
    Clark, Treasurer of Coshocton County, v. Gault et al., Executors.
    
      Bailments — U. S. bonds loaned to national bank — To be deposited with U. S. treasurer — To secure issue of bank notes— Constitutes bailment and not sale — Contract not taxable as credit of lender.
    
    On the 27th day of February, 1900, F. was the owner of three per cent, bonds of the United. States issued under the act of congress passed in June, 1898, in the sum of $12,500, and The First National Bank of New Comerstown, then being organized, desiring the use of bonds of that character to deposit with the. treasurer of the United States to secure its circulating notes about to be issued, it was agreed in writing between F. and said bank, that he deliver to it his bonds . for said purpose, to be returned to him at any time upon demand, after sixty, days notice, or, to pay him their equivalent in lawful money of the United States, as F. might elect, the price to be paid, if paid in money, to be the selling price of said bonds upon the day of delivery for sale upon the stock exchange in the city of New York. It was further agreed that when said bonds should be returned to F., they should be the same as those delivered to the bank, or, of the same class, to-wit: five thousand in three per cent, registered, and seventy-five hundred in three per cent, coupon bonds.
    In consideration of the delivery of said bonds, the bank agreed to pay F. the interest it would receive on them from the treasury of the United States, and in addition thereto, the further sum of $156.25 per annum, payable quarterly, for such time as the bank might hold the bonds. This contract was complied with during the life of F. who did not elect to take the money in lieu of the bonds. He died on the 31st day of December, 1903, and on or about the 25th day of March, 1904, at request of the executors of his will, the bonds were sold at a price as provided in said contract and at a gross premium of $800. The proceeds were soon thereafter turned over to the executor.
    
      Held: That the transaction covered by said contract was not a sale of the bonds by F. to the bank, but a ■ bailment, and said contract was not a taxable credit against F. during the years 1900, 1901, 1902 and 1903.
    (No. 10641
    Decided February 11, 1908.)’
    Error to the Circuit Court of Coshocton county.
    On or about the 16th day of September, 1904, the plaintiff in error, as treasurer of Coshocton county, brought suit against defendants in error to recover certain taxes and penalties thereon. The petition is the short form permitted by statute and charges that the estate of the deceased Finley is still unsettled; that as such treasurer Clark has in his possession and control the' tax duplicate of personal property of said county, which duplicate contains unpaid taxes levied on personal property of the county, and- that on said duplicate there stands charged to the defendants, as executors of the will of said Robert E. Finley, personal property taxed in the sum of $2,868.75, and that said taxes are due and wholly unpaid. Judgment is prayed for in said sum with five per cent, thereon as compensation to plaintiff for collecting said taxes, and also interest on the taxes from the filing of the petition.
    The executors answered and admitted the official capacity of the plaintiff and the representative relation and capacity of the defendants when the petition was filed, but it is alleged that since .that time, Edwin Brown, one of the executors, died, leaving the defendant, William R. Gault, sole surviving executor. The allegations of the petition not so admitted are denied.
    The second defense presented by the answer, alleges that prior to the filing, of said petition, said executors had paid all 'taxes for which estate' was liable, and denies that said estate is liable for the payment of any taxes in addition to those already paid.
    It is specially alleged by defendant, that on or about the 27th day of February, 1900, said Robert E. Finley, then living, loaned to the First National Bank of New Comerstown, Ohio, United States three per cent, bonds to the amount of twelve thousand five hundred dollars, said bonds to be deposited by said bank with the treasurer of the United States to secure the circulating notes of said bank; that the loan was made upon a written contract, a copy of which is attached to the answer. It" is averred that said bonds upon which the plaintiff claims there is due unpaid taxes, were not by said Finley, during his lifetime, sold, assigned or transferred, nor did he in any manner part with his title and ownership of said bonds, or any part of them, but at his death, which occurred December 31, 1903, he was the owner of and held title to said bonds; that since his death said bonds continued to be a part of the assets of his estate, and on or about the first day of March, 1904, this defendant as such executor, in pursuance of said contract, directed the bank to sell said bonds and pay over to him as executor, the proceeds of said sale, and that in accordance with said directions, on or about the 25th day of March, 1904, said bank sold said bonds and turned over to the executor the proceeds, ■ amounting to $13,300, being the market price of the bonds on the day of sale.
    It is also alleged that the bank agreed to pay Finley for the use of said bonds.
    The treasurer’s reply is, that “he denies each and every allegation contained in the answer, excepting such as are specified admissions or denials of the allegations of plaintiff’s petition.”
    On the issues thus made up the case was tried to a jury. At the request of the treasurer, the court instructed the jury as follows: “Whether or not the contract between the First National Bank of New Comerstown, Ohio, and Robert E. Finley, involved in this case, is a taxable credit, is a question for the court, and whether or not the taxes on said taxable credit for the years 1900, 1901, 1902 and 1903, are due and unpaid, and the amount of said taxes due and unpaid thereupon, if any, are questions for the jury to be determined from the evidence in the case. And the court says to you, as a matter of law, that the contract is a taxable credit * *
    The executor asked for special instructions, among which are the following:
    
