text:
    JUSTIFICATION FOR AN ARREST.
    [Circuit Court of Lucas County.]
    Henry C. Eihlert v. William Gommoll.
    Decided, June 20, 1902.

      Malicious Prosecution — Advice of Counsel — A Complete Defense Against —Should he Pleaded as a Defense.

    1. Where one causing an arrest proceeds in good faith upon the advice of one learned in the law, and especially where the advice is by a judge having responsibilities in the premises, and no facts appear which were not brought to the attention of the one giving the advice, such advice is a complete defense in an action for malicious prosecution based upon the arrest.
    2. It is the proper practice that such advice be pleaded as an affirmative defense, but the omission to plead it is immaterial, where the evidence was introduced without objection, and the court charged with reference thereto and the jury acted upon it.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on error.
   In the court below this was a civil action for damages on account of alleged malicious prosecution, the plaintiff below being William Gommoll and the defendant below being Henry A. C. Eihlert. The trial resulted in a verdict in favor of the plaintiff below for about $400. Motion for a new trial was made upon various grounds, which was overruled, and judgment was entered upon the verdict. Defendant below prosecutes error and insists that the verdict is against the weight of the evidence. He also contends that there was error upon the trial in the admission and rejection of evidence and in the charge of the court and in the refusal of the court to charge certain propositions. I will say, in passing, that we do not find in the bill of exceptons any requests to charge, either before or after argument, which were refused by the court.

The history of the matter out of which this suit develops, briefly stated, is this: The father of William Gommoll was the father of a number of small children. Complaint was made in the probate court of this county of his treatment of his small children; that he was cruel; and as the result of a proceeding in that court, Henry A. C. Eihlert was appointed guardian of these children. Tt appears that the hearing, or at some hearing in that court, the father being desirous to take the children home and not be deprived of their custody by the guardian, and the son, William Gommell, also desiring that this might be accomplished, William promised the guardian and the court that if his father might be permitted to take the children home and have their custody, he would undertake to' see to it that they were well and property treated; and in pursuance of that promise and arrangement, the father was permitted to retain the custody of his children. Subsequently other complaints were made, which came to the attention of the guardian, of further cruelty on the part of the father toward the children, whereupon the guardian, Eihlert, went to the residence of the father and undertook to possess himself of the children. His application for the children was denied by the father, and the efforts that he and the officer made to obtain the custody of the children were resisted by the father, although the parties did not come to any actual conflict, and he was obliged to go 'away without the children and resort to other measures to obtain possession of them.

On this occasion the son, William Gommell, was present, and his attitude towards the parties was such as to make Mr. Ehlert feel that he was aiding, abetting, encouraging and sustaining his father in his resistance to the application of Mr. Eihlert for the custody of the children. Of their conduct on these occasions, Mr. Eihlert made complaint to Probate Judge Millard; and he contends and testifies that he truthfully and fully stated all of the facts of these incidents to Judge Millard, and appealed to him for advice as to how he should proceed, and he testifies that he was advised by Judge Millard — who, it appears, was a reputable lawyer and who had been long in the practice of law before he became probate judge — to have these parties arrested as well as to take proper measures to obtain the custody of the children. He testifies that, proceeding upon this advice, which he regarded as valuable and safe, he filed an affidavit in one of the city courts, the affidavit being drawn by the clerk of that court, charging the father and son with having secreted these children and kept them from the custody of their lawful guardian, in violation of a penal statute.

It appears that the father and son were arrested upon this charge and were imprisoned and kept some time in custody, and the final result of the prosecution was that they were discharged; whereupon William Gommoll, the son, began this suit against Mr. Eihlert, charging him with having prosecuted him maliciously and without probable cause, and asking for damages.

I have spoken particularly of the incident of Mr. Eihlert going to Judge Millard for counsel, for upon that turns one of the important questions in this case. In his testimony, at page 82 of the record, Mr. Eihlert testifies, after relating the incident of going to the house and trying to obtain custody of the children, and after relating that he had come back to the office of Judge Millard, as follows:

“And when I seen, or we seen we could not get possession of the children, I went back and told Judge Millard that the children, my wards, had been mistreated and abused, and that I had went out and asked both the old man and his son William to give me the children, and that they had refused to do so, and I ' asked him * * * I told him I heard the old man hid the girl. * * * I told the judge at that time, of course, that he had locked the door and would not let me have the children. And Judge Millard informed me, and, by the way, I know him as a good attorney and high standing, and he has been probate judge of this county for many years, I asked him for his valuable advice, what to do in the case; he said to me, ‘Why, have them arrested, first; then go and get the children.’ ”

Farther along he testifies more fully as to the information he gave to Judge Millard, and he testifies in substance that he informed him fully as to all the facts and that he received this advice — really, as he states it, received this instruction — this' direction — from Judge Millard as to his duties and about how he ought to proceed, as to what he was justified in doing and what he was bound in duty to do.

Judge Millard was called as a witness by the plaintiff below, and although, to some categorical questions, he answered that he did not so advise, yet the form of the questions were such that the judge might well so testify, and yet his testimony might be entirely consistent with that of the defendant below upon this point; and upon the full examination of Judge Millard, taking the substance of all his testimony, both direct and by the way of cross-examination, it can not be said fairly that he denied having given such advice in this transaction, though as to the precise fact of advising it he says that his recollection is very much at fault, at least that it is not clear or certain.

As the testimony stood, however, certain questions of fact were to be submitted to the jury, i. e., whether the defendant below — the plaintiff in error — had gone to Judge Millard in good faith to find out what he might do, or what he ought to do in the premises; whether he had truthfully and fairly stated all the facts to Judge Millard; whether he had received this advice from Judge Millard, and whether he had proceeded upon the faith of it.

