author: King, J.:

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term. 1898.)
    Before King, Haynes and Parker, JJ.
    WILLIAM A. TURNER v. THE CITY OF TOLEDO, et al.

      Corporation municipal — Liability for negligence of its officers—
    1. An action cannot be maintained against a municipal corpora. tion or its officers in their official capacity,based upon acts of negligence of its board of health- or health officer, for damages claimed to have resulted therefrom.

      Health officer — Power to malee contract for nursing side person—
    2. The board of health of a city, or its health officer with the approval or ratification of the board, may enter into a lawful contract for nursing and caring for the sick and for the use of premises occupied as a temporary hospital.
    Error to the Court of Common Pleas of Lucas county.
   King, J.:

This action was heard in the court of common pleas on a demurrer to the petition, which was sustained by that court, and final judgment rendered thereon. The plaintiff below seeks to have that judgment reversed here, and claims that the court erred in sustaining the demurrer.

The action was brought by Turner against the city of Toledo and the mayor of said city; the police commissioners of said city, being the acting board of health in and for said city; Guy G. Major, the mayor of said city and ex-officio president of said board of police commissioners and board of health, and J. T. Woods, M. D., the executive officer of said board of health,defendants. The petition contained two causes of action; the first of which, after alleging the different offices held by defendants and the duties which they fulfilled, and after alleging some provisions of the ordinances of the city — which I need not notice particularly — and stating the powers and duties of these various officers to some extent, and then specially averring that Dr,. J, T. Woods was the health officer of the city, and thereby an executive officer of the board of health, and averring that the plaintiff was the owner of certain premises, and was engaged at the time of the grievances committed in the-business of running a saloon at some point in the city, and that he conducted thereupon a large and profitable business, he alleges that upon April 4, one Arthur Goins, a resident of the city of Toledo, came into his saloon and claimed to> the plaintiff that he was sick and unable to leave the premises, That the plaintiff thereupon immediately informed the health officer that the said Goins was at his said saloon and unable to leave it, and demanded, he says, that said' health officer, acting in his official position and character, should remove said Goins immediately from plaintiff’s saloon to the city [hospital; claiming also to the city health-officer, that if the man who was sick remained upon his-premises, it would greatly injure and damage his business.. That at this time the^man was not in any dangerous condition^ — -so plaintiff thought. That on the 9th of April — -a-day or two afterwards — said health officer appeared on the-scene and inspected^Mr. Goins, and pronounced him sick with-small pox, and he then proceeded, as the petition alleges, to wrongfully,illegally and maliciously quarantine the plaintiff’s housejand saloon, and ordered into the saloon and premises seven|persons,and ordered the premises closed and quarantined,and®forcibly detained therein by the said quarantine the plaintiff’s wife and the seven persons aforesaid, and that said quarantine was ordered by this officer or agent of the board. That after this occurred, the health officer promised the plaintiff that the city of Toledo and the board of health would pay for the use, the loss and destruction of all property used, lost or destroyed by said quarantine, and all damages that might occur to the plaintiff in the way of rent or loss of business as the result of such quarantine.

The plaintiff then proceeds to set forth his loss,in a variety of items, amounting to $554.58, and at the close of his petition he asks judgment for that sum of money, as well as upon a second cause, which I will refer to later,

It is alleged here, that the court erred in sustaining the demurrer to that cause of action; and considerable argument is devoted to the idea that the city is liable for the acts of its health board and of its health officer in doing things of that kind. I shall be unable to go into a discussion of all the authorities cited. The line of demarkation between the liability of the city for the acts of its officers of that kind, is not very plain nor clear, All I can do is to refer to some cases bearing upon the subject, and say to what conclusion we have come as to this case.

The latest case upon that question in this state, is in 42 Ohio St., 628, and in the opinion delivered there, the court say:

“In an action against a municipal corporation to recover damages for an injury to the person,sustained by reason of the negligence of the agents of such corporation,it is important to ascertain with precision the duty which such agents failed to perform, or performed negligently. For, although such, corporations derive all their powers from one source, namely, the legislature, and necessarily perform their functions solely by agencies, yet there is a marked distinction as to their liability for the acts of their agents,arising from the different characters in which the corporation is charged with the performance of duties. Thus, with respect to the power to suppress riots and assemblages of disorderly persons, it has beeD uniformly held, in the absence of statutory provisions to the contrary, that the corporation is a mere agency of the state, and not liable for negligence in the performance of such duties. Upon this principle it has been held that there is no corporate liability for the acts of a mob, although the charter contains this provision as to the duties of the council, that ‘it shall be their duty to regulate the police of the city, preserve the peace, prevent riots, disturbances and disorderly assemblages.’ ”

Western Reserve College v. Cleveland, 12 Ohio St., 375.

“Nor is such corporation liable to an individual for damages resulting from a failure to provide the necessary agencies for extinguishing fires, or for negligence of officers and others connected with the fire department, although the obligation to perform such duties is imposed by the statute. ”

Wheeler v. Cincinnati, 19 Ohio St., 19.

“Nor is a city'liable for failure to enforce an ordinance with respect to the storage of oils, although its agents had notice of the failure to observe the ordinance, and notwithstanding the fact that by reason of such non-observance, the property of a citizen of the corporation was destroyed.”

Roberts v. Cincinnati, Superior Court, Gen’l. Term, 5 Am. Law Rec., 73.

“But concerning the powers and privileges which are to be exercised for the improvement of the territory within the corporate limits, and as to which the pecuniary and proprietary interests of individuals are represented,as the construction of a bridge. ’ ’

Dayton v. Pease, 4 Ohio St., 80.

“Or placing water mains in a street.”

Ironton v. Kelley, 38 Ohio St., 50.

“The liability of the corporation for negligence is largely, if not entirely measured by the liability of individuals for similar acts. This principle was applied in Newark v. Frye, decided by this court, March 22, 1881. The council of the city of Newark,being authorized to ‘guard against injuries by fire,’ and to purchase fire engines, etc., ‘and all other apparatus and instruments as shall be deemed necessary to the extinguishment of fires,’ and having under consideration the propriety of purchasing the Champion Fire Engine, a fire extinguisher, appropriated money for the purchase of combustible material for the purpose of making a test of such engine. An old building was removed to the center of one of the principal streets of the city, and the same was partly filled with boxes and shavings, on which was poured a large quantity of gasoline, some of the officers of the city assisting in the work, and several members of the council being present and making no objection. On applying a match there was an immediate explosion, which destroyed the structure, killed several persons, and injured others. The court properly held the city liable,following Dayton v. Pease;” and citing in this case many others.

Undoubtedly there is difficulty, sometimes, in determining the class in which a particular case must fall; and.it is also true that there is considerable conflict in the authorities, as to the extent of such liability. We will make no attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the distinction already stated between cases falling within the police power of the corporation, and those in which it represents the property rights of the citizen. Reference to most of the cases on the subject, decided previous to 1877, will be found in Hill v. Boston, 122 Mass.,844. (And citing others.)

In that connection, I want to say that the case of Hill v. Boston, 122 Mass., is not only a leading case, but contains a very learned opinion of that court by the then Chief Justice Gray of that court, in which all the authorities at that time decided are reviewed by him, and it may be said, to a certain extent at least, that the distinction in the cases and in .the grounds of liability, is reasonably clear. It is clear that the city is not liable for the acts, or omissions to act, of its fire department engaged in undertaking to perform their duty. It is not liable for the acts or omissions to act of its police officers engaged in undertaking to perform their duty. It is not liable for the acts or omissions to act of its board of health,its sanitary police, or its health officers, undertaking to perform their duty. This, I think is well settled: those being simply the agencies for carrying out the acts of government for the benefit of the citizens of the corporation, but from which no particular individual derives any pecuniary benefit.

, In the case which I have read from, the action was brought to recover damages for injury ‘sustained from the discharge of a cannon in the public street by an assemblage of disorderly persons, as alleged in the petition, which further says: “That the authorities of the village had negligently and carelessly given permission to such persons -to fire the cannon,” and took no steps to prevent such firing. The court held that the municipal corporation was not liable, even upon the principle which had been affirmed by the Supreme Court in the case0 of Newark v. Frye.

The health board is devised and designed by the legislature for the protection, so far as possible, of the public health. They are not liable if they fail to protect the public health, and the city is not liable for its acts even if it steps outside of and beyond the legitimate exercise of its true powers conferred upon it by statute and by ordinance. I cite a case on that subject from. 33 Minn. 289, where it is held “that the city was not liable for the acts or negligence of such board in the discharge of its duties, the same being public and governmental, and not corporate in their character.”

Clearly, a board of health in the state of Ohio has such power as the statute has conferred upon it, and probably has such implied power as is necessary to carry the express powers into effect. The sections of the statute relating mainly to the duties of the boards of health are 2113, 2115, and 2116,and these provide for the establishment of a board of health. I should say that by the provisions of sec. 2141, as amended in 1887, the board of police commissioners is created and constituted ajjboard of health. Now, this board has authority to appoint a health officer, and it has power to appoint a clerk, and has power to appoint as many ward' and district physicians “as it may deem necessary for the care of the sick, poor and persons under quarantine surveillance, and may provide for such quarantined persons necessary attendance, nurses, medicine and support until convalescent, The board shall have exclusive control of their appointees, and define their duties and fix their salaries; and all such appointees shall serve during the pleasure of the board.” (Sec. 2115.)

