
    The Trustees of Millcreek Township et al. v. The Brighton Stock Yards Company et al.
    1. Live stock left in the custody of a company, whose business it is to furnish temporary accommodations for the same, may be sold by such company when no owner can be found, and from the perishable nature of the property a necessity for sale arises.
    2. If the purchaser, with knowledge of all the facts, buys upon a contract that the money shall be held by the vendor for the benefit of the owner, he can not, after obtaining the property, refuse to pay on the ground that such vendor had no title to the property.
    45. The law relating to strays does not apply to hogs left by some one unknown in the pens of a company engaged in the business of receiving and. caring for live stock brought to market.
    Error to tbe Superior Court of Cincinnati.
    The Brighton Stock Yards Company, defendants in error, brought suit, in the Superior Court of Cincinnati, against Kaufman & Fishburne, plaintiffs in error, to recover the value of certain hogs.
    ■ As the name indicates, the Brighton Stock Yards was a company or association whose business it was to receive,, furnish pens for, feed, and weigh cattle and hogs brought to Cincinnati market for sale. Upon November 23, 1869, they found in their pens this lot of hogs, forty-nine in number, which had been left there for safe-keeping, but they appeared to be without an owner. They kept them until December 1st, and fed and properly cared for them. Diligent but ineffectual search was made for the owners, and as the continued keeping of the animals was attended with expense and probable loss, it was deemed best that they should be sold. Kaufman & Fishburne, plaintiffs in-error, being advised of all the facts, agreed to become purchasers, the Stock Yards, to receive and hold the money for the proper owner when he should appear. Kaufman & Fishburne, having thus obtained the‘hogs, sold them to-one Merkle and received pay. Me,rkle drove the animals to his slaughter-house in Millcreek township and there slaughtered them.
    Kaufman & Fishburne declined to pay the Stock Yards-Company, who then brought this suit for the price of the hogs — two of them having died at the pens and some others becoming diseased there.
    Kaufman & Fishburne filed a demurrer to the petition, which was overruled and exception taken. They then file answer, denying plaintiff’s right to recover, for which they aver the following as the principal reason : “And the defendants, .for further answer, say that the plaintiffs had no right to take up, keep, or sell the hogs mentioned in the petition; that said hogs were strays, and that the plaintiffs are a body corporate, not a free-holder nor a house-holder,” etc. They further state that the trustees of Millcreek township claimed the value of the hogs, which claim defendants acknowledged and paid, and hence they owe plaintiffs nothing.
    
      The trustees of Millcreek township, although they do not appear to have been made parties specially, obtain leave of •court to file answer and cross-petition. They say that Eishburne & Kaufman, their co-defendants, having in their possession, in Millcreek township, certain stray hogs, being the same referred to in petition, and being ignorant of their rights in reference thereto, sold the said hogs to Merkle. That Merkle being also ignorant of his rights, and of the facts and law governing title to the hogs, slaughtered them. That inasmuch as the hogs were strays, they, the -trustees of Millcreek township, by virtue of their office, were entitled to the property. That Eishburne &' Kaufman are willing to pay over to them the sum they received for the hogs. That they, the trustees, are the proper ones to keep the money, and neither the Brighton Stock Yards nor any other party to the suit has any interest in this distribution of the proceeds.
    Thereupon the city of- Cincinnati intervenes and files an •answer, although the record does not show that she was made defendant originally. The city avers, that as there appears to be no other owner of the hogs, and inasmuch as they were within the limits of Cincinnati before they were in Milcreek township, she will appropriate the fund for the benefit of the common schools. She therefore prays that the money be paid to the city treasury, to be accounted for in the event that any owner makes claim within the time prescribed by law.
    The court found the allegations of the petition to be true, and that the plaintiffs below, the Brighton Stock Yards, were entitled to the relief prayed for. By consent of the Stock Yards the court ordered the money, with certain deductions not necessary to be considered, to be paid over to the city treasurer, to be held for the proper owners -•should they appear, if not, for the benefit of the common schools.
    To this Kaufman & Eishburne and the trustees of Mill-•creek township except and file petition in error.
    
      
      James B. Challen, for plaintiffs in error:
    Eor what a stray is, and to whom it belongs, see 1 Blackstone Com. 297-8; 2 Kent’s Com., sec. 359; 2 S. & C. 1415. And as to the disposition that may be made of strays, see Vandrinck v. Archer, 1 Wm. Leonard, 221; Walgrave v. Ogden, Ib. 224; Bayless v. Lefaivre, 37 Mo. 119; Hyde v. Pryor, 13 Ill. 65; Crook v. Peebly, 8 Mo. 344; Harryman v. Titus, 3 Mo. 302; Palmer v. West, 12 Johns. 186; 2 S. & C. 1413,. sec. 2.
    
      Long, Kramer &¡ Kramer, for the Brighton Stock Yard Co.
    
