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place in the knowledge of some other person, and if he choose to act upon this, and make, instead of withholding, payment, he acts at his peril, and must sustain whatever loss may ensue. It is a saying, frequently repeated in "The Doctor and Student," that "he who loveth peril shall perish in it." In other words, where a person has a safe way, and abandons it for one of uncertainty, he can blanie no one but himself if he meets with misfortune. Judgment of the circuit court reversed, and that of the common pleas affirmed.

(46 Ohio St. 560)

SEEBAUM V. HANDY et al.

(Supreme Court of Ohio. Nov. 19, 1889.) LIVERY STABLE KEEPERS-LIEN-WAIVER.

1. The lien given the person, by sections 3212, 3213, Rev. St., who furnishes feed and bestows care on a horse or other animal therein named, is a right, in the nature of a common-law lien, to retain possession as a security for the charges, and may be waived by the person's voluntarily parting with the possession to the owner without the charges being paid.

ence of the lien, the charge of the court, and the instructions which were asked and refused. The evidence offered consisted of the testimony of the plaintiff and the items of his account, and is as follows:

Plaintiff's Testimony: "I keep a livery stable on Seventh street, in Cincinnati, and have done so for many years. Truman ы. Handy, the father of the defendants, was in the habit for several years of putting up his horses at my stable. He paid me all his bills up to August 1, 1883. After that he paid me nothing on account of stabling, shoeing, feeding, or expense of any kind of caring for the horse Jim, which was replevied in this action. This account [marked 'A,' and hereto attached] is a true copy of my account against said Truman B. Handy up to November 1, 1884. He brought his horse to my stable five times between November 1, 1884, and November 12, 1884, for which I charged $2.00 in addition to what is shown on this account. Mr. Handy's habit was to drive into the city in the morning, drive his horse and buggy to my stable, deliver them to some employe about the stable, and go about his business. In the evening, or when he wanted to use the horse, he would come to the stable and order his horse, and some one of my employes would then harness his horse, and give him the reins, and he would then drive away. During the day I would have the horse fed and watered, and give him whatever attention he required. This was the usual course of business between us. I charged 40 cents

2. The plaintiff below was the keeper of a feed stable in the city of Cincinnati. The owner of a horse, who lived out of the city, was in the habit of leaving it with the plaintiff, when in the city, to be fed and cared for as long as suited his convenience. When called for, the horse would be delivered to the owner, and not returned, except at such intervals as suited he owner's convenience when again in the cit The plaintiff kept an account, in which the owner was charged with the feed and care of the horse from time to time, as it was left with him. On or about the 12th of November, 1884, the horse was called for and delivered to the owner, as usual; the charges for feed and care then amounted to over $100. Shortly a day for the feed and care of the horse, when fterwards the owner was killed by being thrown left at my stable in this way. I made out rom his buggy, and some time after that the horse my bills every month, and my account shows was driven to the city by a brother of the deceased, at the beginning of each month the amount and left at another feed stable, from which it was replevied by the plaintiff in action against certain of my bill for the preceding month; for inchildren of the deceased, who claimed to be the stance, the charge of $1.20, June 1st, for owners of the horse. Held, that the delivery of stabling during May, 1884, shows that Mr. the horse was a voluntary one, and the lien waived. Whether an express or implied contract to return Handy stabled his horse there three days durthe animal would have varied the rights of the ing that month. During the month of June yarties is not determined, for the reason that no he left his horse at the stable in the usual express contract was claimed, and none can be way, twice, as shown by the charge of July implied from the circumstances of this case. 1st. And during the month of July the horse (Syllabus by the Court.) was left there but one day, as shown by the charge of August 1st in said account. From the middle of August to the first of Novem- . ber said horse was at my stable all the time, and I charged $20.00 a month. The last time the horse was at my stable before Mr. Handy's death was, I think, November 12, 1884. On that occasion, when Mr. Handy called for him, he was harnessed and delivered to Mr. Handy in the usual way. Mr. Handy was living in Clifton at the time this bill was made. Mr. Handy was killed, so it was reported, on the 15th day of November, by being thrown from his buggy. On the 24th of November, 1884, this horse was driven into town by Charles E. Handy, defendant's brother, and was left by him at the stable of William H. Bristol, on Walnut street, and was taken from there by proceedings in replevin in this case. On one occasion I was pressing Mr. Handy pretty hard to pay up his bill. He was a little irritated,