And because of that issue a question of law is involved here, i. e., what instruction should have been given to the jury by the trial judge as to their duty in the premises in the event that they should find that the story of the defendant below in this respect was true. Upon that point the trial judge charged the jury as follows:

“Mr. Eihlert brings into this case a proper fact and submits it to the consideration of the jury. And that is his conduct relative to his having consulted Judge Millard in regard to this matter. It is the law that if a man, before he has a warrant issued for the arrest of another, goes to a lawyer, some one learned in the law, and lays before him all the facts and takes his advice as to whether the man has been guilty of a crime that he describes or not, that fact may be considered by the jury, and is held by some courts to be a complete defense; by others, not; but it may be considered by the jury as tending to show that he has reasonable and probable cause upon which to act, and as tending to rebut any malice that may have been alleged and attempted to be proven in the case. A man is not authorized to consult an attorney and withhold from him the real facts, or distort the facts, or tell him part of the facts, then secure his advice and act upon it, and then undertake to shield himself behind that. In order to protect himself by consulting an attorney or any one learned in the law, it is his duty to make known to the party that he consults all the facts in the ease, in order that he may advise him correctly, because he may not advise him correctly if he does not know all the facts. So it is a question in this case for the jury to consider what Mr. Eihlert did with reference to consulting Judge Millard, and to what extent he disclosed the facts to Judge Millard; to what extent he was advised by Judge Millard to do as he did in the case. ’ ’

Now it will be observed that while the trial judge stated to the jury that it is the law in some jurisdictions — the law as laid down by some courts — that these facts testified tb by plaintiff in error would be a complete defense, he proceeds to lay down as the law of this case, in effect, that it is not a complete defense, but that “it may be considered by the jury as tending to show that he has reasonable and probable cause upon which to act and as tending to rebut any malice that may have been alleged and attempted to be proven in this case.”

And that is all the construction he authorizes the jury to give to these facts, if they find them to be as stated by the defendant below.

In this we think the learned judge was in error. We think it is the law of this state that where it is shown that the prosecutor in good faith sought, obtained and proceeded upon the faith of the advice of counsel learned in the law, especially where such counsel is a judge of a court having certain responsibilities and certain duties in the premises, without any additional facts having been brought to his attention after he had received the advice that would tend to qualify it, or qualify the facts upon which the advice was given, such advice is a complete justification; that it is a complete defense; that it is not merely evidence to be considered by the jury as tending to show that he had reasonable and probable cause upon which to act and as tending to rebut any malice that may have been alleged or shown in the case.

Some authorities on this question are collected in 4 Wait Act. and Def., 354, 355, and I will read a part of these:

“The defendant may also rebut the presumption of malice by showing that he acted under the advice of counsel. If the defendant communicated to counsel all the facts bearing upon the guilt or innocence of the accused of which he had knowledge, or could by reasonable diligence have ascertained, and, acting under the advice of such counsel, procures the accused to be indicted, he may plead the advice thus given as a defense in an action for malicious prosecution.”

To this there are quite a large number of authorities cited.

‘ ‘ The fact that the defendant sought, received and acted upon the advice of counsel affords strong evidence that there was probable cause and that the prosecuton was entered into in good faith and without malice.
“While, an honest reliance on the advice of counsel, who has been fully informed of the facts, may be a complete justification in an action for malicious prosecution, the advice of a lawyer who is a pettifogger will be no justification. * f * And a reliance upon the advice of a person who is not a counselor or attorney at law is incompetent to disprove malice.”

And more to the same effect. Now it is true, as stated by the judge in the court below, that in some jurisdictions it is held that the advice of counsel goes no farther towards protection of a defendant in a case of this character than is stated in the rule laid down by the judge in his charge to the jury. It is said in the same book, at page 355:

“Under the Georgia code the advice of counsel is not in itself a protection to the defendant in this action; yet evidence of the fact may be submitted to tbe jury as a circumstance tending to show a want of malice, the existence of probable cause and a mitigation of damages.” '

And that is the rule in some other jurisdictions. It is important, of course, to inquire what the law is in Ohio upon the subject, and to that end we will call attention to certain decisions, most of which have been cited by counsel upon one side or the other in the hearing of this case.

The first is Ash v. Marlow, 20 Ohio, 119. This does not give much assistance upon the precise point involved here. The fourth clause of the syllabus reads:

“If the defendant, in an action for malicious prosecution, would take shelter under the ‘advice of counsel,’ he must be prepared to show that he communicated to such counsel all the facts bearing upon the guilt or innocence of the accused of which he had knowledge or by reasonable diligence could have ascertained.”

The effect of such avdiee is not stated; that question was not involved there.

In White v. Tucker, 16 Ohio St., 468, the second section of the syllabus is as follows:

“On the trial of such action the defendant may prove, as a part of the transaction complained of, tending to rebut malice and to mitigate damages, that, at the time he made the complaint against the plaintiff, he stated to the magistrate all the facts upon which it was based, and that, upon his assurance that such facts constituted the crime charged in the affidavit, he instituted the prosecution in question.”

There the facts were not stated to nor the advice given by an attorney at law, but the advice was given by a magistrate, and the extent of protection afforded by the advice of a magistrate is laid down in that case. Reading from the opinion by Judge Day, at page 470, we find this:

“As to the first proposition, it may be remarked that, although the evidence might be admissible, conformably to the general principle that the defendant may prove that he proceeded in good faith, upon the advice of counsel, thereby showing probable cause, still upon the question of malice and of the mitigation of damages it was pertinent and relevant. ’ ’

Showing that the Supreme Court at that time and in that case recognized the distinction, the wide difference between the stating of facts to a magistrate and proceeding upon his advice, and the stating of facts to a counselor at law and proceeding upon his advice, and that the court recognized the “general principle” that “the defendant may prove that he proceeded in good faith, upon the advice of counsel, thereby showing probable cause.”

In Lamprecht v. Crane, 4 Bull., 1107, we find a per curiam, by the Supreme Court in an unreported case, consisting of seven different propositions. I read the sixth, as introductory to the seventh, and the seventh is applicable here:

“6. And for prosecuting such proceeding in such court, maliciously and without probable cause, an action for malicious prosecution will lie.
“7. Where a prosecution is sought to be justified on the ground of advice of counsel, it is incumbent on the prosecutor to show that all the facts material to the prosecution known to him, or which might have been ascertained by reasonable diligence, were communicated to counsel. ’ ’

A negative recognition of the rule.

