
    Miles v. Reiniger.
    1. Whether an equitable interest in an instrument for the payment of money passes by delivery — whether such instrument be negotiable or not, or be indorsed or not — depends solely on the intention of the parties. But a secret intention inconsistent with the positive acts of the party, is of no avail.
    3. R., the owner of a county order, on presenting it to the treasury for payment, was requested by M., the treasurer, to take it to his bank, which he did, and delivered it to the bank without indorsement, and took credit for the amount thereof as a deposit in his account,subject to his check in two or three days thereafter. On the next day the bank presented the order to the treasurer for redemption, and the same was satisfied by giving credit to the bank upon its checks then held by the treasurer. On the second day thereafter, and before R. had checked on any portion of the order deposit, the bank failed.
    
      Held : Without showing bad faith on the part of M., an action against him by R. for the wrongful conversion of the order, cannot be maintained.
    Error to District Court of Scioto county.
    The original action was brought by Reiniger against Miles to recover the value of a certain order of which the following is a copy:
    
      “ Office of the Auditor Scioto Co., )
    Portsmouth, 0., Nov. 13, 1877. j
    
      u To the Treasurer of Seioto County:
    
    
      “ Pay to P. Reiniger or Order, Seven Hundred and Twenty- _ seven Dollars and two cents out of tlie County Current Pund, for fee account from June 5th to Nov. 8th, 1877.
    “ W. Ii. II. Cadot,
    $727.02. County Auditor.”
    The plaintiff, Reiniger, claimed, in his petition, that defendant, Miles, on November 15, 1877, wrongfully converted this order, the property of the plaintiff, to his own use.
    The defendant, by his answer, denied the ownership of the plaintiff, at the time of the alleged conversion, and denied the wrongful conversion.
    The following facts in the case are undisputed : That Reiniger received the order from the auditor of the county on November 13, 1S77; that on same day he presented the same, at the county treasury, to Miles, who was county treasurer, for payment; that Miles recpiested him to take the order to the banking house of W. Kinney & Co., where both parties kept accounts, to which request he assented; on same day the plaintiff delivered the order without indorsement, to Kinney & Co., who gave him credit as a deposit for cash, for the amount thereof, in his account upon the books of the bank; on the next day, Kinney & Co. presented the order to Miles, as treasurer, for redemption, and received payment therefor by credit for the amount upon checks held by the treasurer upon the bank, which had been received by the treasurer in payment of taxes, and that two or three days after the order had been redeemed by the treasurer, and before the plaintiff had drawn upon Kinney & Co. for any part of the money so placed to his credit upon the books of the bank, Kinney & Co. failed. Whereupon the plaintiff demanded of defendant a surrender to him of the order aforesaid, which was refused ; and, thereupon, the original action was commenced.
    On the trial, three witnesses were examined in respect to the circumstances of the deposit of the order by the plaintiff with Kinney & Co.
    The plaintiff testified as follows:
    
      “ This is the order in question. I got it from the auditor. I presented it to the defendant in the treasurer’s office in the ( court-house. I got no money.- He told me to take it to W. Kinney & Co., and say nothing. I did so. Kinney was standing at the door. Kricker was at the desk. I handed it to Kricker. He asked me if I wanted money. I told him I did. He then called Mr. Kinney, and he asked me if I wanted the money. Kinney stepped behind the counter to a little desk. I told him I wanted money. He then gave me to understand that he was hard up, but could give me the-money in a few days, and said, ‘ Come back in a day or two.’ 1 then left the order there. I did not indorse it; I did not have my bankbook with me.”
    And on cross-examination testified “ I never deposited the order. I did not have my bank-book with me when I left the order.”
    William Kinney, on behalf of defendant testified :
    “ 2d Question. Where did you reside, and in what business were you engaged on the 13th day of November last 2
    “Answer. Portsmouth, Ohio, and was engaged in the business of banking.
    “ 3d Question. Had you any business transaction with the plaintiff, Reiniger, on that day, and if so, state what it was; state fully.
    “ Answer. Reiniger came in .my office and behind the counter late in the afternoon of the day mentioned, and handed me an order on the county treasury for seven hundred and odd dollars (don’t remember exact amount), saying the county safe was not open, but that the treasurer of the defendant told him to bring it down to me and I wrould cash it for. him. I asked him if he wanted the currency; he said no, just give me credit for it and he would check it out as he needed it, and I accordingly give him credit on our books for the amount. I had no other transaction with him on that day or about that time, as far as I can remember now. •
    ‘£ éth Question. Have you stated all the conversation that occurred between yourself and Reiniger 2
    “ Answer. I have.
    “ 5th Question. Previous to this time, had the plaintiff Reiniger, been a depositor with your bank, and if so, for how long ?
    “ Answer. He had, ever since he had been sheriff of the county.
    
