756
FEDERAL REPORTER,
vol. 37.
othet children, would enable. the executors to satisfy the specific legacies. The person who was expected to occupy and cultivate the land and pay the annual charges was in the testator's mind as the devisee. If "children".is substituted for "heirs," it becomes necessary to go further and substitute" their" for "his." And if the testator intended to devise the land to Henry's children, and at the testator's death there had been no such children, the devise would have lapsed or failed for want of a dtwisee. By transposing the "heirs of Henry White" so as to read "Henry White and his heirs," (thus conforming to the ,language employed in. making the other devises,) the words of the testator are prese,rved, all obscurity disappears, and the scheme of the will is upheld. When from the circumstances under which a will is made, the state of the property disposed of, the relation of the legatees, devisees, and others to it,and the general scheme of the instrument, the intention of the testator is manifest, it will be carried out, even to the of supplying and transposing words. Finding and judgment for the defendant.
VAN BII3BFlItet al.,'V. Wn,LIAMSON et al.v. SAME. McARTHUR
et,al. v.
MORRIS et ql. '!.I. SAME. JONES SAME. McARTHUR 11. SAME.
(Oircuit Gourt. So D. :()hio, W. D. March 1, 1889.)
1.
Under the Ohio occupying claimants' law. (2 Rev. St. 1886. c. 10, subd. 2,) which requires that the value of all "lasting and valuable improvements" made on the land shall be paid for in full. such value is not to be ascertained by what the improvements originally cost the claimant. but by the substantial benefit they confer I1pon the rightful owner, at the date of the commencement of the action. ' SAME...,.IlIIPROVEMENTS BY LIFE·TENAN'l'-LrABILI'1'1" OF REMAINDER-MEN.
CLAIMANTS-EsTIMATE OF IMPROVEMENTS.
2.
Improvements made by the life tenan t, or those holding under him, prior to his death. cannoJ be charged against the remainder-men, who, at the time the improvements were made, were minors. and in no position to interfere or complain.
On Exceptions to Report of Special· Master. King, Thompson &- Maxwell, ,for plaintiffs. R. A. Harrison, F. O. Goode, nndA. H. Gillett, for defendants. JACKSON, J. Consolidated causes pending on exceptions to the report of special master, filed herein January 2, 1889, upon the subject oflasting and valuable improvements, which defendants have placed upon the lands or several tracts recovered by plaintiffs. Aside from certain clerical errors or mistakes in the commissioners' report, which counselll.t the hearing agreed should be corrected, the exceptions taken by the severa:! defendants to the report relate chiefly to alleged excessive charges ofrent against them respectively, and the failure to allow them larger amounts for improvements. The plaintiffs' ex-
VAN BIBBER f1. WILLIAMSON.,
757
ceptions relate mainly to allowance made defendants for lands, for fencing, wells, draining or ditches, and fruit trees. These exceptions on the part of plaintiffs and deftmdants are too numerous to notice and comment upon in detail. After a careful examination of the report, in connr-ction with the evidence taken before and submitted by the commissioners, the court, is of the opinion, and so holds, that the exceptions filed by the several defendants are not well taken, and should be disallowed. The allowances made defendants by the report for improvements, and plaintiffs' exceptions thereto, present questions of more difficulty. The ,court gave no special direction as to what improvements should be allowed for, or as to the time or mode of making the valuation thereof. In ren.dering its judgment the court held that the defendants in these actions at law were entitled to the benefits conferred by the law of Ohio upon occupying claimants, and, ,in conformity with the Ohio statutes on the subject,! directed "tbat ajury of twelve men be selected, as provided by law for the selection of juries, to try causes in this court, to whom shall be referred to ascertain a,nd report to this court,upon all matters referable to ajury, under the occupying claimant's law of this state; rents; taxes, and assessments only excepted ,"-said rents, taxes, and assessm{jnts having by consent of parties been specially referred to the clerk of this COUl't for asceitainment and report. Instead of proceeding by jury to ascertain the character and value of the improvements to be allowed'defendants respectively, the parties, by agreement, selected certain special commissioners to perform said functions. These specially selected commissioners, after making partition of the several tracts, as to which there is no complaint on either side,state, in referen<;:e to lasting and valuable improvements, that they have experienced much difficulty in arriving ,at satisfactory conclusions as to the character and quality of the improvements proper; to be included in this estimate; that this difficulty arose from the absence of specific instructions on that subject in tlie decree '''and the vague and somewhat contradictory nature of the decision of ,our state courts;" and that the difficulty as to the quality ofthe improvements grows out of the lapse of 'time since the date of bringing the suits, that date being fixed as the time at which the value of such improvements were to be estimated. The ,commissioners were certainly entitled -to more definite instructions than were given by the court, and such as the court would have given the jury had onp, been selected as contemby the order directing the selection of a jury to pass upon the m,at-ters involved. It is hardly to be supposed that the occupying claim_ants' law of the state contemplated action and findings by a jury on the subject of improvements of a lasting and valuable charactp.r, ac,cording to their own ideas, without direction and instruction from the {lourt. The commissioners have very properly, therefore, called atten;tion to the difficulties under which' they labored in making their inyes:tigations; and they could with propriety have called upon the court for
.
