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Superior Court of Cincinnati.

fendant, which insured only to the extent of $10,000, or one-fourteenth of the agreed value of the boat. Interest on that sum from March 1, 1869, up to the first day of the term was to be calculated.

Seventh-If the boat, by the collision and the fire, was not destroyed in specie, but remained the individual boat, United States, and was not repaired within the meaning of such term in the law of marine insurance, but what remained of her was used by the plaintiffs in constructing another and different boat, substantially, repair of the former boat being impracticable on account of the cost thereof, the defendant would only be liable for the partial loss "by fire only," whether that loss amounted to half- three-fourths, or more of the value of the boat. Upon this basis, the damage by fire only to the boat, as compared with its agreed value, $140,000, was to be ascertained, and the amount of such damage estimated in money, divided by fourteen, which would give the amount recoverable against this defendant, upon which interest was to be calculated.

Eighth-If the boat, after the collision and the fire, remained in specie as the individual boat, United States, and the plaintiffs elected to and did repair her, all that it would have required to recover the boat and bring her to Cincinnati and to repair her had no fire, but only the collision taken place, would have to be deducted, but not the increased cost, if any, of recovering the boat and bringing her to Cincinnati, caused by the fire, and then all proper items in such repair account would be added together, and one-third deducted therefrom, that being the legal difference, under the policy, between new material and old. One-fourteenth of such two-thirds, with interest, would be the measure of the defendant's liability.

(a). In reference to applying the rule of "one-third new for old in case of repair," the term "repair," can only apply where the boat damaged has been restored, substantially, to the boat, or to what it was before receiving its injuries; for the reason for making such deduction is, that the owner has got again the vessel he formerly had, and a better one by one-third, as that was old, whereas the parts repaired are now new. There may be a repair, however, though the repairs be of plainer and less costly work and material, and less finely finished or highly polished than the work upon the same before the loss. That a boat might have been repaired does not, however, prove that it was, in an insurance sense, in fact, repaired.

In this case, if, owing to the great cost thereof, it was not practicable to repair this boat, the defendant was liable for the damage to her caused by fire only, and the plaintiffs were not bound to repair nor to abandon the wreck to the insurers, they might keep the damaged boat and do what they thought best with her, for anything they could do, could not increase the amount of the liability of such insurers, which would be for the amount of the partial loss by fire only; this was clearly so, if the plaintiffs claimed of the insurers a total loss and the insurers denied all liability for any loss, saying, in effect: "It is all yours, we have no interest in what remains, and you can do what you please with your own, in which we have no concern. You may do what is best to

be done."

Thus, the question is raised, what is a repair within the reason and justice of the rule requiring a third to be deducted because new is substantiated for old?

Sherlock et al. v. Insurance Co.

Vol. I.

If the insured boat was repaired within the year the insurance run, the policy would attach to the repaired boat the same as if never injured, and at the same agreed value, $140,000, and if burned the next day and totally lost, the insurers would have been liable for the full amount of their policies. If substantially, a different boat, the policies could not re-attach. The plaintiffs claim that to have restored the boat, substantially, to what it was, would have cost $150,000, or $160,000, and then it would not have been worth more than $140,000, so that they constructed, instead, another and different boat, at a cost of only $100,000, from which there would be neither reason nor justice in permitting the defendant to deduct one-third, "new for old."

Ninth-The court refused to instruct the jury, that, if the hull remaining capable of repair, so that the former boat, substantially, might have been replaced upon it, that the boat existed in specie, or in kind, or that the hull of the steamboat navigating our western rivers is as essential to the identity of the vessel as the hull of a ship navigating the ocean where there are tide and waves; or that if it was in such a condition that it could not float in the water, its seams being open, its butts sprung, its "hog chains" burned away, its rudder gone, cabins, furniture and all destroyed, its boilers injured and its machinery a mere heap of scrapiron, etc., it did not exist in specie. Neither would the court say to the jury, that if it took $22,000 to put the hull in order, when an entirely new hull for a boat of the same size and kind, would only have cost $24,000; that the hull was lengthened four feet; that, but a single cabin, with rooms very differently arranged from those of the double cabin of the injured boat, was made, and of inferior style, workmanship and finish, containing many fewer state-rooms, and with less furniture and less fine and costly, the job was or was not in fact a repair of the old boat, or the making of another and a different boat. All these were matters of fact to be determined by the jury, who from all the evidence and circumstances in evidence, were to make such determination under the guidance of their own honest common sense and experience.

