13 Ohio St. 235 | Ohio | 1862
To give a construction to and to declare-the legal effect of contracts introduced in evidence to a jury, is undoubtedly the proper function of the court;-and it is the duty of the court, before whom the case is tried, so to do, if requested. But under the circumstances disclosed in the bill of exceptions, the failure of the court below to do so in this case involves no error. It would seem that by the voluntary acts, and actual or tacit consent of counsel on both sides,, the contract between the railroad company and Chamberlain for the construction of the road, was formally offered and received as a part of the evidence in the case ; but, as is quite common in practice, when neither party desires to have the written evidence adduced construed by the court, and when both parties are willing to trust its reading and interpretation to the jury, it was not read to either court or jury the attention of the court was not specially called to its provisions ; no request was made for its construction by the-court; and it was probably permitted to lie upon the table of counsel until the jury retired to deliberate on the verdict to-be rendered, and then, with other evidence, it was handed te them. To claim that the failure of the court to construe the contract under these circumstances is error, would be unfair, alike to the court and to the opposite party ; a.nd if the claim-were sustained, it would sanction what would often be a surprise upon both. If a party desires the construction of the court in regard to the contents of a written instrument in-evidence, he must in some way manifest such desire.
On the supposititious state of fact, to be found by the jury-on an examination of said contract, the court laid down the-
I have considered the last exceptions first; for the reason that in respect to them, the majority of the court is very clear in the opinion that there was no error in the court below.
The first exception presents a question of more doubt and difficulty, but in respect to that also, the majority of the court is of opinion that there was no error.
The action was brought to recover damages for an alleged trespass upon, and appropriation of the plaintiff’s land, for the construction and use of a railroad. The railroad company answered, setting up, in bar of the action, an alleged release of the right of way to it by the plaintiff. The signing and sealing of the instrument of release was not contested by the plaintiff. But the point of contest was, whether the release had ever become operative by what, in law, amounted to an effective delivery. The record shows, and it was admitted1
From the tenor of the charge of the court below .to the jury, it would seem to have been claimed there in behalf of the company, as it is claimed here, that the act of the plaintiff, in handing over the instrument of release to a known agent of the company to procure the right of way for its road, was, of itself, and necessarily, in law, an effective delivery to the company.
On the part of the plaintiff, it seems to have been contended, as it is contended here, that he did not deliver the paper as a completed iustrument of release to Carrol, as the agent of the company, to accept such delivery; but that, at the time he handed the paper over to Carrol, he distinctly constituted him his own agent, or depositáry, to hold the instrument as an escrow, until the performance of the condition mentioned in the statement of the case ; and, in case of its nonperformance, to return it to him; and that such act of handing the paper over to Carrol, was not, in law, a delivery to the company.
Such being the claims of the parties respectively, and evidence having been given by both parties in support of their respective claims, as to matters of fact, the court below charged the jury — “ that if they found the release of the .plaintiff was executed, and delivered by him to Carrol, upon the condition hereinbefore stated, and that the condition had not been performed at the time Carrol delivered the release to the company, the same was obligatory upon the plaintiff, if he knew, or had good reason to believe, at the time he so delivered the release to Carrol, that Carrol was the agent of the company for the purpose of procuring for it the right of way for its railroad through the county; unless Carrol was distinctly constituted the plaintiff’s agent, as well as the
The correctness of the first part of this charge is not controverted. It is certainly a distinct and unequivocal recognition and application of the general and undisputed doctrine, that a delivery of an instrument of grant, or release, to a known agent of the grantee or releasee, is, in law, a delivery to the principal; and that the instrument will be effective according to its terms, no matter what verbal stipulations may have been made at the time of its delivery, in respect to its operation after delivery. There can be no doubt, according to the uniform current of authority, that if, in this case; the instrument of release had been, as a completed instrument, delivered to Carrol simply as the agent of the company to procure the right of way, although the delivery may have been accompanied by verbal stipulations that the instrument should not operate as a release, until and unless certain conditions were first performed, the release would have been operative according to its terms, and the verbal stipulations in respect to its operation after delivery, would have amounted to nothing. And this view of the law of the case upon the state of fact supposed, is not only consistent with the first part of the charge of the court, but is plainly declared by it.