      “ 6th Question. Had he ever before deposited with you similar orders on the county treasury ?
    “Answer. Yes sir, he or his deputy had frequently done so. Sometimes one would bring the book down, and then the other.
    “ 7th Question. Why did you not require him to indorse this order ?
    . “ Answer. It was not my custom to require indorsement . on such orders, and Mr. Reiniger never indorsed his orders to me, and were always received by me without indorsement.
    “ 8th Question. What became of this order after you gave the plaintiff, Reiniger, credit for it ?
    “ Answer. The treasurer paid next day.”
    Frank C. Kricker, also for defendant testified :
    “ I kept books for W. Kinney & Co. They were private bankers on Market street this city. Reiniger the plaintiff had an account with the bank at that time, Nov. 13th, 1877. I have the ledger of W. Kinney & Co. here. Plaintiff had an account as sheriff and an individual account. Both accounts were running ever since the bank was started. The entries in these accounts are in my handwriting. I know of plaintiff depositing the order. On Tuesday, Nov. 13, 1877, William Kinney was at the door talking to some one in the street. Mr. Reiniger came in and handed me the order, and-said'Miles sent him down with this and told him to say nothing. I called Mr. Kinney and told him what Reiniger had said. Mr. Kinney took it and said, “ This is all right. We are a little close now;.you don’t want the money now? Reiniger said no, but would want a little money from time to time. I then made a memorandum of it and put it on the wire among the cash items, and gave him a duplicate, which is here produced.
    
      “ ‘ W. Kinnev & Co., )
    ‘Portsmouth, O., Nov. 13, 1877. [
    ‘ Deposited by Fred. Reininger, Jr.. $727.02.
    
      W. JL & Co., per JL’
    “ I then gave him credit for the order on the books of the bank, the same day. (The book of original entries, with the entry of credit made by witness of the deposit of said order was here produced, and the entry was read to the jury.) The journal reads: ‘November 13, 1877, F. Reiniger, by county order', $727.02.’ It was put down as cash in the deposit book. The memorandum ticket was given as a vouchor for the deposit. If he had had his bank book with him he would have got credit in it. The ticket was given because he didn’t have his bank book .with him. The order was sent with other orders, next day, to the court-house. The treasurer held checks of W. Kinney & Co., and when the orders wore taken up, took it out of them. The order was credited to plaintiff as cash, and was subject to check as cash.”
    The court, among other things, charged the jury : “If the plaintiff passed over to W. Kinney & Co., the custody oí the order in question, without indorsing the same, upon the promise of said firm to, credit his account (upon their books with the amount) thereof, and with the further promise, also, that they would in a few days thereafter, pay to him upon his check, the amount of the same in money, and said credit was given but said money was not paid, and in three days thereafter said firm failed añd suspended payment, the plaintiff would be entitled to recover in this action, notwithstanding the fact that the said firm on the next day presented said ’ order to the defendant, and he then gave them credit to the amount of said order upon their indebtedness to the county.”
    And refused to charge, as requested . by defendant, as follows : “ If, when the order in controversy was presented to W. Kinney & Co., said firm said it was all right, but they were hard up, and if it. would answer him not to check on them for a day or two for the amount, that they would take the ordei', and thereupon the order was delivered by plaintiff to "VV. Kinney & Co., but without indorsement, with the understanding that he was to he credited on his deposit account with the amount thereof, with the right to check on it in a day or two, and the same was so deposited, and on the day following W. Kinney & Co. presented it to defendant for payment, and he in good faith paid the same to the satisfaction of W. Kinney & Co. in full, and cancelled the same, plaintiff, under the circumstances named, so far parted with ownership of said order that he could not, after such payment, demand of defendant the return of said order, and upon his refusal to return it, maintain an action against him for its unlawful conversion.”
    Verdict and judgment were rendered for plaintiff.
    All the testimony, together with the charge of the court to the jury, and certain requests to charge by defendant which were refused are made part of the record by bill of exceptions.
    The district court, on error, affirmed the judgment of the common pleas.
    In this proceeding to reverse the judgments of the courts below, it is assigned for error, that the verdict of the jury was contrary to the evidence, and that the court of common pleas erred in its instructions to the jury and in refusing to charge as requested by defendant in the original action.
    