In Nigh v. Keifer, 5 C. C., 1, the court being composed of Judges Shauck, Shearer and Stewart, of the second circuit, the opinion of Judge Shearer cites with approval and as being in harmony with the law of Ohio, certain decisions of other states bearing upon the case. I read from his opinion at page 3:

‘ ‘ The court below assumed that a full and fair statement had been made in good faith, and that the advice received thereon had been acted upon in good faith; and that all that was testified by Keifer and his attorney in that behalf was true. There, we think, the court below made a mistake.
‘ ‘ The jury, under the rule in Ohio, had the right and the exclusive right to pass upon the credibility of Keifer and his attorney. They had the right, also, to say whether Keifer was actuated by proper motives, and acted in good faith.
“In Ames v. Snider, 69 Ill., 376, it was held: ‘That where a party consults with competent legal counsel, in good faith, to ascertain what course to pursue in reference to acts done by another, and such counsel, after proper deliberation and examination into the facts, advises an arrest for a criminal offense, the party causing the arrest shall not be held to respond in damages for this action, notwithstanding it may appear on the trial the party accused was not guilty. But the advice must be sought in good faith, and the party must make a full and honest statement of the facts to counsel.’ To the same effect are Wicker v. Hotchkiss, 62 Ill., 107, and 43 Ind., 78. This, we think, is a fair statement of the rule, and not in conflict with Ash v. Marlow, 20 Ohio, 119. In that case it is said that ‘probable cause’ is a a mixed question of law and fact, and if the facts are contested, the court must leave them to the jury with instructions as to what is ‘probable cause.’ ”

The error of the court in Nigh v. Keifer, supra, consisted in not submitting to the jury the questions whether the client had fully and fairly stated all the facts to his counsel and whether he had proceeded in good faith upon the jadvice of counsel. The court excluded those questions from the jury, but the decision, it will be observed, recognized the rule as we have stated it to be the true rule in Ohio.

"We are cited by counsel to Britton v. Granger, 13 C. C., 281, where the real question was as to whether the statement had been made to counsel and the advice given by counsel, before or after the prosecution alleged to have been a malicious prosecution was instituted. In that case, a police officer finding a person in the commission of what he deemed to be a violation of a criminal law, arrested him on view. He then went to the prosecuting officer of the city of Cleveland, Judge Fielder, a duly licensed practitioner of the law, and stated the facts to him and asked for his advice, and upon his advice filed an affidavit charging the person he had arrested with the crime. Upon trial the person was found to be not guilty. Thereupon he instituted a suit for malicious prosecution against the police officer. The police officer undertook to interpose as a defense the advice he had received from counsel, and submitted a charge to the court, which we conceive did not go as far as he might have asked the court to charge; the charge was substantially that given by the learned judge in the court below in this case, but the court below refused to give it. He proceeded to charge that in a proper case, where the facts were perfectly stated to counsel, and the client proceeded on the advice of counsel and his action is justified thereby, which we understand to be the law; but he charged further, that the arrest having been made before the advice was sought or given, that the rule had no application; that the prosecution was begun before the advice was sought or given, and that therefore this testimony as to having taken the advice of an attorney was only admissible upon the question of malice or good faith, and was not admissible as tending to establish a defense or justification; and with respect to that ruling the circuit court held that the common pleas court was in error; that the prosecution was not in fact begun until the affidavit was made and filed; that the filing of the affidavit was the beginning of the prosecution. So it will be seen that that case is not of much value to us in the ease at bar.

On account of this error in the charge, which is certainly very material and prejudicial, the judgment will have to be reversed and the case remanded for a new tritl.

It is true that in this case the matter of advice of counsel is not pleaded as a defense, but no objection was made to the introduction of evidence on that ground. The evidence was all heard, all considered, all submitted to the jury, and the court undertook to charge the law upon the question, and therefore the absence of the matter in the pleading was immaterial. We think, however, that it is the better practice, perhaps necessary in a case of this kind, if objection should be made to the introduction of the testimony, to plead the matter as an affirmative defense.

Various other matters occurred upon the trial that are complained of by counsel for plaintiff in error, one matter being that there was some evidence of the occupation and standing of the plaintiff below, tending to show that he was a man of fair reputation in the community in good standing. We see no error in that, notwithstanding it was in respect to a matter occurring after the alleged malicious prosecution. If, on the other hand, he had undertaken to show an impairment of reputation by reason of the malicious prosecution, we think that as well would have been admissible. Neither are we prepared to say that the verdict was against the weight of the evidence. We have very serious doubts as to whether this verdict is right, as to whether it is just, as to whether it is justifiable, but as the case must go back to be retried, we go no farther than to say that we entertain very serious doubts on that question; but it may appear differently if the case comes before us again. We find no other errors in the record; but solely on account of the error that we have pointed out in the charge, the judgment of the court will be reversed and the case remanded.

James M. & W. F. Brown and Clem Wagner, for plaintiff in error.

Frank I. Isbell and F. M. Sala, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    STREET ASSESSMENTS.
    [Circuit Court of Lucas County.]
    Kate Hendrickson et al v. City of Toledo et al.
    Decided, November 1, 1901.

      Street — Appropriation of Land for Extension of — Validity of Award Made ty Frótate Judge without a Jury — City Acts as Trustee— Cost of Land Assessed Back upon the Property — Valid where Petitioners so Agreed — Burden of Proof as to Benefits.

    1. Where in accordance with a petition by abutting owners land is appropriated for the extension of a street, and the petitioners expressly agree that the cost shall be assessed back upon the property, the statute in connection with this agreement makes the assessment valid; and the abutter is bound by the contract, or is estopped from denying the validity of the assessment, or both, notwithstanding a doubt as to the power of a municipality to so assess back the cost or to enter into such an agreement.
    2. In proceedings for the appropriation of property for street purposes, instituted in accordance with a petition by abutting owners, the municipality acts as a trustee for the property owners and should exercise good faith in preserving and protecting their rights.
    3. Where in such proceedings a jury is waived, and the award is made by the probate judge, and both the municipality and the property owners are satisfied with the award, and there is no showing of collusion or unfairness, the award will not be set aside for irregularity.