Error to circuit court, Hamilton county. The action below was replevin for a horse. It was commenced in a justice's court, and appealed to the common pleas. The petition averred a special ownership in the plaintiff by virtue of a lien for feeding the horse and paying the expense of shoeing, for more than 10 days before the commencement of the action. The answer is in substance a general denial of the petition. The case was tried to a jury upon the issues joined, which found for the plaintiff, and assessed his damages for the detention at one cent. A motion for a new trial was then made, on the ground of a misdirection of the court to the jury, and a refusal to charge as requested. The motion was overruled, and judgment entered on the verdict. The defendants tendered their bill of exceptions, which was signed and made a part of the record. The bill sets forth all the evidence offered as to the exist

and said: Damn it, if you are afraid you | the case made by the tendency of the proof won't get your pay, you can sell the horse.' depends upon the nature and character of the I answered: Oh no, Mr. Handy, I would not do that.""

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Upon this state of the proof the court, among other things, charged the jury: "If you should find that it was the uniform manner between these parties that Mr. Handy would bring this horse to the stable, leave him there for a day, or part of the day, and take him away again, bring him the next day, or probably the next two or three days, without any definite arrangement as to time, there would arise an implied contract, when Mr. Handy took the horse away under these circumstances, that he would return him again. In other words, there would not be, under these circumstances, such a voluntary parting with the possession of the horse on the part of the plaintiff in the case as to work a waiver of the lien: There would not be an abandonment of the lien, under these circumstances." This was excepted to at the time, as were also other parts of the charge founded on substantially the same view of the law, and they are, therefore, not inserted here. Nor is it necessary to set forth the instructions asked and refused, as they are all contradicted by the part of the charge above given. The case turns upon this part of the charge. The judgment was reversed on error by the circuit court, and remanded for further proceedings.

Burch & Johnson, H. Marckworth, and J. H. Marckworth, for plaintiff in error. J. F. Baldwin, for defendants in error.

MINSHALL, C. J., (after stating the facts as above.) Whether the instruction of the court to the jury stated the law applicable to

lien given by sections 3212, 3213, Rev. St., to a person who furnishes food and care for any horse by virtue of an agreement with the owner, to secure the payment of the same. These sections are as follows: "Sec. 3212. A person who feeds or furnishes food and care for any horse, mare, foal, filly, gelding, mule, or ass, by virtue of any contract or agreement with the owner thereof, shall have a lien therefor, to secure the payment of the same, upon such animal. Sec. 3213. A person feeding or furnishing food and care for any horse, mare, foal, filly, gelding, mule, or ass, shall retain such animal for the period of ten days, at the expiration of which time, if the owner does not satisfy such lien, he may sell such animal at public auction, after giving the owner ten days' notice, in a newspaper of general circulation in the county where the services were rendered; and, after satisfying the lien and costs that may accrue, any residue remaining shall be paid to the owner." It seems to us very clear, upon a view of these sections, that the intention of the legislature was, in enacting them, to give to the person furnishing such food and care a lien upon the animal as a security for the food furnished and care bestowed, with the incidents of a lien at common law in analOgous cases. The first section gives the lien, and the next one provides the mode of maintaining and enforcing it. The person shall retain the animal for 10 days, and if, at the expiration of that time, the owner does not satisfy the lien, he may, on giving the requisite notice, sell it at public auction. The nature and incidents of a common-law lien of this kind are well settled. It is a right to retain property until certain claims against it are satisfied; and possession is not only essential to its creation, but also to its continuance. Where the party voluntarily parts with the possession of the property upon which the lien has attached, he is divested of his lien. 2 Kent, Comm. 638; Smith, Merc. Law, 687, 697; Sweet v. Pym, 1 East, 4; Lickbarrow v. Mason, 6 East, 21; Hammonds v. Barclay, 2 East, 227; Jordan v. James, 5 Ohio, 89, 98. In McFarland v. Wheeler, 26 Wend. 473, it is said that "the very definition of the word lien as the right to retain' indicates that it must ceasewhen the possession is relinquished. This principle, so clearly founded in reason, and so congruous to public utility and the convenience of trade, is supported by the uniform testimony of the decisions." The right to sell the animal upon notice, and apply the proceeds to satisfying the lien, does not affect its classification with similar common-law liens. It only gives a plain and simple remedy for enforcing the lien. The evidence tended to show, and the charge of the court was applicable to, a case where the owner of a horse temporarily leaves it with the owner of a feed stable, to be fed and cared for. There is no definite arrangement as to time.