      “2. I further charge you that if you find from the evidence that ‘the taxes charged against the defendant are taxes charged against certain government bonds of the United States, owned by Robert E. Finley, deceased, during the period covered by the taxes in question, then your verdict should be for the defendant.
    “3. I further say to you, as a matter of law, that Robert E. Finley was the owner of said bonds in question, and that the delivery by him of said bonds to the First National Bank of New Comerstown, Ohio, was in legal effect a bailment of said bonds and the plaintiff can not recover.” A further charge, embracing the terms upon which the bonds were delivered to the bank, was requested, to the effect that the transaction was a bailment and not a sale.
    The court refused to give either request and exception was taken.
    The court charged that if there was no evidence showing bad faith in the delivery of the bonds to the bank, or fraudulent purpose to avoid taxation, no penalty could be recovered.
    The verdict was for the amount of taxes with.out penalty, $1,657.50, with interest from September 16, 1905. Motion for new trial was made and overruled and judgment rendered on the verdict. The executor prosecuted error in the circuit court, where the judgment of the common pleas was reversed on the stated grounds that the court erred “in charging the jury, in substance, that the said transaction and contract between the said R. E. Finley, deceased, and the National Bank of New Comerstown, constituted a sale of the United States bonds therein mentioned and was a taxable credit.” Also erred in refusing to charge that the transaction and contract constituted a bailment and not a sale.
    Error is prosecuted in this court by the treasurer to reverse the judgment of the circuit court.
    
