
    (Hamilton County Common Pleas Court.)-
    STATE OF OHIO ex rel. THE BOSTON WOVEN HOSE CO. v. EUGENE E. LEWIS, AUDITOR, AND TILDEN R. FRENCH, TREASURER OF HAMILTON CO.
    It is not carelessness for the County Auditor to deliver a warrant to the agent of the-party in whose favor it is drawn although such agent has no authority to collect in. cash.
    But the payment of such a warranty by the County Treasurer to such agent on his unauthorized endorsement is gross carelessness and at the peril of the Treasurer.
    The remedy of the party in whose favor the warrant was issued is an action for damages by reason of the carelessness of the Treasurer in paying it on a fraudulent endorsement, the measure being the amount of the warrant, with interest.
    Mandamus.
   JELKE, J.

On or about November 23,1887, the Boston1 Woven Hose Company, plaintiff, sold' through its agent, S. A. Browne, to Hamilton county, acting by its agent, AlonzoHildreth,certain goods amounting to 8319.50 for the use of Longview Asylum. These goods were delivered from plaintiff’s headquarters in Boston to said Longview Asylum, together with an invoice for the same, having printed on the face of said invoice the words, “Make all settlements at the Boston office only. ”

On the 10th day of December, 1887, the-Board of County Commissioners approved’ said bill. On the 13th day of December, 1887, the Board of Control approved said' bill, and directed the Auditor to issue a warrant to the order of plaintiff therefor. On the 7th day of January, 1888, the Auditor-issued a warrant for the sum of §319.50, payable to the order of “Boston Woven Hose-Company”, and delivered the same to said S. A. Browne, who endorsed it “Boston Woven Hose Co., per S. A. Browne,” and on the same day presented it to the Countv Treasurer, received the money on it, which-he appropriated to his own use; and on< April 7, 1888, committed suicide.

I find from the testimony that S. A-Browne was a sales’ agent merely, with no power to collect.

Otto Pfioger for plaintiff.

Frank F. Dinsmore, for defendant.

I am of opinion (were such a thing possible under the county’s method of doing business, which it is not), that it was not within the scope Browne’s authority to collect the money for his bill directly, and it would have been gross carelessness for any county officer to so pay it to him.

But 1 am of opinion that it was not an unwarranted stretch of his authority, as such agent, to receive a warrant payable to the order of the Boston Woven Hose Co.,” there was no carelessness on the part of the auditor, (Raine), in delivering such a warrant to him ; but the auditor had a right to rely that said warrant would be paid only on the valid legal endorsement of the“Boston Woven Hose Co.,” or its agent, duly authorized thereto.

I lind that the testimony discloses no authority in the said Browne, to endorse said warrant and collect said money, and discloses nothing which would justify the county treasurer (Ratterman), in believing that he had such authority, and in paying him said money, and that the payment, of said money to said Browne, by the said treasurer on the endorsement, “Boston Woven Hose Co., per S. A. Browne, ” was at the peril of said treasurer, and gross carelessness. I am of opinion, that in this respect the same rule is incumbent on the county treasurer as is upon a bank, which as to a bank is laid down in Armstrong v. National Bank, 46 Ohio S., 512.

“In the absence of a course of dealing or understanding to the contrary between tile parties, the duty of a bank is, in all cases, to pay to the person named, or his order, where the terms of a check are such ; and he may and should withhold payment until fully satisfied as to the genuineness of the endorsement. ’ ’

Plaintiff now asks the court to mandamus ■the auditor to give him a new warrant for $319.50, for the old warrant, No. 785. The court will not mandamus the auditor to issue a new warrant, as there is nothing to found such a wuirivit upon,the auditor having already exhausted the force of the order of the county commissioners and board of con trol in issuing warrant No. 785. The court will not mandamus the auditor to deliver to plaintiff warrant No. 785, as such delivery is not- “an act which the law specially enjoins as a duty resulting from the office of auditor.” R. S., 6741.

The court will not mandamus the treas urer to pay a warrant not in plaintiff's possession, and which on its face is redeemed and cancelled.

What, then, is plaintiff’s remedy?

Plaintiff’s remedy is not on its original bill of goods, that having been paid by and merged into warrant No. 785; this not being a case of payment of bill by worthless check where seller can erect to proceed on either bill or check, because in this case the bill was paid by the sufficient delivery of a valid and good warrant.

Plaintiff’s remedy was an action for damages by reason of the carelessness of the treasurer in paying a warrant on a fraudulent endorsement, the measure being the amount of the warrant, with interest.

Such was the action in Dodge v. National Exchange Bank, 30 Ohio St., 2.

Whether such action should be maintained against the county,or against the treasurer, individually, it is not necessafy in this decision to determine, but inasmuch as plaintiff had “a plain and adequate remedy in the ordinary course of law,” mandamus will not lie. Rev. St., 6744. Furthermore, if mandamus were plaintiff’s proper remedy, I find that his riglu arose not later than February 23, 1888, and the petition was filed here in May 11, 1895, and that al though the limitations of the code of civil procedure are not applicable to proceedings in mandamus, yet they are somewhat of a guide to a court of equity in deternming whether or not, relator has for an unreasonable time slept on his rights. Chinn v. Trustees, 32 Ohio St., 236; State ex rel. Merrill v. Board of Education, 14 C. C., 97.

Plaintiff’s evidence docs not sufficiently explain away a delay of seven years, especially as there have been changes in the office of county treasurer, and the deaths of two witnesses, whereby it is claimed that the defendant are deprived of material evidence.

Judgment for the defendant.  