Sec. 211.6: “The board of health shall abate and remove all nuisances within its jurisdiction. It may compel the owners, agents, occupants or tenants of any lot, property, building or structure upon or in which any nuisance may be, to abate and to remove the same by orders therefor,and treat the neglect or refusal to obey orders for such purpose as a misdemeanor punishable, as hereinafter provided. The board may, also, by its own officers and employes, abate ■and remove nuisances, and certify the costs and expenses of such suppression, removal or abatement, to the county auditor, to be assessed against the property, and thereby ■made a lien thereon, and collected as other taxes. The board of health may regulate the location, construction, repair, use, emptying and cleaning of all water-closets, privies, ■cess-pools, sinks, plumbing, drains, yards, pens, stables, or other places where offensive or dangerous substances or liquids- are or may accumulate. The board may create a complete and accurate system of registration of births, marriages, deaths, and interments occurring in such corporation, for the purposes of legal and genealogical investigations, and to furnish facts for statistical, scientific and ■sanitary inquiries; and when complaint is made, or a reasonable belief exists that an infectious or contagious disease prevails in any house or other locality, the board may cause •such house or other locality to be inspected by its proper officers, and on discovering that such infectious or contagous disease exists, may, as it deems best, send the persons so diseased to the pest--house or hospital, or may restrain them and others exposéd within said house or locality from intercourse with other persons, and prohibit ingress or egress to or from such premises.”

Now that is a pretty broad power, actually and expressly conferred by the statute. If they find a house in which there is an infectious disease, they may quarantine it and keep the inmates within, and keep those from the outside from going in; and they may also provide that those in the immediate locality who have been exposed to this infectious disease shall take up their abode and remain there. I think there is no question of their power to do that. The thing that the board of health had undertaken to do was to quarantine that house, and it is clear to us that there is no provision of the statute under which the owner could recover, although it might be a very serious loss to him.

Upon this point there is an authority in 66 Me, 74, holding, in general terms, that a board of health may, if they think best for the safety of the inhabitants, remove persons who have dangerous diseases to a separate house, or confine them to their own — that they have authority to do that. The court say:

“It is unquestionable that the legislature can confer police powers upon public officers for the protection of the public health.” It was argued in this case that the statute was unconstitutional. “The maxim salus populi suprema lex is the law of áll courts and countries. The individual right sinks in the necessity to provide for the public good. The only question has been, as to the extent of the powers that should be conferred for such purposes. We do not think that personal injuries need be apprehended from the action of officers in cases of this kind. Experience probably shows that communities and individuals are not promptly enough aroused to the dangers that beset them in such emergencies. If an injury is inflicted upon a person by the malice of the public servants, he has a remedy for it.. Apd the petition for habeas corpus is always open to him.”'

So,in this case,if these people were unjustly confined they" could have the benefit of this writ. The petition alleges, that the man had the small pox and was quarantined there,, as well as seven other persons. It does not particularly allege where these other people were, but I think it may be-assumed that they were confined in that house for some-reasonable cause. Now, all of that, we think, affords to-plaintiff no right of action againpt the city. We think the-court of common pleas was therefore correct in sustaining-the demurrer to this cause of action.

The second cause of action, while very crudely drawn and-omitting a great many allegations that it might have contained, does substantially, however, allege: “that the said“ board of health and said city, defendants, through their' executive officer and agent aforesaid, entered into a verbal contract with this plaintiff for him and his wife Ruthanai Turner, to perform the work and labor necessary for said! inmates quarantined in his said premises, No. 1607 Canton* Avenue, in said city, county and state, and that said board of health and city, defendants, would give them a reasonable-compensation for their said work and labor, and the said1 board of health and city to furnish the necessary provisions* for said persons quarantined,and pay for the same; that said Turner, the plaintiff, and his said wife might find necessary for cooking purposes, and also to furnish and pay for the-medicine necessary for said persons quarantined.” It proceeds to allege that the quarantine lasted for the period of one month; that the services referred to were rendered by the plaintiff and his wife, and were worth $150, for which-he asks judgment. This second cause omits a good, many-allegations; it does not particularly allege who was confined' in the house, who was sick, to whom these attentions were-paid'; it omits to state for what ihese services were actually.rendered, Relying, as it does, upon the first cause of action, it is incomplete; but we have seen fit to look at it as if it were a cause of action stating a contract between the health officers or board of health and this plaintiff, to furnish nursing and care for these sick people in this house. And that is exactly what the statute which I have just read ■authorized the board of health to do; and if they did that in this case---entered into a contract with these people to furnish nursing, care, board and lodging, etc,, they had the power to do it, and the city is unquestionably liable.

J. Berry, and E. P. Raymond, for Plaintiff in Error.

W. A. Mills, for Defendants in Error.

The cases which were cited in argument by counsel for plaintiff in error as authorities for maintaining the first ■cause of action, do not support that, but do in fact support the right to maintain the second cause of action. The case of Rae v. Flint City, in 5 Mich. 526, is authority to the effect that where there was no board of health, the council having failed to exercise the duty conferred by the legislature in appointing one, but having employed a nurse in a ■small-pox hospital, it was held that the council had authority to employ such nurse, and authority to pay the same.. 61 Iowa, 205, was cited as bearing upon the principle that the county is liable to the city for expenses for taking care ■of a small-pox patient within its bounds; but we are satisfied that the second cause of action sets up a contract between the city and the plaintiff,and is a good cause of action, and we reverse the judgment of the court of common pleas so far as it ■sustains the demurrer of the city of Toledo, and we affirm the judgment as to all the other defendants in the case on both ■causes of action, and as to the city .of Toledo on the first ■cause of action, but reverse it as to the city of Toledo on the 'Second cause of action, and remand it to the court of common pleas for further proceedings.


source: Caselaw Access Project

author: Nokris, J.

license: Public Domain

text:
    (Third Circuit — Allen Co., O., Circuit Court,
    April Term, 1898.)
    Before Day, Price and Norris, JJ.
    THE BUCKEYE PIPE LINE COMPANY v. WILLIAM G. FEE.
    ■, Review of case upon the facts — What motion for nev> trial below must contain—
    ,(T.) When a case is submitted to the court upon the facts; in order to bring the evidence embodied in the record up for review, objection must be mads in the motion for new trial to the finding. 'The motion must assign as a reason for new trial, in substance, that the decision of the court as to what the facts determine, is not warranted by the weight of the evidence.

      Attachment for non-residence — Owner's domicile does not determine situs of property—
    (2). Wherever the owner may maintain a suit to recover property, the property may be attached as his property if the grounds of attachment exist. The situs of the property not being determined by the owner’s domicile.

      Option as to place of delivery — Lost by refusal to deliver at all—
    ■(3). Where'a storer or common carrier of property, has, by contract, an option as to the place of delivery to the owner and refuses to deliver at all, the option as to the place of delivery is waived by such refusal.

      Storer and common carrier of oil operating in Ohio and Indiana— Attachment of oil—
    v(á). The Buckeye Pipe Line Co. is a storer and common carrier of •oil. Oil placed in its custody loses its identity. All the oil so held '’by it is a common stock of oil, owned by various persons, whose interests are represented by the run tickets of the company. 'This common stock of oil is stored both in the states of Ohio and indiana; and the interests of the owners represented by their respective run tickets, is deliverable, .at the option of the company, at any of its oil delivery stations in Indiana or Ohio:
    Held : That the situs of this common stock of oil,being as well in •Chio as in Indiana, the interest represented by a run ticket is •subject of garnishment in this state. And this though the actual oil upon which the run ticket issued, was produced in Indiana, and never was in Ohio.
    Error to the Court of Common Pleas of Allen county.
   Nokris, J.

At the November term, 1896, of the court of common jpleas of this county, an action was pending wherein the defendant in error, Wm. G. Fee, was plaintiff, and E. D'.. Miller, E. 0. Talmage and 0. E. Russell were defendants. Ancillary to this suit a writ of attachment issued against Miller, Talmage & Russell and the plaintiff in error, The' Buckeye Pipe Line Company, was made garnishee, and was served with notice in garnishment, and was required to> answer,and did answer as garnishee. Afterward,by the consideration of said court, defendant in error recovered a judgment against Miller, Talmage & Russell, .and the court' ordered the Pipe Line Company, as garnishee, to turn over' to the sheriff of this county certain crude petroleum, found-by the court to be the property of Miller, Talmage & Russell and in the possession and in the control of the garnishee,, in such amount that the avails might satisfy the judgment- and costs. This order the Pipe Line Co. refused to obey,., and failed to turn over to the sheriff any of the oil so found to be in its custody and possession. And the controversy' which this court is now called upon to review, is the action* brought by Fee, the defendant in error,against the plaintiff' in error, The Buckeye Pipe Line Company, to recover the: amount of that judgment.

