author: M'akvin, J.

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, J J.
    S. R. PENFIELD & E. J. GOODRICH v. EMMA J. MASON.

      Partnership — Note by one partner in firm name — Liability of co-partners—
    Where one partner, to secure his individual debt, or the debt of an outsider, uses the name of the firm without authority from his co-partners, under such circumstances that the payee has actual or constructive notice that the firm name was so used not for the benefit or for the business of the firm, to hold the other partners liable, the burden is on the payee to show that such other partners assented either before or after the execution or endorsement of the note or bill, and that the firm name was used either with their approval, or that they after-wards ratified it.
    Error to the Court of Common Pleas of Lorain county.
   M'akvin, J.

The case of L. R. Penfield and E. J. Goodrich against Emma J. Mason, is here for the second time upon a petition in error. At a former term a petition in error was filed by the present defendant in error.

The suit was brought in the court of common pleas by Mrs. Emma J Mason against L, R. Penfield and E. J. Goodrich upon a promissory note, dated at Hillsdale, Michigan, on the 28th of January, 1887, calling for the payment of 1600.00, with interest at eight per cent, in one month from date.

Both defendants set up that the note is barred by the statute of limitations, or rather that the action is barred because of the statute of Michigan, which provides that suit upon a contract not under seal shall be brought within six years after the cause of action arose, and our statute provides that when an action would be barred in the state in which the action arose it is to be barred in our own state.

If this were the first suit brought upon this note, there would be no question that the action would be barred; because this suit was brought on the 25th day of October, 1895; but when this action was before the court at the former term, the question was raised, and we held that because of an action brought in 1892, by Mason upon this note, which was dismissed by the court for want of prosecution and not upon the merits, and dismissed after the period of six years from the time the cause of action arose, and that this suit was brought within one year thereafter, that under the provision of our statute it was not barred. But it is said in this case that no proper evidence was introduced to show that the first action was not brought within the time fixed by the statute of Michigan,

The evidence on this subject is found on the 99th page of the bill of exceptions, and is simply a copy of the petition, which was filed in the case that is said to have been brought in 1892, together with a copy of the journal entry that was made in the case.

Mr. E. G, Johnson, who represented the defendants in the action, made this admission “I will admit that the paper offered by counsel for plaintiff in this case (and that was the petition filed), was filed in this court in case No. 3627 of Emma J. Mason against E. J. Goodrich and others, and it was filed at the time it bears date”. The objection made is, that this does not establish that the action was commenced.

The journal of the court offered in evidence shows that the petition thus filed was afterwards dismissed by the court for want of prosecution without prejudice to a new action.

No evidence was introduced to show that a summons was issued upon this, but it is admitted this petition was filed in the court of common pleas of this county. The petition is here introduced,and shows it was upon this note and against these defendants; it is admitted it was filed in that case. We think that the evidence is sufficient to show, in the absence of any thing to the contrary,that the action was commenced within the time; so we adhere to the ruling of the court at the former hearing in this court, although at that time the question of whether this was sufficient evidence that that action was commenced was not raised.

An examination of the record shows that a good many objections were made and a good many exceptions were taken to the introduction of evidence, notably on the cross-examination of Mrs. Mason.

In addition to the defense of the statute of limitations, the defendant Goodrich claims that the note was given by Penfield alone. Goodrich and Penfield were partners doing a retail business at Hillsdale, Michigan, Goodrich living in Ohio, in this county. He did not spend his time at Hillsdale. Penfield spent his time at Hillsdale. Goodrich says that Penfield gave the note and signed the name of the firm “Penfield & Goodrich” for a debt in which he, Goodrich, had no interest; in which the firm of Pen-field & Goodrich had no interest. That Mason,the payee, the plaintiff below in this action,knt of that fact,and that hence he is not liable upon the note.

Upon the examination of Mrs. Mason it was sought to show that she knew that the note was given in payment of a debt owing by her son-in-law Allen to a Mr. Stebbens of Chicago. The court excluded the evidence, ruling that the questions put were not proper, and it is manifest that the court did that upon the ground that it was not a proper' cross-examination of Mrs. Mason; that it was going into the defendant’s case, because when Allen was upon the stand, he was permitted to testify to conversations, the same conversations that were asked about of Mrs. Mason, and Allen Was permitted to tell all about it. There was no error in the ruling of the court upon the question, Nor do we find that in any of the rulings upon the evidence there was any error to the prejudice of the plaintiffs in error, or either of them.

The court allowed evidence to be given to show that the note was given for money furnished to Penfield by Mrs. Mason; that the money thus obtained from Mrs. Mason was used in the payment of a debt to Stebbens; that the debt to Stebbens was evidenced by promissory notes signed by Penfield & Goodrich. That the indebtedness to Stebbens accrued on account of a certain publication sold hy Steb-bens, called “Oram’s Atlas”. The evidence shows that Allen was engaged in the selling of this atlas in the state of Michigan. That Stebbens, who was either the publisher or the wholesale dealer, .1 believe the publisher of the atlas, would not sell to Allen upon his credit, and that Allen made an arrangement with Penfield by which Penfield should order the atlases, and Penfield should have a commission of five per cent, upon such as Allen should sell.

Allen in his testimony says that he don’t remember that that arrangement of paying five per cent, commission was made; he says so in this record, but Penfield says it was; so that the jury were justified in believing that it was agreed upon.

Now, when th’s case was before this court at the former hearing,in the opinion then delivered it was said that under the evidence, the indebtedness to Stebbens was an indebtedness of the firm of Penfield & Goodrich; that was said by this court upon the same evidence which is found in the present record.

Penfield & Goodrich were engaged in the book business, the selling of books at Hillsdale. Here was the publication of an atlas. It is true Mr. Goodrich testifies that the atlas was not sold in bock stores, and upon cross-examination he knows that because he is in the book trade, and had not been able to get Oram’s Atlas to sell after some correspondence; but we still think, as announced in the opinion before, that if Penfield went into the business of dealing in books of a particular kind at Hillsdale without letting his jartner know that he was engaged in the selling of that book, to-wit: Oram’s Atlas, but he was engaged in that business to the extent that he was having the books bought on the credit of Penfield & Goodrich, and evidencing the indebtedness for the books by the notes of Penfield & Goodrich, and receiving a commission for the publication thus furnished, that Goodrich would be entitled to his proportionate share of that five per cent, and "that it was the business of Penfield & Goodrich.

We do nit believe that Penfield could prevent Goodrich from having an interest in the sale of books at their store in Hillsdale; that he could say this publication I will call my own individual matter. I will have the work shipped to Penfield & Goodrich; I will have the firm of Penfield & Goodrich order, and have the books paid for by their notes; but I will take the profit of that publication, and Goodrich shall have no part of it. We still think this business belonged to the firm of Penfield & Goodrich, and in this connection I may as well speak of the language that was used by the court in its charge, without stopping to read it all. The substance of it was, that he had permitted •evidence of the dealings of Penfield and Stebbens to be introduced, but that whatever the character of the notes given by Penfield & Goodrich to Stebbens was, whether it was an indebtedness of Penfield & Goodrich or not, was a matter with which they had no concern.

That is the substance of what the court said. We think that whether this instruction was proper or not, it was not to the prejudice of either Penfield or Goodrich, under the view we take of the case that this was the business of Pen-field & Goodrich.

If we are right in the proposition that this indebtedness to Stebbens was the indebtedness of Penfield & Goodrich, and the money borrowed from Mason was used to pay that debt, then neither Penfield or Goodrich suffered by this charge.

The court said to the jury that a note given, signed with the firm name, and given by one of the partners, prima facie was the indebtedness of the co-partnership, and that the party taking such, note, even though it were given for an individual indebtedness of the partner who signed the name, still,unless the party accepting the note had actual or constructive notice, (the court defined what was me»nt by constructive notice properly), that it was not for the business of the firm, then the firm would be bound by such note.

And the court.said further, that the burden of showing that the payee of the note or the holder of the note had such notice, actual or constructive, that the note was not given for a debt of the firm, was upon the defendant undertaking to defend on that ground.

This is urged upon ns as error, and we are cited to the text and notes in the 17th Am. & E. Enc. of Law, at pages 1024 and 5, where this language is used,

“The signature or indorsement of the name of a firm upon a bill or note is presumed to constitute a joint obligation incurred in good faith and in the regular course of business, the burden of proof resting with the partners to establish the contrary; but upon the establishment of the fact that the obligation was given by the signing partner to pay an individual debt, or to obtain a loan for himself, or as an accommodation or security for others, or for a purpose outside of the scope of the business, or for other unauthorized or illegal purpose, the burden is shifted, and it then restb with the holder to establish that the partners either authorized or subsequently ratified its issue”.

A large number of authorities are cited to that proposition in this work; quite a number of those are valuable and we have examined them. But it will be noticed that the matter here spoken of is where the note is given to pay a debt of the partner who signs the note, or as accommodation or surety for others, or purposes outside ,of the scope of business, or for some unauthorized or illegal purpose.