      4. Where property owners declare in a petition for a street improvement that they believe their property will be benefited thereby, and subsquently seek to enjoin the collection of the assessment on the ground that they were not specially benefited, the burden is upon them to show a failure of benefits, if indeed they are not estopped from claiming a failure of benefits.
    Parker, J.; Haynes, J., and Hull, J., concur.
    This ease is here on appeal. The action was brought to enjoin the collection of assessments made upon the lands of the plaintiffs on account of the expense of extending Colfax street, in the city of Toledo, the expense assessed being the cost of the lands acquired by the city for the extension of the street, i. e., the expense incident to the acquisition of these lands by appropriation proceedings.
   Plaintiffs contend that this is an illegal assessment, relying upon the decision of C., L. & N. B. B. Co. v. Cincinnati, 62 Ohio St., 465, which overrules Cleveland v. Wick, 18 Ohio St., 303, and holds that so much of Section 2284, Revised Statutes, as provides for the assessment of this kind of expenses upon lahds benefited is invalid.

Plaintiffs do not aver- in their petition in this case that the improvement was not petitioned for by them or others in accordance with the requirements of Section 2267, Revised Statutes, which section requires that as a condition precedent to levying an assessment upon lands to be benefited, there shall be a petition signed by two-thirds of the owners of the lands to be charged. It is averred in the petition, however, that the assessment of this cost was not made by a jury, as provided by Chap. 3, Tit. 12, Div. 7, Revised Statutes, but that the city instituted an action for the appropriation of this property in the probate court, where a jury was waived, or was not called, and that by agreement or consent the value of the two pieces of land taken was fixed at $1,500 — $600 to one proprietor and $900 to another— and that thereupon, judgment for the payment of this amount was entered.

It is said that this action was irregular, and rendered the proceedings invalid, so that even if there were no other, objection, the assessment ought not to stand. The petition also avers that the lands or lots of the plaintiffs npon the street were not specially benefited by the improvement, and that therefore they conld not be assessed.

The answer admits the averments of the petition as to the various steps taken by the common council in establishing this improvement, the opening up of this street, and the appropriation of the property for the improvement. It denies that the plaintiffs were not specially benefited; it. denies in effect that there were any irregularities in the proceedings in the probate court; and it avers with respect to the petition for this improvement as follows:

“Further answering, these defendants say that prior to the time of the adoption of the resolution, the plaintiffs herein, or their grantors, filed a petition in writing with the common council of the city of Toledo, praying the said city of Toledo to enact the necessary legislation for the appropriation and condemnation of the property necessary for the extension of said Colfax street as aforesaid, and consented therein that an assessment might be made by the said city of Toledo upon the lands of said petitioners to defray the cost and expense, including all awards arising out of, or resulting from, the condemnation and appropriation of said property; that said parties so petitioning the said city of Toledo knew at the time of the filing of said petition with the common council of said city, that if said improvements were made, all of the property abutting upon said Colfax street when opened and extended, as petitioned for, would be assessed for the appropriation and condemnation of said property, in proportion to the special benefits conferred thereby; that the said city of Toledo enacted said legislation in pursuance of and in reliance upon said petition, and in reliance upon their right to assess the cost and expense occasioned thereby upon all the real estate bounding or abutting upon said Coifax street when so opened and extended as aforesaid; that these plaintiffs knew at the time of the filing of said petition with said common council that said property so bounding and abutting upon said Colfax street would be specially benefited by the making of said improvement over and above the general benefit that would result to the remainder of the said city of Toledo therefrom.”

These averments of the answer are denied by the reply; so that it will be observed that the issue as to whether the plaintiffs signed the petition for this improvement is raised by the answer and reply.

The evidence upon the issues as made by the pleadings has been submitted to this court. Plaintiffs contend that it does not appear from this evidence that they or their grantor petitioned for this improvement.

Exhibit 1 introduced in evidence, consists of two sheets, with a paper back, upon which back appear several endorsements. The first sheet is a petition which (omitting a part of the heading, which can not be made out on account of the way it is pinned in) reads as follows:

“To the Hon. The Common Council of the City of Toledo:
Gentlemen — We, the undersigned, owners of the property described opposite our respective names, the same abutting on Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue as indicated, desiring that Colfax street may be opened and extended from the present terminus of said Colfax street at the west line of Shaw’s Monroe street addition to Lawrence avenue, and believing and acknowledging that our respective properties would be specially benefited thereby, respectfully petition your honorable body to cause the same to be so opened and extended, and that you pass the necessary legislation and cause proper appropriation proceedings to be had therefor, and we further request that a special assessment be made to pay the cost and expense thereof, upon the property abutting upon said Colfax street and Colfax street extended, between Shaw avenue and Lawrence avenue, and consent and request that our respective properties may be so assessed.
“Respectfully submitted.”

This is signed by twenty petitioners. Appended is a notation that there are twenty-nine land owners upon the street, and that there is a majority of five signing the petition. It is admitted that seven of the plaintiffs — -Dale, Wilkinson, Miller, Hough, Van Hellen, Ott and Yearick — sighed this petition, and it is also shown that the grantor of Emma C. Caldwell, who owned the property at the time this improvement was made, signed the petition. With respect to the other plaintiffs — Kate Hendrickson, Ada S. Long and Michael Murphy — there is no evidence tending to show that they or their grantors signed the petition; and it is conceded that the evidence shows that they did not.

The second sheet of this exhibit is a resolution in the ordinary form, declaring the intention of the city to open and extend Colfax street from Shaw avenue to Lawrence avenue, and that appears to have been adopted, according to the notation upon it, March 21, 1898. It is indorsed by a stamp by David McAllese, president of the board of councilmen, and J. Charles Meissner, president of the board of aldermen, and attested by Lem. P. Harris, city clerk. The backs of these two sheets contain various endorsements, to the effect that the resolution mentioned was adopted by the board of aldermen and the common council in 1898. There are also upon it notations indicating, as explained by the city clerk, who was a witness, that this paper had been referred to certain committees of the common council. The first sheet, viz., the petition, contains this endorsement:

“I, William A. Mills, City Solicitor of the City of Toledo, Ohio, hereby certify that I have examined the above and foregoing petition, and that I approve the same.
“Wm. A. Mills, City Solicitor.”

Originally that contained the additional words, “the 2d day of September, 1897, ’ ’ but a pen was run through that part of it for some reason not explained.