It may be for less or more than a day. This registration when they in terms create a lien depends upon the convenience of the owner, not depending on possession." HOLMES, J., who resides out of the city. When he wishes in Vinal v. Spofford, 139 Mass. 126, 130. See, to return home the horse is delivered to him, also, the following cases: Perkins v. Boardand the feed and care are charged to him in man, 14 Gray, 481; Papineau v. Wentworth, an account by the keeper. There is no ex- 136 Mass. 543; Forth v. Simpson, 66 E. C. L. press agreement at any time that the horse is 680. to be returned. Now how, under these cir- What should be the rule in cases where cumstances, it can be inferred, as the court the animal is placed by the owner with a charged the jury, that there is an implied person to be fed and cared for, not temporaricontract on the part of the owner to return | ly, the horse being ordinarily kept at home, the horse, we are unable to see. The owner or somewhere else, by the owner,-but peris, for the time, simply a customer of this particular feed stable. The keeper may expect that when the owner again comes to the city he will again patronize him, by sending his horse to his stable. But when this may be he can neither rightfully demand to know, or expect to be informed. Nor would the owner, as a matter of law, violate any agreement for which damages could be recovered, if he should in the mean time conclude to change his patronage, and never return the horse. If it were otherwise, then it We have examined the cases cited by counmight be inferred that every customer of a sel for the plaintiff in error, but fail to find store is under an implied contract to continue that they give any considerable support to to deal with it. If he were in debt for goods his view of the case. The case of Young v. previously sold, he might be under a moral Kimball, 23 Pa. St. 195, is simply to the effect obligation not to withdraw his custom until that, where the owner forcibly or clandestinehe had discharged what he owed, but there ly obtains possession of the subject of the would be no legal obligation to that effect | lien, the lien or right is not impaired by such arising from the circumstances.

The lien provided by this statute does not arise upon contract. True, the food must be furnished under an agreement with the owner, but where this has been done the statute creates the lien in favor of the party furnishing it, irrespective of any agreement therefor to that effect. The lien given is a right to retain the property-that is, its possession as a security for the debt, and, if this right is not insisted on when the horse is called for, the owner cannot be said to violate any agreement in not afterwards returning it; for he has no notice of an intention on the part of the keeper to assert a lien when the property is voluntarily delivered to him, and, therefore, any supposed agreement to return could only relate to a thing of which he has no notice, and, in fact, has no existence. Therefore, in a case like the one to which the court applied its charge, the person furnishing the food and bestowing the care must, if he would assert a lien on the animal therefor, do so by retaining its possession when called for by the owner, unless his charges are paid. If he do not, and voluntarily deliver the animal to the owner, he must be held to have waived his right to assert a lien under the statute, and to be satisfied with the personal liability of the owner for the charges. Such is the rule in common-law liens based on possession, and we see no reason why the rule should not apply here as well as there. It is more in harmony with the general policy of our statutes, "which always strive to secure public registration when possession is not given and retained, and which expressly provide for such

manently, for some time either definite or indefinite, presents a different question. In such case, where the owner is allowed to use it, its voluntary delivery to him for such purpose might be said to imply a contract to return the animal, and a failure to do so would be such a fraud as to estop the owner from setting up that the lien had been lost by such voluntary delivery. But this is not the case before us, and we express no definite opinion upon it at this time.

deprivation of the possession. Munson v. Porter, 63 Iowa, 453, 19 N. W. Rep. 290, rightly holds that demanding more than is due will not entitle the owner to replevy the property without paying what is due. And Eckhard v. Donohue, 9 Daly, 214, holds that replevin of the property cannot be had by bringing it before the defendant had time to make out his bill and give notice of his intention to perfect a lien, as required by statute. The cases of Caldwell v. Tutt, 10 Lea, 258, and of Smith v. Marden, 60 N. H. 509, would tend to support the case, where animals are for the time being permanently left with a person to be fed and cared for, with the right in the owner to use them. In such cases, it is held that the lien is not thereby affected, as against a creditor of the owner. The possession of the animal by the owner under such circumstances is not regarded as terminating the bailment; the possession being constructively that of the bailee, and under an implied contract to return the animal as soon as the use is at an end. This seems somewhat plausible, but whether sound or not we do not, for the reasons before stated, now determine. Judgment affirmed.

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owner therefor awarded in the verdict.