That it had in its possession and under its control at said time certain oil of Miller, Talmage & Russell; that the judgment was recovered and the order made, and that it refused to obey the order, The Pipe Line Company does not deny; but it claims immunity from liability from the following facts which the parties agree was' the true condition that obtained when the action between Fee, and Miller, Talmage & Russell was commenced and when the proceedings in garnishment were sought to be enforced by the order of the court in that action; and upon these facts, as thus-, agreed, the ease was submitted to the court of common pleas of this county.

The facts are as follows: The Buckeye Pipe Line Company is an Ohio corporation; its business is confined ta «that of a common carrier and storef of oil; its principal ■office is at Lima, Ohio, where the books of its business .are kept. On the 7th of November, 1896, it had in its .possession and under its control 1086.04 barrels of oil ito the credit of Miller, Talmage & Russell, a firm com,posed of the defendants against whom Fee’s action was .pending, and against whom he .recovered the judgment, and ’■the value of the oil was sufficient to satisfy the judgment. The oil was produced in Huntington county, Indiana, and re-ceived by the company in Indiana in its usual course of business, and held by the company as common carrier and storer of oil, and never was in Ohio; no Indiana oil is carried tinto or stored in Ohio by said company.

The oil territory of Indiana,including Huntington county, and ■ the oil territory in north-western Ohio, including .Allen county, Ohio, comprise the territory known as the Lima Division of said company; its stations for the delivery ■of oil are in this territory in both Indiana and Ohio, including said counties of Allen and Huntington, and all transfers of oil are made on its books at Lima. Its system of storage and pipe lines in Indiana are not connected with its Ohio -«system of storage and pipe lines; the oil received in Indiana cannot be delivered through its pipes in Ohio, but is delivered in Indiana. The oil produced in Indiana is of a different kind and quality from that produced in Ohio, and generally of a different market value; but since January, 1896, the value of Indiana oil and oil produced in Allen county, Ohio, has been and is the same. Oil received and -stored in Indiana from different wells and delivered by different persons to the Pipe Line Company, is mingled, so that the identical oil cannot be returned, but oil of like' kind and quality is delivered from the general stock of the com:pany in Indiana.

The oil in custody was received on a “run ticket”; •-.amongst the conditions of the contract upon which it was thus received is: “That the oil is received into the general stock of the Buckeye Pipe Line Company, 'Lima Division, subject to certain transportation and storage charges; and that the point of delivery by the company shall be at the option of the company, within the Lima Division. That the company shall not be liable for loss resulting from unavoidable causes; and that all losses from such causes shall be charged pro rata upon all petroleum in its custody, Lima Division, at the time of loss, and the quantity represented by the Run Ticket shall be reduced by its proportion of loss. ’ ’

It is agreed that the company had a right to deliver the oil in controversy at any of its delivery stations in Indiana. It is further conceded as a fact, that when oil is sold by a person who has oil stored, it is transferred upon the books of the company, Lima Division, at Lima; that there is constant market for Indiana and other oil in the company’s custody, and that all oil sold is at once transferred to the credit of the purchaser upon presentation of the purchase order, at any of its offices, and report of that fact by the company’s agent to the Lima office.

The owner of oil, or the purchaser, can secure the delivery of the actual oil belonging to him, upon demand and payment of charges, and such deliveries are being constantly made.

The sheriff did not seize the oil in controversy; the attachment was served in no other way than by leaving a copy of the attachment with the agent of the company at Lima, Ohio, and informing him of the contents thereof.

A copy of the sheriff’s return is embodied in the agreed statement of facts which, aside from other considerations, as far as form and manner is concerned, would indicate a proper service.

In a case pending in the Circuit Court of Huntington county, Indiana,after January 1,1897, that court, which is a court of competent jurisdiction, appointed a receiver for Miller, Talmage & Russell, and directed the plaintiff in error to deliver the oil in controversy to said receiver.

The company has a lien on this oil for transportation and storage charges. Since the order and judgment recovered by Fee against Miller, Talmage & Russell, the plaintiff, through the sheriff of this county, had made demand upon the company for the oil in controversy, which has been refused and the oil never delivered. These are the agreed facts presented by the bill- of exceptions, and upon the condition disclosed by them the plaintiff in error, defendant below,asserts that it was in no wise bound to obey the order of the common pleas; that it has the right of the controversy, and that Fee has no ground of recovery in this action.

In the common pleas, a jury being waived, the case was ■submitted to the court; the result was a finding for the plaintiff below against the defendant, The Pipe Line Company. Defendant’s motion for a new trial was overruled, and judgment was entered upon the finding of the court; and to reverse that proceeding this case in error is prosecuted.

The ground assigned in the motion for a new trial is, that the judgment is not sustained by sufficient evidence, and is contrary to law.

The reason for reversal assigned in the petition in error is,that the court erred in rendering judgment for the plaintiff against the defendant, and erred in overruling the motion for a new trial.

A verdict, is the conclusion of a jury, upon issues of fact submitted to the jury in an action.

' A finding, in the sense used in this case, is the conclusion of the court, upon issues of fact presented to the court in an action, In each case, whether a verdict or a finding, it is the decision of what the facts determine.

A judgment, is the final adjudication of the rights of the parties to a controversy. A judgment is what the law dedares shall be done; it is the award based upon the finding. It is the act of the court, warranted by the law,and conclusive' between the parties to the suit, because it is founded upon the decision of what the facts determine.

In order to review a case — as the one at bar — upon the evidence, the objection must be made to the finding of the court, that it is not supported by the evidence; that the de-cision of the court, as to what the facts determine, is not warranted by the evidence.

This reason for a new trial, must be assigned in the motion for new trial, in order to bring the evidence in' the record up for review in that regard. The objection in this case is, that the judgment is not sustained by sufficient evidence. To thus attack the judgment without objecting to the finding upon which it is based, does not appear to be such an assignment of error as will bring the evidence in the record up for review when such motion is overruled. See 17 Ohio St., 262; 384; 14 Ohio St., 272-276; 32 Ohio St., 562.

But passing this point, for it may be, and probably is, when taking into account the learning and care and skill of plaintiff’s counsel, that the omission to make objection to the finding was a clerical error.

It is claimed that the property which was subject of garnishment, not being in the strict sense a credit; and the identical oil in controversy never having been seized by the officer, and never having been in this state, but always 'having been in the state of Indiana, renders it impossible that jurisdiction by the proceedings in attachment and .garnishment can be acquired here; and hence, that recovery can not be had. That the proceedings being in rem, the jurisdiction is governed by the situs of the property.

In most instances this is true; the situs of personal property is,for most purposes,the domicile of the owner, because it is deemed to be attached to his person. But,say the courts, the law for attaching property of non-residents, necessarily assumes that the property has a situs distinct from the ■owner’s domicile. Wherever the owner may maintain a suit to recover the property, if the grounds exist, the property may be attached as his property. And this probably would ■ determine the situs of the property in controversy in this case.'

It is conceded that when the oil of Miller, Talmage & Russell, went into the possession and custody of the Buck■eye Pipe Line Company, it lost its identity; it was no •longer susceptible of separation or seizure; it became, and -was, a part of the common stock of oil of the Buckeye Pipe Line Company, Lima-Division.

The Indiana oil, and Ohio oil, is conceded to be of different quality; yet this is a fiction that cuts little figure, when faced by the facts that the oil in both fields was of the .same market value; that is was optional with the company to deliver oil represented by its run tickets, either in Ohio ■or Indiana, no matter in which field produced; and, that the Indiana and Ohio oil, Lima Division, was taken and considered, and made, a common stock of oil, out of which -this run ticket, or any run ticket, might be paid, by delivery ■of the quantity of oil at any of its stations of the Lima Division. So that this run ticket, represented so much oil ■of a common stock. Miller, Talmage & Russell owned by virtue of it, so many parts of this common stock, and if any of the common stock was destroyed, they lost their •proportion of the common stock thus destroyed, This ownership was in the common stock, and their loss was in the common stock; and they, and other owners of the run tickets of this company, owned all the oil of this common stock. ■ .None of them owned any particular oil, either in Indiana or Ohio; they owned it together, all of it, both in Indiana and Ohio, their interests being defined by their run tickets.

The liability and rights of this garnishee to this attaching creditor, is measured by its liability to Miller, Talmage & Russell. It claims, and has the option, upon demand, to deliver the oil represented by this run ticket, at any of its stations in the Lima Division, as it may determine. But with its common stock as well in Allen county, Ohio, as in Huntington county, Indiana, it makes flat refusal to deliver at all.

Suppose that upon demand, made by Miller, Talmage & Russell, in the absence of that proceeding in garnishment, it refused to deliver the oil represented by this run ticket to Miller, Talmage & Russell; could it be successfully denied that Miller, Talmage & Russell would have a right to recover, against the company, in Alien county, Ohio, their interest in their common stock? We think not. After having refused altogether, could the fact that the company had an option as to where it would deliver, justify a refusal to-deliver at all? And still refusing, would the court consider its option as any longer a right that it might exercise under its contract? We think not.