The city clerk testifies that this paper, consisting of the various sheets, was found in the office of the city clerk by him, in the usual and proper place for petitions and resolutions, and that both of the papers have been duly recorded in the course of proceedings for the opening up of this street, in the respective volumes of records provided for the recording of such papers; that as a rule and custom of the office, and of the cpuncil, a petition like unto this, is first presented, and then a resolution is prepared, if upon examination it is found to have been certified thereon by the city solicitor that the petition is in due form and contains the necessary names; that when he found the paper these various sheets were fastened together in the form in which we now have them. There is no evidence submitted tending to show that the usual course to which he now testifies was not pursued in this case. There is no evidence tending to show that this petition was not a part of the papers fastened together as we now find them, at the time the resolution was adopted by council, and at the time the various proceedings were taken for the appropriation of this property and the opening up of this street. The presumption of the continuance of things as found alone would require us to hold, in the absence of any evidence to the contrary, that the original form of the paper was as we find it, all these sheets being fastened together and having this back on them.

The petitioners admit that they signed this petition, and that it was signed by them sometime prior to this action by the council; they think prior to the year that the council took action upon it. There is evidence that they also signed another petition asking for substantially, if not exactly, the same thing; and another petition is presented here, and witnesses are questioned about it. That petition answers to the description given by the plaintiffs of that which they signed, and which appears to have been signed in the year 1892.

We think there is no evidence to impeach this document, and no evidence authorizing us to find that the petition was not originally a part of the document. We therefore do find that the petition was a part of the document, and was attached to the resolution, and that it was upon the faith and authority of this petition that the council proceeded to make this improvement.

As to the question whether there was irregularity in the action in the probate court, the confessing of judgment for $1,500, instead of impanneling a jury, and submitting evidence, and requiring a verdict of the jury awarding the' amount. It is not averred that there was any fraud, or collusion, or unfairness in this transaction; it is not averred that the amount for which there was a confession of judgment, or which it was agreed should constitute the amount of the award, was excessive in any degree; or that these plaintiffs were in the slightest degree prejudiced in any way by this action.

It seems to us that the city acted substantially in the capacity of a trustee for the petitioners in acquiring the property necessary for the improvement that they petitioned for. They had agreed that the expense should be assessed upon their property, and therefore it devolved upon the city to exercise good faith to undertake to preserve and to protect the rights of the petitioners, but in the absence of any averment.of any wrong or any prejudice, we do not think that there was such an irregularity in these proceedings as would invalidate them. For my own part, I am not able to say (supposing it to have been fairly and honestly done) there was any irregularity about it. I do not understand why the city and the owners of the property can not agree upon the amount. It seems to be that the statute (see Sections 1692 and 2232, Revised Statutes, et seq.) authorize the city to acquire property for such purposes by purchase or agreement as well as by condemnation proceedings, and that if they can obtain it at a fair price by an agreement or compromise, they may do so; and when the petitioners ask that the council shall proceed to pass the necessary legislation' to cause proper appropriation proceedings to be had to acquire the property, the fair construction of that is, if the city is not able to obtain it at a fair and reasonable price without condemnation, then the city is authorized to proceed by appropriation proceedings to acquire the property. At all events, we agree that there was no irregularity in this that would invalidate the award. The city was contented with it,, the owner of the property was contented; the city is not questioning it, the owner of the property raises no question about it. The city paid the award, the owner of the property accepted the award, and the city took possession of the premises and has since held them. And we do not think, even if this were an irregularity, that it now lies in the mouths of the plaintiffs to complain, unless their complaint is based upon an averment or charge of fraud or prejudice of some sort.

The petition avers that the plaintiffs were not benefited by this improvement. No witnesses were called upon that subject. If it- devolved upon the city to show benefit as the pleadings stood (which we very much doubt), we think that situation is changed when this petition is produced, with the petitioners setting forth in their petition that they believe and acknowledge that their respective properties would be especially benefited by the improvement, and that they direct and consent that their respective properties may therefore be assessed for the improvement. Though perhaps not absolutely estopped thereby from saying that they derive no benefit, they should at least furnish evidence sufficient to sustain the burden of proof thereby cast upon them, to show that they did not derive a benefit from the improvement.

That brings us to the principal question in the case, which is whether the plaintiffs who petitioned for this improvement or whose grantors petitioned for the improvement, are bound to pay the assessment because of their having petitioned.

I pass over without discussion the question whether this expense may be assessed upon abutting property owners under ordinary circumstances, where no question of estoppel arises," because we understand that has been decided in favor of the contention of the petitioners, in the case of to which I have referred, i. e., C., L. & N. R. R. Co. v. Cincinnati, supra, which we followed in McGlynn v. Toledo, 22 C. C., 34. In the McGlynn case it was contended that the petitioners were estopped, because they had petitioned for the improvement, which in that case consisted of the grading and paving of a street. The expenses assessed upon the property of which the property owners in that case complained were awards of damages on account of change of grade of the street, and we held that they were not estopped, because the evidence did not show us that the property owners were so far aware of the fact that the city was proceeding upon the faith of the former decisions of the Supreme Court with respect to the law as to be estopped from asserting an objection to the assessment. The decision turned rather upon a question of the construction of their petition, which did not set forth specifically and distinctly that they agreed to be assessed expenses of this particular nature, and we held that therefore they should be deemed to have petitioned for and consented to such assessment only as would be legal and valid; that it should be assumed that what the parties asked for at the hands of the council was, that it should proceed under valid laws, and according to law, to make the improvement and the assessment. But in the case at bar we find no opportunity for putting a construction upon this petition which would sustain it as consenting to a part of the costs and expenses to be involved in the improvement, and which would not sustain it as to the remainder; for the whole improvement consists in the extension of- the street, and the whole cost and expense incident to it is that arising from the acquisition of the property necessary for the extension. So that it appears very clearly and distinctly, that the petitioners applying to the council to make this improvement consented and agreed that the cost and expense should be assessed upon their property. Are they, under these circumstances, bound by their agreement or by estoppel? We think they are. We think they are bound, applying the principles laid down by our Supreme Court in State v. Mitchell, 31 Ohio St., 592, and in Columbus v. Sohl, 44 Ohio St., 479. I read a paragraph from the case last cited, page 482. The law in that case under which the improvement, consisting of the paving of a street, was made, was held by the Supreme Court to be unconstitutional and void, and yet the assessments made under and in pursuance of that law were sustained and enforced, and they were enforced because, as stated in State v. Mitchell, supra, the parties by their action in invoking the aid and assistance of the council under the law were estopped, and because, as stated in Columbus v. Sohl, supra, they were bound by their agreement. The paragraph to which I refer is as follows:

" The law was invalid, and no authority was derived from it, for the making of the improvement, beyond the extent to which it had been adopted by all concerned as a scheme for improving North High street. Its provisions simply furnished the terms of an agreement among the concurring property holders, and the basis of a commission from them to the agencies of the city for the improvement of the street; and the rights and liabilities of all parties, including the city, are to be determined by the law of contract and agency, and not by any statutory powers that may have been intended to be conferred by the Legislature; for the act being invalid could confer none. ’ ’

Sohl, the defendant in that case, was held because he had petitioned for the improvement.

