Railroad Co. v. Perkins. reason of location; that there was no such standing by as would imply any right in the company or any title in the company; that this remedy is now available to Mr. Perkins in this action. The time of the proceedings, is the time for the fixing of the value of the property and it is so ruled by a majority of the court. I believe this as far as it is necessary to consider the exceptions raised. They are all considered, and the majority of the court affirm the judgment below. LAUBIE, J., dissenting. This case is one brought in the probate court for appropriation or to compel the appropriation of property by the plaintiff in error, and the facts disclosed are that the property was taken wholly into the possession of the railroad company and a road built and constructed there in 1873 and was thereafter continuously used by the company. This proceeding was commenced in 1885. The court ruling that the value of the property, that is the damages to be assessed to the plaintiff in the proceeding was to be assessed as of the date of the commencement of the proceeding, and not as claimed by the railroad company as of the date of the possession taken. This, by a majority of the court, is affirmed and in a very few words I will state why upon this proposition I cannot concur in that opinion. I do not dissent from any other proposition held in the case except this. While I have doubts upon the propriety or competency of introducing the plat in evidence, I am not so sufficiently pronounced in my opinion as to dissent from the holding of the court upon that proposition, and I dissent only upon this, and I do it, first, because the time of injury and the assessment of damages must be fixed and certain and not fluctuating; and it is to be, in a class of cases like this, one of three times. It must be either at the time of the act done of taking possession of the property or it must be at the time of the commencement of proceedings or of the trial. The court establish that it shall be at the time of the commencement of the proceedings, twelve years of the time intervening between the time of the act of taking possession and the time of the commencement of the proceedings. Now, as I have said, the time for the compensating of damages must be fixed and certain; it cannot be fluctuating at the will or election of plaintiff. He cannot elect or take the time of the commencement of proceedings for it instead of the time of the injury, because of the rise in value of the property and therefore an increase to him of damages or the amount to be awarded to him. It is not at his election; it must be fixed and certain. On the other hand had it deteriorated in value, if, for instance, it had run from ten thousand dollars down to one thousand, the railroad company could not compel him to forego full compensation for the injury which he sustained at the time, because he is entitled to full compensation for all the injury which the act caused him; and in this way it is simply robbing him if the land was worth ten thousand dollars at the time it was taken and only one thousand at the time the proceeding was commenced. The time must be fixed and determined and it should be at the time of the injury or of the act of taking possession. Secondly, because generally the time for the assessment of damages is when the ininry is full, complete and perfect. In this instance the Trumbull Circuit Court. injury was full, complete and perfect when the company took possession of his lands and built their road upon it, which was said to be in 1873 This would say then that the act was done in 1873, which caused this injury and the damages ought to be assessed as of that injury and as of that time. That is the general rule, and any delay in paying the compensation is to be in law compensated for by the payment or allowance of interest. Again, third, he has approved and confirmed the act of the company and waived the tort. He has confirmed the act of appropriation in fact in 1873, and having thus confirmed the act, which the company did in 1873 in taking his land, that is the time to be fixed for assessing its value. Fourth, because the damages belonged to the owner of the land at the time of its taking. This is perfectly well settled, that where land is taken actually and invaded by a railway company, taken into its possession, work done upon it and track built upon it, the injury is to the then owner of the land, and of course the compensation belongs to him and it does not pass to or vest in the grantee, subsequent grantee or owner of the land unless it has been sold or transferred to that grantee specifically. The grantee buys the land afterwards with the railroad upon it at a diminished value and pays that much for it, and the owner from whom it was taken receives that much less for it. His property has been taken from him and it is to him the compensation goes. If the rule established by the majority of the court is to prevail it does not go to the owner of the land at the time of its taking, but to the owner of the land at the time of the commencement of the proceedings, which would be a violation of all known principles of law. A conveyance of land with incumbrance upon it, conveys it just in the condition which it is in. Hence, too, I say that the construction, as put upon it by a majority of this court, of this statute is too broad for this reason, it would give the