Tenth-The testimony of experts upon both sides was given, as to whether or not, in their opinion, as such experts, the present steamer, United States is the insured United States repaired or another and differ

ent boat.

The court held that such opinions could only be considered when based upon facts stated by such witnesses, or facts stated, hypothetically, and afterwards proved to be facts and so found by the jury. Then such opinions were not conclusive upon the jury, but were to be considered by them with all the other evidence in the case; and such weight given. to them as the jury might think them fairly entitled to.

Eleventh-The defendant set up a defense going to the plaintiffs' right to recover at all in the action. The United States was a steamboat engaged in carrying passengers upon the Ohio river, and, at the time of her loss, had no board, carrying as part of her cargo, under a custom house permit, a number of carboys of oil of vitriol. The defendant admitted that such vitriol did not occasion the loss or any part of it, or in fact render the boat unseaworthy, but did claim that the boat was not provided with the means of carrying it safely as prescribed by the act of congress, which prescribes a penalty for carrying such oil of vitriol in the method it was claimed this was carried upon this boat. The claim

Vol. I.

Lorain Common Pleas Court.

was that the boat, when lost, was upon an illegal voyage, and no recovery could be had for her loss from any cause.

The court held, that this insurance was upon the boat itself and not upon any part of the cargo; that the act of congress did not forbid the navigation of the vessel with oil of vitriol so on board, and that the trip she was making was, therefore, not illegal. This is the holding in England upon such merely penal statutes; and even where a vessel is forbidden to sail, with an interdicted cargo on board, it is settled, that if the master sails, without the knowledge, connivance or consent of the owner, the owner may recover for a loss happening on such voyage. If he knows of and consents to the sailing, with such prohibited cargo, of his vessel, when the statute forbids such voyage, he can not recover for any loss to his vessel happening on such voyage.

So the oil of vitriol carriage can be no defense in this case.

Lincoln, Smith & Stevens; Matthews, Ramsey & Mathews, and Hoadly, Johnson & Colston, for plaintiffs.

Geo. E. Pugh, Geo. H. Pendleton, and Follett & Cochran, for the defendants.

30

DEPOSITIONS.

[Lorain Common Pleas Court, 1876.]

STATE OF OHIO V. JNO. A. FINNEY.

1. In depositions taken on behalf of a defendant in a criminal case, on interrogatories, matter in an answer entirely irresponsive to a question must be excluded. 2. On a trial for obtaining property by false pretenses, in order to show fraudulent intent, the state may show similar fraudulent representations made to third persons by defendant.

BOYNTON, J.

In this case depositions of witnesses for the defendant had been taken under a commission and upon interrogatories thereto attached under section 144 of the criminal code.

The questions put to all the witnesses were the same; the third and fourth being as follows:

3. "Do you know the defendant in this cause and if so how long and how well have you known him?"

4. "Have you the means of knowing his character and general reputation with regard to integrity, and if so what is that character and reputation?"

In response to the third interrogatory the witness had stated matters irresponsive to the question, as that the defendant paid promptly for goods sold him by the witness-the amount of rent paid by defendant to witness and that the rent was paid promptly-the amount of defendant's account in a bank of which the witness was an officer-that the bank discounted his paper-that the defendant had been entrusted with large sums of money and had conducted himself honestly concerning it, etc.

Exceptions to the answers were filed by the state on the ground that they were not responsive to the inquiry, and thereupon the court (Boynton, J.) held: That the irresponsive matter was not only inadmissible upon the subject to which the interrogatory was directed but that it could not be used in evidence even though the facts stated should become material at a later stage of the trial, upon the ground that the state could not anticipate that such statements would be made in answer to

Matthews v. Briggs, Swift & Co.

Vol. I.

such a question and so could not frame cross-interrogatories to test their truth. Greenman v. O'Connor, 25 Mich., 30.

Defendant was indicted for obtaining property under false pretenses under the statute of February 21, 1873, (70 O. L., 39), and the state offered to prove for the purpose of showing a fraudulent intent that the defendant made to others than the prosecuting witness, representations similar to those made to the prosecuting witness, and by which it was claimed the goods were obtained in the case on trial.

Held: That the testimony was admissible-following the analogy of Edwards v. Owen, 15 Ohio, 500.

31

SALES-OPTION-COMMISSIONS.

[Hamilton Common Pleas Court, 1876.]

B. F. MATTHEWS V. BRIGGS, SWIFT & Co.

1. One who was employed to buy a certain quantity of pork at a specified figure cannot object that his employed furnish part of the pork from his own stock. 2. If the employer gave the agent bonds and cash as a margin, and a subsequent amicable settlement was made. The former cannot afterwards claim that the settlement was by duress, because the agent held his bonds and cash.'

