to plaintiff's petichange the location of the school house and to

tion. The opinion states the case. sell the house and lot. In pursuance of this McMath, Weed & Dellenbaugh for the Second resolution, after proper advertisement, the prem- National Bank. ises were sold to Taylor for $200, he being the Willson & Sykora for David Morrison. highest bidder. Taylor, thereupon, entered into possession under a written agreement for a deed

HAMILTON, J. which was afterwards delivered to him in April, This case was brought by the bank as en1875. In February, 1875, Cobbs conveyed to dorsee of a negotiable promissory note made by Binford, claiming that the title had reverted to Martin Krejci and endorsed in blank by David him by reason of a breach of the condition that Morrison and J. W. Sykora. Morrison alone anthe premises should be used for "school purposes swers, averring that he endorsed the note as an only.”

accommodation endorser and surety for Krejci On the one hand it is claimed that the limita- and Sykora, without consideration, and that the tion of the use is a condition of the grant, plaintiff was well aware of and knew that there the breach of which works a forfeiture of the was no consideration for his signing the note estate, while on the other hand it is claimed that at the time Sykora endorsed and delivered it to a grant declared to be for a special purpose with- the plaintiff. To this answer the plaintiff deout other words cannot be held to be upon con- murs, upon the ground that it does not state dition, but at most, creates only a trust. See facts sufficient to constitute a defense. Packard v. Ames, 16 Gray 327; À yer v. Emery, What is the form of the exact contract in suit 14 Alfen 69; Sohier v. Trinity Church, 109 in the case at bar? In form, it is a negotiable Mass. 1; Stanley v. Cobb, 5 Wallace 119, 146, promissory note. Its legal effect is an unquali164.

fied agreement on the part of the maker to pay

}

to the payee or any endorsee of the instrument ground: As the parties are the same, and the a sum certain on a day certain; while it is also relief is the same, the second suit is merely for a conditional promise on the part of the en- vexation and annoyance, and consequently will dorsers to the endorsee to pay the full face of not be entertained by the court. the note u pon default of the maker and due notice to themselves. The contract, therefore, is

In Lord v. The Ocean Bank (20 Pa. St., 384), one which may lawfully exist between these

the opinion of the Court was delivered by the parties. It is the exact contract which exists

famous Chief-Justice Jeremiah S. Black, who between the parties as to every note discounted

said: “The fact that the holder had other by a bank in the usual and ordinary course of

collateral security for the same debt, more than business. No claim is made that the bank did

sufficient to cover it, from which, however, the not pay a valuable consideration for it, or that

debt had Åst been realized, is not a ground of any fraud was practised upon any party, or that

defense on the part of the maker." it has been paid, or that under the form of a le- In the case at bar the plaintiff is not seeking gitimate contract was hidden any usurious arti- to put in execution the same remedy to recover fice or scheme, so that the contract itself has no its claim, and there is no reason why it may stain of excessive interest, of fraud or illegality. not, in good conscience, have recourse to all the Clearly, it is a well settled principle of law that means of reparation at its command which the Morrison, by endorsing said note before its de- courts of this country will give, and after ascerlivery to the bank, for the accommodation of his taining the extent of the relief which will be co-defendants, loaned them his credit without granted, then make its election and enforce the any constraint as to the manner of its use. The

The judgment or decree of this Court, which it may want of coneideration, and the further fact that be advised metes out to it the fullest measure of Morrison was an accommodation endorser or justice. Notwithstanding the fact that a mortsurety, does not affect the rights of the bank as gagee has a double security, he has a right to an endorsee, though taking it with notice. proceed against both at the same time, and to Thatcher v. West River National Bank, 19 Mich., make the best he can of both. It would be a 196; Fulweiler v. Hughes, 17 Pa. St., 448. strange anomaly not to allow the bank to pur

In the case at bar, Morrison endorsed said note sue all of its remedies till it has obtained satisat the time of the execution thereof, and the law faction of its debt. If Morrison is compelled to presumes it to have been made for the same con- pay this plaintiff's claim, he will be subrogated sideration as the note itself, and a part of the to all of the legal and equitable rights of the contract thereby expressed. Good v. Martin, 95 bank. The auxilary equity, known as the docU. S., 90.

trine of subrogation, will enable Morrison to reap It is a well settled principal of law in Ohio the benefit of any securities which the bank that an endorser before the utterance of the note holds against Krejci, and by the use of which is a joint maker. In this case it is distinctly he may thus be made whole. Equity will not averred in plaintiff's petition (and not denied interfere with the rights of the bank to enforce in Morrison's answer) that he endorsed said note payment out of any of its securities, and thereat the time of its inception, and that subse- fore equity will substitute Morrison to the rights quently it was transferred to the bank in the of the bank against other securities which it usual and ordinary course of doing business. now holds. Bispham's Principles of Equity,

Morrison also avers in his answer to plaintiff's Sections 335 to 342, both inclusive. petition that "said plaintiff, at the time of the reception of said note by it,' had and held and

It is settled by a long continued and unvarystill has and holds, a note of $7,000 secured by ing current of authorities that the bank cannot mortgage upon the property of said Martin

be compelled, before proceeding to enforce the Krejci as collateral security to the note described payment of the note sued upon in this case, to in plaintiff's petition.”. He also avers the in

first exhaust the security which it holds from solvency of his two co-defendants, and prays that

the principal for the payment of the debt.

Clearly, it is equally well settled that Morrison's the plaintiff may be required first to exhaust its remedy against Krejci in an action now pending

remedy is to pay the debt, and he will then to foreclose said mortgage for $7,000 before ob

be subrogated to, and may enforce all collateral taining judgment in the case at bar. True or

security held by the bank to secure the payfalse, the pendency of an action to enforce the

ment of the note upon which this action is payment of said mortgage will not prevent this predicated. plaintiff from obtaining the fullest measure of

The demurrer, therefore, must be sustained. justice. The plaintiff cannot be compelled to elect as to whích remedy it will pursue, for the reason that the doctrine of election only applies

THE OHIO LAW JOURNAL will henceforth to cases where the plaintiff seeks to enforce print in full, every opinion written by the against the defendant, the same right that the Judges of the Supreme Court, as fast as they are plaintiff is attempting to put in execution in an action which is then pending; as, where an ac

handed down.;. Our subscribers will get these tion for an account is pending, and the plaintiff opinions from two to six months earlier than files a bill for an account. It is put upon this advanced sheets could reach them, if issued.

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