right to compel a railroad company to appropriate land in this instance to the then owner although he did not own it at the time the company took the land and to be responsible to the original owner and to be responsible also to the party who never purchased the chose in action or right. Again, the railway company enters upon the possession of a man's land without any writing, no written contract, but the understanding that they shall pay to him a reasonable compensation for it. There is nothing in writing, but they enter with his full consent and with the understanding that they shall pay reasonable compensation for it. If he subsequently sells the land, does he transfer the title to the grantee? Nobody claims it, but if he does, the subsequent grantee, the now owner, would compel it because he can show the company is in possession without having legally appropriated and paid for it and not holding it by any written contract with the owner. There is still more in the act that the petitioner alleges, to show that it has neither legal nor equitable title and it is in the possession of that company; it has equitable title because it cannot be dispossessed. Again, fifth, because the statute of limitations runs from the time of the injury committed. If these parties wait for twenty-one years from the time when full and complete possession is taken of the lands their remedy is gone. The statute of limitations run from the time of the injury, the time of taking possession by the railway company of the land of the owner. This, if it needs illustration, is illustrated by the Railroad Co. v. Perkins. doctrine laid down in Platt v. Railway Co., supra, that the party may sue a railroad company; not as stated in Atlantic & G. W. Ry. v. Robbins, supra, for the conversion of real estate had in taking the land in actual appropriation. He retains the title in fee and all the railroad company gets is an easement. He may sue for damages and the rule of damages is the value of the property taken and the injury done to the adjacent property precisely as upon an appropriation. That is established by Platt v. Railway Co., supra, and it follows the doctrine in the Goodwin v. Canal Co., 18 Ohio St., 169 [98 Am. Dec. 95], which decision was announced before the passage of the act that where a landowner stood by and allowed the land to be taken and a road built upon it, he could not contest the right of the company; all that remained was compensation, so the fact comes that he may have such a remedy at law. I say the statute of limitations commencing to run from that time shows the injury from then and damages must be assessed from that date of the injury and for any delay interest must be given. For these reasons I cannot concur with the majority of the court. OPERATIVES. IN RE OPERATIVES. TRAVELING Salesman nOT AN OPERATIVE. A traveling salesman is not an operative within Sec. 6355, Rev. Stat., creating preferences for wages due in cases of assignments for creditors. MEMORANDUM of decision. A traveling salesman is not an operative within the meaning of Sec. 6355, Rev. Stat., following the decision on the same question of the circuit court of Hamilton county in Davis v. Greenlee, 7 Circ. Dec. 111 (13 R. 229). BUILDING AND LOAN ASSOCIATION-INTEREST. [Hamilton Circuit Court, 1898.] EAST END BUILDING ASSOCIATION V. McCaffery. BUILDING AND LOAN ASSOCIATION MORTGAGE-INVALID CONTRACT. A contract in a building and loan association mortgage to pay an additional rate of interest as indemnity for counsel fees and expenses, if mortgagee is compelled to go into court to recover, is invalid as against public policy. MEMORANDUM of decision. Suit by an administrator to sell property to pay debts of the estate. The East End Loan Association held a mortgage on the property, and filed their answer and cross-petition, averring that it held a duly recorded mortgage on said property for $500; that mortgagee was in delault for payment of dues, interest and premiums agreed to be paid therein; that the mortgagee had agreed in said mortgage, that it he became in default for any of said payments, the whole balance of the debt should become due and collectible, and mortgagor became vested Hamilton Circuit Court. with the right to foreclose; that the interest paid on said loan should be thirty cents a week on a share of $250, or, six twenty-four hundredths per cent. per annum, but to quote from the mortgage, “if said company is required to enter court to recover on, or defend its claim under this mortgage, in foreclosure or other suit, that the interest to be recovered on the consideration of this mortgage, shall be eight per cent. per annum, from the date it was loaned, and such part of such interest as remains unpaid to said company at the date of a judgment for said company in such suit, shall be included in the amount of such judgment of said company for the reimbursement of said company for its counsel fee and other expenses of said suit." There was no denial of these averments. Held: "Where, in a mortgage to a building and loan association, the mortgagor stipulated to pay interest in weekly payments at the rate of six twenty-four hundredths per cent. per annum, but that if the mortgagee, on default of the mortgagor, was required to enter court to recover its loan, that such mortgagee should recover as interest on the sum of the loan, from the date of the same, eight per cent. per annum, instead of the six twenty-four hundredths per cent. per annum, and that such additional interest should be included in the judgment in the case, as indemnity to the mortgagee for its counsel fee and expense in the case, and if more than sufficient for that purpose, the remainder to be for the benefit of the association, such contract for the additional interest is invalid, and cannot be enforced, as the same is against public policy and void." CONTRACTS-EVIDENCE-PLEADING. Frazier, Laubie and Woodbury, JJ. *CHAUNCEY H. ANDREWS v. WILLIAM WATSON. 