(147 N.E.) on the day prior to decedent's death by one [ [the paper writing, supra] and the doctor Joseph O'Brien, who was a brother of the gave it to me [Joseph O'Brien]." decedent. The record consists of the evidence of Edith I. O'Brien, who was called for crossexamination, and who was not present at the time of the execution of the paper writing, and had no knowledge with reference thereto, the evidence of Joseph O'Brien and Mrs. Ada M. Baker, and the exhibits. The action below was one for a money judgment against the plaintiff in error for a sum equal to the moneys of her decedent in banks at the time of his death, which had come into her hands as administratrix, and was submitted to the jury under proper in The record further discloses that the decedent had a safety deposit box in the city of Toledo, in which box were certain papers belonging to Joseph O'Brien, marked as such, and certain papers belonging to Mary O'Brien, marked as such; that the paper writing, other than the words "& all money which I have in banks," was prepared by Joseph without the solicitation or knowledge of the decedent, for the purpose of authorizing his mother to secure such papers from the safety deposit box; that upon the morning of its execution the paper was handed to the at-structions as to the degree of proof required tending physician, who stated to decedent, according to the testimony of Joseph, "We got a paper we would like for you to sign," to which decedent replied, "All right." According to the testimony of Mrs. Baker what the physician said was: “I have a paper here; in case of your not getting better, there is a paper I would like to read to you." The attending physician then read the paper to the decedent, who said: "Doctor, put in there 'and I give mamma all the money I have in banks.'" in such case. At the close of the case of the Cotter & McFellin and Wm. H. McLellan, ROBINSON, J. This case may be disposed Thereupon the attending physician wrote of upon the single question whether the pathe words "& all money which I have in per writing delivered by the attending phybanks," which decedent signed. The paper sician to Joseph O'Brien, the brother of the writing was then delivered by the attending decedent, without direction from the decephysician to Joseph O'Brien, without any in- dent, and his retention of it, without delivstruction or direction from the decedent, the ery to the defendant in error during the life attending physician, or the mother, Mary of the decedent, together with the oral tesO'Brien. After the decedent had signed the timony that decedent used the words “and I paper writing, he said, "Mamma give Joe $3,- give to mamma all the money I have in 000 or $4,000." After signing the paper writ-banks," invested the donee with dominion and ing, the decedent inquired of the doctor, divested the donor of dominion. If so, the "How much will your bill be?" and thereup-question of intent was one of fact, and this on signed a blank check on a Savannah bank in which he had no money, with reference to which Joseph O'Brien testifies, "I was to scratch that out and add in the bank where he had the money," and in regard to this check Joseph O'Brien testifies, "I took it." The record further discloses that Mrs. Mary O'Brien was present when the paper writing was signed and delivered to Joseph O'Brien, but is entirely silent upon the subject of her conduct with reference thereto, upon the subject of her authorization of Joseph O'Brien to receive the paper writing in her behalf, and upon the subject of any direction by the decedent to Joseph O'Brien, or any one else, as to the purpose or disposition of the paper writing. The record contains no evidence of any delivery, symbolic or otherwise, of the key to the safety deposit box, the bank book or books of decedent, or the money in bank, other than that "he [Louis V. O'Brien] signed it court will be governed by the determination of that fact by the jury and the courts below. If, on the other hand, the record fails to disclose any evidence or any reasonable inference which may be drawn from evidence tending to prove the essential element of delivery to the donee, actual or symbolical, then the trial court erred in not sustaining the motion and directing a verdict for the plaintiff in error. Counsel for the defendant in error apparently were in doubt whether the alleged gift in this case was a gift inter vivos or causa mortis, and tried the case apparently without determining which. The essentials of a gift inter vivos are the purpose of the donor to make the gift and a delivery of the thing given, which delivery may be actual, constructive, or symbolical; it is immaterial which, so long as it divests the donor of all dominion and invests the donee with dominion. A gift causa mortis is a gift made by a person in expectation of death, and upon condition that the donor dies as anticipated. The essentials of the gift are the same, the distinguishing features being that a gift causa mortis is revocable during the life of the donor and a gift inter vivos is irrevocable. The intention of the donor to make the gift, whether inter