Under the facts as agreed, we conclude, that the proceedings in attachment and garnishment, clothed Fee with the rights that could have been exercised by Miller, Talmage &- Russell. And a refusal to deliver the oil at all from this-common stock, upon demand of the sheriff, under the order of the court, was a waiver of the company’s right to exercise its option as to the place of delivery; and the property-being part of a common stock, the situs of which was as-well in Allen county, Ohio, as in Huntington county, Indiana, we are of the opinion that the action was properly brought,and jurisdiction properly acquired here.

It is conceded that the attachment in this state issued, and the proceedings in garnishment were had, before the-appointment of the receiver for Miller, Talmage & Russell, by the Circuit Court of Huntington county, Indiana, and before that court took cognizance of the matter. That being the case, the jurisdiction of a court of this state, competent to deal with the controversy, having been first acquired over the property in dispute, such jurisdiction is exclusive. And the order of the Circuit Court of Huntington county, Indiana, upon plaintiff in error, to turn the oil in controversy over to the receiver of that court, is no protection to plaintiff in error,

James O. Troup, for Plaintiff in Error.

William H. Cunningham, for Defendant in Error.

Finding, therefore, no error on the face of the record to the prejudice of the plaintiff in error, the judgment of the common pleas is affirmed, with costs; and the case is re* manded for execution.


author: Norris, J.

text:
    (Third Circuit — Allen Co., O., Circuit Court
    April Term, 1898.)
    Before Day, Price and Norris, JJ.
    J. A. RIGLEY v. WILLIAM WATTS.

      Promissory note payable on demand — Maturity—
    A promissory note,payable “on demand after date,” is not an instrument to pay money on time; but is a promise to pay which becomes mature at its execution and due at its date.

      Same, — Commencing suit equivalent to demand—
    When a promissory note, “payable on demand after date”, is delivered, the payee may at once put it in action ; the commencement of the suit is sufficient demand.

      ¡Same — Fixing place of payment—
    Words in a promissory note, purporting to fix the place of presentation and demand, as between the payee and the maker, do not of themselves imply their performance necessary to charge the maker.
    Error to the Court of Common Pleas of Allen county.
   Norris, J.

This case comes into this court upon petition in error. On the 17th of January, 1898, the defendant in error, William Watts, executed to the plaintiff in error, his promissory note of that date, with a warrant of attorney in usual form attached. The promissory note reads, “On demand after date, we, or either of us promise to pay,?’ etc. The suhject for controversy is found in the words “On demand after date”. The note fixed the place of its payment “at the store of William Watts,” in this county.

Upon the delivery of this note, and on the day of its date, by virtue of the warrant of attorney to confess judgment, the plaintiff proceded in the court of common pleas of this •county, to reduce the note to judgment. At the same term •of the court, upon motion of the defendant, the judgment so .given on the note, was vacated and set aside; the execution which had issued upon the judgment, was ordered by the •court to be returned, and all property held by levy thereunder, was ordered released.

The essential objection to the judgment is, that it was taken before the note had by its terms become due. The proceedings of the court vacating and setting aside this judgment, are sought to be reversed.

The errors assigned are: Error in sustaining defendant’s motion to vacate and set aside the judgment. Error in •ordering the sheriff to return his executioon, and error in •ordering the release and surrender of the property held in levy under said writ.

This case depends upon how the words “on demand after date” are to be construed, and what meaning they import when used in a promise to pay.

When a contract is worded “to pay on demand”, the ■courts construe the instrument to be due upon delivery. It is due at its date; it commences to draw interest at its date, and the statute of limitation commences to run against it at its date.

A promissory note, payable “on demand after date”, has been held, not an instrument to pay money on time, but to be a written promise due at its date; and interest commences to run, and the statute of limitation commences to run at its date. And it is held that in reckoning the interest, or' the running of the statute,the day of its date is to included.

That this is the law, there can be no doubt; and perhaps hidden somewhere in the mind of the jurist, is a reason for it, which in my researches I have not yet been able to find. I have promised myself that sometime, when dockets were lighter, to either discover, or try to forge out a tangible reason which would brush away, at least to my own satisfaction, the fiction upon which this construction seems to rest. (Sufficient is it however to say, that a note payable “on demand after date”, is due at its date; it is mature when it is executed; interest runs on it, and the statute of limitation begins to run against it, before the ink is dry. Such appears to be one of the rules of the law merchant affirmed by the construction of the courts.

The commencement of a suit is sufficient demand, and when a promissory note payable “on demand after date” is delivered, the payee may at once place it in action, which action shall be his demand.

Something is claimed, because the note reads, “promise to pay at my store”, and that these words fix the place of presentation and demand. These words are not construed to be restrictive, as between the payee and the maker of a note, and as between the payee and the maker, do not of themselves imply their performance necessary to charge the maker; so as between the payee and the maker, these words are no more than so much blank space.

The authorities, which warrant this opinion, may be found in 17 Ohio, 9; 9 Ohio St., 517; 35 Ohio St., 343; 182 Mass., 338; 146 Mass., 118, (also to be found in N. E. R., 87); 22 Pacific Reporter, 876 (California case); 88 N. Y., 343; 3 Randolph Commercial Paper, 1040; 2 Daniels on Negotiable Instruments, 89, 110, which are furnished to the court in counsels briefs.

Homer P. Sewell, and Gable & Parmenter, for Plaintiff in Error.

D. G. Henderson, for Defendant in Error.-

As the case addresses itself to us, vacating and setting aside the judgment, and releasing the levy was error. The proceedings of the court below in setting aside the judgment, will therefore be reversed at the costs of the defendant in error; and the motion to vacate and set aside the judgment is overruled; and the case is remanded to the court of common pleas for execution


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’ Term, 1898.)
    Before King, Haynes and Parker, JJ.
    NOAH. WHITNEY, ASSIGNEE, et al. v. JEROME GILL, ARTHUR H. HULL, and ISABEL M. BARBER.

      Mechanic's lien law of 1894 — Being unconstitutional, former law remains in force—
    The act of April 13, 1891, (91 Q. L., 135), to amend the mechanics’ lien law, being unconstitutional and void, was not effective to repeal the law in force at the time of its passage.
    Error to the Oourt of Common Pleas of Lucas county,
   Parker, J.

The action below was brought by the defendant in error, Jerome Gill, against the defendants in error Arthur Hull and Isabel M. Barber. Afterward Hull made a general assignment for the benefit of his creditors to Noah A. Whitney, who defended on behalf of the creditors of Hull, and who now on the same behalf prosecutes error in this court.

The claim sued on was for work performed by Gill under a contract with Hull,, the principal contractor in repairing and reconstructing a certain building for Isabel M. Barber, the .owner thereof, and of the lot on which the same was situated. The amount of the claim as asserted in the petition, was $243.80 and interest, The petition alleges that Isabel M. Barber had in her hands an amount of money sufficient to satisfy this claim, which money was due from her to the principal contractor, Hull, under her contract, and the performance by Gill of all things required to perfect a lien against the premises as provided by the act to amend the Mechanics’ Lien Law passed April 13, 1894 (91 O. L.,135), or to perfect his right to have this fund applied to the payment of his claim, as provided by said law before the amendatory act of April 13, 1894 was passed.

An answer by Hull, which appears to have been adopted by his assignee and upon which the case was tried, presents an issue which is joined by reply, as to the amount due to Gill, admitting only $5.81 of the claim; but it does not controvert the facts as to the steps taken by Gill to perfect his lien on the premises or his right to the money in the hands of Isabel M. Barber and due to Hull under his contract. However, the question as to Gill’s right, either to enforce the alleged lien upon the premises, or to recover these funds in the hands of Isabel M. Barber, necessarily arose upon the hearing of the casé.

A jury was empaneled to determine the issues as to the amount due to Gill from Hull, and it returned a verdict in favor of the former and against the latter, for $211.81.

Afterward, as to all matters and issues not determined by the verdict of the jury, the case was, by agreement, submitted to the court upon an agreed statement of facts, and the court adjudged that these funds in the hands of Isabel M. Barber should be paid into court and applied to the payment: first, of the costs; second, to the discharge of Gill’s claim; and,third, any balance to Whitney as assignee for Hull.

It is on account of this judgment that Whitney, as assignee, prosecutes error here.

The agreed statement of facts upon which the court found-for Gill and gave judgment in his favor, was incorporated into a Lili of exceptions, which is a part of the record submitted to us, and is in the words and figures following: (omitting the introductory clause):

“It is stipulated by and between the plaintiff, Jerome Gill, and the defendant, Noah A. Whitney, assignee, that the facts being upon the issues between them are as follows, to-wit:

“1. Arthur H. Hull entered into a contract with the defendant Isabel M. Barber, for the reconstruction of her building known as Nos. 217 and 219 Summit street, in the city of Toledo, Ohio.

“2. That the said Hull duly performed said contract, and that there was, on March 3d, 1896, and is now due and owing upon said contract from the said Isabel M. Barber the full sum of $213.80, which is retained in her hands awaiting the orders of the court as to who is entitled to receive the same.