One of the cases cited in the notes referred to .is found in 5th Connecticut, page 574. The case is that of the New York Firemen’s Insurance Co. v. Bennett and others. That is one of the authorities cited in support of the proposition which I have just read from the Encyclopedia. I read from the syllabus:

“'Though the indorsement • of a note, by one of the several partners, in the partnership name, for his individual purpose, without the consent or knowledge of the other partners, will, after the security has passed into the hands of a bona fide holder, bind the firm; yet an indorsee, who, at the time of receiving such security, did not know, but was ignorant through gross negligence, that it was indorsed under such circumstances, cannot avail himself of it to subject the firm, The indorsement of a note by one of several partners, in the partnership name, as surety for a third person, without the consent or knowledge of the other partners, will not bind the firm; and the burden of proving the authority of the partner so using the partnership name, lies on the creditor or holder of the note.
‘‘Therefore, where A. B. and 0, were partners, doing business in th.e city of New York, where A. resided, and in Fredericksburgh in Virginia, whereB. and C. resided; and A. indorsed a note in New York, in the partnership name, without the consent or knowledge of B. and C. ,as the mere surety of D. a third person, for a debt previously due from D. to the indorsee, the partnership having no interest in ■the transaction; in an action by the indorsee, against all the partners as indorsers, it was held, that the plaintiff could not recover, although the jury should find, that he had no knowledge, express or implied, of A’s. want of authority. ”

Now an examination of that case will show that the in-dorsee was a creditor of D, and that the circumstances were such that a prudent man would have inquired into how it came that the partnership name was used here as in-dorser of that note to secure the debt of still another firm. I I will read from the text here.

“ By long established law, originating in the custom of merchants, a contract by one partner,having the appearance ■of being in behalf of the firm, is considered as being obligatory on the partnership, Whenever a bill is drawn, accepted or indorsed, by one of the several partners, during the partnership existence, and in behalf of the firm, and it gets into the hands of a bona fide holder, the partners are liable, though in truth the partner negotiated the bill without the consent of the partners, and for his own peculiar benefit. But, in respect of a person, who, at the time of receiving the bill, knew or had reason to believe, that 'the partfaer negotiated it for his individual advantage, and without the concurrence of his associats, the bill is entirely unavailable. ”

Now the court in the opinion held in substance this, and an examination of the language used in the Encyclopedia, it seems to me shows that the text writer meant this, where there is a debt owing by one of the partners, or where one of the partners for the purpose of securing the debt of some outsider, uses the •name of the firm without authority, or rather uses it under such circumstances that the payee has actual or constructive notice that the firm name was so used for the benefit of the firm or the business of the firm, then in order to hold the partners who did not make use of the name, I mean partners other than he who signed the name, in order lo hold the other partners, the burden is upon the creditors to show that they assented either before or after the making of the note, or the indorsement of the bill, that it was done either with their approval or that they thereafter with knowledge ratified it. But the burden is'Jupón the-creditor to show that.

E. 6r. Johnson and W. B. Bedortha, for Plaintiffs in Error,

Ben. W. Johnson and N. L. Johnson, for Defendant in* Error.

An examination of every case cited and of some which are not cited in that text we think establishes the proposition that the party to whom a note is given or who is in any way a bona fide holder of the paper, is entitled to recover where it is apparently in the partnership business and there is no notice to him that it is not in the partnership business, and that these other cases establish that the burden is upon the party who seeks to show that there was notice.

In the case in the 5th Connecticut, to which attention has been called, the opinion contains a very full discussion of the rights of partners to bind the firm, and of the circumstances under which a partner may be relieved. To the same effect is the case of Heffron v. Honaford, 40th Mich., 305. The case of Sebor v. Armstrong, 3 Pickering, page 5. The case of Hommell v. Ganewell, 5th Blackford, page 210. Authorities cited in these cases fully justify as-we think the charge of the court upon the proposition which has been discussed, and the charge of the court as given; which I will not stop to read, in which the court used language as to the right of a creditor who receives a partnership note to collect upon it where it is received in good faith- and without any notice, actual or constructive,that it is not the note of the firm.

And this disposes of the requests made by the defendant which were refused, which I will not stop to read, but which, if the law is as I have stated, as wé understand it to be, the court properly refused. We find no error in the case for which it should be reversed, and the judgment is-affirmed.


source: Caselaw Access Project

author: MaeviN, J. ’

license: Public Domain

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    JOSEPH H. BALDWIN v. S. CURTH.

      Lease of land on shares — Growing crops at termination of termr— Bights of parties—
    fl.) Where land is rented for a term, on shares, with the provision that the tenant should be entitled to his share from crops put in by him and growing at the time of the termination of the lease, the lessor, having entered into possession of the land at the termination of the lease, has no right to plow up a growing wheat field put in by the tenant before the termination of the lease, and his doing so is trespass, for which he is liable in damages.

      Same — Computation of lessor’s one-third—
    (2). In the computation of the value of the lessor’s one-third share m the growing crops, the fact that the lessee will be at the expense of cutting and threshing the wheat in harvesting the same, must be considered.
    Error to the Court of Common Pleas of Lorain county.
   MaeviN, J. ’

The case of Joseph H. Baldwin v. S. Curth is a proceeding in error, seeking to reverse the judgment of the court of common pleas; and the case grows out of this state of facts:

Curth brought suit in the court of common pleas, setting out that he leased from Baldwin a farm for a period of two years from the first of April, 1893. A copy of that lease is attached to the petition, and among the provisions in the lease is that certain wheat which was on the ground at the time the term granted by the lease began, should belong to the lessor, Baldwin, who should have a right to take it off, and if Curth,the lessee,should leave any wheat growing upon the ground at the end of his term, which would be the first of April, 1895, he should have the right to harvest it, giving to Baldwin the share which under the custom of the community, the land owner would be entitled to if the wheat was raised upon shares, and the division should be made to him, to be measured by the bushel. He says that he did leave twenty-seven acres of wheat growing upon the land when his term ended on the 1st of April, 1895 — wheat which was sown in the fall of 1894, to be harvested in 1895; that Baldwin shortly thereafter entered upon the premises and plowed up and destroyed twelve acres of this wheat to the damage of Curth and in violation of his rights. Baldwin answers, admitting that the lease was made, admitting that he plowed up some wheat put in by Curth, but says the amount is less by an acre than that complained of; but he says the reason why he did this is because Curth put in more wheat than he had a right to, and that he had destroyed a meadow which he had no right to destroy.

The lease provided that the farming must be done in a proper manner, according to the rules of good husbandry. He says Curth did not carry out that provision of the lease, and he files with his answer a cross-petition in which he ■says that Curth cut down and destroyed three maple trees of considerable value, for which Baldwin should have pay from Curth; that he destroyed a meadow by turning cattle upon it, after Baldwin had seeded it properly to grass, and that he destroyed it; that he permitted certain fence posts to be washed away by high water and that he should pay for these, thus charging Curth with waste in these several ways, and he asks a judgment against. Curth.

The case was tried to a jury, and the jury returned a verdict for the plaintiff in the sum of $98 and some cents. There was submitted to the jury,at the request of the plaintiff, certain interrogatories which were answered. Attention is called to these, because of the fact that some of the law questions are affected by the answers to these questions. (I ought to say a reply was filed to this answer and an answer to this cross-petiticn, in which the plaintiff says it is true that he cut down three trees, but he says he cut them down with the knowledge and consent of the defendant.)

The lease provided that Ourth should have his fire-woods from off the premises, but that he should not cut down, growing trees or timber except by special permission of" Baldwin,

The first of the interrogatories propounded to the jury upon which they were specially to find, reads: “Did the plaintiff cut down the three trees with the knowledge and' consent of the defendant”? And the jury answered “Yes”.

Second: “Is the plaintiff indebted to the defendant on account of any of the claims set forth in the cross-petition of the defendant”? To which the jury answered “No”.

Third: “If the plaintiff is indebted to the defendant on account of any of the claims set up in the cross-petition,, etc.” Of course, there was no occasion to answer this, because the jury had already answered that the plaintiff was not indebted to the defendant on account of any of the claims set up in such cross-petition.

An objection was made upon the trial of this case to the introduction of any evidence under the petition. The claim-is that no cause of action was set out in the petition, The theory upon which that claim is made is, that this is substantially an action of trespass; that the petition shows that Baldwin was entitled to this land which ■ he plowed, and was entitled to its possession in 1895 and that therefore he could not be held for a trespass upon such land; that the damages which Ourth seeks to recover are-simply an incident of that trespass, and unless an action for trespass can be maintained, he cannot recover for such incidental damages.

The case of Brown and others against Lake, found in the 29th of the Ohio State Reports, at page 64, is relied on to' sustain the proposition that the action cannot be maintained.

The syllabus reads:

“In an action to recover damages for unlawfully breaking and entering the dwelling house of the plaintiff and removing, the roof therefrom, whereby the property and family of the plaintiff were exposed to the inclemency of the weather, and the plaintiff became sick, Held: That if the plaintiff fails to prove the trespass, no recovery can be had on account of any of the alleged consequential damages'’.

In that case the suit was brought by a party who was in the occupation of a certain dwelling house, and the suit was against the defendant for going upon the premises and removing the roof for the purpose of making repairs, and for injury to the health of the plaintiff, resulting from the inclemency of the weather which came in,by reason of the removal of the roof. On the trial it turned out that the defendant had a perfect right to enter upon the premises; they were his, and plaintiff had no right there, and the court held that since there was no trespass that could be maintained, no recovery could be had for the injury to the plaintiff’s health.

We think there is a clear case here of trespass under the decision in the case of Wilber v. Paine, 1st Ohio Reports 251. Attention is called here in the argument to Swan’s Treatise, 15th Edition, pages 825 and 826. An examination of these pages seems to establish that Baldwin was a trespasser if the averments of this petition be true.for .although the term ended in April, 1895, the party who put in the crop had a right to protect the crop and harvest it, and may maintain trespass against the owner for coming in upon it. We think the ruling of the court that evidence could be introduced under this petition was right.