2. The question whether the terms of a statute, authorizing a change of name on the part of a railroad company upon the making of certain subscriptions authorized by the same act, has been complied with or not, is, where pertinent, a proper subject of allegation and proof; and courts will not take judicial notice of a statement in a report the terms of the statute have been complied with, and the name of the company changed.

of the commissioner of railroads to the effect that

(Syllabus by the Court.)

right of way was acquired, the expense of fencing | the center line of the railroad of the said was taken into account by the jury, and included in the verdict, and the company, to sustain such company as the same was then and now lodefense, gives in evidence the record of the pro- cated through the lands of said Hoffhines, ceeding, and the record is silent on the subject, no and fifty feet wide on each side through the presumption arises that the matter of building lands of said William Hoffhines; the said and maintaining fences along the line of the railroad was considered, and compensation to the rights of way through the lands of Voss Hoffhines, so appropriated, being the rights of way at the place where the plaintiff claims by his petition a fence should have been erected and maintained by the defendant, and for lack of which he claims his horses got upon defendant's track and were killed. That in the proceedings aforesaid the said Voss IIoffhines and William Hoffhines, by their attorney, severally claimed additional compensation or damages for said right of Error to circuit court, Vinton county. way on account of building and keeping up Action was brought by Voss Hoffhines a fence along and upon either side of said against the Cincinnati, Washington & Balti- railroad track of said railroad company more Railroad Company in the court of com- through their premises; and that witnesses mon pleas of Vinton county to recover for were introduced by and on behalf of said the killing of two horses by a train of cars, Voss and William Hoffhines to prove the July 24, 1885, on the line of the company's cost of building and keeping up said fences, road. The alleged negligence consisted in and compensation and damages were accordthe failure of the company to fence its road ingly assessed therefor. And the jury, by through the lands of the plaintiff, whereby their verdict, assessed the compensation and the horses got upon the track. The main damages of said Voss Hoffhines, including defense interposed was "that in 1853, the building and maintaining fences aforesaid, at Marietta & Cincinnati Railroad Company four hundred and ninety-eight dollars, and of was a corporation, created and existing un- said William Hoffhines at seven hundred and der the laws of the state of Ohio, and au- seventy-six dollars. That thereupon said thorized to construct and maintain the rail- company paid the amount of said verdicts, road named in the plaintiff's petition, and and the cost of said proceedings, and the also to enter upon any land, survey, lay court rendered a judgment therein to the efdown, and construct said road, and to take fect that the said company should hold the any materials necessary to the construction said property for the said purposes for which and repair of the same, and to appropriate the same was appropriated, and the said comthe lands and materials necessary for that pany thereupon took possession of said land, purpose, according to the statute in such and held the same for the uses and purposes case made and provided, and, upon such ap- aforesaid, until the year 1860, when the enpropriation being made, to retain, own, hold, tire railroad of said company, including said and possess said materials, and to use and oc- right of way so appropriated at and along cupy said lands, and to hold the same for the the place aforesaid, and of which the place purposes for which the same were appropri- named in the plaintiff's petition, where the ated, first paying or depositing, as required alleged failure of defendant to fence took by law, the amount awarded by the jury in place, was and is a part, became and was such appropriation proceedings, as compen- vested in the Marietta & Cincinnati Railroad sation and damages to the land-owner by Company, as reorganized, and was thereafter reason of such appropriation. That in pur- owned by said reorganized company, until suance of such authority the said company, said entire railroad, together with said right having located its road through the inclosed of way, and all franchises and property lands and fields of Voss Hoffhines and Will- whatever of said reorganized company, were iam Hoffhines, and desiring to appropriate a purchased by, and by assignment and conright of way therefor through and upon said veyance became vested in, the defendant, inclosed lands and fields of said Hoffhines, the Cincinnati, Washington & Baltimore and not being able to agree with him, or with Railroad Company, in July, A. D. 1884, and any authorized agent of his, as to the amount was so owned by it at the time alleged in of compensation to be paid therefor, insti- plaintiff's petition, and has been ever since tuted on said day of A. D. so owned." Reply was filed admitting that 1853, certain proceedings in the court of pro- there was a condemnation proceeding at the bate of said Vinton county for the condem-time stated; admitting that the award of the nation of said right of way, according to the jury was paid, and possession taken by the statute in such case made and provided, and company; and denying all other allegations. in such proceedings there was condemned and At the trial the defendant requested the appropriated to the use of the said Marietta court to give in charge to the jury the fol& Cincinnati Railroad Company, for the pur-lowing proposition, viz.: "That at this lapse poses aforesaid, out of said inclosed lands of time the presumption is that in the conand fields, a certain strip or parcel of land demnation proceedings compensation was seventy feet wide on each side of, and along, considered and awarded for the building and