      Mr. W. A. Hosack; Mr. J. C. Adams; Mr. J. B. Waight and Mr. J. L. McDowell, for plaintiff in error.
    A bailment is a delivery of goods in trust on a contract, either expressed or implied, that the trust should be duly executed, and the goods redelivered as soon as the time or use for which they were bailed shall have elapsed, or be performed. Jones on Bailment, 117.
    The authorities are uniform upon the proposition that a contract of bailment contemplates a redelivery of the identical thing bailed. Schouler on Bailment, Section 6; Coleman v. Lipscomb, 18 Mo. App., 443; Powder Co. v. Burkhardt, 97 U. S., 110.
    tlence, if the terms of the undertaking contemplated returning money instead, or any equivalent, the .transaction would constitute, not a bailment, but a sale. Whereas the recognized doctrine of England and the United States is, that the instant the property in this identical thing so delivered passes completely over to the new possessor, a sale takes effect; or in other words, the recipient’s fixed obligation- to render an equivalent is simply that of an owner having a further duty to perform. Schouler on Bailments, Section 6.
    The distinction between an irregular deposit, or a mutuum, and a sale, is sometimes drawn with great nicety, but it is clearly marked and has been settled by high authority. In case of a regular deposit the bailee is bound to return the specific article deposited; but where the depositary is to return another article of the same kind and value, or has an option to return the specific article or another of the same kind and value, it is an irregular deposit or mutuum, and passes fhe property as fully as a case of ordinary sale or exchange. Chase et al. v. Washburn, 1 Ohio St., 248.
    Finley knew the purpose for which the bank obtained the bonds. He knew when they were deposited with the comptroller of the - currency, that the title to the bonds had to be assigned and transferred by the bank to the treasurer of the United States and were held in trust by the government to secure the bank’s circulation. Pratt’s Digest of National Banking Laws, 1901 Ed., 68, 210.; Section 5159, Revised Statutes of United States.
    Where personal property is delivered by the owner to another for use, and the identical thing delivered is to be returned, the transaction .is a bailment, and there is no transfer of title; but if it is stipulated that the one to whom it is delivered may return another thing of the same kind or an equivalent in value, or otherwise, it' will ordinarily constitute a sale and effect a change of title. Carpenter v. Griffin et al.; 37 Am. Dec., 396; Caldwell v. Hall, 60 Miss., 330; Mallory v. Willis, 4 N. Y., 76; Hurd v. West, 7 Cowen, 752; Smith v. Smith, 91 Mich., 7; Barnes v. Morse, 38 Ill. App., 274; Heryford v. Davis, 102 U. S., 235; Jones on Bailments, Section 74; Story on Bailments, 47, 283, 439; Mining & Smelting Co. v. Shultz, 67 Kan., 605; Kellogg v. State, 26 Ohio St., 18; James & Neer v. Plank, Exr., 48 Ohio St, 265; Austin v. Seligman, 18 Fed. Rep., 519; Fleet v. Hertz, 98 Ill. App., 565; Foster v. Pettibone, 7 N. Y., 435.
    The authorities seem to be uniform upon the proposition that where corporate stock is pledged as security for a loan, and ‘the pledgee converts it and tenders back other stock of the same corporation of equal value that is not sufficient, the pledgor is not bound to accept it, but may treat it as a conversion and recover its value in money. A pledgor of corporate stock may treat a sale by the pledgee of such stock, a conversion, although the pledgee has at all times a sufficient number of shares of the same stock to meet the pledge, where the stock pledged can be identified. But this is not a pledge of bonds. These bonds were not pledged to the bank by Finley as security for debt.
    This loan of stock was not strictly a mutuum, 'as a mutuum is a loan for use and consumption, the thing being bailed to be consumed and an equivalent in kind subsequently returned. 2 Addison on Contracts, 462, 468; Fosdick v. Greene, 27 Ohio St., 484.
    