“3. That the plaintiff, Jerome Gill, was employed as a sub-contractor by the said Arthur H. Hull to perform certain work and labor in connection with the said re-construction of the said building, and for which he has obtained judgment in this action against the said Hull in the sum of$ — -— and costs herein, taxed at $ — ■—■.

“1. That on the 3d day of March, 1896, after the entering into said contract between said Gill and said Hull and the performance of the said labor, the plaintiff filed with the recorder of Lucas county, Ohio, an affidavit containing an itemized statement of his account and the value of the same with all credits thereon, together with a statement of the contract under which the same was performed, and the time when the same was performed, when the amount thereof should have been paid, and a description of the premises upon which the buildings were situated, which affidavit was recorded in the Record of Liens of said county, A ful] and" true copy of said affidavit,certified as such, was on the 3d day of March, 1896, delivered personally to the said Isabel M. Barber,and all formal steps required by the mechanics’ lien-laws pertaining to sub-contractors prior to the amendments-of April 13th, 1894, were duly performed by said Gill in connection with his said claim.

“5-. The defendant Noah A. Whitney, assignee, was, on the 4th day of December, 1896, duly appointed and' qualified by the probate court of Lucas county, Ohio, assignee for the benefit of the creditors of Arthur H. Hull, and among the assets assigned to him by the said Arthur H. 'Hull is the right to receive from the said Isabel M. Barber any interest said Hull may have in the proceeds of' the contract between the said Hull and the said Isabel M. Barber. ”

Now, this action was begun before the case of Palmer & Crawford v. Tingle, and Young v. The Lion Hardware Company, 55 Ohio St., 423, had been decided by the supreme court. After the decision in those cases that the act of April 13, 1894 (91 O. L., 135), in so far as it gives a lien on the property of the owner to sub-contractors and' laborers and certain others, is unconstitutional and void, Gill’s claim of a lien upon the property could not be maintained; but it is insisted on his behalf that his right to look to the fund as provided by the mechanic’s lien law before-the amendatory statute was passed, is restored to him, or, more accurately, has never been taken away or suspended; that the attempt to amend and provide a substitute having-failed, and it being apparent that the legislature would not have repealed the statute giving laborers and material men aright to pursue and secure funds of the head contractor in-the hands of the owner, except in the carrying out and as a part of their purpose to provide a substitute therefor, the-part of the act which provides for the repeal of the old law falls with the rest; that all parts are alike abortive and:nugatory.

This is the real question here, in so far as the mechanics’ lien law is involved. In support of this contention we are ■cited to a great many decisions of courts of last resort in other states and to some text — books, and these authorities amply support the proposition that where an act repealing another act and providing a substitute therefor is itself invalid, the repealing clause must also be held inoperative, ■unless it shall appear that the legislature would have passed •the repealing clause even if it had not provided a substitute for the act repealed.

The following are some of the authorities cited upon this point:

Sutherland on Statutory Interpretation, secs. 175-176; State ex rel. v. Smith, 48 Ohio St., 211; Times v. State, 29 Ala., 165; State v. LaCross, 11 Wis., 51; Stevenson v. Ry. Co., 6 Wis., 605; Child v. Shemar, 18 Ia., 261; People v Triphain (N Y.), 3 Parker, 241; Endlich on Interpretation of Statutes, sec. 192; State v. Blend, 121 Ind., 514; Devoy v. Mayor, 36 N. Y., 449, 457; State v. Halleck, 14 Nev., 202; State v. Commissioners, 38 N. J. L., 320-322.

Also the opinion of Judge Hollister, of Hamilton county, Ohio, Common Pleas Court, in the case of Gorman, assignee v. Bepler et al., reported in 4 Ohio Nisi Prius Reports,241, where the precise question was under consideration by that ’learned judge, who resolved it in favor of the proposition That the repealing provisions failed with the other pro-visions of the act. In this opinion other authorities are cited as supporting this conclusion.

Another case which we have examined is that of The Sprey Lumber Company v. The Sault St. Marie Savings Bank, 77 Mich., 199. In that case the statute under consideration was almost identical in its main features with the ^statute which we are here considering, and it was held that, "the principal provisions of the statute failing, because of ’their unconstitutionality, resulted in the repealing clause -also failing, so that the old statute remained in force.

On behalf of plaintiff in error it is conceded that the general proposition above stated is established by the authorities, but it is contended that it is inapplicable here, because it is said that besides providing different liabilities for the owner, and different remedies for the material man and laborer who served or furnished to a head contractor and not to the owner, this act of April 13th, 1891, substantially alters the old law in other respects, and that the ■features which are held to be unconstitutional and void by ' the supreme court are not the main features of the act. 'That the parts and provisions held unconstitutional are independent of and separable from these other important provisions which are not obnoxious to the constitution, and :that, therefore, such other provisions may be and are in all respects valid and in full force.

If these premises are correct, then there would seem to be an unsuperable difficulty in the way of giving effect to ‘the doctrine above set forth as to the repealing provision. Because of the provision of- sec. .16, art. 2, of the constitution of Ohio that “No law shall be revived, or amended, unless the new act contain the entire act revived, or the •section or sections amended; and the section or sections, so ■amended, shall be repealed’’, it is not possible to give a ’partial or qualified effect to this doctrine, whereby a part of •a section or sections repealed may be regarded as in force, and a part of the same section or sections, as amended,may -also be regarded as in force. .In other words, parts of a given section as amended may not be eliminated because un•eonstitutional and the remainder allowed to stand,and at the same time provisions in the same section before its amend•ment and not in the amended section be given effect. Either •the amended section,and that alone, or the unamended section and that alone must stand. And it is said that because this is so, and because there are important new provisions in the amended section that need not necessarily fail because of certain abortive provisions therein, we are not authorized to hold the whole invalid, and therefore cannot give effect to a doctrine that would recognize the old law asín force. What cannot be done by express legislative action may not be accomplished by judicial construction-

But after a careful examination of the statutes on the subject of mechanics’ liens, we do not discover any material or important changes made by the act of April 13, 1894, except in the provisions and features held to be invalid. By the addition of the words “contractor or sub-contractor” in sec. 3184, the omission of the word “owner” from secs. 3194 and 3195, the dropping out of secs, 3196, 3198-, 3199, 3201, 3202, 3203 and 3204, and certain other slight changes of phraseology, and sections supplemental to sec. 3185, the law was made to provide that a lien might be taken by a laborer, material man, or sub-contractor upon the structure or premises, though the material or labor might have been furnished to a contractor and not to the owner, and the owner might have paid the person with whom he contracted in full,-in good faith, and without any knowledge of the claims of such material men or laborers — whereas, before the amendment of April 13th, 1894, such material men could only proceed by a method similar in effect to the process of garnishment to reach the funds of the contractor in the bands of the owner; and by the amendment and repeal) the privilege is taken away from them.

I repeat, we have been unable to discover any other substantial change in the law accomplished by the amendment, and after careful consideration of the matter, we adopt the view of the court below, holding that the law as it stood before was not affected by the act of April 13, 1894, and that the court did not err in holding that Gill had perfected his; right to have this fund applied upon his claim.

When we come to consider the long-established policy of the legislature with respect to the claims of laborers and material men, evidenced by the mechanics’ lien law and ■other statutes, we cannot bring ourselves to think that the legislature would have contemplated depriving the material men and laborers employed by contractors of all right or opportunity to secure and obtain satisfaction of their claims; a result which must follow if neither the new nor the old law as to such persons is in force.

• We also find ground for affirming this judgment in sec. ■6355,of the Revised Statutes. This has not been discussed to us by counsel; but after a careful consideration of the terms of this section, we think it applies to the case in hand. This is a part of the statute on the subject of insolvent debtors:

“All taxes of every description assessed against the assignor upon any personal property held by him before his assignment, shall be paid by the assignee or trustee out of the proceeds of the property assigned in preference to any other claims against the assignor; and every person who shall have performed any labor asan operative in the service of the assignor, shall be entitled to receive out of the trust funds, before the payment of the other creditors, the full amount of the wages due to such person for such labor performed within twelve months preceding the assignment, not ■exceeding three hundred dollars.’'’

By the agreed statement of facts it apears to us that this claim is for labor — labor, as we find it, performed by an ■operative in the service of this creditor. It was performed within twelve months of the time the claim was ascertained, and at the time the assignment was made. The asssignee was appointed December 4,1896, and all of the work appears to have been performed after December 26, 1895, and the claim does not exceed $300 — it was $243.80. The assignee does not bring forward or assert any other labor claims that would have a right to participate in the distribution of this fund, nor does any one else seek to intervene in such claim, •and therefore, we conclude that the court was right and correct under this secction of the statute in awarding-sufficient of this fund to the defendant in error, Gill, to satisfy his claim, and the judgment of the court below will therefore be affirmed.

Hurd, Brumback & Thatcher, for Plaintiff in Error.

W. H. A. Read, for Defendants in Error.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    DANIEL W. TOMBOW v. RICHARD H. HASKINS.