1. AUCTION SALE-EVIDence of CoNVERSATIONS. In an action to recover damages for failure to accept and pay for certain shares of stock sold at auction, the seller claiming that forty shares were sold and the purchaser claiming to have bought only ten shares, evidence of directions given by the seller to the auctioneer as to the sale of the stocks incompetent unless it appears that such directions were given in the presient and hearing of the purchaser. 2. NOTICE OF Sale-ParOL EVIDENCE. Parol evidence as to the contents of a notice of property to be sold at auction is inadmissible unless it appears that the notice itself is not available. 3. DEPOSITION MAY BE USED BY EITHER PARTY. A deposition taken by one party may be used by either party in the trial of fact and where it is against the party in whose behalf it was taken and he refuses to use it, any other party may use it, in the examination in chief or in cross-examination. 4. MEASURE OF DAMAGES. The measure of damages, in an action to recover for the refusal of the purchaser of certain shares of stock to pay for the same, where there was no delivery of the stock or transfer on the books of the corporation by delivery of the certificate thereof, or tender made prior to the commencement of the action, is the difference between the contract price and the market value of the same, and not the sum stipulated to be paid for the stock. For subsequent decision in this case, see post €92. Andrews v. Watson. 5. TRANSFER OF STOCK. The legal title to stock must be transferred on the books or by assignment of certificate, although the equitable title may be otherwise transferred. 6. PETITION-ALLEGATIONS TO SHOW SALE. A sale made by an auctioneer can be made as binding as any other contract, but to recover thereon it is essential that sufficient proof be offered to show that a bid was made and the property "knocked off" to the bidder, that the bid was accepted and the property sold. Therefore, a petition which does not allege a sale to the bidder and that the property was struck off to him, does not state sufficient facts upon which to predicate a judgment, and is clearly defective notwithstanding the liberal rule as to defective pleadings after judgment. HEARD ON ERROR. LAUBIE, J. In the case of Chauncey H. Andrews against William Watson, the defendant in error brought his action in the court of common pleas, to recover the price of thirty shares of stock in the Mahoning and Shenango Valley Fair Association, a corporation, which he claims he sold at public auction to the plaintiff in error, at the price of $20 per share. Inasmuch as it is said that the petition in this case is an admission, I will call attention to its allegations. It is averred that about October 17, 1882, the plaintiff below was the owner of forty shares of stock in this corporation and that he had duly advertised, by hand bills posted throughout the neighborhood and in various papers in general circulation in Trumbull and Mahoning counties, that on said day he would sell at public vendue, stock and a variety of farm articles, and also a certain number of shares of stock of said association, to-wit, the number of forty shares. That on said day, at the time and place named therein, and as the last article of the sale, he put up, and caused to be cried by the auctioneer, ten shares of said stock with the privilege of more at the same bid, and thereupon came the defendant, Chauncey H. Andrews, who bid for said ten shares, the sum of $20 per share, and was then asked how many shares he would take, and replied that he would take all said forty shares. That, thereupon, said sale closed and within a short time thereafter, the plaintiff caused the shares to be transferred to said defendant, but the said defendant had instructed the secretary not to transfer the same to him, and did at that time reluse to accept the same and pay the price named, and has ever since refused to accept the same, and to pay the price bid therefor. He further says that he has been ready, and is ready, and has been and is now willing to transfer these thirty shares of stock to the defendant in error, and that he refuses to accept the same and pay the price, and he asks damages in the sum of $600, the price of these thirty shares at $20 per share. To this petition an answer was filed by the defendant below, in which he admits that he purchased ten shares of stock in this corporation, to be assigned to him, and which he paid for, and he denies all the other allegations of the petition. He further says, that at the time he purchased the ten shares, he had no knowledge that plaintiff had any other shares of stock for sale, and whatever he said at the time of the sale was with reterence to the ten shares offered by the auctioneer for sale, and that the plaintiff afterwards caused the ten shares to be conveyed to him. The plaintif bid off for |