      
      Mr. T. H. Wheeler and Mr. W. R. Gault, for defendants in error.
    It is a fundamental principle of the law that where a written agreement has been entered into between parties, such construction shall be given to it as will carry out the clear intention of the contracting parties, for the first and main rule of construction is that the intent of the contracting parties as expressed in the words they have used, must govern. 2 Parsons on Contracts, 499; Mosier v. Parry, 60 Ohio St., 388; Railroad Co. v. Veeder & Co., 17 Ohio, 385; Kelly & Kilbourn v. Mills, 8 Ohio, 325; Mintier et al. v. Mintier, 28 Ohio St., 307.
    The testimony and contracts as set forth in said record show that the intention of said parties were on the part of the bank to borrow said bonds and on the part of the deceased to loan them.
    The defendant in error claims that the con-' tracts entered into between said parties created a bailment of the bonds in question and therefore were not taxable.
    Bailment is a delivery of a thing in trust for some special object of purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailments, Section 2; 2 Kent’s Commentaries, 558; 2 Schouler on Bailments, Section 2.
    A bailment is a transfer of the possession of personal property without a transfer of the right of ownership, for the accomplishment of a certain purpose, whereupon the property is to be redelivered or delivered over to a third person. Hale on Bailment, page 5.
    If it is a sale as contended for by plaintiff in error, it must be a transfer of the absolute ownership of the property. A sale is a transfer of the absolute or general property in a thing for a price in money. Benjamin on Sales, Section 1.
    These two contracts taken together we submit indicate that it was the.intention of Finley to loan to the bank his United States bonds for a particular purpose, and that the bonds were to be returned to him on demand, the general property thus remaining in him and only a special property in the bonds passing to the bank.
    We further submit that the weight of authority on the question of whether or not contracts involving matters and stipulations as contained in contracts like the case at bar creates the relation of bailor and bailee. Fíale on Bailments, 6, 9, notes; Chamberlain et al. v. Smith, 44 Pa. St., 431; Middleton v. Stone, 111 Pa. St., 589; Armington v. Houston, 38 Vt., 448; Pratt v. Jones, 22 Vt., 341; Plow Co. v. Porter, 82 Mo., 23; Coquard v. Wernse et al., 100 Mo., 137; Sturm v. Baker, 150 U. S., 312; Guss v. Nelson, 100 Mass., 198; 2 Cook on Corporations, Section 469; Fosdick v. Greene, 27 Ohio St., 485.
    It was possible for the bank to withdraw at least $5,000.00 of the bonds so deposited, as they were registered, and return the identical bonds back to Finley if he should demand them, thus fulfilling the contract between them in so far as those bonds were concerned; this is undoubtedly, we think, a bailment. Pratt’s Digest of National Banking Laws, Section 84, p. 84.
    Under this contract it calls for the redelivery of the bonds so loaned the bank when called on by said Finley, and as contemplated by the parties under the rules of the -treasury department, said bonds were held subject to be returned on call being made for them, for it is held by the treasury department that the direct responsibility of ascertaining the safety and actual presence on deposit of the bonds held in trust for it by the treasurer is on the association depositing them. Pratt’s Digest of National Banking Laws, Section 67, note, page 83.
    There seems to be a marked exception in the law of bailments, that is, that in the pledge of corporate securites the identical certificates need not be returned. Hale on Bailments, 159; 2 Cook on Corporations, Section 469.
    The mere option -to elect to treat a bailment as a sale at some future time, does not deprive it of its character of a bailment. Insurance Co. v. Carpenter, 40 Ohio St., 261; Colton v. Wise, 7 Ill. App., 395; Ledyard v. Hibbard et al., 48 Mich., 421.
    A delivery, in the nature of a bailment'with an option to purchase or sell may be made with' the understanding that upon certain conditions the thing delivered shall, become the property of the bailee, and when he has performed the conditions the bailment may then cease, and a sale is thereby constituted,, and we submit that this transaction would be a bailment with an option to do certain things, for if goods or chattels are taken with an option to purchase, the transaction is a bailment.
    It makes no difference, we submit, that even though the government does change the coupon bonds to'registered so as to comply with the rules of the national banking act, _ for it has been held that it makes no difference in reason or law into what other form different from the original the change may have been made, for the product of or substitute for the original thing still follows the thing itself and only ceases when the subject is turned into money and mixed and confounded in a general mass of the same description. 5 Cyc., 169; Sattler, Assignee, v. Hallock et al, 160 N. Y., 291, 54 N. E. Rep., 667; Mack et al v. Snell, 140 N. Y., 193.
    Where property is deposited with another when it can be calculated in like kind, the owner having a right to contemplate a return of an equal amount of like kind and quality, it is a bailment. Inglebright v. Hammond, 19 Ohio, 337; O’Dell, Assignee, v. Leyda et al., 46 Ohio St., 244, 20 N. E. Rep., 472; James & Neer v. Plank, Exr., 26 N. E. Rep., 1107.
    An express promise to redeliver goods when called for, creates a bailment, even though the promisor never intended to call for them. Selleck v. Selleck et al., 107 Ill., 389; Smith & Jones v. Jones, 8 Ark., 109.
    It is held that, when the lender gains a benefit therefrom as well as the borrower, it is a bailment. 5 Cyc., 163; Chamberlain v. Cobb, 32 Ia., 161.
    In all cases where it is the intention of the parties that the title is not to pass it is a bailment. Smith et al. v. Gilbert, 71 Conn., 151; 5 Cyc., 169.
   Price, J.