While the plaintiff was upon the witness stand, he was asked what was the fair market value of this growing wheat which was destroyed by Baldwin. An objection was made that he had not qualified — he had not shown that he was prepared to give an answer that would be of any value. It was shown that it is only an occasional thing that wheat is sold, growing wheat, by the acre, although some times sold by administrators of estates of deceased persons, and pernaps by others occasionally, The plaintiff,it seems,had purchased two fields of growing wheat. The purchase was all made at one time. It was in Ashland county,some years since, but he was a farmer, had been farming on his own account for ten years, and had that much knowledge of the value of growing wheat. We think it was not error to allow him to testify as to the value. It might not be of very great aid to the jury, but he had some knowledge better than a man who knew nothing of farming; better than a man who never made a purchase, or knew of a sale or purchase, of wheat upon the groundv— growing wheat, by the acre, and we do not think there was any error in allowing that question to be answered.

The defendant put upon the witness stand Lawson. Taylor, and he was being examined with a view to showing that the management of the farm by Curth had not been such as good husbandry would require. That he did not properly farm the land, and that it was bad'husbandry to have destroyed the meadow that it was alleged had been destroyed —plowed up for the purpose of putting in this wheat, and Taylor was asked about the character of that meadow, for this wheat was grown upon land which had once been a meadow. He was finally asked the question, “How much hay was cut to the acre upon that meadow when Risden occupied the farm?” Risden had been a tenant of Baldwin upon this farm, and it was in the summer of 1892 that Risden cut this hay. As this land was plowed up for wheat in 1894, it would seem somewhat remote to undertake to show that it was bad husbandry to plow up a meadow in 1894, which had produced a crop of grass in 1892, and which the defendant proposed to show by Taylor was a ton and a half to the acre. We think there was no error in excluding that. When Baldwin himself was upon the stand, he was asked whether the plowing up of this meadow land was in accordance with good husbandry. An objection was made by the plaintiff, and that objection was sustained and an exception taken, but no statement was made as to what the answer of Baldwin would have been. For ought that appears he may have said it was in accordance with good husbandry. We cannot say that there was error to the prejudice of Baldwin in this ruling of the court. We do not know what his answer would have been except as we. may infer that a lawyer is not expected to .ask a question the answer to which will prejudice his case, though it has sometimes been done.

The court charged the jury, and the only exception taken to the charge was to the refusal of the court to charge as requested by the defendant. There were two requests made to charge, one of them was:

“If you find from the evidence that the plaintiff did not leave the rented premises of the defendant in as good condition as they were in at the time he took possession thereof, the natural wear and tear excepted, then you may inquire whether he so left them through malice or ill will; if you find from the evidence he did, you may go further than mere pecuniary damages and give the defendant exemplary damages, that is, such damages as will be an example, and in that you may include a reasonable attorney fee’’.

This the court refused, but the jury found specially that the defendant was not entitled to recover on any of the things set up in his cross-petition, so whether that ought to have been given or not there was no prejudice; because the jury found there was no wrong doing on the part of the plaintiff, there surely was no malice; therefore there was no error to Baldwin’s prejudice in refusing to give this request.

The other request I will not stop to read; it is long. The substance of it is, if you find that the plaintiff had not properly farmed that land and had not left the feed on the farm that good husbandry would require, and the like, and that in order to restore the farm to as good condition of husbandry as when the plaintiff took possession and that to provide a proper amount of feed and support for stock it became necessary to plow up this wheat, the defendant had a right to plow it up and the plaintiff could not recover. We do not suppose that one may go and destroy the property of another in such a way as this, go and plow up his crop of wheat because he hasn’t farmed the land as it ought to have been farmed, and without reference to how valuable the wheat is as compared with the injury that has been done. That is not the way for a man to right his wrongs; the court properly refused to charge this request.

And one other objection urged is, that the damages are excessive. The damages are, as found by the jury, ninety-eight dollars and some cents, and the claim is made that the jury made a mistake in this, since Baldwin was to have one-third of the wheat; for they say that that would be the share that Baldwin would be entitled to under the custom of the community; since he is to have one-third, leaving Curth two-thirds; that it would be a mistake to allow Curth the value of the entire two-thirds as it stands upon the land, and T think that that is true. If there were twelve acres of wheat growing, and each acre was of equal value, so that one-third of that set off to Baldwin would have been his share, and each acre was worth ten dollars, Baldwin’s four acres would be worth more than ten dollars an acre, because he is to have his cut and thrashed at the expense of Curth. So that if an estimate was made by saying that is worth $12.00 an acre, and there were twelve acres, and Curth’s interest in it is two-thirds, they made a mistake; it would not be two-thirds, for he would have to pay for Baldwin’s whatever was necessary to get his into the bushel.

Baldwin's was worth more than one-third of the wheat as it stood upon the ground, for Ourth was to be at the expense of cutting and harvesting his own and also at the expense of cutting and harvesting that of Baldwin. The testimony is that the expense of that would be in the neighborhood of three dollars an acre, Although there is a dispute as to how much there is of this, and there is a dispute as to the valúe, yet there is testimony to justify the jury, if they believed it, in finding it was worth $12.00 an acre, and there were twelve acres; if that is so, it would be worth 1144.00. Then Baldwin’s share would be worth $48.00. In addition to that, Baldwin’s share would be worth what it would cost to cut and harvest it. This at $3.00 per acre would give Baldwin $48,00 plus $12.00,and there would remain for Ourth $144.00 less $60.00, which would be $84.00, and the interest computed on that from the time the injury is said to have been committed up to the time when the case was heard, was $15.12, that would have been $99.12,and the jury found $98.00,so that making the computation in the wav I think it should be made and the way it is claimed, still the evidence is such we cannot say the damages are excessive, and the judgment is affirmed.

Judge Kelley and O. W. Johnson,for Plaintiff in Error.

H. G. Redington, for Defendant in Error.


author: Russell, J.

text:
    (Fourth Circuit—Pickaway Co. O. Circuit Court
    Nov.Term, 1898.)
    Before Cherrington Russell and Sibley, JJ.
    EMERSON GOULD v. GEORGE B. ROSE.

      Service of Process — Return on duplicate writ proper — Secs. 5041 & 5042, R. S.

    Personal service, by the sheriff or his deputy, of the original writ of summons upon a defendant, and the proper return thereof made by such officer on a duplicate writ issued by the clerk of the court, is a substantial compliance with sections 5041 & 5042, Revised Statutes, and is a valid service.
   Russell, J.

A petition was filed, in the court of common pleas of Pickaway county, upon which a summons was duly issued with the proper indorsements thereon by the clerk of the court and delivered to the sheriff, . The defendant, though not a resident of, was found within that county, and the original writ was served by delivering the-same to him' personally, by the deputy sheriff, in whose hands the sheriff had placed the writ for service. A duplicate of the original summons was then procured to be issued by the clerk, and upon this writ, the deputy made return that he had ‘'served the same by personally handing a true copy thereof, with all the indorsements thereon, to the within named George B. Rose”, within the proper time for service and return.

Thereupon the defendant, by his attorneys, tiled a motion in said cause, (alleging therein that he appeared for that purpose only) to quash the service , and to set aside the return thereof, and with said motion he also filed his affidavit, setting forth, in substance, the facts as above stated, and attached to his affidavit the original summons which had been served upon him. Upon the hearing of the motion the defendant called as witness the sheriff and his deputy, and also the clerk whose testimony was in accord with the foregoing facts. It also appeared in evidence, that the sheriff received the writ from the clerk and had indorsed thereon the appointment of a third person to serve the same in pursuance of section 5041. but the same being served by him, the indorsement was stricken off the writ by the sheriff before delivering it to his deputy, The defendant did not appear as a witness on the hearing of the motion. It also appeared in evidence, that a copy of the original summons had been made by the sheriff, but could not be found at the time of delivering the original to the deputy, and in the deputy’s haste to make the service while the defendant was in the county, and for want of time to prepare another •copy, he served the original, as stated.

Abernethy & Folsom, for Plaintiff, Gould.

Geo. B. Biizer and Jno. C. Enirehin. for Defendant, Eose.

Objection was made by plaintiff’s counsel to the testimony of the officers, which tended to impeach the return made by the sheriff. The court sustained the motion of the defendant, quashed the service, and set aside the return made by the deputy, to which plaintiff excepted and filed his motion for a new trial, which was overruled, and the plaintiff thereupon prosecuted error to the circuit court.

Upon the hearing'of .the petition in error, the circuit •court reversed the judgment upon the following grounds:

First. The judgment of said court below was manifestly against the weight of the evidence.

Second. Said court erred in setting aside the service made upon the defendant in error.

Third. Said court erred in quashing the service of the summons in this case. ,

Fourth. Said court erred in overruling the motion of the plaintiff for a new trial.

(A petition in error has been filed by the defendant in the supreme court.)


text:
    (Fourth Circuit—Pickaway Co. O., Circuit Court
    Nov.Term, 1898.)
    Before Cherrington, Russell and Sibley, JJ.
    FREDERICK SNYDER v. LUCINDIA WANAMAKER.

      Bill of exceptions — Review of order of trial court to set aside settlement of cause—
    Upon an order of the common pleas court in setting aside the settlement of a cause pending in said court, upon evidence, in order to bring before the circuit court the evidence for review, it is necessary that a motion for a new trial should ' be filed and overruled in the court below and a bill of exceptions taken containing the evidence.
   Russell, J.

