Imágenes de páginas
PDF
EPUB

his drawer, and the banker, even more, to know that of his depositor; and if they fail to discover the forgery before payment, they must stand the loss: See monographic note to People's Bank v. Franklin Bank, 17 Am. St. Rep. 890.

BANKS AND BANKING-INDORSEMENT FOR COLLECTION -INDORSER'S LIABILITY.-A bank indorsing and collecting a check warrants the genuineness of all pre-existing indorsements thereon: First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296; 43 Am. St. Rep. 247. If a check or draft upon which the name of a prior indorser has been forged, is paid, the amount may be recovered back from the party to whom it has been paid or from any) party who indorsed it subsequent to the forgery: See monographic note to People's Bank v. Franklin Bank, 17 Am. St. Rep. 898. Rhodes v. Jenkins, 18 Colo. 49; 36 Am. St. Rep. 263, and note; monographic note to Allen v. Merchants' Bank, 34 Am. Dec. 307-317, on the liability of a bank as an agent for collection

See

KEYS V. PITTSBURG AND WHEELING COAL COMPANY.

[58 OHIO STATE, 246.]

COTENANCY IN COAL MINES-MEASURE OF DAMAGES FOR COAL TAKEN FROM COMMON ESTATE BY ONE COTENANT.-If a cotenant in coal lands, in good faith attempts to purchase the interests of his cotenants in the common estate, and, be lieving that the title to such interests will be perfected in him, in good faith enters upon such estate, mines and sells coal therefrom, but fails to get the title to the land, the measure of damages against him for the coal thus taken is the value of such coal in place at the time it was mined; and if, in operating mines on his own land that nearly surround or abut on the common estate, he has constructed passageways, tracks, cars, and other fixtures, conveniently located for removing coal from the common estate, that fact, as well as any other, natural or artificial, tending to enhance or diminish the value of the coal taken as it lay in place, must be considered in fixing such value.

Action to recover for coal mined and removed by one cotenant from land belonging to the common estate. Plaintiffs recovered judgment in the court of common pleas, which judgment was reversed on error in the circuit court, and plaintiffs appealed.

C. L. Weens and A. H. & W. Mitchell, for the plaintiffs in

error.

N. K. Kennan and L. Danford, for the defendant in error.

258 BRADBURY, J. The particular ground upon which the circuit court reversed the judgment of the court of common pleas is left in some obscurity by the record. The only statement on the subject is, "that the court erred in its charge." As the defendant in the court of common pleas excepted to a number of different propositions found in the charge, and also to the

court's refusal to give to the jury certain propositions of law that it presented for that purpose, we are left in doubt as to which of the propositions given or refused the statement in the record refers to. The particular propositions on this subject which the circuit court held to be erroneous not being disclosed, 259 that omission, together with the somewhat wide range taken by the arguments found in the briefs of counsel, renders necessary a more extended consideration of the rules by which damages are to be ascertained in this class of cases than otherwise would have been pursued. However, the discussion contained in the briefs of counsel and the nature of the controversy lead quite clearly to the conclusion that the rule by which damages should be assessed was the controverted question in this connection. The record discloses no substantial controversy over the facts that establish the defendant's liability to the plaintiffs under some rule for assessing damages. Nor does any real controversy appear respecting the facts which bear on the rule by which the damages should be assessed.

The defendant, a partnership, was extensively engaged in mining and shipping coal; the mouth of its pit or entry was nearly a mile from the main line of a common carrier; it had invested large sums of money in constructing entries and tramways into its mines, a coal tipple outside of the mine and in such equipments for transporting coal from the mines to the tipple as is necessary for that purpose. It owned and had mined or was engaged in mining, considerable tracts of coal land that were adjacent to, and surrounded on three sides, the tract in question. This tract could be conveniently, perhaps profitably, mined if the coal could be transported along the tramways of the defendant to the defendant's tipple. If it could not thus be transported, its availability for profitable mining would be doubtful. These entries had already been driven nearly to the line of the tract, a distance of about four thousand eight hundred feet from the tipple, and 200 of about three thousand feet from the entrance to the mine. The situation of this tract was such that to have attempted to mine the coal by constructing and equipping an entry for that purpose would have been of doubtful expediency for a number of reasons. The only outlet was too remote from a common carrier, a stream of water was inconve niently located as respects the points where an entry might be made, the entry would run against the "dip" of the vein of coal, rendering drainage of the mine and transportation of the coal both inconvenient and expensive.