At the date of the delivery of the government bonds in question by Robert E. Finley to the First National Bank of New Comers-town, Ohio, it was just entering upon its career as a new banking corporation. It desired to issue some-of its circulating notes and in order to obtain permission to do so, was required to deposit with the comptroller of the currency, bonds of the United States as security for the circulation to be issued. Robert E. Finley was a stockholder in the bank and was the owner of five one thousand dollar registered bonds of the United States and $7,500 in coupon bonds, all being three per cent, bonds of the issue of June, 1898.

Negotiations were begun between the bank and Mr. Finley for the use of his bonds to deposit with the comptroller of the currency, which negotiations resulted in the execution of the following instruments: “Received of Robert E. Finley $12;-500 United States three per cent, bonds of the issue of 1898 (by act of June 13, 1898), to be deposited by this bank with the treasurer of the United States to secure its circulating notes, which said $12,500 three per cent, bonds this bank hereby agrees to return at any time upon demand, after sixty days’ -notice to the said Robert E. Finley, or their equivalent in lawful money of the United States, -should the said Robert E. Finley so elect, the price to be paid, if paid in money, to be the selling price of said bonds upon the day of delivery upon' the stock exchange in the city of New York. When said bonds are returned $5,000 shall be registered and $7,500 shall be coupon.

“•First National Bank of New Comerstown,
“By A. M. Beers, Pres.,'
“C. E. Boden, Cashier.
“February 27, 1900.”'

Contemporaneous with the execution of the foregoing, the following instrument was executed:

“Coshocton, Ohio, Feb. 27, 1900.
“The First National Bank of New Comerstown, Ohio, agrees to pay the said Robert E. Finley the interest it receives from the United States treasurer on the $12,500 bonds delivered'by said Robert E. Finley to said bank on the 27th day of February, 1900, and $156.25 per annum additional during the time it holds them, payable quarterly, the first day of February, May, August and November in each year.”

This obligation is signed by the same officers who executed the first instrument, and the two constitute the whole agreement of the parties. Under the terms of these instruments two diverse claims are made- — -one by the treasurer, plaintiff below, that they show a sale of the bonds to the bank; the other by the executor of the will of Finley, that they constitute a bailment, the title to the bonds remaining in Finley during his life and in his executor thereafter until he elected to accept 'their value as provided in the latter part of the first instrument. Finley died on the 31st day of December, 1903, and on or about the first day of March, 1904, the executor, in pursuance of the contract directed said bank to sell the bonds and pay oyer to him the proceeds of the sale, which was done on or about the 25th day of March, 1904, the sum realized being the then market f price on the stock exchange New York. The amount realized was $13,330, being a premium of $800. At thé same time, as shown by the evidence of the executor and not disputed, the bank paid him $39.06, being the rent of the bonds, for the preceding quarter or longer.

If there lurks in the candid mind any doubt about the true construction of said instruments under which the bonds were delivered to the bank, one or more additional facts properly appear in the record which may reflect the intention of the parties. Dr. A. M. Beers was then president of the bank, and in his testimony beginning on page 45 of the printed record, he says that “after careful investigation we found it cheaper to borrow, as we called it — to borrow bonds than to buy them. The premium upon the class of bonds required was so much better that we found it economy to borrow the bonds, expecting later to buy the bonds with the funds in hand — that there w.as a saving to the bank in so doing.” He also states that Finley was a stockholder in the bank arid interested in its economical management, and that they had other loans of bonds offered the bank. One Vogenitz was cashier of the bank when the bonds were sold on request of the executor. He testifies, in substance, that when the Finley bonds were sold, the bank had to buy other bonds to take their place, and he says, on page 57 of the printed record, that these new bonds purchased as a substitute for the Finley bonds, were the first bonds that the bank ever purchased. It would seem from this statement and it may be fairly inferred, that the bonds delivered by Finley to the bank and by it deposited with the comptroller to secure the bank’s notes of circulation, remained intact as they were so deposited, until sold under the directions of the executor as above stated.