Wanamaker commenced an action against Snyder in the common pleas court, in which issues were joined. Pending the action, Snyder procured a settlement to be made and an entry, dismissing the case. Subsequently, at the same term in which the entry of dismissal was made, Wanamaker filed a motion to set aside the settlement and the entry thereof, on the ground that the settlement was procured by fraud and misrepresentation. The motion was heard on affidavits as well as upon parol testimony, and on consideration thereof, was sustained. Snyder excepted and took a bill of exceptions containing all the testimony, including the affidavits, but did not file a motion to set aside the order of the court vacating the settlement, and for a new trial, and thereupon filed a petition in error to the circuit court, alleging, among other grounds of error, that the order of the court, in setting the settlement aside, was against the evidence.

On the hearing of the petition in error in the circuit court, defendant in error objected to the court considering the alleged error above stated, for the reason that in order to bring the evidence before the court for review, it was necessary that a motion for a new trial should have been made in the court below and overruled, and moved that the bill of exceptions be stricken from the petition in error. Objection and motion sustained.


author: Maevin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    THE NORTH BRITISH & MERCANTILE INSURANCE COMPANY v. HARRIS COHN.

      Insurance of several distinct items of chattel property in one policy — Entire contract, cannot he split up in several suits—
    (1). Where several items of personal property are insured in one policy the amount of insurance for each being severally stated, yet it is one contract of insurance, and where loss occurs, several suits to recover the insurance for each item can not be maintained. A suit on one item insured in such policy, is a bar to other suits for the other items.
    Same—
    (2). Where suit is brought in the common pleas under such policy to recover the insurance for one of the items insured therein, and subsequently another' suit is brought before a J. P. to recover the insurance for another item insured therein, in which latter suit a judgment is recovered first, such judgment recovered before the J. P. will be a bar to the action pending in the common pbas.
    Error to the Court of Common Pleas of Cuyahoga county.
   Maevin, J.

In the case of The North British & Mercantile Insurance Company against Harris Cohn, the suit was brought in the Court of Common Pleas by Harris Cohn against the plaintiff in error here, the insurance company, based upon this state of facts:

On the 13th of March, 1894, the insurance company issued a policy of insurance upon the property of the defendant in error, the plaintiff below, covering various items of property, and the policy which is attached to the petition as an exhibit shows that there were four items' of property specified in the policy: first, on a stock of merchandise upon which there was an insurance of $750.00. Then there were three other items: a button-hole machine on which there was an insurance of $75.00; a sewing machine,$20.00; store furniture and fixtures, $30.00. The aggregate of the indemnity provided for in the policy is $875.00.

There were other insurances permitted by the terms of this policy upon the same property, and other insurance was taken out. On the 21st day of March, 1894, a fire occurred by which some of this property was destroyed and the balance greatly injured, and the suit below was brought to recover for the damage sustained by Cohn by reason of this fire and, as claimed, provided to be paid by this policy of insurance.

To the petition the insurance company set up a number of defenses, one of which only was urged here, and that was the fourth defense set up in the answer. This defense sets up that on the 10th day of July, 1894, Oohn brought a suit before a justice of the peace against the insurance company for the loss occurring at this same fire, by the destruction of certain of the property covered by this same policy of insurance,but not for the same item for which this suit was brought. In that actioD he recovered judgment for $80.00 and costs. That judgment has since been paid. That action is set up as a bar to the action to reverse which this preceding is brought. This suit was brought on the 7th day of July, 1894, in the court cf common pleas; as has already been said, the suit before the justice of the peace was brought subsequent to that time. The suit was brought before the justice of the peace on the 10th of July, and a judgment recovered on the 16th of July. The court of common pleas was asked to charge the jury that the suit before the justice of the peace was a bar to this suit. This the court refused to do, but did charge the jury that it was not a bar. Unless there was error in the action of the court in refusing to. charge that the suit before the justice of the peace was a bar, and in charging it was not a bar, then this case is not to be reversed. If there was error in such charge and refusal, then it is to be reversed. That, and that only, is the matter urged here,

The authorities seem to be uniform, possibly with one exception in Illinois. There is a late case in Illinois in which it was held that a suit, brought for interest upon a promissory note after the note itself by its terms became due, was no bar to a suit upon the note itself for the principal. The court say that the promise to pay interest was a distinct and separate promise from the promise to pay the principal. That case is Dulaney v. Payne, 101 Ill., 325. Herman on Estoppel and Res Judicata says this of that case: “How this principle” (discussing the case and quoting from it) “agrees with the following rule laid down by the same court, is difficult to ascertain.” Then he quotes from a case found in 89 Ill., 212, Rosenmueller et al. v. Lampe, where it was held, ‘that the first recovery was a bar to the second suit, it being considered as growing out of the original contract;”' the judgment therein constituted a bar to the second suit.

Aside from that case, as has already been said, the authorities seem to be uniform that where one brings a suit upon a contract- — -a suit for some part of a claim when several claims have already become due under that contract, he is barred from prosecuting a suit for some other part of the money claimed to be due under that contract.

There are a large number of authorities cited to us in the brief of counsel, in addition to which attention is called to the case of Jarrett & Deal v. W. R. Self, 89 N. C. Repts., 478; the first clause of the syllabus reads:

“Where a single contract is made for furnishing certain specified articles, at prices fixed for each, the plaintiff cannot be allowed to ‘split up’ the account and recover upon eaah item separately.”

Second clause of syllabus:

“If there are several payments due under one and the same contract at the time a suit is brought to recover one installment, a judgment for the amount of the latter will be held to be in satisfaction of the whole, as all the sums, being due, could have been included in the action. But it is competent for the plaintiff to sue and recover upon each as it falls due, and in the court having jurisdiction of the same. ’.’

Third clause of the syllabus:

“Where the plaintiff ‘splits up’ his account, due under a single contract cognizable in the superior court, and brought actions before a justice .of the peace, it was held upon appeal that the superior court did not acquire jurisdiction of the whole amount by consolidating the cases into one action. The appellate jurisdiction is derived solely from the rightful one assumed by the court below.’’

In 30 Pa. 196, Logan v. Caffrey, the syllabus reads:

“Where labor is performed for another, at various times, under the same entire contract, and there is a recovery in one suit upon such contract, the party cannot maintain a second action, even on clear proof that no evidence was given in the first, as to part of the demand in controversy.
“Nor will a formal withdrawal from the consideration of the jury of one of the items claimed in the first suit, and the entry of such withdrawal on record, enable the party to maintain a second action to recover the item so withdrawn.”

This was a cause where a party brought suit before an alderman for $315.30, made up of two items. For 49 days’ work performed by plaintiff for defendant between July 10th, 1854, and September 16th, 1854, at $1.12-|per day, and for 67j| days-’ work, between November 7th, 1854, and February 5th, 1855, at $1.00 per day. The plaintiff asked and was permitted to withdraw his second claim, at $1.00 per day for 67J days, so that the trial was had only upon the item of 49 days’ work at $1,12-| per day; but the court said that it was clear that there was but one contract entered into, though the price was different, and there were two different times. The 67¿ days was withdrawn by the plaintiff in his first action, and no evidence was introduced about it, and yet it was held that the first action barred recovery of the second because there was but one contract under which the plaintiff worked, and it all being due at the time the suit was brought, the plaintiff would not be permitted to split up his action and sue for a part and recover or proceed to final judgment for that part, and then maintain another action for the balance of the labor performed under that contract.

In the case of Burritt v. Belfry, 47 Conn., 323, the syllabus reads:

“While a suit for several months’ rent was pending in a city court, the rent being payable monthly under a parol lease for a term of years, another.suit was brought before a justice of the peace for an additional month’s rent, but which was due when the former suit was brought and judgment was taken for the same. Both suits were general as-sumpsit for use and occupation. Held, that the judgment in the second suit was a bar to the first suit.
“The'principle that a judgment for a part of an entire demand is a bar to any other suit for another part of the same demand, is everywhere inflexibly maintained.
“Where several payments have become dueupon a single agreement, express or implied, the demand is to be regarded as an entire one:
“The omission to plead the first suit in abatement of the second was not a waiver of the right to plead the judgment in bar of the first suit.”

Attention is here called to this case because of the facts that the suit before the justice of the peace was commenced subsequent to the bringing of the suit in which judgment is sought to be reversed in this action; but the suit before the justice of the peace proceeded to judgment, and the fact that the suit, which was then pending in the court of common pleas, was not plead as a bar in that action, does not, as we hold, prevent the pleading of that judgment as a bar in this case. The facts were the same,as far as that is concerned, in this case cited from 47 Conn.

The case in 19 Wend., 207, Bendernagle v. Cocks, is to the same effect, And, without stopping to read from it and the authorities cited in the several cases to which attention is called and in Herman on Estoppel, it fully establishes, as we hold, the proposition that the suit before the justice of the peace was a bar to the prosecution of this suit.

Everett, Weed & Meals, for Plaintiff in Error.

W. S. Kerruish, for Defendant in Error.

It was urged in argument here, that the court might inquire into the question of whether the facts — the claim made here, was actually tried in the other action, and authorities were cited that in many cases an inquiry may be made as to what was adjudicated in the case which was plead as a bar to the case on trial; but none of those cases hold that where the matter which was tried in the case plead as a bar, was for something due under the one contract and due at the time that the suit was brought, a recovery may be had in a separate action.

We hold that there was error on the part of the court of common pleas in refusing to charge that the suit before the justice of the peace was a bar to this suit,

In 47 Conn,, 323, the court in the opinion say, that the principle is so well established, it has been held, as in that case, although very great hardship may result from it— just as may in this case.

