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of Mt Vernon 0 I do not wish to put you to so much trouble as I work to the Handle

Yours in Haste Write Soon as convenient



In the discussion of the question—“Right of Counsel to represent Prosecuting Witness,” &c., the writers secm to have overlooked the fact that Sec. 7245 was repealed by 77 0. L. 59, March 11, 1880.

Please call the attention of the parties interested to the change.

Very Truly,








January 24, 1882. ON THE DOCKET.

1. It is error to reverse or modify a judgment without

having the parties before the court affected by such reThe Clerk of the Supreme Court of Ohio, a few

versal or modification.

2. Where several defendants are sought to be charged weeks ago, received a letter from a suffering liti

upon the same demand, and the defense set up by one gaht in an adjoining county which we give be

operates for the benefit of all, it is error to reverse the

judgment as to the answering defendant and leave it low verbatim et literatim, as it displays some fine standing in full force against the others. points of diplomacy, and shows how highly some

3. The lessee in a coal lease, by its terms, purchased

all the coal on the demised preinises, and agreed, members of the profession are held by their with all reasonable dispatch, to mine and remove the neighbors. The writer is neither a party or at

coal, and ou the first days of January and July of every

year to pay a specified sum per ton for all the coal that torney in the case mentioned.

may have been mined and removed; also, that it coal was found sufficient to render the same practicable, to

mine not less than thirteen thousand tons annually, or Knox County, O., Dec. 27, 1881.

on default thereof to pay for said quantity. It was furDwight Crowel Clerk of Supreme court I un

ther stipulated that in the event that the paynents thus derstand that you are making out a new Docket

required to be made should be niore than sufficient to

pay for the coal mined in any year, the “surp!us payof new cases of Supreme court and arrangement

ments were to apply on any future year's mining ihat of cases now in your arrangement of cases if you

might be in execsy of said quantity. Held:

1. That the quantity of coal was to be ascertained and can arrange the Docket so as to place the case of paid for in the inode prescribed by the lease. A D Shopley Versas Lewis Crichfield in such a 2. That in an action to recover an annual payment for shaps so that it can be reached before next Sep

thirteen thousand tons, an averment in the answer that

the “surplus payments" made in pursuance of the lease tember 1882 this a county case in which the were more than sufficient to pay for the unmined coal rePublic ar not safe to travel a damaged and im- naining on the premises, constitutes no defenso. passable road annother reason that you should Error to the District Court of Mahoning put the case where it can be reached Soon the County. people and Commissioners of Knox Co will peti- The original action was brought in behalf of tion the Supreme Court for immediate action as the heirs of Jacob Wise, Elizabeth Stambaugh Important an urgent now I will say and am not et al; on an agreement described as a lease, engoing to nor think you doing more than your tered into between them and David Tod on the duty I will give you Five Dollars by mail if you 1st day of October, 1861, to collect two installwill save me the trouble of petitioning your ments of rent of $1,625.00 each, one due on the court fer a Soon hearing of case and we have the 1st of January, 1874, and the other on the 1st of most Devlish man in the state an inveiglier and July, of the same year. Bulldozer now you seen the trouble we had to By the terms of the lease the lessors granted, make Lewis Crichfield to make out his briefs leased and sold to Tod, his heirs and assigns, all now he has not nor will commence his reprint the mineral coal in and under a certain tract of his arguments till forced in to the matter I tell land in the lease described, and the right to enyou or court gives him and threatones him ľ

ter upon the premises to freely'

mine and remean this if you can arrange your Docket so that move the same. On the part of Tod, the lease we can can have the Docket and case through by contained the following stipulation : next Autumn and send Crechfield & Graham

“ And as

a further consideration for said Attorneys at law of Mt Vernon a note giving grant the said Tod agrees to go forward with all them so many days to Complete their arguments reasonable dispatch to mine and remove said into writing I will present you with Five Dol1

stone coal and keep an accurate account thereof, lars as soon as you arrange your Docket force and at the end of each six months, to wit: on them to proceed this nothing mork than the law the first days of January and July of every year requires also this communication will never re- to pay to each of the said parties one-thirteenth veeiled to no person in the world you may write part of the sum of twenty-five cents per ton of to Crechfield & Graham Attorneys fer Lewis 2,100 pounds, for all the coal that may have Crichfield Our Attorneys are Devin & Culberton been mined and removed therefrom; and if


found in quality and quantity sufficient to ren

judgment as to the said plaintiffs in error was

reversed. der the same practicable, after the year 1862, to mine not less than thirteen thousand tons annu