      Exemption — What will amount to seleetion under the statute—
    The selection of property required to be made by a debtor who claims-it exempt in lieu of a homestead under sec. 5-111, is sufficiently indicated in case money owing him is held by garnishee process, by his making a motion to the court to discharge the same.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This is an action to reverse the judgment of the common, pleas affirming a judgment of a justice of the peace. Suit was brought by Tombow against Haskins before a justice of the peace, to recover upon an account of $19.75. There-was also appended to the bill of particulars an affidavit of attachment, alleging that defendant was a non-resident of Lucas county, and attachment process was issued and a. notice of garnishment was served upon The Lloyd Lumber Company, garnishees. Thé garnishees appeared in court, and answered that they were owing to the defendant $40, and thereupon the defendant filed a motion to discharge the attachment and garnishee process, for the reasons: “First, that the property about to be attached and money garnisheed-is exempt from execution under the laws of the state of Ohio; and, second, the insufficiency of the affidavit of attachment.” The justice sustained the attachment, but the common pleas reversed it. Now tbe plaintiff below seeks-to have the judgment of the common pleas reversed, because it is claimed that the court erred in holding that the money in question was exempt from execution. It is said, in argument, that the motion to discharge was supported by affidavits which clearly showed .that defendant was the head' of a family — a married man, living with his wife, and supporting her — and, as a conclusion of law, that the property was exempt under the laws of the state, but no other facts-showing whereby it was exempt. These affidavits, we should say, contained the further statement that he owned no-homestead, either he or his wife, or real estate. The principal contention made here by the plaintiff in error is, that there was no selection made by defendant below, as required by the statute, sec. 5441, which provides:

“Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, residents of Ohio, and not the owner of •a homestead, may in lieu thereof, hold exempt from levy and sale, real and personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.”

From the reading of that it would seem that the substance-of the statute applies to a levy that is so made upon chattel' property, and therefore, that it was necessary for the defendant to appear and select property enough to make up five-hundred dollars in value, and make a demand upon the officer. But in the case before us there was a garnishee’s process served by the officer — and of course in the absence of defendant — and the person garnisheed, simply came into-court by virtue of the provisions of law-and answered as to the amount of money in his possession owing to defendant, and paid the"money over to the justice of the peace. No-opportunity, therefore, could have been afforded to the defendant to appear before the officer and demand that this •property be set off to him; the only person he couid appear before was the justice of the peace, and we think he did that when he filed this motion to discharge the attachment, up-on the ground that this money in question was exempt under ■this provision of the statute, he being the head of a family and not the owner of a homestead.

These statutes have been liberally construed by the courts, to effect the objects and purposes of them. It is certain “that this application must be made to the justice of the peace, and it would hardly do to hold that it was not made in proper form in this case — coming in the form of a motion. .It seems to be direct, and it specifies exactly why the attachment should be released from this money: because, as the ■motion states, it was exempt from execution under the statutes of the state of Ohio; and, if exempt at all, it is conceded that it must be exempt under this particular statute.

We think, therefore, that the court of common pleas did ■not err in the reversal of the judgment of the justice of the peace, and its judgment will be affirmed.

Another question was made in the case by the plaintiff in .error, and that is, that this judgment of the court of common pleas is erroneous because it did not set the case down ■ for trial in the court of common pleas in accordance with "the provisions of the statute relating to such judgments of justices — and a decision from the first circuit is cited. As •to that I will say this, that the proceedings before the common pleas do not show whether the defendant asked the ■ court to have that provision made. So far as appears by the record, the defendant was present. The court made ■this order, on the ÍOth of July:

“That the order of the justice of the peace, refusing to discharge the attachment in said case, be reversed; that ••'the plaintiff in error recover from the defendant in error the costs of this proceeding; and that execution issue therefor. To all of which findings, rulings and orders the-defendant in error then and there duly excepted, ”

Whether the court set the case down for hearing or not,, at that time, does not appear in the entry.

On the 22d of December, 1897, some months after that,, this order was made:

“This cause coming on this day for hearing upon the motion of the plaintiff in error for judgment upon the findings heretofore made by this court, was submitted to the court upon the record and nothing else, and the court finding that the plaintiff in error is entitled to judgment upon the findings of this court heretofore rendered herein, it orders the attachment issued by Joseph R. Cooper, a justice of the peace, to be, and the same is here' by discharged.

“To all of which said rulings, findings and orders of the court, the defendant in error, by his attorney, then and there duly excepted.”

The defendant seems to have been there to except to this-judgment of the court, but does not seem to have asked the-court todo anything else. Now then,- to have made an exception there which would have been available — for the defendant claims that he should have had an opportunity to-be heard — he ought to have offered testimony to the court, or asked for time to hear testimony; but nothing of that kind was done. As it appears by the record, the defendant was present. The case was submitted upon the previous record containing these affidavits attached to it, and the court thereupon rendered judgment, and all that defendant' did in relation to it was to except to the judgment. That certainly would not be sufficient. He must by himself have made some motion — asked the court to do something, to-hear testimony, or do something else besides taking exceptions to the ruling. But he did not offer to produce any testimany or claim that he had any other evidence than that contained in the record; so that the judgment will have to. be affirmed,

Ralph S. Holbrook, for Plaintiff in Error.

Chittenden & Chittenden, for Defendant in Error.


author: King,' J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y. Term, 1898.)
    Before King, Haynes and Parker, JJ.)
    JAMES M. ASHLEY, JR. v. EDWIN C. WALKER.

      ''Contract for sale of shares of R. R. stock — Breach by refusal to <accept — Re-sale by broker—
    (1). In a contract for the sale of shares of stock, on refusal of the vendee to accept the stock, the vendor may sell the same for the best obtainable price, and if the proceeds of such sale are less than the amount named in such contract, together with the expense of sale, he may recover of the vendee such difference.

      Re-sale — What required—
    <2). Such a sale shall be fairly made and within a reasonable time after the refusal of the vendee to accept the stock.

      Reasonableness of time — When question for jury, and when for court—

    (3). Whether the time when such sale was made was within a reasonable time after the breach of the contract by the vendee, is a question of fact to be submitted to the jury, unless the undisputed facts and inferences reasonably drawn therefrom clearly show the time to be either reasonable, or the contrary, when the question becomes one of law for the court.
    Error to the Court of Common Pleas of Lucas county.
   King,' J.

This action was brought in the court of common pleas by Edwin C. Walker, against James Mr. Ashley, Jr'., setting forth that the defendant, Ashley, on or about the 8th day of February, 1896, entered .into an agreement in writing,of which this is a copy:

“February 8th, 1893.

“Mr. William S. Calhoun,

“Dear sir:

“For value received you may deliver to me at any time within four (4) months from date two thousand shares (2000) Toledo, Ann Arbor & Nor. Mich, stock at thirty-nine dollars a share. An indenture on back.

(Signed) „ “J, M. Ashley, Jr-”

On the back of said paper is written the following:

“2-8-93.

“This put becomes operative and in full force and effect in blocks of 500 as the numbers of the certificates under this put are given to me and is good only for the certificates so enumerated to the full number of 2000 shares.

(Signed) “J. M. Ashley, Jr.”

The petition also averred that subsequent to the execution of this put, Calhoun had purchased one thousand shares of the stock of this railroad, within the period named in the contract, to-wit, four months, and that on the 26th day of April, 1893, he had duly tendered the stock to the defendant,' who had declined to receive it, and refused to pay for it. That thereafter the stock had been sold by him on account of defendant, at the best prices which could be obtained therefor, which was very much ’ less than the sum named in the contract,of $39 per share. That he had thereby sustained damages in the sum of $25,525.00, for which he asks judgment with interest thereon from April 26, 1893.

To this petition an answer was filed denying that on the day named, the defendant entered into a contract with William S. Calhoun like the one set up in the petition, but admitting that a certain agreement had been made, without setting forth what it was, but claiming that the plaintiff should, on the trial, produce proof of his agreement. Then there were certain denials, denying that he purchased the stock which it was claimed he had purchased, and denying that he had transferred his title in it to the plaintiff Edwin C. Walker. Then there was a cross-petition.

This action came on for trial in the court of common pleas upon these issues; evidence was introduced, after which the court charged the jury to return a verdict for the plaintiff for the amount claimed in the petition. Motion for a new trial was made and overruled, and it is sought here to reverse the judgfhent rendered upon that verdict because it is contrary to the law and the evidence, and because it is alleged that the court committed error at the trial, in instructing the jury to return a verdict for the plaintiff.

The first-reason assigned by counsel for plaintiff in error for the reversal of this judgment ia: That the contract sued upon was not binding upon the plaintiff, but only binding— if on anybody — upon the defendant; in other words, that it a unilateral contract. The agreement was that the defendant, within four months, was to pay $39 a share for 2000 shares of stock that shold be furnished to him by Calhoun, but that Calhoun did not agree that he would furnish 2000 shares, or any other number of.shares, within that time.

We do not look upon that contract with the view taken of it by counsel for plaintiff in error. In the first place, it will be borne in mind that the contract recites a consideration: “For a valuable consideration, I agree to take and pay for 2000 shares of this stock to be sold and delivered to me by Mr. Calhoun, if the same be delivered within four months and in blocks of not less than 500 shares at a time. ” So that the contract iitself imports a consideration for the option.