Yet we think that this case must be reversed for the reason given. For that reason, and that reason alone, the judgment of the court of common pleas is reversed.


author: SMITH, J.

text:
    (First Circuit—Clermont Co., O., Circuit Court
    April Term, 1898.)
    Before Smith, Swing & Cox, JJ.
    ALICE J. BOYER et al. v. BELL C. DAVIS et al.

      Land bought by husband with money of his wife reduced to his possession under former law — No trust estate in wife—
    Where it appears that land bought by a husband was paid for with money which he obtained as the distributive share of his wife in her father’s estate, but under the law as it stood at the time, (thirty-five years'ago), money - of the wife reduced by the husband to his possession became his property, and it does not clearly appear that there was an understanding between husband and wife at the time that the land bought by the husband with the money thus coming to him from his wife, should be held by him in trust for her, there exists no trust for the wife in such land.
    Appeal from the Court of Common Pleas of Clermont county,
   SMITH, J.

We are of the opinion that on the pleadings and the evidence submitted, the petition of the plaintiffs, which seeks to engraft a trust upon a deed executed to their father, Ira I. Davis, by Wm, B. Davis, April 4, 1857, must be dismissed. It appears from the pleadings and the evidence that Lydia A. Davis, the wife of Ira I Davis, and the mother of the three plaintiffs, was the daughter of Isaac Edwards, and on his death as one of his distributees became entitled to the sum of $416.00, as her share of her father’s personal estate. This sum was paid by the administrator of Mr. Edwards’ estate, to Ira I. Davis, the husband, and he, Davis, gave a receipt therefor, March 3, 1857. In a proceeding for the partition of the lands of her father, the same were sold, and, as averred in the petition in this case, the $867.06, the amount found to be due Mrs. Lydia A. Davis from the first payment, was paid to her March 13, 1857, and on December 8, 1857, she received $986,56, the amount due her on the second payment, and on December 8, 1858, the said Ira I. Davis received $1042.40, the amount due her as the third payment. It does appear from the evidence, that the husband received her share of the personal estate and gave a receipt therefor to the administrator, but there was no evidence offered showing which of the parties received or receipted for any of the money from the real estate.

The petition, however, further avers, and the evidence shows, that on April 4, 1857,'Wm, B.[.Davis conveyed to Ira I. Davis the land in question, for the consideration of $4,000 by a deed absolute on its face. It further avers that the said Ira A, Davis paid to the said W. B. Davis the $416.00 received from the administrator as aforesaid, and the $867.06, the amount received from the first payment on the land, to the said W. B. Davis as part of the purchase money, and gave his noteslo DaviB for the balance due. And that afterwards Ira I. Davis appropriated the $986.56 to the payment of his notes, and[[that he also collected and applied the third payment^of^the land to said notes. That is, that $3312.03 of the money which came to Mrs. Davis from her father’s estate,*went into this land.

The only evidence that[such was the case, was as to alleged admissions made by Ira I, Davis thirty-five years ago to two persons, that it had been the case — and we have no doubt that this was so. The difficulty, however, in the way of the plaintiffs, is this: That admitting all that they claim in this regard to be true, and that this money went to pay for the land, that on this state^of facts, they do not show any. ground to support their claim; for owing to the state of the law then in force, when the money>[ was received by the husband, if it all was^'received by him, or if part thereof was received by him and part by her, and he obtained possession of that received^by him, and used it, or appropriated it to his own use, as he did by paying it out for land purchased by him in his'own name, the money became his, at once, and the property purchased with it was his, unless, at the time he received it, or subsequently, there was a valid contract between husband and wife that the money was to remain the property of the wife or that it was to be invested for her benefit, or unless something is shown to prove that the money did not become the property of the hupband when he received it and converted it to his own use. In this case, there is no sufficient evidence to show anything of this kind. There is no pretense that any arrangement was ever made between husband and wife that he was to- buy the land for her, or that the title was to be taken by him in trust for her. There is evidence tending to show that she wanted.him to have the land conveyed to her, but that he refused, and there is nothing to rebut the presumption which the law raises, that when he received her money from her father’s estate, as her husband, it immediately vested in him — -and his conduct shows that he did reduce it to his possession. It is true, that in the conversations of the husband, thirty-five years ago, before mentioned, Ira I. Davis is said to have stated that it was his wife’s money which went into the farm. But even if this was his exact language, which may well be doubted, we think his meaning simply was, thtft the money which he so received and used, was the money which came to her from her father’s estate — not that it was her money after he received it. It would not do to engraft a trust on a deed absolute on its face, (which can only be done, by clear and convincing evidence) on such a statement as that, / particularly in view of the fact, that the claim of Davis always was, up to the time of his death, that he was the owner of the and. The petition must be dismissed


author: HayNES, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    October Term, 1898.)
    Before King, Haynes and Parker, JJ.
    THE LLOYD LUMBER COMPANY v. JOHN T. SOLON, Surviving Partner, etc.

      Breach of contract for sale of cordwood — Measure of damages—
    In a suit for damages for breach of a contract by which defendants, manufacturers of cordwood, agreed to furnish all the cordwood manufactured by them to the plaintiff to be by him •sold, plaintiff to pay therefor certain prices, for the term •of one year, renewable for five years more at plaintiff's option, ■to ascertain the damages to which plaintiff would be entitled by the breach of such contract by defendant, the price of other property of the same kind in the market which plaintiff might have bought should be ascertained, and the difference of the market price and the contract price would be the measure of damages. This is the rule unless the property is of a peculiar kind and can not be obtained in the open market, or there is no market price for such property, when profits naturally to be expected may be considered.
    Error to the Court of Common Pleas of Lucas county,
   HayNES, J.

A petition in error is filed in this court for the purpose «of reversing the judgment of the court of common pleas in an action tried in that court wherein Solon was plaintiff and the Lumber Company was defendant. Judgment was rendered for the plaintiff below. The questions, arise mainly •on the charge of the court.

The action was brought for an alleged breach of a contract that had been entered into between Solon and his partner and The Lumber Company, the leading points of which were substantially these: the agreement was made on the '27th day of September, 1895, between the Lloyd Lumber Companj of the first part and Solon & Schoen of the second part. “The party of the first part is engaged in a general lumber manufacturing business, including the manufacture of cordwood. That said party of the first part doth hereby agree to sell and transfer to the said parties of the second part the sole right to sell and dispose of all of the eordwood now in possession of the said party of the first part,or to be hereafter manufatured by it.” Then it makes provisions for the erection of sheds, and provisions in regard to the occupation of the sheds by the party of the second part, and the use of the office and telephone. They further agree not to dispose of any of its wood to other parties, reserving, however, the right of use for itself and its employes. And the parties of the second part agreed to pay the party of the first part, its successors and assigns, 60 cents a cord for the first 1500 cords which they shall sell or dispose of, 75 cents a cord for the second 1500, $1 a cord for that which they may thereafter sell or dispose of. It is further agreed that payment should be made on the Monday of each week following the sale of the wood. It was further agreed that in case of a shipment or sale by the car load, the payment might be made thirty days after the shipment. And it was further agreed that the party of the second part should use the horse and team of the party of the first part, and pay 30 cents an hour.- It then provides:

‘‘It is further mutually agreed and contracted between the parties hereto that this agreement is made for and shall continue in force for a period of one year from the date of this contract, and that the agreement may be continued and renewed at the option of the party of the second part for a period of five years from the expiration of this contract, provided said party of the second part shall pay said party of the first part, its successors and assigns, for the wood which they may sell and dispose of at the rate of $1 per cord.”

The petition was filed setting up this contract, to a certain extent. It says:

‘ ‘That plaintiffs entered into said agreement in good faith, and went to great expense to complete an outfit to sell and deliver said wood, and by the labor, skill, and advertising were put to great expense in getting said business, begun, and by reason of said labor, skill, advertising and money expended, had succeeded in getting said business started so that there was a large profit from the sale of said wood, and were faithfully carrying out on their part all the conditions of said contract with great profit to themselves for their labor and skill. That on or about the 30th day of July, 1896, and while said contract was still in full force, the defendant, without warrant or authority, and without the consent of plaintiffs, by force and arms refused to allow plaintiffs to take and sell any more wood, and have so continued and do now refuse to allow plaintiffs to enter upon the premises, or take, remove and sell any of said wood, to their damage in the sum of $5000.”

For which they ask judgment.

This action was commenced on the 31st day of August, 1896. The contract was made in September, 1895, and they soon after entered upon the preparation to do the work, and soon after commenced in fact to sell the wood, and continued to do so until this date, July 31, when, as alleged, the contract was broken.

The answer first denies the contract for some technical reasons, and then avers that the plaintiffs failed and neglected to make payments in said contract — failed in June, July, and August, ’96, to make payments — which thereby terminated the contract; also sets up that they should use defendant’s team, which they failed to do, and in that respect^they failed to perform the terms of the contract.