      Peck, Gerard § Maloney, for the city of Cincinnati,
    contended that the Stock Yard Company appear to have become bailees of the hogs under circumstances which warranted their selling them. The hogs were not running at large, and so liable to be taken up under the general statute on the subject of estrays, nor do they fall within any of the provisions in regard to animals at large in a city. It may be that the Stock Yard Company ought to have advertised them before the sale, but Kaufman & Eishburne can not be-heard to raise an objection on that ground. They had notice,.and they recognized the right of the company to sell. They, Kaufman & Eishburne, also exercised the same right, and got the money for the hogs, although they refused to-pay it over to the company to be disposed of. These sales-were all made, and the money from Merkle to Kaufman' & Eishburne paid in Cincinnati. Under no rule or reason could Millereek township assert any right to the money. If there was no sale, then the money belonged to Merkle, and no other; if there was a sale, and the money, and not the hogs, was estray, then it ought to be disposed of in Cincinnati, where it is located; and there is no reason why these parties, Kaufman & Eishburne, should, after these hogs had lost their identity as such, carry the money received for them from Cincinnati to Millereek township, and place it in the hands of the trustees of the latter.
    
      This, it will be seen, was done, too, after the suit was begun against Kaufman & Eishburne.
    We submit this cause, then, with the observation that the matters of law stated by the plaintiffs have no application in the case; and that the judgment of the court below was correct, and should be sustained.
   Wright, J.

It is not necessary to pass upon the demurrer' to the petition, as the case itself settles all the questions involved.

It will be seen that the hogs were properly in the custody of the Brighton Stock Yards ; that Kaufman & Eishburne bought and agreed to pay for them, and subsequently declined to do so, because the stock yards had no right to sell.

It appears to us that the stock yards must be held to possess such authority as is adequate to the emergency. They made proper and diligent search for the owner without success. A just discharge of their duties did not require that they should keep the animals until a bill of expense should swallow up their entire value. They were called upon to do exactly that which the interests of the owners demanded they should do. If, on fair consideration of all the circumstances — of future falling markets, of disease and death, of the difficulty and expense of keeping the property — sound judgment dictated, and necessity required, that the animals be sold; if this was really for the best interests of all concerned, the stock yards had the right to sell, at least as against those to whom they sold.

The position that the necessity of the case justifies the exercise of a fair discretion, and authorizes the sale of property, where such property is perishable in its nature, and is likely to become entirely lost, where owners are unknown, finds strength in the fact that the statutes of the state have inaugurated a policy looking to this precise end. Section 8 of the law “providing for the disposition of unclaimed freight,” etc., S. & S. 94, is as follows: “ If any perishable property shall so be conveyed as freight as aforesaid, and remain unclaimed until danger of great depreciation, or the same shall he refused, or the owner thereof can not he found, then such persons, associations, or companies may sell at private sale or auction, without giving notice, for the best price it will bring, and apply the proceeds as aforesaid.” The disposition of the money referred to is this: the proceeds are held for one year for the owner, and then turned into the common school fund. Within five years, the owner may reclaim it from the auditor of state.

This statute authorizes to be done only that which without it sound judgment, governed by correct intention, would dictate.

The stock yards appear to have acted in the utmost good faith. They sold to Kaufman & Fishburne for the highest market price, and one of the stipulations of that sale was that the stock yards were to hold the money as a special deposit for the owner when he should arrive. What right have these purchasers now to say that the money shall go elsewhere ? To repudiate the agreement when they got the property upon the faith of it ? In the face of these facts and such a contract, the refusal to pay on the part of the purchasers seems extraordinary. They base their refusal on the ground that the animals were “ strays.” But under the statute on that subject, to which counsel refer, we are unable to see that these hogs can be considered as coming under that class of “ strays.” It can not be said that they were at any time found “straying,”in the popular acceptation of that term. They were first discovered in the Brighton pens. The “strays” spoken of in our statute are those which are “ running at large.” This can not be predicated of hogs securely p’enned.

The statute also refers to strays being “ taken up.” We can not see that the stock yards did any “ taking up ” within the legal meaning of that term.

Nor do we see how the trustees can successfully claim that the hogs “ strayed ” into Millcreek township, when the testimony shows that a man bought and drove them there for slaughtering purposes. Nor can we see that there was any such “running at large” in Millcreek township as would justify the trustees in impounding, as they did, the price for which the animals sold. The particular manner in which the hogs reached their ultimate destination is not otherwise detailed than in a single sentence of Kaufman’s testimony: “We drove them to Millereek township, and slaughtered them there.” Erom this alone the court are unable to say'that they were “strays” and “running at large,” as the trustees desire us to do. The trustees, doubtless, with a high sense of their public duties, seemed to thiuk that these animals were waifs, and as nobody owned them, they would. This idea seems also to. have been shared by Kaufman & Eishburne and the city of Cincinnati ; still in law, we think, the position is not tenable.

The action of the Superior Court was entirely correct. That court found that the stock yards were entitled to recover, and as they consented that the money might be put in the hands of the city to await future events, plaintiffs in error can not object.

The judgment is therefore affirmed.

Scott, Chief Judge/ Day, Johnson, and Ashburn, JJ., concurred.  