vivos or causa mortis, while essential, is not the all-controlling feature in determining whether an act or acts constitute a gift. It is apparent from the record, giving to the paper writing and the evidence such credence as the jury were entitled to give to it, that it was the intention of Louis V. O'Brien to give to his mother such moneys as he had in banks. That the attempted gift was causa mortis rather than a gift inter vivos would seem to appear from the evidence of Mrs. Baker that the attending physician at the time of presenting the paper writing to Louis V. O'Brien stated, "I have a paper here, in case of your not getting better, there is a paper I would like to read to you," and from the fact that subsequent to its signing Louis V. O'Brien executed a blank bank check, intending the check to be filled out in such a way as to operate upon a part of these funds in payment of his hospital and physician bills, and by the fact that he gave directions as to the disposition of a part of the fund. This evidence is also pertinent in determining the intention of the decedent with reference to his dominion over the thing alleged to have been given. The record, however, containing evidence as to intention, that question would very properly be one for the determination of the jury had there been any evidence tending to prove the other elements of a gift, either causa mortis or inter vivos. That it is not necessary for a donor, situated as was the decedent in this case, to do an impossible thing, viz., manually deliver to the donee the funds, which were in banks in a different state, is well settled. It is equally well settled, however, that some sort of possession must be delivered to the donee, actual or constructive, which possession must be taken by the donee and retained until While such delivthe death of the donor. ery need not necessarily be made to the donee personally, if not so made, it must be made to an agent or trustee of the donee, as such, the appointment of whom may be made by the donor. The evidence upon this subject is: "He [Louis V. O'Brien] signed it and the doctor gave it to me [Joseph Arthur O'Brien]. "Q. What did you do with it? A. Put it in my pocket. "Q. What was done with it afterwards? A. Afterwards? "Q. Yes. A. You mean after I came to Toledo? "Q. Yes. A. I showed it to his wife." There is not a syllable of evidence tending to show any direction or instruction given to the doctor with reference to the disposition of the paper, or any direction or instruction given to Joseph in the presence or absence of the decedent with reference to the disposition of the paper, or any evidence tending to show any delivery of the paper by Joseph O'Brien to the defendant in error in the presence of the donor, or with the knowledge or consent of the donor, or any delivery at all to the defendant in error, until long after the death of the donor. On the contrary the circumstance of the donor thereafter drawing a blank check upon the fund, and thereafter giving direction to the defendant in error Mary O'Brien to give a portion of the fund to Joseph O'Brien, tends to indicate that it was within the mind of the donor that he retained dominion over the fund, and that the transaction was in the nature of a testamentary disposition of his property. The question which this court is deciding is whether the delivery of the paper writing to Joseph, in connection with the words used and things done, amounted to a delivery of the "money in banks” to the defendant in er ror. The question whether the paper writing itself amounts to a testamentary bequest is not before the court. This court has repeatedly held that proof of the intention of a decedent to make a gift either inter vivos or causa mortis, is not of itself sufficient to sustain such gift. In the case of Simmons v. Cincinnati Savings Soc., 31 Ohio St. 457, 27 Am. Rep. 521, this court declared: "The drawer of a check delivered it to the payee, intending thereby to give to the payee the fund on which the check was drawn Held: That until the check was either paid or accepted, the gift was incomplete, and that, in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check." The court in that case found the intent, but refused to sustain it as a gift. [2] Was there any evidence in this case In the case of Gano v. Fisk, 43 Ohio St. tending to prove a constructive delivery to the defendant in error? It must be conced-462, 3 N. E. 532, 54 Am. Rep. 819, this court ed that no such delivery was made to her in person, although she was present and such delivery could have been made to her as readily as to any other person. declared: "Gifts causa mortis have the nature of a legacy, and the policy of our law does not favor them while there is provision, by the stat (147 N.E.) ute of wills and the law of descents, for the transmission of all property rights." and testament are hereby directed to pay the above to Mrs. H., or her sons, Moses and John, after my decease. John R. Moore. In that case the decedent stated to his "Attest: Philip Riggs. daughter: "My notes are in a little box on the bureau there; I want you to take them and