And on a subsequent petition in error filed in ally, or on default thereof pay for said quantity; to which all the other parties interested were

the same court, by the same plaintiffs in error in which event the surplus payments are to ap

made defendants, a similar judgment of reply on any future years mining that may be in

versal was rendered, the court refusing to reverse excess of said quantity.”

said judgment except as it affected the said This lease was assigned by Tod to the Girard Iron Company by whom, in September 1869, it

plaintiffs in error.

The present petition in error is prosecuted by was assigned to Morris, Ward & Brown.

Tod's executors to which all the other parties The said assignees respectively assumed to

in interest are made defendants, to obtain the perform all the terms and agreements of the

reversal or modification of the judgment of the sease and save their assignors harmless on ac

district court. count thereof.

The errors assigned are in substance that the Tod's executors as well as the said assignees district court reversed the judgment of the court were made defendants to the petition; and Tod's

of common pleas instead of affirming the same; executors by way of cross-petition prayed that

also that the district court reversed the judgment the said indemnity be enforced against said as

as to Morris, Ward & Brown leaving it in force signees respectively and that they be required

as against Tod's executors and the Girard Iron to discharge his liability to the plaintiffs.

Company. The answer of Morris, Ward & Brown admits their liability under the lease, but avers pay- Geo. M. Tuttle, B. F. Hoffman and T. W. Sanment of all installments due prior to January 1, derson for plaintiff in error. 1874, and as to the installments sued for, the an- D. M. Wilson for defendant in error. swer sets up the following matter as their defense :

WHITE, J. “These defendants admit that said two pay- The judgment of the district court is maniments of $1,625 each, to recover which this suit festly erroneous. In the first place it was error has been brought, have not been paid, but they to reserve or modify the judgment of the court deny that they are due and payable under said of common pleas without having before the lease, or that any sum is or ever can be due court the parties affected by such reversal or plaintiffs from any of the defendants, under modification. In the next place, after the filing said lease, because they say that there has been of the second petition in error and all the parpaid by said Tod, said Girard Iron Company and ties interested were before the court, it was These defendants under said lease, about the error to severse the judgment as to Morris, Ward sum of $15,000 above paying for all coal mined & Brown, and leave it standing in full force at the rate of twenty-five cents per ton, that against Tod's executors, and the Girard Iron there is not sufficient minable coal on said prem- | Company. ises to repay these defendants at 'the price stip If the answer of Morris, Ward & Brown conulated, said sum which was paid as payment in stituted a defense to the action for them it opeadvance for coal to be mined, and so they aver rated equally as a defense for their co-defendants. that they have in fact paid for all coal mined

The cause was in equity and the same liability and that can be mined from said premises and was sought to be enforced against all the defendsay that their said lessees have the right to con- ants, but, inter se se, they were chargeable in the tinue the proper and diligent mining of what inverse order in which they became assignees of coal remains to be mined without further pay- the lease and assumed to perform its stipulations. ment."

On the cross-petition of Tod's executors and the To this defense the plaintiffs and Tod's exec- undisputed facts, Morris, Ward & Brown were utors respectively demurred. The demurrer was bound to fulfill the terms of the lease and sare sustained, and judgment rendered in favor of the executors harmless on account thereof. By the plaintiffs, against all of the defendants the judgment of the district court, Morris, Ward which was to be satisfied by execution first & Brown were relieved from this liability and against Morris, Ward & Brown, and on failure the performance of the terms of lease charged to obtain satisfaction from them, by execution upon Tod's executors and the Girard Iron Comagainst the Girard Iron Company, and on failure pany. to obtain satisfaction by the execution last If the court of common pleas was right in named, the executors of Tod were required to sustaining the demurrer to the answer, the judgpay said judgment from the assets in their hands.

ment of that court ought not to have been disIn case Tod's executors should pay the judgment turbed. The only remaining question therefore they were subrogated to the rights of the

is, whether the answer constituted a defense. plaintiffs in the judgment against the other de- We think it did not. fendants.