The case came on for trial, and testimony was taken on behalf of both parties, tending to sustain the allegations of their respective pleadings, and tending to show the prices at which wood was selling at that time, and had been selling for the year previous, and also the cost and expense of selling the same. And thereupon the court came to charge the jury, and charged it substantially as follows:

‘‘First. As to the first branch of the plaintiffs’ claim — ■ as tojthe expense incurred of fitting up preparatory to tho doing of the business provided for in this contract: this would be the reasonable value of the work and expense incurred in such proportion as the time occupied in the carrying out of this contract bore to the whole contract. The plaintiffs would not be entitled, of course, to all the expenses incurred in the building of these sheds and doing this advertising, for the reason that the plaintiffs have had a proportion of the advantage to be.derived from these, in that they have sold this wood for the company from perhaps the 4th of October — you will get that date from the evidence — down to the 30th of July, 1896. But this contract was to continue for a length of time after that, which is shown by the contract already read to you. Now then, for the reasonable proportion of this expense that the value of the use they had of it bears to the value of the use of it that they did not have — if entitled to compensation in damages — they would be entitled to have.
“Second. As to the loss of profits, here are the rules of law by which this question of recovery of profits is to determined. It is frequently said that recovery cannot be had for profits; but that is not a correct statement, gentlemen, of the law. The broad,- general rule in such cases is, that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained, and this rule is subject to but two conditions: first, the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is, must be such as might naturally be expected to follow its violation. And they must be certain, both in their nature and in respect to the cause from which they proceed. Or, as it is otherwise stated — substantially the same — first, the damages must flow naturally and directly from the breach of the contract; that it must be such as might be presumed to follow its violation, and must be, not the remote but the proximate consequence of the breach. In this case, gentlemen, this contract was not one providing for the purchase and sale of wood in the open market, but it was a contract providing for the carrying ou of the business of selling wood produced and owned by the defendant company — produced in its business, to be sold by the plaintiffs to other parties under the conditions and stipulations of this contract, for the mutual advantage and profit of both parties — both the plaintiffs and the defendant company; and by this contract it was provided that the defendant company should receive from the]£plain tiffs the prices specified in the contract, and that the plaintiffs should be entitled to have and receive for their^profitTand advantage whatever excess they might realize from the sales of the wood over and above the prices paid and the expense of carrying on the business of selling and delivering this wood to these other parties; and therefore, in determining the damages, if you reach the question of the plaintiffs’ damages, the question before you to determine will be, what was and has been the fair cash market value of such wood as this, delivered in the manner in which it was tojjbe delivered, at the time of this contract and up to the present time? And from that you may infer and judge and determine as to what it will be during the balance of the time named in the contract. Second, what was the reasonable and fair cost and expense of such delivery and all other expenses connected with the sale of said property, in order to realize the price which they would get from their purchasers? What was the difference between the price the defendant was to receive and the net receipts of the plaintiffs — ■ that is, the amount received by plaintiffs after deducting their expenses would be the rule of damages to be awarded to the plaintiffs, because it would be in accordance with the understanding to be inferred from this contract by these parties at the time the contract was entered into and during its performance.
“Now, as to these damages, there can be but one recovery by these plaintiffs, if they are entitled to recover at all, for the breach of this contract, and in order that they may be fully compensated for this breach of the contract, if there has been a breach of the contract; and if they have a right to recover at all, this recovery would be for the full term which they at their option had the right to have this contract continue, because, if they should recover only for damages up to a certain time, they would be precluded from commencing any other suit against the parties for a breach of this contract. ”

It will be observed that the case is one in which the controversy arises in particular in regard to the rule of damages that the plaintiffs below are entitled to have, if they were entitled to recover. The question of damages under contracts is usually one of more or less difficulty. The one under this contract is one of considerable difficulty. The contract itself was rather peculiar. It was a contract whereby the Lumber Company was to sell these parties substantially all the wood that they manufactured, who were to account to the Lumber Company for it at a certain price. But the Lumber Company on its part did not covenant to run the mill an hour, or any length of time, nor to deliver any certain quantity of wood. Nor did the plaintiffs themselves agree to take all the wood. They had the privilege of taking it and of selling it. The contract was defined, in so far as time was concerned, for one year, and then at the option of the parties of the second part, it could be extended five years longer without giving notice to the Lumber Company. They say five years after the contract, but whether that meant five years, or four, is perhaps immater-tial. This contract was alleged to have been broken before the first year expired. The action was brought before the first year expired. There is no evidence that the plaintiffs below ever gave notice to the Lumber Company that they would extend this contract for the period, provided in the option; and whether they would have a right to recover for damages after the first year in case of a breach of the contract, without formally and definitely giving that notice,we think is very questionable.

The point, however, has not been argued before us, and we do not decide it.

■ It is said in the charge that this is not a sale of wood, but it is a sale of the right of taking the wood'. It seems to us it is practically a sale of the wood as manufactured by the Lumber Company. At least,so far as the rule of damages is concerned, it is the same as it would be in the case of the sale of personal property, It appears from the contract and from the evidence that there is a market price for Wood purchased in this market for the purpose of re-selling the same in the market; and the testimony tends to show that these parties might, if they chose, have gone into the market and purchased cord-wood. We think the general rule of damages laid down by all the authorities is, that upon the sale of property, where there is other property of the same kind in the market which can be purchased, it is the duty of the party who claims that his contract has been broken to go into the market and purchase the property. If he has to pay more than he agreed to pay the other party, then he can recover the difference between the amount he has to pay and the contract price. And that would be the rule of damages. We think that is the rule that should be applied in this case — at least, we think the rule in regard to profits should not be applied, because under all the authorities, as we understand them, the rule in regard to profits is not allowed except in very peculiar cases, as where there is no other similar property in the market, or there is no market price for the property — that is, where the property has been sold in some form for a definite and particular price, and inasmuch as there is no market for the re-sale or re-purchase of it, then the rule in regard to profits applies.

S. H. Holbrook, for Plaintiffs in Error.

M. B. Lemmon, for Defendant in Error.

It would seem from 16 Ohio Ht. that quite an argument might be made here in favor of the proposition that the rule of damages here might be the value of the good will. This would depend upon all the contingencies of the case. But whether it is the contract rule or the true rule, we do not deem it necessary for us to decide at the present time. It is sufficient that we hold that the rule as laid down by the court for the recovery of damages by fixing the profits, ascertaining the profits, for the whole term, and that without any regard as to whether these parties had gone on and worked afterwards, is not the true rule; and for that reason the judgment of the court of common pleas will be reversed, and the cause will be remanded for a new trial.


author: Day, J.

text:
    (Third Circuit—Seneca Co., O., Circuit Court
    Dec. Term, 1898.)
    Before Day, Price and Norris, JJ.
    WINFIELD S. WELLS v. THE C. C. C. & St. L. RY. CO. BENJAMIN F. SCHEIDLER v. THE SAME. [Two Cases.]

      Railroad Fare— Computation of fractions of mile—
    <1). The pro/ision contained in the last clause of sec. 3374, R. S., as follows: “But the fare shall always be made that multiple of five nearest reached by multiplying the rate by the dis- ■ tance, ” is not ambiguous or obscure, and interpretation or construction thereof, is not necessary or permissible.

      Same—

    (2). The clear and plain sense and meaning of the provision is: That multiple of five in closest proximity — nearest to — the resu't obtained by multiplying the rate by the distance, whether such multiple be nearest above or below such result.
    Error to the Court of Common Pleas of Seneca county.
   The two cases have similar facts, and were submitted, considered, and disposed of together. The plaintiffs in error were plaintiffs below. The C. 0. 0. & St. L. Ry. Co. was defendant there and here. The action by both plaintiffs, was to recover a penalty for overcharging, in the matter of fare charged the plaintiffs as passengers on defendant’s railway, under the provisions of sections 3374 and 3376, Revised Statutes. There are five causes of action set out in Wells’ petition, and two in Scheidler’s. Wells, for a first, second and third cause of action, states, that, in the due course of his business, he, at three different dates, to-wit: June loth, July 12th and August 5th, 1897, found it necessary to travel over defendant’s railroad between the city of Tiffin and the Village of Carey, Ohio, two stations on the said railroad. That on each occasion he purchased a ticket of defendant’s agent. That such agent, at each time, charged and received, and plaintiff paid for each ticket, as fare, the sum of fifty cents; that the distance from Tiffin to Carey and vice versa is, by actual measurement, 15.6 miles, and no more. That the amount so charged and received and paid was more than defendant was, by law, entitled to charge for riding on said railway said distance. Similar allegations are made for a fourth and fifth cause of action. That plaintiff purchased a ticket from Tiffin to Berwick and from Berwick to Tiffin, stations on defendant’s road, on the 4th of April, 1898; that defendant’s agent charged and was paid for each ticket thirty cents, while the distance between said stations is only 8.62 miles. The statement is made that said charges of fifty and thirty cents were in excess of the rate allowed by law; whereby a right of action has accrued to plaintiff on each cause of action stated in the petition, and he prays judgment for $750.

In similar language, Scheidler’s two causes of action are stated, to the effect that defendant company charged him as fare from Tiffin to Berwick, and from Berwick to Tiffin, the full sum of thirty cents for each fare, the distance being only 8.62 miles, the same being an overcharge, whereby a right of action has accrued to him, and he prays judgment for $300.

The defendant company interposed a general demurrer to each cause of action set out in each petition; that the facts stated do not constitute a cause, or causes of action against the defendant. The court of common pleas sustained the demurrer as against all the causes of action in both petitions,and plaintiffs not desiring to amend or further plead, the petitions were dismissed and judgment given against plaintiffs for costs. Plaintiffs seek a reversal of the judgment by proceedings in error in this court.

Day, J.

The facts are plainly stated, and for purposes of the demurrer must be regarded as true. It is true, therefore, that the distance from Tiffin to Carey is 15.6 miles, and as fare for carrying plaintiff that distance, the defendant railway company charged and received, and plaintiff paid the sum of fifty cents; that between the stations of Tiffin and Berwick the distance is 8.62 miles, and the defendant company charged and received, as fare, the full sum of thirty cents from plaintiffs.