divide them equally among you children." He directed her to get the key to the box, which she did, and tried it in the box, and then delivered it to her husband for safekeeping. After the death of the intestate she took the box and did not divide the notes, but turned them over to the administrator and brought an action against the administrator to recover them: "Held: 1. These facts do not show such a delivery as constitutes a valid gift causa mortis." In the case of Flanders v. Blandy, 45 Ohio St. 108, 12 N. E. 321, the father set apart certain bonds to his daughter, which were left in the possession of the father by the daughter, at her request, for safe-keeping, and the father collected the interest upon them and transmitted it to her up to a certain date, when, without her knowledge or consent, he invested the bonds in a business in He then which he had become interested. wrote his daughter a letter, which he stamped as a contract, in which he promised if she did not elect to accept the investment in lieu of the bonds he would retain it himself and pay her $2,000, with interest, which written promise the daughter accepted. Upon the death of her father she brought an action on the written promise against his representative, to recover the $2,000 and interest. Held: "1. That there was no good and sufficient consideration to support the promise on which the suit was brought. "2. That the transaction between the father and daughter was not a valid gift inter vivos." The possession of the father as custodian, for safe-keeping, the collection and payment of the interest on the bonds to the daughter, and the written letter stamped as a contract, acknowledging the ownership of the bonds in the daughter, and offering her the election to accept in lieu of the bonds, the business in which he had invested the bonds without her knowledge, or to take their value in money, and her election to take their value in money, while clearly showing the intent, were held not sufficient to complete the gift. In the case of Hamor v. Moore's Adm'rs, 8 Ohio St. 239, Moore executed to Mrs. Hamor a paper writing in the following words: "For value received, I promise to pay to Mrs. Hamor, wife of John Hamor, the sum of $300, as a small recompense for the kindness shown to me by her. The executors of my last will "February 28, 1850." He then delivered the same to Philip Riggs with instructions to deliver it to Mrs. Hamor after his death, which was done. Held: "That this was not a gift inter vivos, nor a gift causa mortis; nor was it good as a testamentary disposition." In 12 Ruling Case Law, 946, § 23, it is stated: "To effect a gift of money on deposit, whatever is sufficient to place the fund under the donee's control, so that nothing further is necessary on the part of the donor to give possession, is enough. As in the case of other property, to pass money on deposit by gift, there must be a delivery to and acceptance by the donee or something equivalent thereto. It is not necessary that there should be a manual delivery of the thing given, that is, the money; nor is there any particular form or mode in which the transfer must be made. The gift may be perfected when the donor places in the hands of the donee the means of obtaining possession of the contemplated gift, accompanied with acts and declarations showing an intention to give, and to divest himself of all dominion over the property." Measured by the above the donor in the instant case neither placed in the hands of the donee the means of obtaining possession of the money nor divested himself of all dominion over it. The most that can be said of the paper writing, considered in connection with the words spoken by decedent, is that the donor was attempting to make a testamentary disposition of a portion of his property. It is of course not necessary that actual manual transfer of the thing given be made, where, by reason of the situation of the parties, or the nature of the thing given, such manual delivery cannot be made, but it is essential that such symbolic delivery be made as is consistent with the situation of the parties and the character of the thing attempted to be given. The record in this case does not disclose where the bank book, the key to the vault, or the other evidences of ownership of the donor were at the time of the execution of the paper writing. While the delivery of the paper writing by the attending physician to Joseph in the presence of the decedent might well support an inference that such delivery to Joseph was authorized by the donor, it does not support an inference that Joseph, who made no delivery to the defendant in error during the life of the donor, was made by the donor an agent or trustee of the donor to deliver to the defendant in error, or made an agent and trustee of the defendant in error to receive such delivery; nor, if he was an agent or trustee of de- (of the final carrier, receives and unloads the fendant in error by her appointment, that the merchandise before being presented with a bill donor had any knowledge of such agency or of freight and demurrage charges, and where trusteeship. The