By the terms of the lease the lessee purchased On petition in error filed in the district court all the coal on the demised premises. The by Morris, Ward & Brown to which the original quantity of coal was to be ascertained and paid plaintiffs alone were made parties defendant, the for in the mode prescribed in the lease. It is stipulated in the lease that Tod is to go forward, Wheelwright, 5 Mass. 104; Canah v. Hall, 23 with all reasonable dispatch to mine and re- Wend. 462; Raynolds v. Shuer, 5 Cowen, 323; move the coal, and on the first days of January Lichtenheim v. Railroad Co., 11 Cush. 70; Garand July of every year to pay twenty-five cents nett v. Williams, 5 Barn. & Al. 53. per ton for all the coal that may have been Nicholas & James, for defendant in error. mined and removed; and if found in quality and quantity sufficient to render the same prac

20 Ohio, 69; Shcar & Red. on Neg. SS 8, 11, 13, ticable, after the year 1862, to mine not less than

20; 24 Ohio St. 639; 1 Parsons on Con. 606,* thirteen thousand tons annually, or on default

634; 19 Conn. 566; 40 Mo. 151; 59 Pa. St. 259; thereof pay for said quantity. It is further

48 Ill. 415; 105 Mass. 342; 32 Wis. 531; 38 N. stipulated that in the event that the payment

Y. 455; Story's Agency, $ 236; 3 Phil. Ev. 539, thus required to be made should be more than

541; Angell on Car. SS 12, 431, 433; 1 Smith's sufficient to pay for the coal mined in any year,

Lead. Cas. 333; 6 Hill (N. Y.) 588; 3 Ad. & El. the “surplus payments" are to apply on any

106; 20 Eng. L. & Eq. 452; 2 Green Ev. $ 642; future year's mining that may be in excess of Story on Bail

. SS 188; 410, 413, 454; 11 Cush. 70; said quantity. By this stipulation the surplus

99 Mass. 605; 6 Barr. 417; 5 Serg. & R. 179; 10

Watts. 335. payments are to be applied in payment of the excess of coal mined annually over and above the OKEY, C. J. thirteen thousand tons. The claim set up in The plaintiff (Darling) and the defendant the answer is that such payments are to be ap

(Younker) were neighbors living in Coshocton plied to pay for the unmined coal, without ref county, about fourteen miles from the town of erence to when mined, if mined at all.

Coshocton. They had known each other from This clai.. is not in accordance with the agrec- boyhood, and both were dealers in live stock: ment and cannot be supported. The demurrers The plaintiff had, in the hands of a firm ento the answer were properly sustained by the gaged ir selling live stock at Pittsburgh, the court of common pleas, and the district court proceeds of the sale of a lot of hogs which erred in holding otherwise. The judgment of he had shipped to that city for sale; and he also the court last named is therefore reversed and had a lot of hogs at Warsaw, in Coshocton that of the common pleas affirmed.

county, which' he wanted to send to Pittsburg [This case will appear in 37 0. S.]

for sale by the same firm. Being unable to leave

home by reason of sickness in his family, he SUPREME COURT OF OHIO.

employed the defendant to drive the hoys from

Warsaw to Coshocton, take them from Coshocton DARLING v. YOUNKER.

to Pittsburg by car, deliver them to the firm re

ferred to for sale, receive from the firm the proJANUARY 31, 1882.

ceeds of the sale of both lots, bring such proceeds 1. Where an action is brought against an agent who,

to Coshocton, there pay Stewart $1200, and then having received money to be carried to his principal, carry and deliver to him, the plaintiff

, the balclaims that the money is lost, the burden is on the agent ance. to show there was no breach of duty on his part ; and this is to be determined upon consideration of all the circum

The hogs were shipped in a car at Coshocton, stances; and, ordinarily, the question is one of mixed

on December 53, 1874, the defendant taking paslaw and fact and not merely of law.