In State v. Mitchell, supra, it was said that parties who had participated in the business leading up to making the improvement would be bound, but just how far they would be required to participate in order to be bound was not very clearly indicated, the court suggesting that that question could be presented if the parties sought to resist the collection of' the assessment. But in the Sohl case iUwas held that it was a sufficient participation to petition for the improvement. In the Mitchell case it was held that not only the commissioners who acted under that law, but also those who petitioned for the improvement, were bound.

It would be manifestly unfair and unjust to the city for parties to petition for an improvement and agree to pay the costs thereof, and afterwards, upon some technicality, saddle the expense upon the tax-payers of the city generally. Circumstances often arise in which a city may be willing to lend its aid by legislation and such machinery as is provided by law to parties to make an improvement, if the parties are willing to pay for it, where the city would not agree to do so unless the parties would agree to pay for it. The statutes upon the subject of assessments, Chap. 4, Tit. 12, Div. 7, provide that improvements of this kind may be paid for by the city out of the general funds. I read from Section 2263, Revised Statutes:

“When the corporation appropriates, or otherwise acquires, lots or lands for the purpose of laying off, opening, extending, straightening, or widening a street, alley, or other public highway, or is possessed of property which it desires to improve for street purposes, the council may assess the cost and expenses of such appropriation or acquisition, and of the improvement, or of either, or of any part of either, upon the general tax list, in which case the same shall be assessed upon all the taxable real and personal property in the corporation.”

But Section 2267, Revised Statutes, provides that the council may decline to do that, and may require a petition setting forth that all cost or some share of the cost shall be assessed upon the property of the petitioners; and where such petition is filed, the council shall proceed accordingly to assess all or such part of the costs as the petitioners consent to, upon the property specially benefited; and under this plan what is said by Judge Burket in C., L. & N. R. R. v. Cincinnati, supra, reading from pages 484, 485, is quite pertinent:

“Sometimes a municipality desires to open a new street, or straighten or widen an old one, in the line of general improvements, and for the general benefit and appearance of the municipality, and not for the special benefit of the lots ‘and lands in a particular district. In such cases the compensation, costs and expenses for lands taken should be paid by the municipality out of its general revenue fund raised for such purposes.
“Sometimes the people in the vicinity desire to have a new street opened, or an old one straightened or widened, as a special benefit to their lots and lands, and when the same would not be sufficient benefit to the municipality to warrant the payment of the compensation, costs and expenses out of the treasury. In such eases, the municipality may refuse to act in the matter until the parties to be specially benefited supply the funds to pay the compensation, costs and expenses, or such portion thereof as the municipality regards fair and just, the same as is now authorized by Section 4651 as to public roads. By acting upon this principle the burden can be placed where it belongs without forcing people to contribute by assessments where they are not benefited, and where they are opposed to the opening, straightening, or widening of the street; and more than all else, their constitutional rights will be protected. If the present statutes are not broad enough, they can be amended.”

In our judgment, in such a case as this, where the improvement is petitioned for, and where it is such an improvement as the council may legislate for and have made, and where the only question of legality is that touching the right to assess the costs back upon the property, and the parties expressly agree that it shall be so assessed, this statute is quite sufficient, in connection with the agreement, to make an assessment valid; and whether they are bound by contract or estoppel, or both, is perhaps immaterial. To us it seems that they are estopped by the contract or agreement, even though it may turn out to be an invalid agreement because the city was not authorized to enter into such an agreement. I may add that it seems to us that it is not necessary for the city to invoke the rule laid down in Lewis v. Symmes, 61 Ohio St., 471.

For the reasons stated we hold that as to the plaintiffs, Dale, Wilkinson, Miller, Hough, Yan ITellen, Ott, Yearick and Caldwell, the petition should be dismissed at their costs, and that there should be a decree as prayed for in favor of Kate Hendrickson, Ada S. Long and.Michael Murphy. There being a decree in favor of three of the plaintiffs and against eight, the costs will be apportioned accordingly; eight elevenths of the costs will be adjudged against the petitioners as to whom the petition is dismissed, and three-elevenths will be adjudged against the city.

Beard & Beard, for plaintiffs.

M. R. Brailey and C. S. Northup, for defendants.


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    JUSTICES OF THE PEACE.
    [Circuit Court of Hamilton County.]
    Rogers v. Pruschansky.
    Decided, January 22, 1902.

      Justice of the Peace — Jurisdiction of, Co-Extensive with the County— Appeal under Section 6494 — Pleading.
    1. A justice of the peace has jurisdiction under Sections 583 and 6496 co-extensive with the county to issue orders of attachment and to accompany such orders with summons.
    2. The common pleas court has no authority, upon appeal from the overruling of a motion by a justice of the peace for the discharge of an attachment under Section 6494 as amended, to entertain a new motion, or to consider anything but the motion filed before the justice of the peace; that motion having been determined, the case should be certified back.
    Giffen, J. (orally); Swing, J., and Jelke, J., concur.
    Heard on error.
    This was a suit in attachment before a justice of the peace, and upon the overruling of the motion to discharge the attachment it was appealed to the court of common pleas under amended Section 6494, Revised Statutes (93 O. L., 141), which permits an appeal to be made upon the overruling of a motion to discharge an attachment.
   Upon the hearing of the case in the court of common pleas the motion was sustained and attachment discharged; the question is raised in this case whether the court did not err in discharging the attachment on the ground that the court had no jurisdiction over the person of the defendant, he living in another township than the one for which the justice was elected.

