
    Frank v. Ingalls.
    1. When the possession of a railroad passenger ticket, which entitles the holder to one first class passage between points named therein, has been fraudulently obtained from the company, a person purchasing such ticket from the holder thereof, although for value and without notice of equities, acquires no title thereto.
    2. An agent authorized to sell such tickets, and stamp and deliver the same upon receiving pay therefor, cannot bind his company by stamping and delivering such tickets, without the knowledge or consent of its proper officers, to a third person, to be sold by him, and to be paid for when sold.
    Error to the District Court of Hamilton Countjn
    At the time of the transaction out of which this controversy arose M. E. Ingalls was the duly appointed and acting receiver of the Indianapolis, Cincinnati and Lafayette Railroad Company. Stephen Eagan was his local ticket •agent in Cincinnati. He had sole charge and control of dbe sale of passenger tickets issued for Ingalls’ railroad, and sold at the local office in Cincinnati; but his authority was limited to sales for cash. Frank, the plaintiff in error, was a railroad ticket broker in Cincinnati, but did not know of the limitation put upon Eagan’s authority.
    Eagan and Frank had known and been acquainted with •one Fordyce for nearly one year and a half prior to this time. Fordyce had frequently purchased railroad tickets from Eagan to sell upon the street and to ticket brokers, and had received such tickets from him properly marked with the stamp of his office, but with the understanding that he would return the tickets or bring the money for them. This Fordyce did, except in the case now under consideration. During the period of their acquaintance Frank purchased from Fordyce tickets issued by Eagan to the value of some two thousand dollars, which had‘always been honored by the officers of the railroad. Mr. Ingalls never knew of, nor assented to, these transactions between Eagan and Fordyce.
    On the 14th of February, 1879, Fordyce went to the ticket office and stated to Eagan that he had a customer for four railroad passenger tickets to Pueblo, Colorado, at the same time, showing a postal card purporting to be signed by one Bishop, and in which he ordered from Fordyce four tickets to Pueblo. Four tickets, of the value of $45.50 each were delivered by Eagan to Fordyce, properly stamped and ready for use, upon condition that they should be returned in the evening if not sold, or the money therefor ($182) if sold. The tickets contained these words: “ This ticket entitles the holder to one first class passage to Pueblo, Colorado.”
    On the same day Fordyce sold these tickets to Frank for the sum of $160. Frank purchased the tickets in good faith, and without knowledge of the circumstances under which they were held by Fordyce. Fordyce disappeared without paying the money to Eagan or to any one representing the receiver. The next day Ingalls, the receiver, commenced an action against Frank, and replevied the tickets from him. The court of common pleas found the ownership of the tickets in Frank, and rendered judgment accordingly. The district court reversed this judgment.
    
      Alfred Yaple, for plaintiff in error:
    
      First. — A railroad passenger ticket which specifies that it entitles the holder to one first class passage from one place to another, is negotiable, and passes by mere delivery from the holder to a purchaser. 2 Daniels Neg. Inst., § 1469; Byles on Bills, 557; Benj. on Sales (1 Am. ed.), 13, 14.
    
      Second. — If any person, in good faith, and for a valuable consideration, purchases and receives such a ticket from any holder thereof, he takes it freed of all equities of the railroad company, or defects of title, or want of authority to dispo'se of it in the seller.
    
      Third. — By the railroad company’s authorities entrusting such ticket to the possession or custody of any one, they give him authority to sell and dispose of it to a bona fide purchaser for value, whatever special agreement may exist between them and such custodian, if the purchaser from him has no knowledge of such agreement, or want of authority to sell.
    
      Fourth. — The railroad company will be estopped to deny, in such cases, the authority of such custodian so to sell such ticket.
    
      Fifth. — The railroad company will be bound, in such cases, by the negligence or fraud upon it by such custodian. Where one of two innocent persons must suffer, the loss shall be borne by and fall upon him who put it in the power' of a third person to do the wrong.
    As to the other propositions see McNeil v. Bank, 46 N. Y., 329; Moore v. Metropolitan National Bank, 55 N. Y., 41; Van Duzer v. New York Exchange Bank, 21 N. Y., 531; Winter v. Belmont Mining Co., 53 Cal., 428, and cases there cited; Duchess Ins. Co. v. Hatchfield, 73 N. Y., 226, and cases cited in brief for appellants ; 2 Redfield on Railways, 604, etc., §§ 6 and 239.
    