sage in the caboosé. Finkbone, of Fairield 2. Y. was employed by D. to carry a sum of money, consisting in part of four $500 bank bills, to the town of

county, also a dealer in live stock, had a lot of C., there pay part of it to S. and carry and deliver the bal

hogs in cars of the same train, which he was ance to him (6.), owner of the money. Y. went to c. by taking to Pittsburgh for sale, and he and the depassenger train at night, riding in the same seat with F., fendant became acquainted in the caboose and an acquaintance, the car being half filled with passengers. While on the way Y., at the request of F., let the latter

stopped at the same hotel at Pittsburgh. The have one of the $500 bills in exchange for smaller bills. hogs taken by Finkbone, as well as those taken by On arriving at C. the package of money was taken by Y. the defendant, were sold the next day (December to a store in charge of B., and handed to B., who at the request of Y. locked it in his sale, the safe being one in


In the afternoon of the same day, a memwhich D. usually deposited his money. In the niorning ber of the firm which sold the stock went with when the money was taken from the safe and counted, an- the defendant to one of the Pittsburgh banks, other $500 bill was missing. Y. paid S. as directed, and on the same day gave the receipt of S. and the bal

where the sum of $3,100.54, being the whole ance of the money to D. and stated to him the above facts. amount due to the plaintiff

, was paid to the deD. accepted the receipt and money, but brought suit fendant. The money consisted of four bank bills, against y. for $500, basing his right to recover on the ground of pegligence: Held, that on the facts stated, the

each of $500, and other bills of smaller denomicourt could not say as matter of law that Y. was liable. nation, and fifty-four cents in change. The deError to the District Court of Coshocton

fendant folded the bills in a piece of newspaper, County.

and placed the roll in a pocket in the inside of

his vest, and left the bank. Soon afterward, the Spangler & Pomerene, for plaintiff in error. amount due to Finkbone for his hogs, being Edwards on Bailinents, 91, 114, 287, 304, 321, about $3,000, was paid to him at the same bank, 327; Story on Bailments, $S 15, 186, 188, 232, but he was unable to obtain at the bank any bill 413; 1 Parsons on Con. 606*; Shear. & Red. on of a larger denomination than $50. Neg. $$ 12, 23; Angell on Car. $$ 48, 52, 62; The defendant and Fink bone took passage on Smith 0. Stewart, 5 Ind. 220; Wheelock v. that evening at Pittsburgh, in the same passen

ger car, and came together as far as Coshocton, ing there. The defendant paid to Stewart $1200, arriving there abcut ten o'clock at night. The in accordance with the instruction already mendefendant stopped at Coshocton, and Finkbone tioned, and on the same day (December 25), deremained in the car until he reached Kirkeville, livered to the plaintiff Stewart's receipt and which is near his residence. On the way from $1,400,54, in money, and informed the plaintiff Pittsburgh to Coshocton, the defendant and of all the facts here stated, including the exFinkbone sat together, conversing about the change of bills, the deposit in the safe, and the live stock business. Finkbone informed the de- loss of the $500 note. fendant that he had tried to get larger bills, but Such, in substance, is the testimony of Younfailed. The defendant asked him if it would be ker as delivered in the Court of Common Pleas an accommodation if he would let him have one of Coshocton County, on the trial of an action $500 bill, and Finkbone said it would. About brought by Darling against him to recover the half the seats in the car were occupied, chiefly sum of five hundred dollars. His evidence was the middle seats. Fink bone took out his nioney, corroborated by the testimony of Finkbone, but at the suggestion of the defendant, they and the jury, believing the defendant's story, went to the front part of the car, to get as far as found a verdict in his favor; the court, after possible from the other passengers, and have the overruling a motion for a new trial, rendered a benefit of the light, and sat down together in

in judgment on the verdict; the district court afone of the front seats. Finkbone then took firmed the judgment, and this petition in error from his package ten $50 notes, and handed them was filed to reverse both judgments. to the defendant, who took from the pack- During the trial, evidence was also offered to age in his possession one of the $500 notes, show that the defendant was confused at the handed it to Finkbone, put the ten bills in the time the money was counted in the store; that place of the bill he had given to Finkbone, and he then stated that in the money paid to him restored the package to his inside vest pocket, at the bank there were three $500 bills; and that taking care that there should be no mistake in he also stated that he did not have the money making the exchange, and that none of the bills out of his pocket from the time he placed it should be lost. This was about an hour before there in the bank until he took it out in the the train arrived at Coshocton.