The statute gave jurisdiction to the justice of the peace coextensive with the county prior to 1898; then Sections 582, 583 and 584, Revised Statutes, were amended so that Franklin and Cayahoga counties were excepted, leaving the jurisdiction coextensive with the counties in all counties other than those two. The claim, therefore, is made that these amended sections are unconstitutional, and that therefore the court had jurisdiction of the person of this defendant although he resided in a township other than that in which the justice was elected. It was suggested during the argument that this defendant had entered his appearance, and therefore waived the objection, because our Supreme Court has a number of times recently held that where a motion addresses itself to any other relief than that of inquiry as to the jurisdiction of the person of the defendant, it is an entrance of appearance for all purposes. But counsel have since cited us to Smith v. Hoover, 39 Ohio St., 249, in which the motion was almost identical with this one, and asks for a dismissal of the case upon the ground that the court had no jurisdiction of the person, and that the said justice of the peace has no jurisdiction of the property of said defendant.

Now, in this case, the original motion filed in the justice’s court did not have this second ground, but after it got into the common pleas court a new motion was filed, which included the second ground that the court had no jurisdiction of the property; so that the motion filed in the common pleas court is almost identical with the one decided by the Supreme Court. Smith v. Hoover, supra.

But clearly the court in this case had no authority to entertain the filing of a new motion, or consider anything but the motion filed before the justice of the peace, because at least this court has heretofore held, in another case, that this amended Section 6494, Revised Statutes, was intended not to give jurisdiction by appeal to the court of common pleas of the entire case, but simply for the purpose of determining the motion for the discharge of the attachment, and having done so, to certify the case back to the justice of the peace.

At any rate, the motion, as made before the justice of the peace, was not an entering of appearance, relying upon this authority in Smith v. Hoover, supra.

W. E. Beall, for plaintiff in error.

C. T. Dumont, for defendant in error.

The question then is whether the amendment of Sections 582, 583 and 584, Revised Statutes, excepting Cuyahoga and Franklin counties renders the law unconstitutional. The question' came up in Lucas county before the circuit court there, in Colline v. Bingham Bros., 22 C. C., 533, and they declined to pass upon the constitutionality for the reason that if it be declared unconstitutional there would be no law applying to attachments, and that if they did declare it unconstitutional that they ought also to declare unconstitutional the repealing act, and that being so, the original law which gave the justice of the peace jurisdiction co-extensive with the county would be restored. And we are therefore inclined to adopt the course pursued by the circuit court in Lucas county, and decline to pass upon the question as to whether or not this is unconstitutional, because under this law, or under the law as it stood before that, the justice of the peace in Hamilton county would have jurisdiction co-extensive with the county. ^

The syllabus in this ease is that—

“Where an act repealing another act and providing a substitute therefor is found invalid, the repealing clause must also be found invalid, unless it shall appear that the Legislature would have passed the repealing clause in any event. The Legislature by the act of April 19, 1898 (93 O. L., 146), amending Section 584, Revised Statutes, relating to attachments before justices by limiting the jurisdiction of justices in certain counties named without otherwise changing the law, did not intend to destroy the law upon such subject, consequently the repealing clause of the act in question would be invalid if the law were held unconstitutional.”

We think, therefore, that the justice of the peace had jurisdiction of the person and subject matter, and that the court erred in discharging the attachment, and the judgment will be reversed.


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    INJURY RESULTING FROM FRIGHT.
    [Circuit Court of Lucas County.]
    Louise Ohliger v. Toledo Traction Co. et al.
    Decided, October 26, 1901.

      Mental Pain and Suffering when not Accompanied by Physical Injury— Damages for Injury from Fright.

    "Where an injury resulting from the negligence of another-, is not of a physicál character and is due entirely to fright, there can be no recovery.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on error.
   Plaintiff in error, who was plaintiff in the court below, brought an action against the Toledo Traction Company and Daniel H. 0 ’Hara, charging that they had been guilty of negligence whereby she had been injured and suffered damages, which she sought to recover. The case was tried to a jury, and resulted in a verdict in favor of the defendants. A motion for a new trial was overruled. On account of alleged errors occurring in the court below, Louisa Ohliger prosecutes error here.

• She charges in her petition that on June 7, 1900, she was a passenger upon one of the cars of the Toledo Traction Company, a company operating a system of street cars in the city of Toledo, and that through the negligence of the employes of the company in charge of that car, and the negligence of the driver of a certain garbage wagon owned by the defendant O’Hara, a collision occurred between the car and the garbage wagon. She says that she was very much frightened by the collision and suffered great agony and distress of. mind in consequence of the fright. She also says that she was thrown violently forward from her seat in the' car, and then jerked violently backward into the seat, whereby she suffered physical injuries, perhaps a fracture of one of the floating ribs, and of the pelvis, and a lesion of some of the muscles or tendons of the back. The jury returned a verdict in favor of the defendants. They also answered certain interrogatories submitted to them, as follows:

“1. Q. Was whatever injury the plaintiff sustained caused by fright? A. Yes.
“2. Q. Did plaintiff receive any physical or bodily injury at the time by reason of the collision? A. No.”

It seems that on the trial in the court below the chief controversy, if not the only serious controversy, was whether the plaintiff might recover for injuries resulting from fright alone, and that question is debated here — whether the plaintiff might recover for the distress of mind due to fright caused by the negligence of the traction company and the other defendant. The second question debated is, whether the general verdict and this answer to the second interrogatory were against the weight of the evidence.

In debating the question whether she might recover for injuries received from fright, counsel for the plaintiff in error have discussed it as if the question were whether if through fright she suffered any organic or functional impairment of the heart or other organ, that might afford a basis of recovery.

If the answer to the second interrogatory is to stand, that question is not involved, since that answer is that she suffered no physical or bodily injury at the time by reason of the collision.

There is evidence tending to show that after this collision and in consequence of it, she became extremely nervous and debilitated; unable to walk with ease, unable to perform her usual and ordinary work that she had been accustomed to perform before that time, and that she suffered great distress and pain in the,back; all of which injuries the testimony tends to show may have resulted from the fright that she suffered on this occasion. On the other hand, there is testimony tending to show that before this collision she was weak and feeble, an infirm, delicate woman, and fully as bad off physically as she was after the injury; and that she was feigning, pretending that she suffered pain in her back; that is, that she was feigning so much as would appear to be in excess or aggravation of what she had previously suffered.