The law, section 8374, Bevised Statutes, limits the rate of fare a railroad company may demand and receive for carrying a passenger for a distance of more than eight miles, to not exceeding three cents per mile, The distance between the stations named, is more than eight miles, and the provision of the section plainly applies and limits the rate that may be demanded and received for transporting a passenger between them, to three cents per mile; so that it would seem to be a plain and very easy matter to ascertain the lawful sum to be charged for the service rendered. As for instance: the one distance from Tiffin to Carey, 15.6 miles, multiplied by three cents, the lawful rate per mile, would make 46.8 cents that could with propriety be demanded and received as fare; while for the other distance, from Tiffin to Berwick, 8.62 miles, 25.86 cents might be demanded and received, and no more; and any sum charged-and received in excess of these amounts, it follows, would be overcharges, and would subject the company exacting them to the penalty provided in section 3376, Bevised”Statutes, of $150 for each violation of its provisions. And such must, of necessity, be the ultimate conclusion of the matter, that the facts stated in the petitions, under the very plain provisions of the statute limiting the maximum amount of fare that can properly be demanded and received, to three cents per mile, constitute good causes of action entitling the plaintiffs to recover, unless there is something in the provisions of the last clause of section 3374, Bevised Statutes, that materially modifies and changes the first part permitting the railroad company to demand and receive a greater rate than three cents per mile, in certain circumstances and conditions. Section 3374, Bevised Statutes, entire, is as follows:

Section 3374. “A company operating a railroad, in whole or in part, in this state, may demand and receive for the transportation of passengers on its road not exceeding three cents per mile, for a distance . of more than eight miles; but the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance. ”

The last clause of the section certainly modifies, to an extent, the rigid provision of the first, and in some situations permits a greater rate, and m other and different situations, we think,requires a charge of slightly less than the maximum rate of three cents per mile. In the enactment ( ofjthe section, the law-makers evidently had in mind some such situation as is described in the petitions, where, by reason of fractional parts of a mile, the proper and lawful fare to be demanded and received, would include the fractional part of a cent, making it difficult, if not impossible, to readily make change or to collect fare to the full extent allowed by the first provision of the section; and so, to relieve the situation, there was incorporated into the law the last clause of the section; thus establishing a rule, which, if reasonably understood and properly observed, will enable the carrier to practically collect fare to the full extent of the maximum limit fixed, and.also be just and equitable to both the railroad company and its patrons. The provision is simple, easily understood; is fair, and will, we think, in the operation of a railroad extending a considerable distance, have the effect to equalize the fare paid and received, and make it approximately average the legal rate provided, of three cents per mile. It will never, in any event, permit an overcharge of more than two and one-half cents, or require a relinquishment of more than that Psum, with the probabilities that the over and under charge)].,will average very nearly the legal rate. Suoh a provision is altogether reasonable, just and convenient, and should be accepted and acted upon in good faith, by all the corporations for whose convenience, chiefly, it was made part of the section. But not so; for it appears the defendant company is not. content with the plain provisions as formulated and popularly understood, but is seeking, through the • medium of' judicial interpretation, to have a view taken of the matter more favorable to its interests. It is, accordingly, through its counsel, urging the courts to construe and interpret that portion of the last clause of the section 3574: “That, multiple of five, nearest reached by multiplying the rate by the distance”, to mean, that multiple of five nearest above or in advance, reached by the process of multiplying the-rate by the distance; and to do this, it would be necessary for the court, by construction or judicial legislation, to interpolate into the section, substantially, the words; in advance, or above — and to eliminate therefrom every reasonable suggestion of a multiple of five that could be nearest reached in any other direction. Such a construction would be a very strained one, and wholly without warrant. Unless-the sense and meaning of the text is involved and obscure, there is no occasion for interpretation at all. The sense and meaning of the provision seems apparent. It is not in the' least ambiguous or obscure; but all is plain and open and patent, so there is absolutely no call or excuse for interpretation. The phrase or wording: “That multiple of five' nearest reached,” means just that, and nothing more.

“Nearest,” is immediately adjacent to — in closest proximity. “Reached” is stretched out or forth — ‘extended. Neither word indicates direction. So when used in connection as in the clause of tne section under consideration, they indicate the object in closest proximity — closest to— and reached by the least extension or stretching forth,— without reference to direction — in any direction. Therefore the wording: “that multiple of five nearest reached by multiplying the rate by the distance, ’ ’ clearly and plainly means the multiple of five in closest proximity to the result: obtained by multiplying the rate by the distance, whether it be above or below, and whether it is reached by an extension, either upward or downward, from such result. If this holding is correct, then, applying it to the facts appearing in the petition, it gives the following results: The distance from Tiffin to Carey is 15.6 miles; this multiplied by the rate, three cents per mile, gives 46.8 cents. The multiple of five closest to this amount is 45; or, 45 cents the defendant company was authorized to demand and receive. Having charged fifty cents,there was an overcharge.

Willis Bacon, for Plaintiff.

McCauley & Weller, for Defendant.

By a similar process, 8.62 miles, the distance between Tiffin and Berwick, multiplied by the rate per mile 3 cents, gives 25.86 cents. The multiple of five in closest proximity to this sum is 25, and in charging and receiving 30 cents, the defendant company was guilty of an overcharge; for all of which it is liable to the discipline provided by section 3376, Revised Statutes. It follows the facts stated in the petitions constitute causes of action, and the lower court was in error in sustaining demurrers on that ground,

The judgment is reversed, with cost. The demurrers are overruled, and defendants held to answer.


author: Smith, J.

text:
    (First Circuit—Clermont Co., O., Circuit Court
    April Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    CARRIE McHENRY v. THE BATAVIA BUILDING & LOAN COMPANY.

      Foreclosure of mortgage — Personal judgment over — When admissible.

    In an action to foreclose a mortgage, there can be no personal judgment against the mortgagor for the amount of the debt secured by the mortgage, or any part thereof, unless the mortgagor is personally liable for such debt or for some part of it. If a person executes a mortgage to secure a debt for which he has not made himself liable, the mortgagee, so far as the mortgagor is concerned, can look only to the property so mortgaged.
    Error to the Court of Common Pleas of Clermont county.
   Smith, J.

The claim of the plaintiff in error is, that the court of common pleas erred in entering judgment against her for $475.42, the balance found to be due to plaintiff on a mortgage executed to it by said Carrie McHenry, after the sale of the mortgaged premises by order of the court, and the crediting on the amount due on said mortgage, the part of the purchase money applicable thereto, and in awarding execution against her for said balance.

The petition in the case averred among other things, that Carrie McHenry, one of the defendants, was a member of said company and the owner of four shares of its capital stock, and that on May 16, 1895., the company advanced to her $1,480, the estimated value of said 3-ro shares of its capital stock as a loan. And that in order to secure the payment of said sum, said defendant, with her husband, executed to the plaintiff a mortgage on certain real estate, (describing it) which was duly recorded. That said mortgage was conditioned to be void, if the said Carrie McHenry should pay as therein provided until the payments therein provided to be made by her, should amount to $400 on each share so borrowed. That she failed to comply with these stipulations, and that there was a balance due the company of $1408.76. “Wherefore plaintiff prays that the equity of redemption of the said defendant in said premises may be foreclosed; that an account be taken,and that it may have judgment for the amount found due on its said cause of action; that said premises may be sold free of all claims of the defendants herein; and that the proceeds of said sale may be applied to the payment of the amount due plaintiff, and for such other and further relief as is proper. ’ ’

No answer was filed to this petition,and at the trial, January 31, 1898, an entry was made, showing that the same came on for hearing on the petition and the evidence, and the court found that the defendants were in default, and that the allegations of the petitioner are confessed to be true, and that therefore defendants have failed to pay plaintiff, as set forth in the petition, and that there was then due plaintiff thereon $1,426.70, and it was ordered that unless defendants should pay said amount, and the costs, the property should be sold.

On the 25th of April, 1898, a final decree was entered in the case, confirming the sale of the real estate, and ordering the distribution of the purchase money, $1,168.65, as follows: First: To the treasurer of the county, the taxes and penalty on the property, $80.49. Second: The costs in the case, $71.23. Third: The court found the amount due on the mortgage up to that date to be $1,492.35, and ordered the sheriff to pay the balance in his hands. $1,016.93 to the plaintiff as a credit on its claim, and that there still was due to the plaintiff $475.42, which it was adjudged by the court that it recover from the defendant, Garrie Mc-Henry, and that execution be awarded therefor.

We Jaave no question, but that in an action brought to foreclose a mortgage, there can be no personal judgment rendered against the mortgagor for the amount of the debt secured by the mortgage, or any part thereof, unless the mortgagor is personally liable for such debt or for some part of it. If a person executes a mortgage to secure a debt for which he has not made himself liable, the mortgagee, so far as the mortgagor is concerned, can look only to the property so mortgaged.'

But we are of the opinion, that on the allegations of the petition in this casé, and the judgments or decrees of the court, this rule has no application to this case. The petition expressly avers that the plaintiff in error, Carrie Me-Henry, was a member of the company,and the owner of four shares of its capital stock, and that on May 16, 1895, the company advanced to her $1,480,the estimated value of her stock, as a loan, to be re-paid in a certain way and manner' stated therein, which she had failed to do, and that there was a balance due from her of $1,405.76, for which a judgment was asked and a foreclosure of the mortgage.