most that can be said for such purchaser thereupon tenders the full value of the merchandise to the final carrier in the evidence touching the question of deliv- either full or partial payment of such freight ery, giving to it the most favorable interpre- and demurrage charges, and such payment is tation towards the defendant in error of refused, and the purchaser and consignee of the which it is susceptible, is that the decedent, merchandise is instructed to pay the valve of by reason of his permitting the attending the merchandise to the person from whom he physician to deliver the paper writing to had purchased it, and where such consignee Joseph by his silence, authorized the deliv- thereupon actually pays the value of the merery to Joseph. The explanation of Joseph chandise to the vendor and consignor, and that he placed it in his pocket and retained where the carrier thereafter seeks by legal process to recover such freight and demurrage it for safe-keeping tends to prove his pur- charges from the vendors and consignors, and pose in that respect, but does not tend to makes no further claim against the consignee prove the purpose of the donor in any re- until a period of five years and four months thereafter, the carrier will be estopped from spect. demanding and collecting any part of such freight and demurrage charges from such consignee. [1] The evidence in this case, however, while showing an intention on the part of the decedent to give to Mary O'Brien his money in banks, in no respect tends to show any delivery, actual or symbolical, of the thing given to the donee, or to any person authorized by the donor to receive it for her, or to any person authorized by the donee to receive it, of which authorization the donor had any knowledge. The motion, therefore, for a directed verdict, should have been sustained. The judgment will be reversed and the judgment which the court of common pleas should have rendered will be entered. Judgment reversed, and judgment for plaintiff in error. MARSHALL, C. J., and JONES, MATTHIAS, DAY, and ALLEN, JJ., concur. KINKADE, J., not participating. CLEVELAND, C., C. & ST. L. RY. CO. v. Where a purchaser of merchandise which at the time of purchase is located at a place in a state other than that of the place of delivery, and by the terms of purchase such merchandise is to be delivered f. o. b. at the place of delivery, and the merchandise has prior to the time of purchase been shipped from place to place by common carriers, and demurrage charges have accrued, none of which has been paid, and all of which have been made to follow the merchandise in the hands of successive carriers, none of which facts is known to the purchaser, and nothing has occurred to put such purchaser upon inquiry, and without notice or knowledge thereof the purchaser, being at the time upon the credit list 2. Carriers 194-Consignee of interstate shipment chargeable with knowledge of tariff schedules but not with demurrage charges at intermediate points. The consignee of merchandise in interstate shipments is chargeable with knowledge of the amount chargeable in accordance with the tariff schedules on file from point of shipment to point of delivery, but is not chargeable as i matter of law with knowledge that the same merchandise has been prior to the purchase shipped from place to place by different carriers for different shippers, and is not chargeable as matter of law with knowledge that the car containing the same has been kept out of service at intermediate points, resulting in demurrage charges. 3. Carriers 194-Primary liability for charges on goods sold f. o. b. place of delivery is on consignor; consignee not insurer against carrier's loss of transportation charges.. In interstate shipments of merchandise under the interstate, commerce act, where the contract between the carrier and consignee requires merchandise to be delivered f. o. b. at the place of delivery, the primary liability for transportation charges rests upon the consignor, and, while a secondary liability rests upon the consignee who accepts and unloads the merchandise, and where no actual discrimination or preference is attempted, no considerations of public policy require that the consignee should insure the carrier against loss of transportation charges. Matthias, J., dissenting. Error to Court of Appeals, Delaware County. Action by the Cleveland, Cincinnati, Chicago & St. Louis Railway Company against the McKenzie Lumber Company. Judgment for defendant was affirmed by the court of appeals, and plaintiff brings error. Affirmed. -[By Editorial Staff.] This action was brought by the Big Four Railroad against McKenzie of Delaware, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (147 N.E.) The Ohio, in the common pleas court of Delaware | Louis, Mo., one carload of lumber." county, to recover freight and demurrage only testimony throwing any light upon the charges upon an interstate shipment of a car load of lumber delivered to McKenzie on September 6, 1916. The facts were all established beyond dispute, and the controlling ones are as follows: On May 17, 1916, one Quinn shipped