The defendants had in the course of their operations approached quite near to this coal, and it could be conveniently mined by them, and a way through it to other coal owned by it would be valuable to them, but of course worthless to others. The tract of land had belonged to one Hugh Giffin, who, by will executed in 1861, devised to his wife, Jane Giffin, a life estate therein, and at her death the fee to his four children. In the year 1884, the defendant purchased the life estate of Jane Giffin, and soon afterward twenty-three twenty-eighths of the fee there in, and attempted to purchase of their father the five twentyeighths that belonged to the plaintiffs. There seems to have been little or no material controversy respecting these negotiations. The plaintiffs are children of Alexander Keys, and an exchange of their interest in this coal for certain surface was effected by him and a representative of the defendant, the terms of which are given by Ross J. Alexander, Esq., then an attorney residing in Belmont county, in a deposition in the following language:

"The children of Mr. Alexander Keys were to receive, in exchange for their interest in this coal, 261 property, about twenty-four acres of land, out of what was called the Falke section, being surface, only the coal underlying the same being reserved. The Falke section had been previously purchased, and was then in the name of Selah Chamberlain, trustee. Mr. Keys and his children were to have, and did take, immediate possession of this land. Mr. Keys came very often to see me about this coal, not less than a dozen times, I think, and was very anxious to effect the sale of this coal." Mr. Keys also testified that he entered into the possession of, and had ever since possessed and cultivated, the surface which his children were to receive in exchange for this coal.

The general agent of the defendant testified on this subject as follows:

Cross-examination.

"When he came with Keys you understand that these Keys children were minors? A. Yes, I knew they were minors.

You knew as a business man that Keys could only sell his own interest as an individual? A. I knew that Mr. Alexander was representing to me that he was the father of these children. that after this agreement was consummated he was to be appointed guardian, or act as guardian.

You knew, as a business man, that Mr. Keys as an individual had no right to sell any interest except his own? A. Of course, I knew that.

You knew that, as the father of these children, he had no power to sell their interest? A. Not as their father.

You knew the only legal way it could be done would be to apply to the probate court and get 262 authority from that court to make the sale, and then have a sale made, and have it confirmed by that court, you knew that? A. I thought that was the arrangement made.

You understood that would be necessary? A. Yes, sir.

And without waiting for that you turned over to Mr. Keys as an individual this surface land-twenty-four acres of surface? A. I do not remember the exact number of acres.

Well, twenty-five perhaps? A. Yes, sir.

And you took possession of the coal, or your company did. You did not wait until the transaction in probate court was completed, did you? A. No, sir.

At that time you went to mining your coal you did not know it had been done? A. I just took Mr. Alexander's and Mr. Keys' word for it, that the title would be perfect.

You understood you were to get a good title through the action of the probate court? A. Yes, sir.

And when you got it then you would convey to him the land? A. Yes, the titles were to be exchanged.

You did not give him a title to the twenty-five acres of land? A. Not that I know of.

And you never got a title, you knew that you never had any title for these children's interest? A. I reported to Mr. Chamberlain the transaction and asked to have a deed prepared and signed, but never to my knowledge was it done.

As far as your personal knowledge goes you never at any time had any reason to know this land 203 had been conveyed to Keys, and you never saw anything that came through the probate court? A. I never give it any further attention.

The other deeds from the other Giffin interests, you had it put on record yourself? A. I do not know whether I had them put on record or whether I had sent them to Mr. Chamberlain and he sent them here.

At any rate you handled the other deeds? A. Yes, they passed through my hands.

You knew all the time you were taking out this coal that no deed for these children's interest had passed through your hands? A. I knew it had not passed through my hands.

You expected it to come to you because you had handled all the other deeds? A. I was dividing my time so as to attend to

my private business and also to look after that railroad work. There was a good deal of work done in the main office in Cleveland, and it might come without my knowing it.

You expected it, you were dealing with Alexander Keys, and you were general agent of the company? A. Yes, sir.

You expected the deed to be delivered to you? A. Yes, I naturally supposed it would be.

You knew it never came to you? A. I never thought anything more of it.

When you started to mine that coal you knew you did not have a right to do it when you had not got the deed? A. I knew I simply had this arrangement with Keys.

Did you not know as a business man when you started to mine that coal that you did not have a 204 right to do it until you got a conveyance through the probate court, and from a guardian? A. No, I supposed when they had their pay that we had a right to take the coal.

Do you say to the jury that you believed that without making a deed for it, when you turned over this surface land to their father, that you had a right to mine their interests in the coal without first getting a deed from the probate court? Do you say that to the jury? A. I will say that I did not have any doubt but what the deed would be gotten very soon.

Did you not know that would have to be done, and that you had no right to mine it? A. I knew the transaction would not be complete until it was done.

Do you say you did not know you had no right to the coal until that was done? A. No, sir; I did not know that.

Do you say to the jury that you believed that you had a right to take the coal before you had a guardian's deed for it? A. I believed we had a perfect right to take the coal under the land."

Redirect Examination.

"You had paid for the coal by the exchange? A. We gave Mr. Keys that land for the children.

Subsequent to that, did Mr. Alexander say, in pursuance of that arrangement, that he had filed a petition for the purpose of making a legal conveyance? A. He showed me a petition which he said he was going to file.

Already drawn by him? A. Yes, sir."

205 This statement of the evidence is sufficient to show that while, as matter of law, the transaction did not divest the plaintiffs of their ownership of the coal in question, a jury might well have found that it was mined in good faith under a belief that

« AnteriorContinuar »