While it is true that the government required the deposit of registered bonds to secure circulation, and that only $5,000 of the Finley bonds were of that class, it is also true that the comptroller of the currency could and did convert the $7,500 of coupon bonds into the registered class without detriment to the owner or depositor. As to what effect such conversion would have upon the question of sale or bailment, we will consider later. But we think it very plain, that in 'the negotiations which led up to the delivery of these bonds to the bank, the conversion of the coupon bonds into registered bonds was contemplated, for that would be necesary in order to carry out the purpose of the delivery, and Finley will be presumed to have understood and consented to the inevitable course which would substitute $7,500 of three per cent, registered bonds for the three per cent, coupon bonds. Having knowledge that this change would be essential to accomplish the purposes of the bank, such change was, in effect, made h)*- his direction.

Under the terms of the written instrument and the attendant circumstances, was the transaction involved a sale, or was it a bailment? If a sale, the amount ($12,500) represented by the bonds would be a credit subject to taxation, and as it was omitted from the returns for the years 1900, 1901, 1902 and 1903, the taxing authorities were not at fault for placing it upon the duplicate and endeavoring to collect the taxes. On the other hand, if the title to the bonds remained in Finley, they were not taxable under the law, and the circuit court is right in its judgment.

Let us test the case by the rules of law pertaining to sales. Authors on the subject of sales substantially agree that a sale is a contract founded on a money consideration, by which the absolute or general property in the subject of sale is transferred from the seller to the buyer, and that the essentials of a sale are: (1) a mutual agreement; (2) competent parties; (3) a money consideration; (4) a transfer of the absolute or general property from the seller to the buyer. If any of these ingredients be wanting there is no sale. In this case we can not find any mutual agreement to sell. There is no consideration fixed for an agreement to sell. The only mention of a price for the bonds is found in the clause, that on sixty days’ notice to the bank FinLy might demand either the return of the bonds, or their equivalent in lawful money of the United States as he might elect, and if he should elect to take the money, the price to be paid was to be the selling price of the bonds — not on the day of their, delivery to the bank, but on the day of their delivery to the purchaser at the market price on the stock exchange of New York. H-ence, there was no price fixed to be paid on the day of the delivery of the bonds, and the right to pay the money in lieu of the bonds was not vested in the bank, but was reserved to the owner to be exercised by him alone, and then only after the giving of the specified notice. In this vital respect, the case differs from Chase et al. v. Washburn, 1 Ohio St., 244. There the right of election was in the depositary.

Again, it is provided in the written instrument, that the bank would pay to Finley the three per cent, interest it would receive from the treasurer of fthe United States on said bonds, and in addition to pay him $156.25 per annum during the time it would hold them, which latter sum should be paid quarterly, the first day of February, May, August and November each year, which would make about one and one-fourth per cent, in addition to the three per cent, accruing on the bonds. This is a clear mark of ownership of the bonds by' Finley. He alone could profit in their use, and all the bank could get out of the transaction was the right to deposit them with the comptroller as security for its circulating medium. There was no assignment of the bonds, either verbally or in writing, but they were delivered under the conditions expressed in the writings. The parties regarded the transaction as a loan, and their intention is of great consequence in construing their contracts where such ascertained intention is not in conflict with the terms of such contract. The bank did not own the bonds, because it had agreed to return them after sixty days’ notice, and if the bonds were not wanted, their value on a day when a sale could be made for the market price on the New York stock exchange would be paid, and until that event no absolute title to the bonds vested in the bank, or any other purchaser.