hardware store. But an explanation as to these The defendant arriving at Coshocton, as al- statements was fnrnished, showing that they, ready stated, in the night, it became necessary as well as the confusion, were caused by the defor him to remain at a hotel till morning. The fendant's excitement on discovering the loss, banks 'were closed of course, and it does not ap- and the statements were corrected by him on the pear whether there was or was not a safe in the same day. Furthermore, it was shown that he hotel where he stopped. There was, however, had said that he would pay the amount so lost hardware store in Coshocton, owned by a firm in to the plaintiff, but that he must have the matwhich a brother of the plaintiff was a partner, ter investigated; and when the plaintiff brought and the defendant was then aware of the fact suit, the defendant withdrew all proposals lookthat the plaintiff was in the habit of depositing ing to a settlement. There was also evidence considerable sums of money in the safe of that tending to show that the exchange of money on firm, which they kept in the store. The defend- the cars was not an unusual occurrence. ant went directly from the depot to the store, The foregoing embraces all the evidence, exwhich he found still open, Bonnett, a nephew of cept with respect to two or three matters which the plaintiff, and employee of the firm, being seem to be wholly unimportant. What the facts there alone. The defendant turned and was in relation to the missing bill really are, may about to leave the store, when Bonnett inquired never be known. Whether the note was dropped what was wanted, and the defendant informed in the cars, or whether somebody was dishonest, him that he had a package of money belonging are matters of conjecture. The defendant is to the plaintiff, stating the amount, which he quite certain no mistake was made at the bank. desired to have placed in the safe. Bonnett said In giving to the testimony a construction conhe could attend to it, and took the package and sistent with that honesty of the defendant 'which locked it in the safe, and the defendant then the plaintiff, with an acquaintance of forty years, went to his hotel, leaving Bonnett in the store. believed he really possessed, we are not prepared From the time the defendant received the money to say the jury erred. at the bank until he handed it to Bonnett in the If, on learning that the defendant had taken store, it had not been out of his pocket, except one of the nctes from the package, the plaintiff when he exchanged the bills, as already ex- had treated the act as a conversion, and brought plained, on the train.

suit to recover the whole amount so received by The next morning (December 25), the defend- the defendant at the bank, a different question ant went to the hardware store, and Bonnett, at might have been presented. It was the duty of his request, opened the safe and took therefrom the defendant to receive the money from the the package of money and handed it to him. On commission merchants at Pittsburgh, carry it to counting the money, in the presence of Bonnett Coshocton, there pay to Stewart $1,200, and take and the plaintiff's brother, it was ascertained the balance of the money to the plaintiff and dethat one of the $500 bills was missing, the bal- liver it to him. As Bigelow, c. I., says in Kent ance of the money, including two $500 bills, be- v. Bornstein, 12 Allen, 342, "any act or dealing


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with the money beyond this was outside of the has been determined as one of law. See 28 Ohio scope of his employment. He had no authority St. 340; 35 Ohio St. 627. See, however, 13 Ohio to enter into any contract concerning the money St. 71, 72; 35 Ohio St. 57; Pierce on Railroads in his hands, or to exchange it for other money (ed. of 1881) 312, 314, et seq. But where the facts with third persons.” And see Phillpott v. Kel- are in dispute, or the question is to be deterley, 3 Ad. & El. 106; Clendon v. Dinneford, 5 C. mined by inference from facts proved, the ques& P. 13; Greenwald v. Metcalí, 28 Iowa, 362; Ed- tion is necessarily one of fact; nor can it be a wards on Bailments, $s 67, 97. But we do not question of law in any case if reasonable men, find it necessary to decide as to the law that unaffected by bias or prejudice, might disagree would have been applicable if the plaintiff had concerning the presence or absence of due care. taken the course indicated. On being informed Judgment affirmed. of the loss, the plaintiff accepted as cash the re- [This case will appear in 37 0. S.] ceipt of Stewart and the balance of the money in the defendants hands, making $2,600.54,