But a delivery of an instrument of release, as a completed and fully executed instrument, to a known agent of the grantee, acting simply in the character of such agent, is one thing; and the act of placing such instrument in the hands of the same person- — -placing it in his hands, not to be by him handed over to the releasee at all events, but to be re
It is on the hypothesis that the jury should find this latter state of fact to be true, that the remainder of the charge of the court below proceeds, and in which it is insisted that error has intervened. And so the question is raised, not whether delivery to a known agent is, in law, a delivery to the principal — for that was, in effect, distinctly charged by the court below; but whether Carrol’s agency for the company was so incompatable with the relation of agent or depositary of the plaintiff, and his custodian -of the paper, as to legally incapacitate him for the acceptance of the latter relation. The majority of the court has been unable to see, either in principle or authority, any solid foundation on which the proposition involved in the affirmative of this question can rest.
And, first, how stands the question on principle ? Carrol, for aught that appears in the record, was a man of full age, of sound mind, and under no duress or undue influence. He was under no personal disability to assume any lawful relation open to citizens in general. And, if there were no necessary conflict between the two, he was as free to accept an agency from the plaintiff, as he had before been to accept one from the company. No such necessary conflict is shown in the case. He was the agent of the company for the purpose of procuring releases of the right of way for its road. But how was he to procure them ? By fraud or other undue means; by the grabbing and appropriation of instruments
And, looking into the books, we do not find anything to shake, but do find something to sustain, our position on this question. Counsel for plaintiff in error have been diligent ’in their researches, and they cite us to numerous cases ; all of which, however, go only to assert and sustain the general, doctrine embraced in the former part of the charge of the
Fairbanks v. Metcalf, 8 Mass. 230, is a case which, though by no means analogous to this, yet, it seems to me, throws light on the question before us. There the question was as to the delivery of a deed of conveyance, admitted to be duly executed in all other respects. Metcalf, the grantor, handed the deed to Adams, the grantee, with this understanding and agreement between them, that Adams should transmit the deed to one Woodward, to be by him held as an escrow until certain stipulated conditions wer'e performed, and then it was to be finally delivered to Adams. This arrangement between the parties was carried out in good faith; and, on the performance of the condition, Woodward delivered the deed to Adams, the grantee.. It was insisted, in argument, that the act of the grantor in handing over the deed to the grantee in the first instance, was, in itself and in law, a delivery of the deed,
The last case which we shall notice, and the only one of which we are aware, in which the point in controversy has been directly decided, is that of The Southern Life Insurance and Trust Company v. Cole, 4 Florida Rep. 359. In that case a deed of mortgage had been delivered by the mort
The delivery of the release to Carrol, in the case before as, is claimed by the defendant in error to have been a delivery of it as an escrow. I confess I am unable to see any objection to giving it that name; and, to my mind, the state of fact which, under the charge of the court, the jury must have found, bring it clearly within the definition of an escrow. •Chancellor Kent (4 Com. 454) thus defines an escrow. A deed “ may be delivered to a stranger as an escrow, which means a conditional delivery to the stranger, to be kept by him until certain conditions be performed, and then to be delivered over to the grantee. Until the condition be performed, and the deed delivered over, the estate does not pass, but remains in the grantor. Generally an escrow takes • effect from the second delivery, and .is to be considered as the deed of the party from that time; but this general rule • does not apply when justice requires a resort to fiction.”
The phrase “ a stranger,” used in this definition, or the phrase “ a third person,”, which, in many of the books, is used interchangably with it, it seems to me, can mean no •.more than this — a stranger to the deed, as not being a party to it; or at most, this — a person so free from any personal or legal identity with the parties to the instrument, as to •leave him free to discharge his duty, as a depositary, to both
Judgment affirmed.