a car of rough lumber, weight 42,400 pounds, from McMillan, Miss., to Houston, Miss., to be dressed, upon which the freight charges were $38.16. After being dressed, the car, then weighing 35,500 pounds, was forwarded by a different railroad to Quinn at Cairo, Ill.; the former transportation charges being allowed to follow. The car arrived at Cairo on May 22, 1916, where it was allowed to remain until June 29, 1916, when Quinn ordered the car forwarded to him at East St. Louis, Ill.; the demurrage charges during the idleness of the car at Cairo amounting to $59. At East St. Louis there was further idleness until August 28, 1916, and additional demurrage charges in the sum of $47. The freight charges from Houston, Miss., to Cairo, and from Cairo to East St. Louis amounted to $28.40. On August 25, 1916, the defendant in error, the McKenzie Lumber Company, purchased a car of lumber from the Gloor-Ortman Lumber Company, of St. Louis, Mo., to be delivered f. o. b. Delaware, Ohio, at a certain agreed price, terms 60 days with 2 % off for cash within 10 days. The Gloor-Ortman Company thereupon delivered this same car of dressed lumber from East St. Louis, Ill., to Delaware, Ohio, where the same was received, and the McKenzie Lumber Company being on the credit list of the railroad company, the car was placed upon its industrial track and promptly unloaded. After being received and unloaded, the railroad company by its agent presented an expense bill, which included, not only the freight charges from East St. Louis, Ill., to Delaware, Ohio, $41.54, but also all freight charges from McMillan to Houston, from Houston to Cairo, from Cairo to East St. Louis, and the demurrage charges at Cairo and East St. Louis. The bill as presented was in the sum of $293.99, while the value of the car of lumber was only $265.42. McKenzie had no knowledge of the accrued transportation and demurrage charges prior to the time of his purchase on August 25, 1916, and had no knowledge of the same until the expense bill was presented on September 8, 1916, the car having arrived in Delaware on September 6, 1916. relation of the Gloor-Ortman Company to the transaction, or upon its title to the lumber when making a sále to McKenzie, is a letter introduced in evidence without objection, written by the Gloor-Ortman Company to the McKenzie Company, in which it is unequivocally stated that the Gloor-Ortman Company had "bought" the car. The question of the Gloor-Ortman Company's ownership is important for reasons which will hereafter appear, and we think this record makes it clear that the Gloor-Ortman Company had title to the lumber at the time of its contract with the McKenzie Company. When Mahoney, the local freight and passenger agent of the Big Four at Delaware, presented the expense bill in the sum of $293.99, the McKenzie Company refused payment of that amount, but tendered to the agent the sum of $265.42, the full value of the car of lumber, which the agent refused to accept either in full or partial payment of its freight bill. Fourteen days later, on the 22d day of September, 1916, the McKenzie Company again presented and tendered to said agent $265.42, which tender was again refused, and the agent thereupon instructed the McKenzie Company to pay the amount to the Gloor-Ortman Company, saying that the carrier would then collect the freight charges from the shipper. At the time of the tender it was stated to the agent that it was desired to make payment within the discount period in order to save the 2 per cent. discount. At the time of the tender, the McKenzie Company notified the agent that there was a mistake in the weight of the car, and that the bill was for that reason excessive. Thereupon, according to the professional statement made by counsel to the court and jury during the trial of the case, an effort was made by the railroad company to collect the charges from Quinn, the shipper, which effort failed because of Quinn becoming bankrupt, whereupon an effort was made by the railroad company to collect from Gloor-Ortman, which failed because Quinn claimed that Gloor-Ortman was only handling the car for him, and after these efforts had failed the railroad company, five years and four months later, brought suit against the McKenzie Company to collect all freight and demurrage charges. It was in the meantime discovered that the original correct, and that the charges were in fact only $214.10, and this is the amount which the railroad company seeks to recover in the instant case. If a correct bill had been pre freight bill as presented to McKenzie was in The petition alleges that McKenzie purchased the car of lumber "through the Gloor-sented in September, 1916, it would have Ortman Lumber Company of St. Louis, Mo.. which was then handling the same for account of said T. B. Quinn"; but the answer of McKenzie alleges that it "purchased of the Gloor-Ortman Lumber Company of St. been promptly paid and the amount charged back to Gloor-Ortman, or, if the railroad company had been willing to accept the tender of $265.42 in partial payment of its freight bill, it would have found itself in possession |