We are satisfied that the delivery of the bonds under the contract was a bailment for hire and not a sale, and being a bailment for hire, more latitude is allowed the bailee than in cases of mere deposit. It is said by the authorities that where the bailment is one of hiring or for compensation, the bailee during the period of the hiring,, is entitled to use, enjoy and possess the subject-matter thereof in any manner contemplated by the contract, and this right is exclusive not only against third persons, but against the bailor, who has no right to disturb him. 5 Cyc., 178.

But it is urged that the title to the bonds could not remain in Finley because they were to be deposited with the comptroller of the currency to secure circulation of the bank’s notes, and that the comptroller would take title untrammeled by the claim of Finley. We think this position is untenable under the facts and the law. The treasury department does not ask or obtain absolute title to the bonds in such cases. Its title is one of security merely, and for that purpose its possession is absolute so long as security is required. But the hour when the bank redeems its outstanding notes, the department’s hold is released and the bonds return to the pledgor bank. Or if, as in this case, the bonds deposited are called by the original and real owner, and the bank substitutes other acceptable bonds to secure its circulation, the former bonds must be surrendered tc the bank. Therefore, the holding of the treasury department is in trust for the bank for a particular purpose, and the bank being a bailee of the bonds so used, receives them back to be disposed of under the agreement between it' and the true owner. There is nothing mysterious about the relation which the several parties involved in the transactions sustain to each other. However, it is asserted here that the return of the same or identical bonds could not have been contemplated by Finley, for it was evident that to the amount of $7,500 in coupon bonds, they were to-be and were converted by the comptroller into registered bonds bearing' the same interest, and that such fact is a conspicuous earmark of a sale to the bank. And it is well to state in this connection that it is stipulated in the latter part of the first instrument quoted, that “when said bonds are returned $5,000 shall be registered and $7,500 shall be coupon.” This is an express provision that bonds of the same classes and bearing the same interest as those delivered or loaned to the bank, shall be returned in case Finley should not elect to take thefr value when sold on the New York stock exchange. As we have seen, when the executor made the election to take the-proceeds of such sale, the identical registered bonds were with the comptroller. They could, but for the election, have been returned in specie, and as the comptroller had converted the $7,500 of coupon bonds into the registered class, it was within the power of the department to re-convert the latter into coupon bonds of the same issue as the former, when others of the registered class were deposited in their place. So there was no insurmountable obstacle to compliance with the stipulations above quoted. This view is demonstrated by the fact that when the executor exercised the right reserved to Finley in the contract and gave the required notice, the registered, which included all the bonds deposited by the bank, were sold for stock exchange prices arid, of course, the bank had to deposit other bonds in their, stead with the department. But for the election by the executor— the bailment terminating by the death of Finley— $5,000 of the identical bonds would have been returned, and $7,500 in coupon bonds, all of the same issue of June, 1898, could and would also have been returned. The latter might not have been the identical coupon bonds deposited, but the same kind in every respect, and this would have filled the contract between the parties. This view is in harmony with Fosdick v. Greene, 27 Ohio St., 484, and is supported by Sattler, Assignee, v. Hallock et al., 160 N. Y., 291; Harris v. Coe et al., 71 Conn., 157. Our case is fully covered by the doctrine of O’Dell, Assignee, v. Leyda et al., 46 Ohio St., 244.

Very many authorities might be cited, but in our judgment they are not needed.

It follows that the court of common pleas erred in charging the jury as requested Fy the treasurer, and also erred in refusing to charge as requested b}r the executor, and that its judgment is erroneous and was properly reversed by the circuit court.

Judgment of circuit cotirt affirmed.

Si-iaucic, C. J., Crew, Spear and Davis, JJ., concur.  