Opinion, per MERRELL, J.

standing facts of which are as follows: A bank in St. Paul was the correspondent of a bank in Chicago, in which it kept funds on deposit. The cashier of the St. Paul bank, who was secretary of a land company, wrote in his individual name to the cashier of the Chicago bank that he had been unexpectedly called on to take up $25,000 for a company in which he was interested, that he did. not want to borrow the money from his own bank, and he asked if the Chicago bank would place an enclosed note to the account of the St. Paul bank.

The cashier of the Chicago bank consented on condition that his bank might at its option charge the note to the St. Paul bank. On these terms the Chicago bank discounted the land company's note and placed the proceeds to the credit of the St. Paul bank, which in turn paid the amount to the land company.

It was held that the agreement of the cashier of the St. Paul bank was wholly without the scope of his authority, that his conduct was in law and fact a fraud on the St. Paul bank, of all of which the Chicago bank was chargeable with notice. The facts of the case differ from those of the instant case only in that the cashier of the St. Paul bank sought to bind his bank by agreeing in its name to a contract of guaranty with respect to the note in question, whereas in the present case Harding attempted the same result by endorsing the note itself in the name of his own bank. The rights of the holder, affected with notice in both cases, are no better in one case than in the other.

Opinion, per MERRELL, J.

Plaintiff in error, however, relies with much confidence on the case of Hanover Natl. Bank v. First Natl. Bank, 109 Fed. Rep., 421, wherein the president of the First National Bank discounted with the Hanover Bank a note payable to him and by him indorsed. The note having been dishonored, the Hanover Bank charged the same to the First National Bank in pursuance of an agreement to that effect made with it by the president of the First National Bank, ostensibly on behalf of that bank. A majority of the court held that the First National Bank was bound by the contract of its president, though in fact unauthorized. This conclusion, however, was based upon a finding of fact that the First National Bank had received and kept the proceeds of the note discounted by its president. The case is therefore to be distinguished from the case at bar, wherein it affirmatively appears that the First National Bank of Bowling Green received none of the proceeds of the discount, or, if it did. receive them at all, at once passed the amount to the credit of the maker of the note, The Anchor Oil & Gas Company.

The true parallel to the instant case is to be found in the facts appearing at the first trial of the Hanover Bank case, 66 Fed. Rep., 34, where the same court unanimously held that the First National Bank not having retained or enjoyed the proceeds of the discount was not estopped to question the authority of its officer to charge it with liability for the note.

For the reasons indicated in the foregoing discussion the judgment below must be affirmed, and

Syllabus.

it becomes unnecessary to consider other grounds advanced in support thereof, namely, that the Rudolph Bank acted at its peril in dealing with an agent who professed a dual capacity and that the obligation of the First National Bank as endorser was discharged by the failure of the Rudolph Bank to present the note for payment to the maker within a reasonable time.

Judgment affirmed.

MATTHIAS, JOHNSON and ROBINSON, JJ., concur. JONES, J., concurs in the judgment.

THE CITY OF SANDUSKY V. THE BALTIMORE & OHIO RAILROAD CO. ET AL.

Railroads-Grade crossing elimination - Inability to agree upon plan - Jurisdiction of common pleas court - Lateral diversion of tracks-Section 8879, General Code - Submission of plans and modifications by municipality or railroad.

1. Where two railroads and a street intersect at grade and the security and convenience of the public require the elimination of such grade crossing, and by reason of the intersection of such railroads at the crossing it is impracticable to eliminate the grade crossing by a vertical raising of the railroad tracks or a vertical depression of the street, the court is authorized under Section 8879, General Code, to adopt a reasonable and practicable plan of grade crossing elimination, which may require such reasonable lateral diversion as may be necessary to accomplish the purpose of the statute.

2. Upon the failure of a municipality and a railroad company or companies to agree upon a plan of grade crossing elimination, and upon the filing of a petition in the court of common pleas

Statement of the Case.

by the municipality or the railroad company or companies, each party is entitled to present to the court plans and modifications thereof, and the court is authorized to adopt the most reasonable and most practicable plan.

(No. 16407 — Decided May 11, 1920.)

ERROR to the Court of Appeals of Erie county.

This action was begun in the court of common pleas of Erie county to abolish the grade crossing of The Baltimore & Ohio Railroad Company, The New York Central Railroad Company and The Lake Shore Electric Railway Company on Columbus avenue in the city of Sandusky. Columbus avenue has a northwesterly and southeasterly course and is one of the principal streets of Sandusky, upon the center of which are the tracks of The Lake Shore Electric Railway Company, which operates both a street and interurban car service.

The railroad tracks of The New York Central Railroad Company cross Columbus avenue at grade, in an easterly and westerly direction. At the same location the railroad tracks of The Baltimore & Ohio Railroad Company cross Columbus avenue at grade, in a northerly and southerly direction, and intersect the tracks of The New York Central Railroad Company at approximately right angles and at or near the center of Columbus avenue. The city of Sandusky, The Lake Shore Electric Railway Company, The New York Central Railroad Company and The Baltimore & Ohio Railroad Company were unable to agree upon a plan for the elimination of the grade crossing. A petition was filed by the city under Section 8878, Gen

Opinion, per ROBINSON, J.

eral Code, in the common pleas court, against the railway company and the railroad companies, seeking the abolition of the grade crossing; hearing was had; and judgment was rendered adopting the plan of the city, which, in addition to lowering the surface of Columbus avenue and raising the tracks of both the railroad companies, diverted the tracks of the Baltimore & Ohio Railroad Company laterally, so as to avoid its crossing the tracks of The New York Central Railroad Company above Columbus avenue. Arthur street has a northeasterly and southwesterly course, and does not intersect Columbus avenue, and is a cul de sac stopping at the right of way of The Baltimore & Ohio Railroad Company, but if extended would intersect Columbus avenue at or near the crossing of Columbus avenue and the tracks of the railroad companies.

Mr. Edward S. Stephens, city solicitor, and Mr. John F. McCrystal, for plaintiff in error.

Mr. C. C. Handy; Messrs. Frazier & Frazier and Mr. W. B. Cockley, for defendants in error.

ROBINSON, J. The court of appeals reversed the judgment of the court of common pleas upon the following grounds:

1. That the statutes of Ohio do not authorize the adoption of a plan of elimination of grade crossings which requires the lateral diversion of railroad tracks.

2. That the statutes of Ohio do not authorize the extension of Arthur street as a part of the