H. J. Nichols, for Plaintiff in Error.

L. J. Walker, for Defendant in Error.

Default having been made, the case was heard on the petition and evidence. What evidence was submitted, was not shown, but the court found the amount due on the plaintiff’s claim to be $1,426.70. The presumption would be, that the evidence fully supported the claim of plaintiff that the amount received by the defendant was received as a loan to be repaid as stated on the petition.

The debt not being paid by the sale of the land, we think, the court was authorized to make the order it did, finding the balance due from the plaintiff in error, and awarding execution therefor. The judgment will be affirmed, with costs, but without penalty.


author: SMITH, J. Swing, J.

text:
    (First Circuit—Clermont Co., O., Circuit Court
    April Term, 1898.)
    Before Cox, Smith and Swing, J J.
    FLORENCE McDONALD et al. v. LAURA G. BOARDMAN and J. H. KNAPP et al.

      Joint Liability of non-resident with resident — Joint action— Jurisdiction — Evidence—
    Jurisdiction over a non-resident party can not be obtained by simply averring a joint liability with a resident of the county in which the suit is brought where the evidence fails to show such joint liability; and this notwithstanding the fact that such non-resident has only interposed á general denial, without pleading the improper joinder and service.

      Appeal from the Court of Common Pleas of Clermont county.
   SMITH, J.

In this case we are of the opinion, that there should be a decree in favor of the defendants dismissing the petition of the plaintiffs. It is true that the said plaintiffs, at the request of some one, (it may be of Mr. Gardner, who is nota party to this case, but who denies that he had anything to do with it), together with Thaddeus Bunker, their great-uncle, executed and delivered to one Fuller a deed for the lot jn question, which had been devised by Mrs. Bunker, the wife of Thaddeus, to him for his life, and upon his death to the plaintiffs in fee, in consideration of 11,350 as stated in the deed, but of which they never received any part, nor is there any claim that it was ever arranged' between the parties that they were to receive any part thereof. What became of the whole of the $1,350 does not appear, but it was shown that $1,000 of it was paid to Mr. Bunker by the grantee, by a certificate of deposit given to him, or to Gardner for him,and that this $1,000 was turned over by Gardner and Bunker to the defendant Knapp; who was the executor of the will of Mrs. Bunker. By the terms of the will, Knapp had no control of the lot in question, had no interest therein, and was charged with no duty concerning it. There was in his hands, as executor, about $2,000 in money or notes, after the payment of the debts of the testatrix and of certain legacies given to others, to the use and income of which Bunker was entitled as long as he lived, and the executrix also had the power, and it was his duty under the will, to use so much of the principal of said fund as might be needed for the support and maintenance of the old man. At the death of the husband, whatever of the personal estate remained after the payment of the debts of the testatrix and of the special legacies, was to be divided equally among the plaintiffs, who were grandnieces of Mr. & Mrs. Bunker.

The claim made on behalf of the plaintiffs as to the manner in which this deed was obtained from them, was this: Mrs. McDonald testifies substantially, that after the death of Mrs. Bunker, the testatrix, that she was living at Nor-walk, some distance from Oberlin, where Mr. Bunker and. J. W. Gardner, a distant relative of his, and her cousin resided, and that she received a letter from Gardner, enclosing the deed in question, which had been signed and acknowledged by Mr. Bunker as one of the grantors on the 18th day of March, 1892, in which letter he asked her to execute the deed and send it to the other plaintiff, Mrs. or Miss Gaston, for execution by her. .That she did execute and acknowledge it on March 21, 1892, without reading it and without knowing anything of its contents,and then sent it to Miss Gaston to be executed by her. That she made no inquiry in regard to the matter, and had no knowledge of the character of the paper, which she had executed, until after the death of Bunker, perhaps in 1894. She also says that she had not at the time, or for years after, any knowledge of the provisions of the will, or that she had any knowledge that she had any interest in the lot until after the death of the husband.

The other plaintiff testified that she had received the deed in a letter from Miss McDonald in this form:

“Dear Oousin Laura:
“Sign your name on this paper and return to J.W.Gardner, Oberlin, Ohio.
“Your Cousin,
“Florence A, McDonald.”

That thereupon, she executed the deed before a notary public (March 22,1892),and sent it to Gardner as directed.. She also testified that she did not read it, and had no knowledge of its contents or that she had any interest in the estate until December 24,1894,after the death of Bunker.

These statements as to the ignorance of the plaintiffs, as of the character of the instrument and of its contents, and as to their having no knowledge of their interest in Mrs. Bunker’s estate,are hard to credit. These young women were of full age, and evidently possessed at least of ordinary intelligence,and from other circumstances disclosed in evidence, must have had more knowledge as to these matters than they say they had. But whether this is so or not, it cannot in any way affect the validity of a deed which they executed and acknowledged in due form of law, and entrusted it to another person for delivery.

Nor is there anything disclosed to show any fraud in this transaction on the part of Knapp in the procuring of this deed, or any knowledge on his part that any fraud had been perpetrated upon them by anyone. It is clear that he had no knowledge whatever of the deed until after it had been executed and delivered to the purchaser, and the payment of at least $1,000 by him. Indeed it is difficult to see a fraud on the part of anyone. The plaintiffs were simply asked by some one to execute the deed, and did so in the exceedingly negligent and careless manner testified to. There is no pretense that any statement, false or otherwise, was made to induce them to do so. One of them says her cousin, Gardner, asked her to sign it, and she did so. He denies this explicitly. Evidently,.however, he was acting for Bunker, after the deed was executed and returned to him at least, and, with Bunker, received for him, from the purchaser, $1,000, which was deposited in the bank for Bunker; what became of the $350 does not appear. But some days after this, Knapp, who lived at a distance from Oberlin, came on business of the estate, and, at the instance of Bunker and Gardner, took this $1,000 to invest for the benefit of Bunker, and loaned it on note and mortgage in the name of Bunker, the note running for three years. It is probable that Knapp may have supposed that the monsy was the purchase price of this lot, though he says that he was never informed that such was the case. Bunker, some time before that, had wanted him to sell the land as executor, but he had consulted the probate judge of the county in regard to the matter, and had been informed by him that, as there was more than enough personal property to pay the debts, that he, as executor, had nothing to do with the lot, but that Bunker and the plaintiffs could join in its sale, and he so informed Bunker. And this was all he had to do with it.

A year or two after this $ 1,000 was invested by Knapp for Bunker, the latter removed to Clermont county. He met with an accident, and by reason thereof became almost helpless, and the income from his interest in his wife’s estate was not sufficient for his comfortable support. He was living with a relative of his wife, Mrs. Boardman, and made with her a contract,- that if he would pay her $925, «he would support him during the remainder of his life. The money was to be invested by her in the purchase of a home. Knapp was advised of this, and Bunker requested him to collect the $1,000, but as it was not due, it could not be done, Some time after this, Knapp, at the request of Bunker, purchased the note for $950, sent him the money and the note and mortgage were transferred to him, and Bunker paid the money to Mrs. Boardman, who invested it in the purchase of a home. The claim of the petition is that this was a fraudulent contract between Bunker and Mrs. Boardman and Knapp, to defraud plaintiffs. There is not a scintilla of evidence as to this. For all that appears the arrangement was a fair and reasonable one, without any knowledge on the part of Mrs. Boardman or Knapp that the plaintiffs had any claim to the money, and the additional claim of plaintiffs, that they can hold the lot of Mrs. Boardman into which the money was put, has no foundation. Indeed, it is difficult to see on the whole case how the plaintiffs have been substantially injured, even if they conveyed away their Ínteres! in the lot devised to them in the negligent and careless manner which they claim. The executor, jKnapp, was authorized and required by the will to use any part of the principal of the $2,000 of personal property in his hands for the support and maintenance ofTBunker, and the plaintiffs were only to have what remained after that. The payment to Mrs. Boardman was a reasonable one, and the result was that the $925 came out of their interest in the lot, instead of their interest in the personalty, alljjof which has been paid to them by Knapp, as executor.

The allegations of the petition as to fraud and conspiracy between Mrs. jBoardman, and Knapp being wholly unsupported^by the evidence, when this appears it is clear under the law,that the plaintiffs had no right to sue Knapp in this case and obtain jurisdiction of his person by serving him with process in another county than that in which he resides. If jurisdiction of a defendant could thus be obtained, by simply averring a joint liability with a resident of the county in which the suit is brought,it would result in great injury to the rights of the non-resident parties, and cannot be permitted. This clearly appears by the decision of the case of Dunn v. Hazlett, 4 Ohio St., 435. If therefore, there was any fraud on the part of Knapp in the original transaction, that claim, under the circumstances, cannot properly be adjudicated in this action in Clermont county.

It is claimed that Knapp cannot now avail himself of this deferse because he did not plead the improper joinder and service, having interposed only a general denial, We think the other course is the proper one, but the facts being conceded, we will allow such an answer now to be interposed, and on that being done, the petition of the plaintiffs will be dismissed,

Swing, J.

I agree,with Judge Smith as to the judgment that should be entered in this case, on the ground that the evidence does not show any joint cause of action against Knapp and Mrs. Boardman, and that no separate judgment can be rendered in this county against Knapp. But I am convinced, from the evidence, that Knapp had full and complete knowledge that the money received from the sale of this property was the property of these plaintiffs, and not the property of old man Banker, except that he had a life estate in it. But the action should be against Knapp alone.

Mr. Sewell and J, B. Swing, for Plaintiffs.

Lutes & Lides, for Knapp,

Col. West, for Mrs, Boardman.