'
12 Rev. St. 1886, c. 10, subd. 2.
ttir 71)0
-
FEDERA.L ''ItEPoRTER, 'yo1. 37,/
the to them, before" proceeding without ditections. Neither the report 'of the' commissioners, nor the evidence produced'before'them, shows the value of the improvements'made by dMendants at' the date plaintift'scommenced their actions herein, viz., Aprill8, 1879. The evidenceand the report undertake to state simply w,hhttpe improvements originally cost defendants. What additional or eilhtiriMd value those imp'rovern:ents gave to the land recovered by plaindate of commencing those suits, nowhere appears. It is arguec;l by counsel for defendants that certain Ohio decisions, to which the attenti<;Jn of the court is called, sustain the proposition that the occupying "cIl\imant is entitled to au allowance on the basis of what the improveinents cost him, rather than the enhanced value such improvements ha.ve lPyen to the property recovered 'by the rij:!;htful owner. But, as the court reads those Ohio cases, they hardly sustain that broad proposition. Otherdedsions of the same courta.nnounce the rule, that the occupant should be allowed for all improvements honestly made that are beneficial the successful claimant. It may not be easy to reconcile decisions, but,the latter seem tci:us to statE:" the correct principle, and give to theEltatute the correct meaning. "The "lasting and valuable improvements" which the bonafide occupant has made in the honest belief of his ownership of the land, and for which he is to be compensated, manifestly refer class and description of improvements which give lasting enblmcement to the value of the property, and which benefits and advantages tbe rightful owner will enjoy when he reKains possession thereof.' It seems to us, from a careful examination of the statute', and of the Ohio 'decisions upon the subject, that the occupying claimants' law aimed .to eItibody and apply to aCtions at law for the recovery of real by courts of equity in cases calling estate the equitable principle for its applica#oD, that the true owner seeking relief against a bona fide possessor, whb' in good faith has made lasting and valuable improvements beneficial to the estate, 111ust do equity, which is fully do.le ard met when tbe occupant is awarded compensation to the extent of the benefits which the real or rightful ownerwlll receive from such improvements. "It does not appear from the report of the commissioners, or from the' evidence ihtroduced before them, that the lands set apin! to plaintiff have been.enhanced in value to any extent by the improvements forwhichal10wance, has been made defendants in the report; nor does it appear or, advantages equal to the that plaintiffs have or will derive amounts alJowed defendants for such improvements; It does not, in fact, appear that defendants' improvements tor which compensation is awarded upon either plaintiffs or their lands. will conler any benefit, or It is shown in, one instance that plaintifls are 'charged $15 per acre for clearing land, the timber fromvyhich wassold by the occupall t at about $9 per acre. Butaside froni this, the rule of allowing 'cost of 'such improvements,ratherthaIithe added value thereby given to the land in a way to benefit the rightful owner, is not sound in principle and is not, in our opinion, a proper construction of the Ohio occupying
"VAIt BIBBER
V.