3. A custom in the pork trade, that the year closes on October 31, and that dealers on commission, carrying stock over to another year, charge additional commission, is not unreasonable.

AVERY, J.

This was a suit growing out of a transaction in clear rib bulk sides in 1873. The plaintiff, a resident of Americus, Georgia, alleged that in June, 1873, he made a contract with the defendants by which the defendants were to purchase and hold for his account 400,000 pounds of clear rib bulk sides of pork, at the plaintiff's option, August 1873—100,000 pounds at 91 cents, and the balance at 94 cents, for which the plaintiff was to deposit a margin of $10,000 in bonds and $1,400 in money. The pork was purchased and the margin deposited. Of this amount the defendants purchased 100,000 pounds from themselves, setting it aside from their stock, as the property of the plaintiff; the balance was purchased from other dealers in the city. The pork was held from August, 1873, to April, 1874. In December, 1873, the defendants rendered an account, showing that 10 per cent. interest had been charged upon the advances made for the purchase, and 23 per cent. commission. In December, 1873, at the request of the plaintiff, a second account was rendered, showing 5 per cent. commission for sales, and a letter, accompanying the account, informed the plaintiff that such would be the rate of commission. In April, 1874, the meat was sold by order of the plaintiff and an account rendered him showing 10 per cent. interest upon all advances made by the defendant in the course of this transaction, and 5 per cent. commission on sales. The plaintiff, by his agent, wrote a letter suggesting that some of the charges in the account were erroneous. He did not object to the interest account, but especially to the commission of 5 per cent. The defendants explaining that by the custom in Cincinnati, the year closes October 31, and when meat is carried over from one year to another, it becomes subject to an additional charge of 21 per cent., and that consequently this meat was subject to a double commission. In response to this latter, the plaintiff called for the bal

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Hamilton Common Pleas Court.

ance in the hands of the defendants, as shown by the statements of account, and for the bonds which had been deposited as margins, and the defendants remitted accordingly. Nothing further was heard of the plaintiff for more than a year, when his attorneys presented their claim for the repayment of extra commission and the excess of interest over the legal rate.

The defendants admitted the facts alleged and answered that the account had been closed and paid by defendants, with full knowledge of plaintiff, and could not now be reopened.

If

The court held that whatever differences there were between the parties were ended when the defendants paid over the amount due from them to plaintiff. If that transaction was not a settlement, the point, so far as the court could gather it from the argument of counsel, was that it was made under duress, because the bonds remained in the hands of the defendant, and the balance, which the defendant admitted was due the plaintiff, would only be paid over on an adjustment of the account. an objection of that kind could be fatal to the adjustment of the account. in this case, it would be fatal in every case, because wherever there is a settlement between parties, the balance is on one side or the other, and, if payment depends upon that adjustment, and that fact is to destroy the settlement, the settlement in every case would be destroyed, and accord and satisfaction as known in the law would disappear.

There were no differences between the parties as to the item of interest. It appeared that the plaintiff was notified in the first account rendered by the defendants that the pork was held subject to a charge of 2 per cent. commission on sales. The letter containing that account was sent the plaintiff in August, 1873. In December the following account was rendered, in which the rate of commission was put at 5 per cent. It was the custom of pork dealers selling on commission, to charge commissions at the regular rate for each successive season, the pork season opening in November and closing at the end of the following October. If the pork is carried over to an additional season an additional charge is made. The custom is not an unreasonable one. It seems to be notorious so far as the trade is concerned, and upon the basis of that custom the defendants in their letter of December, 1873, notified the plaintiff that the rate of commission would be 5 per cent. No objection was made to that by plaintiff. Other money was furnished by the plaintiff to defendants as a margin, and the transactions between the parties continued until the sale of the pork, when the plaintiff requested an account, which was subsequently furnished, in which the commission was 5 per cent., showing a balance due the plaintiff of some $400.

At this time first appeared any complaint by plaintiff, urged in a mild form. Letters passed between the parties, which resulted in defendants forwarding plaintiff his bond and a check for the balance due him. Now, after more than a year had elapsed, this action was brought for the purpose of falsifying the account-deducting from the charges for commission 2 per cent., and from the charges for interest enough to leave the rate the legal rate.

So far as the interest was concerned, interest voluntarily paid, except where it is between parties to negotiable paper, is like every other voluntary payment, and cannot be recovered. So far as the commissions were concerned, if they were in dispute, that dispute was determined by this account and this payment, if that was a settlement. It was made