SUPREME COURT OF OHIO. which he knew included the bills given by Finkbone in exchange for one of the $500 bills,

I. T. MCLAIN and the plaintiff brought suit against the defendant for the missing $500 bill. This, there

B. W. SIMINGTON. fore, was a complete ratification by the plaintiff of the act of the defendant to that extent.

JANUARY 31, 1882. Ewell's Evans on Agency, 94.

1. The uudertaking for attachment provided by secNo action could be maintained for the conver- tion 193 of the Code of Civil Procedure (2 8. & C. 1007), sion of the missing bill, 'nor as for money had

is not a specialty, and the want of a seal does not affect

its validity. and received, the jury having found that there

2. Where the name of the surety to such undertaking was no misappropriation of the bill by the de- does not appear in the body of the instrument, but the fendant, and the verdict in that respect not ap- language used is, “We, A. B. and- - hereby undertake

the omission of such name does not affect the valpearing to be wrong. Sturgis v. Keith, 57 III.

idity of the undertaking or the obligation of the surety. 451, 11 Am. Rep. 28; Parry v. Roberts, 3 Ad. & Language of opinion in Stephens v. Allmen et al. 19 Onio El. 113. But where an agent is guilty of negli

St. 4855, qualified. gence, whereby the money of his principal is Error to the District Court of Union County. lost, an action may be maintained on that The defendant in error, Simington, brought ground. And here the question is whether we an action in the Court of Commion Pleas of Morcan say as matter of law that the acts of the row County, against McLain, plaintiff in error, defendant, in making the exchange in the car for the recovery of money only, and obtained an and the deposit in the safe, afford a ground of re- order of attachment which was levied upon cercovery, as to the missing $500 bill, because of the tain property belonging to McLain. The underdefendants negligence, and without regard to the taking was given as follows: question of actual good or baul faith. But as to Whereas, B. W. Simington has commenced a the deposit in the safe, we can see in it nothing civil action against I. T. McLain in the Court of objectionable, under the circumstances. It was Common Pleas, within and for the County of the safe in which the plaintiff niade his own de- Morrow, State of Ohio, to recover the sum of posits of money, and the safe was in charge of eighteen hundred dollars, with interest thereon, the brother and nephew of the plaintiff. In- from the 6th day of July, A. D. 1876. deed, the plaintiff made no complaint that such And whereas, the said B. W. Simnington has deposit had been made. The real question, there applied to the clerk of said court, by filing the fore, is as to the alleged negligence in making necessary affidavit for an order of attachment to such unauthorized exchange of money in the be issued in said action, against the said I. T. cars.

McLain. An agent is not the insurer for the safe deliv- Now, therefore, we, B. W. Simington and ery of money placed in his care to carry to his

hereby undertake to the said I. T. principal. No doubt, however, where he claims McLain in the penal sum of twenty-two hunsuch money entrusted to him is lost, the burden dred dollars, that the B. W. Simington shall pay is upon him, whether the service be for or with to the said I. T. McLain, all damages which the out reward (Anderson v. Foresman, Wright, 598; said I. T. McLain may sustain by reason of said Ewell's Evans on Agency, 327), to show that the attachment, if the order should have been wrongloss was not occasioned by want of that care, on fully obtained. bis part, which men of ordinary prudence ob

Dated this day of August, A. D. 1877. serve when clothed with such a trust. The real

B. W. SIMINGTON. question, in every case where negligence is al

L. MAXWELL. leged, is whether there has been a breach of McLain moved the court to vacate the attachduty, and that is to be deterniined from a con- ment for the reasons: sideration of all the facts. But here the question 1st. That no sufficient undertaking had been whether the acts of the defendant amounted to given,-and such negligence as would afford ground of recov- 2d. That the affidavit upon which the attachery, was a question of fact and not law. Cases ment was obtained, was untrue. can be found in which the question of negligence The court overruled the motion, and error to

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