.759
,daimants'law. It cannot be' properly urged, as'suggested by counsel .for defendants, that the cost of improvements is prima facie evidence of the added value to. the property on which the same are made. Besides, in the present case it does not appear when the improvements for which defendants claim and area.llowed compensation were made. For aught that appears, they may have been made long before plaintiffs' right of action or right to actual possession of the land accrued, and the cost. of making them would in no fair or just sense represent the substantial benefit conferred upon the owner, which, ex requo et bono l should be the meaSure of his liability to make compensation. The will of Gen: Duncan McA,rthur was duly probated, and all parties dealing with his children and the lands therein and thereby devised. had constructive notice of its provisions in favor of the present as held by the supreme court in McArthurv. ScoU,1l3 U. S. 340,5 Sup. Ct. Rep. 652. The proceedings to set aside that will were a nullity as to plaintiffs, and in no way affected their right'3, as held in the samepase. Allen a.McArthur, the life-tenant of the lands in question devised in ramainderto the plaintiffs) or his children, departed this life on April 21, 1858. At the date of his death all his children entitled to the remaind.er-intel'estwere minors.., The youngest of these surviving children, Nlen C. McArthur, reached his majority on March 4, 1875. iIn provements made by the life-tenant, or those holding or claiming by, through, or under him, prior to his death, could not, upon well-settled principles, be charged against the remainder-men, who were minors, and in no position to interfere or complain. Nor does the Ohio occupying claimants'.law cover or embrace such a case. It follows, as we think, that defendants must be confined to improvements of a lasting and "aluable character which they or those under whom they claim have made upon those of the lands allotted to plaintiffs in the partition since March 4, 1858. when plaintiffs' right to possession and beneficial enjoy.ment accrued. By arrangement between theparHes and the commis'sionel's,no aecount has been taken of the improvements made on those the lands which, under the partition, have been allotted and assigned to the several defendants respectively. It is not, therefore, necessary to refer to those improvements. The qUGstion in respect to-the.,iJ;nprovements.made upon the lands set apart and allotted to the plaintiffs under the partition (which is not excepted. to, and should be cob,firmed) are two, viz.: F'irst, what improvements of a permanent or lasting and valuable character have the several defendants, or those under whom they claim, made upon the several parcels of land allotted to plaintiffs since the 4th day of and, secondly, what enhanced value did such improvements giveto that portion of the land in April, 1879? In other words, what benefit or advantage were such improvements to the rightful owners of the land on April 18, 1879? .Plaintiffs' exceptions to the report are ac«ordingly sustained; and:in respect to the;mMtersrelating toaaid imprQvenmnts"and coveren by said exceptionlj, the.report of the commissioners is .setaside. In all other respects it is confirlped.
760
If the parties, with the material now before them, cannot adjust the questions relating to the character and value of the improvements to be allowed for as of the date Apri118, 1879, in conformity with the foregoing principles and directions, those matters will be referred back to the commissioners. with directions to ascertain and report as soon as practicable the compensation to be allowed defendants according to the rule and upon the basis herein announced. One of the counsel for defendants has in his brief called the attention of the court to the fact that John Rathburn, one of the original defendants, died before the trial of the case, intestate, leaving adult and minor heirs, who have not been made parties. This should be looked to and disposed of before judgment is finally entered on the reports. .The various motions of several defendants are disallowed. The costs incident to the exceptions will be taxed against the defendants, respectively. The costs connected with the partition will be equally divided between the plaintiffs and the several defendants between whom and theplaintiffs such partition has been made. The costs incident to the commissioners'report upon the accounts for rents and improvements will await the further order of the court, when the question as to such improvements has been finally settled. All of which is ordered and decreed.
STEINBACH". MONTPELIER CARRIAGE
Co.
(C'ircuit Oourt, D. Vermont. March 2, 1889.) 1. FACTORS· AND .BROKERS-COMMISSIONS.
The plaintiff agreed to obtain the orders of responsible parties for goods. manufactured by the defendant. and. after a number of orders had been obtained. the defendant rendered an account of sales made, and agreed to pay plaintiff any commissions that might be due him on account of such sales, reserving no right to question the responsibility of those giving the orders. Held. that as there was no proof that the defendant had suffered any ioss OD, account of alack of such responsibility, the plaintiff was entitled to recoverhis commissions without showing such responsibility.
2. SA1dE.
But plaintiff was not entitled to recover commissions on his contract with defendant for orders sent by him but which were never received. although there were circumstances from which the defendant might have inferred that such orders had been sent; the latter not having agreed to notify the plaintiffof missing orders.
At Law.
Stephen C. Shurtleff, for plaintiff.
Hiram A. HU86, for defendant. WHEEI,ER, J. The defendant agreed to fill orders of responsible parties, obtained by the plaintiff, for goods to be made by the defendant, and to pay the plaintiff the difference between the prices at which they should be ordered above a schedule of prices at maturity of bills, and to-