      Hoadly, Johnson & Colston, for defendant in error :
    Is a railroad passenger ticket, of the kind in question, a negotiable instrument ? Certainly not. It is nothing more than a receipt or voucher for the money which has been paid.
    It is not a contract, but is simply a token to the officers having charge of the train, to recognize the bearer as entitled to be carried a certain distance.
    The contract , of carriage is made by the payment of the fare — the ticket is a mere voucher showing that the purchaser has paid his fare.
    By selling his ticket, the holder assigns his right to be carried — the purchaser buys, what? Not a negotiable instrument — not a contract of carriage, but simply the right or privilege of carriage. Quimby v. Vanderbilt, 17 N. Y., 306; Rawson v. R. Co., 48 N. Y., 217; 11 Ohio St., 462; 63 Me., 302; Henderson v. Stevenson, 2 Scotch and Div. App., 477, 479; Nevins v. The Bay State Steamboat Co., 4 Bosw., 225; Brown v. Eastern R. R. Co., 11 Cush., 97; Malone v. Boston &c. R. R. Co., 12 Gray, 388; Wilson v. Chesapeake and Ohio R. R. Co., 21 Gratt., 654; Johnson v. The Concord R. R. Co., 46 N. H., 219; Gordon v. The Manchester R. R. Co., 52 N. H., 599; Elmore v. Sands, 54 N. Y., 515; Lawson’s Contracts of Carriers, § 106; 22 Ohio St., 395; 36 Ohio St., 658; 37 Ohio St., 338; 2 Daniels Neg. Inst., § 1750 ; 7 Wall, 415 ; 37 Ohio St., 356 ; 35 Pa. St., 239.
   Nash, J.

The plaintiff in error seeks to have the judgment of the district court reversed on the theory that a railroad passenger ticket, like those described in the statement of facts, is negotiable and passes by delivery from the holder to a purchaser, and that any person purchasing and receiving such ticket from any holder thereof takes it freed of all equities of the railroad company, or defects of title, or want of authority in the seller to dispose of it.

The character of a railroad passenger ticket has been considered by the supreme court of this state. In the case of C. C. & C. R. R. Co. v. Bartram, 11 Ohio St., 457, it is spoken of as “ a convenient symbol to represent the fact that the bearer has paid to the company the agreed price for his conveyance upon the road to the place therein designated.” Again, in the case of Railroad Company v. Campbell, 36 Ohio St., 647, it is said that a railroad ticket “ is simply a voucher that the person in whose possession it is, has paid his fare.” Lawson, in his work on “ Contracts of Carriers,” § 106, p. 116, saj^s “ that a railroad or steamboat ticket is nothing more than a mere voucher that the party to whom it is given, and in whose possession it is, has paid his fare and is entitled to be carried a certain distance,” and supports his definition by the citation of numerous decisions.

It thus seems to be well established that a railroad ticket is a receipt or voucher. It has more the character of personal property than that of a negotiable instrument. When the possession of such a ticket has been obtained by fraud the company has parted with the possession of it, but not with the title to it, and the person purchasing from the holder, although for value and without notice of equities, takes no better title than the party had who fraudulently obtained possession of it. We do not perceive that the holder of such a ticket is in any better position than the bona jMe purchaser of goods from one in possession, for a valuable consideration, and without notice of any defect in his vendor’s title. Such a purchaser cannot be protected against the title of the true owner in a case where the vendor had fraudulently obtained his possession and without the knowledge or consent of the owner, although previous to such possession he had, by false and fraudulent representations, induced the owner to enter into a contract for the salé of the goods. Dean v. Yates, 22 Ohio St., 388; Hamet v. Letcher, 37 Ohio St., 356.

From the facts found by the court below it appears that the possession of the tickets in controversy were obtained from Ingalls, receiver of the railroad company, by the fraud of Fordyee, and we conclude that Frank, the purchaser from Fordyee, obtained no title thereto.

Eagan, the agent of the receiver, authorized to sell such tickets, and stamp and deliver the same upon receiving pay therefor, did not bind his principal when he stamped and delivered the tickets, without his knowledge or consent, to a third person, to be sold by him, and to be paid for when sold.

•Judgment affirmed.  