Again, we think it would be binding when accepted; and that an acceptance is shown when the person named in the -contract complied with its terms, had purchased and continued to offer to Mr. Ashley the stock named in the contract, or a part thereof, in blocks of not less than 500 shares.

A text book cited is Clark on Contracts, pages 168-9:

“In snch case, however,- according'to the better opinion, -as we have seen in treating of offer and acceptance, the •promisor is in the position of one who has made a continuing •offer,which, though it may be withdrawn before anything is done by the promisee, will become binding in return, or by doing the acts contemplated. In giving the promise or •otherwise supplying the consideration, he supplies the element of mutuality. If, therefore, a person promises to sell such goods as another may order, or to sell land if another ■shall choose to buy it, and before his order is withdrawn the other orders goods, or agrees to buy the land, the promisor is bound to sell at the price named.”

And one or two authorities I will briefly refer to:

70 N. Y,, 202, is a case almost like the one before the •court.

“A contract whereby A., for a valuable consideration, •agrees to purchase of B. gold coin at a specified price within a specified time, B. having the option to deliver or not, is not upon its face a wager contract within the meaning of •the statutory provision declaring such contracts void.”

They do not there discuss the question of mutuality, but 'they decide that the contract was binding upon the purchase and offer of the coin.

So in 71 N. Y., 420, in a case similar in point:

“An agreement for a valuable consideration by A-. to ■purchase from or sell to B., at the option of the latter, a Certain number of shares of stock within a limited time at a specified price is not. per se a gambling contract. An illegal intent will not be presumed; and in the absence of proof that the parties were merely speculating upon the ■fluctuations in the price of th.e stock without any intent that A. should deliver or accept, but simply should pay difference, the contract is valid and may be enforced.”

In that case it seems that the objection was that it was a gambling contract. That objection is not urged to this contract. But the stock itself was to be sold, provided that 'Calhoun should, within the time named, purchase and deliver, or tender to the purchaser, the stock in question, in the amounts named; so there is no element of gambling in the contract, and these authorities are to the effect that contracts precisely like it would be binding. No question, •was raised in those cases that the contract was not mutual. In the second place it is urged that the court,in instructing the jury to return a verdict for the amount claimed in plaintiff’s petition, established a rule of damages that is incorrect.

In effect, the court held that the rule of damages in the case at bar was the amount of the difference between the-price named in the contract and the amount which had been received for the stock upon a sale made by Calhoun, some* days or weeks afterwards; and it is contended that the true rule of damages should be the difference between the amount named in th6 contract and the value of the stock at the' time and place when it was tendered or offered.

It appears plainly from the evidence that on the day when this stock was tendered,it was worth substantially the price named in the- contract — $39 per share. It appears-from the evidence — -at least Mr, Calhoun, testifying for the plaintiff says, that he retained the stock in his possession until about the 19th of May — between the 19th and the 25th of May (the tender being made on the 26th of April), and between the 19th and 25th he sold this stock in the stock market in New York, at the Exchange, at public sale; that is, it was public to the persons who were members of the stock exchange; and that he obtained the best price that’ could be got on that day, which was about $11 or $11.50' per share, very much less than the price which ruled on the 26th of April; so that, if the measure of damages be that claimed by the plaintiff in error, the damages to be-awarded to the plaintiff below would be scarcely more than nominal; while, if the rule adopted by the court below was-correct, the rule of damages would be that upon which the jury found. Taking Mr. Calhoun’s testimony as a basis,, there is no question but what the loss was correctly stated.

We think the court below adopted the correct rule upon that subject, and I will refer briefly to two or three authorities upon that question:

70 N. Y., 13, is a case holding that-rule of damages.

In 140 N. Y., 70, is another case. I read from the syllabus:

“A vendor of personal property not delivered, has three remedies against the vendee in default: he may store the property for the buyer and sue for the purchase price; he may sell the property as agent for the vendee, and recover any deficiency resulting, or he may keep the property as-his own and recover the difference between the contract and the market price at the time and place of delivery.”

In Benjamin on Sales (6th Edition), p, 774, the rule is-stated thus:

“The vendor’s remedy, after a re-sale made in the absence of an express reservation of that right, is assumpsit on the original contract, which was not rescinded by the re-sale. And in this action he may recover as damages the actual loss on the re-sale composed of the difference in price and expenses, or he may refuse to give credit for the proceeds of the re-sale and claim the whole price, leaving the buyer to a counter-claim for damages of the re-sale.”

On page 775, in an “American Note”, it is stated:

‘.‘The right of re-sale on the default of the buyer to make payment, and to recover the difference between the proceeds and the original contract price, is universally established in this country.”

Citing numerous authorities.)

“In such sales the vendor acts as agent for the vendee, as the title is not ordinarily re-transferred to him by the-mere default of the vendee in making the stipulated payment. ”

Then, among the authorities which are cited, are: 70 N. Y., 13; 21 Wisconsin, 562, and others; citing numerous cases. These authorities say:

“It is not necessary that the sale should have been made at the earliest possible moment after the default is known,, even though the article be falling in market.”

“Notice to the buyer of the time and place of re-sale is •usual, and is important as tending to prove the sale a fair •one; but it is not absolutely necessary in all cases that such notice should have been given.”

“If the re-sale be fairly made, especially if at public auction, the amount thus obtained is considered as a fair test of the market value, and the difference between the amount thus received and the original contract price is therefore the true standard of the vendor’s damages.”

And a case is cited in 18 Grattan, 785, which sustains the same general doctrine. These authorities would therefore bear out, we think, the rule held by the court below when it undertook to instruct the jury in this case that the measure of damages was the amount named in the plaintiff's petition; but these authorities go a trifle further than that, Oases which I have referred to and did not read hold, that if the vendor or promisor shall undertake to act as the agent of the vendee and re-sell the property, he must do so within a reasonable time, and it is held in one of these New York cases that a delay of two months was not unreasonable. "In the case which I have referred to —18 Grattan — it was held that a delay of five months was not unreasonable.

The plaintiff in error, however, claims that that question should have been submitted to the jury that it was for their determination.- We had occasion to discuss that question in the case of Gladwell v. Holcomb, et al., which I find in the 7th Ohio Circuit Court Reports, page 369. In that opinion the American & English Encyclopaedia of Law is referred to, where it is said, on page 641: vol. 19:

“On principle, it would appear that if a statute or any positive rule of law prescribes the doing of an act within a reasonable time, it is the province of the court in construing such law, to declare whether a given time is, within the •intent or meaning of the law, a reasonable time. So in the ■interpretation of a written instrument specifying a reasonable time, the question what is such time, is one for the ■court to answer, after considering the terms of the instru■ment and the intent of the parties. But an important qualification to both of the above principles is to be noted. If the question as to what is a reasonable time is not resolved expressly or, impliedly by the rule of law, or by the writing which is under consideration, so that the judge in deciding the question would have no legal ground, but merely his individual ideas to go 'upon; and especially if, in addition, the question depends in the individual case upon peculiar, numerous or complicated circumstances — ■ the reasonableness of the time becomes a question for the jury, whose province it is, rather than that of the judge, to say, in view of all the facts of the case, whether or not the time in question is reasonable in the sense of being in accordance with the course of business and the ordinary transactions of life. It has, however, been said that the time in ■question may be so short or so long that the court will declare it, as a matter of law, to be reasonable or unreasonable. ’ ’

And under the latter proposition there is cited in the Encyclopaedia quite a number of cases which seem to sustain the doctrine there laid down, And in line with the proposition above as to submission to the jury, there are a great many cases cited in the Encyclopaedia, and among them a case in 14 Ohio St., 18, which is the only one I care here to refer to. This was a controversy between execution creditors, and the question was whether an officer who held an execution and had levied under the same, had unreasonably delayed to sell the property,so that the creditor in that execution had thereby lost his priority. The court say, in the second proposition of the syllabi, (p. 18):

“The question whether the delay, if any, was reasonable ■or unreasonable, depends on all the circumstances surrounding the parties and the property seized in execution, and is, peculiarly, a question for the jury, under the instructions of the court.’'

Now these authorities would seem, perhaps, to be opposed to the rule which was stated in the case cited by this court, but we think they are not: they only apply to different cases, as we undsrtake to say there that we think it a proper rule that where the tima is clearly either reasonable or unreasonable, it is the duty of the court so to determine, just as it would be the duty of the court in an action based upon negligence-^-said to be a mixed question of law and of fact and one peculiary for the jury — yet, where the' acts were such that any reasonable man would say that they were the exercise of ordinary care, it is the duty of the court' to say so; or where the acts were such that a reasonable' minded man would say it was negligence, it would be the-duty of the court to say so; but in any case of doubt, or-where minds might differ, it has been held by the supreme-court that it is a question for the jury. In the Gladwellcase before the court at that time, there was no question■ made that, if the rule of law was that reasonable time should ■ be given, that that reasonable time had in that case been given — -which was a notice to leave the premises — the contention being that the law was that the common law rule should prevail. The court held that the justice of the peace-had not erred in saying that the time named (four months)' was a reasonable time. But, in this case, the facts and-circumstances are very different. In this case it appears-that on the day when this tender was made, this stock was substantially worth the price named in the contract. It fell* on that day several dollars per share, and some days later-it raised, and then again it fell and seemed to continue to-fall until about the 19th or 29th of May it had fallen to-about eleven cents per share, and then Mr. Calhoun put it upon the market and sold it, claiming here, as he does,, that he sold it for Mr. Ashley,the defendant.