      Moore & Newman.and A. T. Holcomb, for plaintiff in error.
    
      W. A. Hutchins, J. 'IF. Hannon and T. G. Anderson, for defendant in error.
   McIlvaine, J.

The foregoing statement of the case does not purport to set out all the testimony ; but the undisputed facts stated, together with the testimony in respect to the mat ter of the deposit of the order by the .plaintiff below with Kinney & Co., should liaye controlled the verdict of the jury ; and we think, if the jury had been properly charged, there can scarcely be a doubt, but that the verdict would have been for the defendant below.

It seems to us, that the court of common pleas attached too much importance to the fact that the order was delivered by the plaintiff below, to the bank, without indorsement, or, in other words, that the legal title to the paper did not pass to the bank. If the bank acquired an equitable title only to the order, the county treasurer was justified in redeeming it, in the manner it was redeemed, as fully as though the order had been indorsed by plaintiff at the time of its delivery. The true test, by which the issue between the parties should have been determined, was, did the plaintiff, when he left the order with the bank, intend to look to the bank for his pay ? The sole question is one of intention; not of form. That the bank assumed to pay the amount of the order to the plaintiff within two or three days, upon presentation of plaintiff’s checks, cannot be questioned, and we think it is scarcely susceptible of a doubt, that the order was delivered to the bank, in consideration of that undertaking of the bank. Hence, the court should have given in charge the following request:

If, when the order in. controversy was presented to W. Kinney & Co., said firm said it was all right, but they were hard up, and if it would answer him not to cheek on them for a day or two for the amount, they would take the order, and thereupon the oi'der was delivered by plaintiff to W. Kinney & Co., but without indorsement, with the understanding that he was to be credited on his deposit account with the amount thereof, with the right to check on it in a day or two, and the same was so deposited, and on the day following W. Kinney & Go. presented it to defendant for payment, and he in good faith paid the same to the satisfaction of W. Kinney & Co. in full, and cancelled the same, plaintiff, under the circumstances named, so far parted with ownership of said order that he could not, after such payment, demand of defendant the return of said order, and upon his refusal to return it, maintain an action against him for its unlawful conversion.”

The court did charge the jury, .however, that “ if the plaintiff passed over to W. Kinney & Co., the custody of the order in question, without indorsing the same, upon the promise of ■ said firm to credit his account upon their books with the amount thereof, an'd with the further promise also, that they would in a few days thereafter, pay to him upon his check, the amount of the same in money, and said credit was given, but said money was not paid, and in three days thereafter said firm failed aud suspended payment, the plaintiff would be entitled to recover in this action, notwithstanding , the fact that the said firm on the next day presented said order to the defendant, and- he then gave them credit to tlio amount of said order upon their indebtedness to the county.”

The case intended to be put to the jury in this proposition, we suppose, was, that if it were the intention of the parties, that the ownership of the order should remain in the plaintiff until his clerks were actually paid, and such payments were never made, the plaintiff might recover. The proposition, thus interpreted, was abstract, unless supported by the mere fact that the order was passed over without indorsement, which fact alone, we think, under the circumstances, would not support the proposition. On the other hand, we think the proposition as given would more likely, be understood by the jury as the converse of the rejected request by defendant above stated, and which ought, as above held, have been given in charge.

Judgments reversed, c&o.  