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maintaining of fences along the railroad." | priation by and to its use. The prayer was The court refused to so charge, to which the that the lands "may be duly appropriated for defendant excepted, and this is the alleged the use and purpose aforesaid, and that such error here complained of. Verdict was given proceedings may be had in the premises as for the plaintiff, and judgment rendered up- may be necessary to perfect the same accordon it. Error was prosecuted by the company ing to the statute in such case made and proto the circuit court, where the judgment be- vided." No answer or other pleading was relow was affirmed. To reverse these judg-quired, and none was filed, and the subject ments this proceeding here is prosecuted. of fencing is nowhere mentioned in the recW. T. McClintick and E. W. Strong, for ord. The verdict was for a gross sum as plaintiff in error. Rannells & Derby, for de- damages by reason of the appropriation. fendant in error.

If it may be inferred from the record that the matter of damages by reason of a necessity on the part of the land-owner to construct and maintain a fence between his land and that of the company was necessarily determined in the proceeding; or, if the matter of fence, as an element of damage, was necessarily involved in the proceeding, as shown by the record, then the contention of the plaintiff in error is correct. No duty would devolve upon the company, by reason of the statute, to maintain a fence, and the court erred in refusing the instruction asked. But, if the question of fencing might or might not have been involved in the case, then, the record being silent on that subject, no such presumption would arise. On the contrary, the duty to fence enjoined by the statute of March 25, 1859, (now section 3324, Rev. St.,) which provides that every railroad company having the control of a railroad operated in this state, within two years after the passage of the act, or after commencing to run cars, shall construct and maintain fences on both sides of its road, would be imposed upon the company, and the instruction was properly refused. "The question is not what the court might have decided in the former action between the parties, but what the court did in fact decide as shown by the record. A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which it could not have been rendered." Porter v. Wagner, 36 Ohio St. 471.

*

SPEAR, J., (after stating the facts as above.) The question is: Did the trial court err in refusing the request to charge? It is insisted by the plaintiff in error that at the time of the trial of the condemnation proceedings there was no obligation on its part to fence its line of road, because the charter of its predecessor, the Marietta & Cincinnati Railroad Company, obtained prior to the enactment of any law requiring railroad companies to fence, imposed no such burden upon it; that the organization of that company was anterior to the passage of the general incorporation act of May 1, 1852, and the company was not affected by the provisions of that act; and inasmuch as the building and maintaining of a fence between the company's right of way and the lands of the adjoining owner was, under the constitutional requirement that "compensation therefor shall first be made," an element of damage proper to be taken into account by the jury in awarding compensation and damages to the land-owner, it necessarily follows, as a conclusive presumption, that that matter was taken into account by the jury, and compensation therefor awarded in the verdict. In other words, the question of the duty of the railroad company to fence at the time of the accident is res adjudicata; and having, by satisfying the verdict, paid the land-owner for making and keeping up a fence, the negligence which caused the accident was that of the plaintiff, and the com- To sustain the company's contention, relipany cannot be held for the consequent dam-ance must be had on the record of the conages. For the purposes of this branch of the demnation proceeding alone. That record inquiry, it may be assumed, without holding, does not disclose the character of the land that the Marietta & Cincinnati Company was sought to be appropriated. We do not overnot organized under the act of May 1, 1852, look the fact that in the answer in this case entitled "An act to provide for the creation the company alleges that, having located its and regulation of incorporated companies in road through the inclosed lands and fields of the state of Ohio," which makes it the duty the plaintiff, and desiring to appropriate the of every company organized under it to fence same, and not being able to agree with the its road with a good substantial wooden fence, owner, it instituted the appropriation proceedand therefore, at the time of the appropria- ing, etc. But this allegation cannot help out tion, not affected by the provision above re- the record of that proceeding. The learned ferred to. The question then is, does the counsel, in their brief, insist that evidence record of that proceeding furnish a conclusive at the trial "could not be allowed to contrapresumption that the expense of fencing was dict, or explain, or do away with, the legal included in the verdict? The substance of effect of the condemnation proceedings." the company's petition was that it was nec- Whether, in this broad language, the propoessary, on behalf of the company, to appro- sition can be maintained or not, we need not priate the lands described for the use and stop to discuss. Certain it is that the record right of way of the company in the construc- itself could not be thus enlarged, and it is the tion of its railroad, and that the company claimed conclusive effect of that record we had been unable to agree with the owner up- are here considering. So that, unless it can on the compensation to be paid for the appro-be satisfactorily shown that the question of

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