Now, we think whether that was done within a reasonable time or not, in view of all the circumstances of the case, in view of the condition of the market, in view of the character of the stock, in view of what was the condition of the railroad of which this was the stock, that the whole question should have been submitted to the jury to determine whether that sale was made within a reasonable time. Again, it appears in this evidence, by the testimony of Cal- . hoim and of another individual who was present with him, that they made a tender of this stock on the 26th day of April,and that Mr. Ashley refused to receive it; that on the following day they returned with the stock and presented it to Mr. Ashley, and he again refused to receive it. They ■do not, either of them,testify to any conditions attached by .Mr. Ashley to his refusal on either day. Their testimony was taken by deposition, and they were not present at the “trial. On the trial of the case Mr. Ashley testified that Calhoun tendered him the stock on the day named and he refused to receive it, claiming that it was the custom or rule of the stock exchange that he should have 24 hours within which to accept the stock — in other words: — 24 hours within which to get ready to pay it; that there was some conversation about it, and the men went away. They took ■the numbers of the stock, and thereupon he followed them, - amd they went directly to the stock exchange, to the floor thereof, and the same man who had offered him a thousand •shares, put up the thousand.shares for sale and sold it immediately for 138.50 per share. .That on the next day he came back with another thousand shares of stock. On cross- • examination Mr. Ashley says the stock brought to him on the second day was the same stock which was brought on the first day. It is not clear, that is from that testimony, that Mr. Ashley meant to say that he brought the same ■■identical certificates on the second day that he brought him ■on the first day. We think that,as it appears here that Mr. ■ Calhoun himself was the owner of only a thousand shares ■which he bought for the purpose of fulfilling his contract, that he must have kept his tender good, and must have sold the identical stock in May that he tendered on the 26th of April. He could not tender this stock and then turn that ■over to the broker and tell him to sell it, then borrow some >more stock and go back and make a new tender.

C. 8. Ashley, for Plaintiff in Error,

Seribner & Waite, for Defendant in Error.

It was suggested that it made no difference whether that was the same stock or not, but we think it does. If he were a general stock broker, and had a large amount of this stock, and he had offered Mr. Ashley a thousand shares and Mr. Ashley had not accepted it, and he had' gone away and then sold perhaps the precise thousand shares, but had kept the tender good for a thousand shares, perhaps it might make no difference; but Mr. Calhoun was not a stock broker and he did not himself, individually, offer this stock for sale — -it was offered by a stock broker, by an agent of the plaintiff in this case, named Taylor, who had access to the floor of the stock exchange, and Mr. Calhoun was not in that business. He had entered into these negotiations perhaps to make a little money and to help Mr. Ashley, so that if his thousand-shares of stock was actually sold on the day he made that tender, he must stand by the price received for it. There is evidence to indicate that tbere was a dispute on this question, and that should have been submitted to the jury— therefore this judgment will be reversed, and the case remanded for a new trial. '


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, J J.,
    THE UPHAM MANUFACTURING CO. v. GIBSON & WARRINGTON.

      Journal entry prevails over statement in bill of exceptions—

    (1.) Where it is shown by a journal entry that a motion for a new-trial was overruled on a certain day, but the bill of exceptions recites that it was overruled on a different day, the former must govern.
    Same—
    (2.) A motion for a new trial was overruled on July 22, but was entered on the minutes as having been overruled on the preceding dune 29, the last day ef the term at which the trial occurred. A bill of exceptions was allowed and signed on September 9, forty-nine days after the overruling of the motion, Held — That the fifty days allowed for signing the bill began to run from the date of the entry, and not from the date of the overruling of the motion as shown on the bill.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

As all'of the questions in this case arise on the bill of exceptions, and it is claimed by the counsel for the defendants in error that such bill can not be regarded or considered by this court, this question must be first disposed of, for if found in favor of the defendants in error, the judgmpnt must be affirmed.

As shown by the transcript of the journal entries, on the 15th day of May, 1895, the jury which.tried the case in the court of common pleas, rendered a verdict in favor of Gibson & Warrington, the j laintiffs below, against the defendant company for 12,177.28. On May 17th, 1895, a motion for a new trial was filed by the said defendant, and on June 29, 1895, an entry was made on the journal of the court overruling that motion, and rendering .judgment in accordance with the verdict. This was on the last day of the January term, of that year.

On the same day (June 29th) is an entry in these words:

“Now comes the defendant, and presents to the court its certain bill of exceptions herein, which being found by the court to be true, and to have been submitted to opposite counsel in accordance with the statute in such case made and provided, is allowed, signed, and on motion made part of the record in this case.”

If the bill of exceptions which is found among the original papers in this case, had purposed to have been signed by the trial judge on the day when this entry was made, of course everything would have been in accordance with the provisions of the statute, and the question raised could not have arisen; but instead of this the bill expressly states that it was signed and allowed on the 9th day of September, 1893, which was seventy-two days after the overruling of the motion for a new trial, while the statute expressly provides that it must be submitted to the trial judge within forty-five days after the overruling of such motion, and be signed by him within fifty days after such overruling, unless by endorsement thereon such judge extends the time for ten days longer. It is clear, therefore, that if the motion for a new trial was overruled on June 29, 1895, and the bill of exceptions was not, in fact,signed and allowed until September 9 following, the trial judge had lost jurisdiction to allow and sign any bill of exceptions based or founded on the overruling of such motion, and his act in doing so was nullity, and the bill can not be regarded by us.

But it urged by the counsel for the plaintiff in error, that this should not be so,for these reasons: That the bill of exceptions itself shows by a recitation therein, that the motion for a new trial was not overruled until July 22, 1895, and that as the bill was allowed and signed on the 9th day September,1895, which was only forty-nine days after the overruling of the motion for a new trial; that it was so allowed within the fifty days given by the statute,and if the motion in fact was overruled on July 22, the claim would be well founded. But as the transcript of the journal entries shows that it was overruled on June 29, and not on July 22, the question arises whether a reviewing court is to be governed by the record of the court as shown by* the entry on the journal, or by the statement made as to this by the trial judge in the bill of exceptions signed by him afterwards. Before discussing this question it may be well to say, that there is an indorsement on the bill itself in the handwriting of the judge, directing the bill to be filed on September 9, and the entry allowing the bill of exceptions, which was copied upon the journal, is indorsed by the trial judge directing it'to be entered the same day, September 9; but for some reason, not explained, t’his entry also appears upon the journal of June 29, 1895, following the entry of the overruling of the motion for a new trial.

We are of the opinion that where the record of the court, that is the journal entry made, shows that a motion for a new trial was overruled on a day named, and the bill of exceptions, recites that it was overruled on a different day, that the former must govern. The statute, section 4962, provides that the clerk shall keep the journal, and record the proceedings of the court, and it follows that if a motion for a new trial is overruled, it must be entered upon the journal with the date at which it is done; and while such entry stands, it is conclusive. It is true that under other provisions of the statute, bills of exceptions, when allowed, are to. be filed with the pleadings of the case, and if desired, made a part of the record of the case; but it could not properly be held, we think, that any recital therein by the trial judge, could in any way override or control a regular entry on the journal of the court, which the law requires to be placed thereon; that if the journal is silent as to any action of the court which is required to be there, that a statement in the bill of exceptions that such action was had, will not take the place of the journal entry. Accordingly it has been held by this court in several cases, that were the journal of the court shows that no exception was taken to the overruling of the motion for a new trial, a statement in the bill of exceptions that it was, would not supply the defect. See, also, Heffner v. Moyst, 40 Ohio St., 112, and Challen v. Cincinnati, 40 Ohio St., 113.

The difficulty, then, which meets the plaintiff in error in this case, is this: the motion for a new trial having been overruled June 29, 1895, and the journal showing that a bill of exceptions was allowed on that day, there is no such paper with the files, the only one being that signed on September 9, and under our holding m the Gazlay case, 8 C. C., 256, the journal entry of June 29, can not be held to apply to that bill, even if the clerk improperly marked it as filed as of June 29. And as the journal shows no allowance of a bill on September 9, there is nothing to show that the bill in question was filed on that day; and if there were, it would, as we have held, have been too late, as it would not have been singed within fifty days from the overruling of the motion.

H. P. Lloyd, for Plaintiff in Error.

' W. Prather, for Defendant in Error.

In view, then, of the facts in the case, and the clear decisions of the supreme court that the provisions of the statute as to the allowance of bills of exception are mandatory, and if it appears from the record that they have not been strictly complied with, that the trial court has not authority ■to sign or allow a bill, we feel compelled to hold that this bill of exceptions can not be regarded, and that the judgment must be affirmed.