If the question were to be decided by us, we would not feel inclined to follow the authorities cited in support of the proposition that there could be no recovery on account of physical injuries from fright, without giving the matter much more study and consideration than we have .given it in this ease. There are authorities to that effect, many of them decisions that are entitled to great respect; but it seems to us at first blush, and indeed after such consideration as we have given it, to be a harsh rule, and perhaps not in entire harmony with other rules upon the subject, though it may be the law. We might, if we were required to pass upon the question, find ourselves obliged to follow this line of decisions. It would seem, as I say, to be a harsh rule, to say that one suffering from fright in consequence of the negligence of another, if that fright resulted directly in a physical injury, as for instance a rupture of the heart or of a blood vessel, or paralysis, or some similar functional disorder, could not recover on account thereof;- and yet it is conceded that for a mere physical injury, as for instance an injury produced by something coming in contact with the body, whereby there would be a contusion or an abrasion, or any other injury to the tissue or substance .of the body, no matter how trifling, there might be, a recovery, and such injury would let in proof of, and enable one to recover on account of other injuries resulting from the fright. But as I say, we do not feel obliged to pursue this inquiry or to decide upon this question of law, because the answer of the jury, to the second interrogatory excludes it all. It is sweeping. It is to the effect that there was -no physical injury resulting from this fright; that whatever injury the plaintiff suffered was from the fright, and that such injury was not physical;- that therefore if she suffered any injury it must have been in the nature of distress of mind consequent upon the fright; and we think that the authorities are clear, uniform and consistent, to the effect that for such distress of mind standing alone, i. e., when that is the only injury resulting from the negligence, there can be no recovery.

That leaves for consideration the question whether this general verdict and this answer to the second interrogatory are against the weight of the evidence. I will not undertake to discuss the evidence, and shall content myself with saying that we can not find the conclusions of the jury are contrary to the weight of the evidence.

Southard & Southard, for plaintiff in error.

Smith & Baker, for defendants in error.

The verdict and judgment, therefore, will be affirmed.


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    FRAUDULENT SALE BY A PROMOTER.
    [Circuit Court of Darke County.]
    Second National Bank v. Greenville Screw-Point Steel Fence Post Co. et al.
    Decided, November 18, 1899.

      Corporation — ‘Sale of Property to at a Profit — The Seller a Promoter and Trustee of the Profit Derived, When — Fraud Must he Shown by Clear Evidence — Liability of the Promoter — The Remedy.

    1. One may sell his own property to an association of individuals or a corporation at any price he may see fit and the purchaser is willing to pay, without regard to the profit he may thereby derive or the fact that he is himself a stockholder, provided only that, no false representations are made.
    2. But where the object in view is the formation of a company for the purpose of selling to it property belonging to another, at a price largely in excess of what the owner is to receive, the one thus negotiating becomes a promoter and occupies a fiduciary relation toward the company, and is bound to disclose his relation to the property it is proposed to purchase.
    3. Suppression or concealment of material facts in such a connection is a fraud on the company, and renders the promoter liable as trustee for the profits thus wrongfully made.
    4. Fraud of this character must be shown by clear and conclusive evidence, and can not be based on suspicion.
    5. Three courses of action are open to a corporation thus fraudulently dealt with. They may restore the promoter to his original situation, rescind the contract and recover the money wrongfully made; or they may offer to restore, and by keeping the offer good sue in equity for a rescission and recovery; or the stockholders may join to charge the guilty parties as trustees of the profits thus withheld and for an accounting.

      Sullivan, J.; Wilson, J., and Summers, J., concur.
    Appeal.
   The defendant, The Greenville Screw-Point Steel Pence Post Company, a corporation, was incorporated under the laws of Ohio, and organized and entered upon the business for which it was formed in June, 1895. For reasons not necessary to be stated here, the corporation in the following year, was, upon the petition of a part of the stockholders, dissolved, its affairs wound up and its debts paid in full.

The evidence set forth in the transcript of the testimony shows that W. K. Clyne, of Miami county, Ohio, on April 18, 1893, obtained letters patent for an improvement in fence posts, which consisted chiefly of a screw-point attached to the end of the post inserted in the ground.

That on November 5, 1894, he entered into a written contract with the defendant, H. D. Tilman, in which it was agreed that Tilman was to sell territory and posts, with the improvement covered by said patent, for Clyne, and to return to Clyne one-half of the proceeds of such sales. That some time in March, 1895, Tilman (whether in conjunction with Clyne or not does not appear affirmatively from the evidence) conceived the notion of associating a number of parties together as partners, for the purpose of buying this patent, to sell territory and also manufacture the post for sale. Thereupon an instrument was drawn up, which recited that the subscribers thereto were to become “co-partners” under the firm name of “The Clyne Screw-Point Post Company,” for the purpose of carrying on together the business of manufacturing and selling posts and territory, with the understanding that the territory was to cost $15,000.”

The contract provided that each, party was to pay the amount set opposite his name signed upon this instrument. That the number of shares should be fifteen, and of $1,000 each. This agreement was not to be binding upon any subscriber unless all the shares were subscribed. Before the number of shares had been subscribed, those who had signed were notified to appear at the court house in Greenville on June 8, 1895, for the purpose of organizing or launching the partnership. By whom su$h notice was given does not satisfactorily appear, bnt it is immaterial by whom, in view of what occurred between the parties at that meeting.

After the parties came together, they concluded to abandon the plan of a partnership and form a corporation; thereupon the necessary steps were taken to obtain a charter, and all who had theretofore subscribed to the instrument proposing a partnership subscribed respectively the same amount for the capital stock of the corporation. The several subscribers gave notes for their stock, instead of cash, payable in one and two years. These notes up to the sum of $11,250 were made payable to Clyne, $3,750 of the stock being reserved by Clyne.

In a settlement between Tilman and Clyne, this stock subsequently- became the stock of Tilman. Upon what terms it became the property of Tilman there is a conflict in the evidence of Clyne and Tilman. However, it is wholly immaterial how it became Tilman’s under the present status of the case. Whatever was done at this meeting by Tilman appears to have been done with the approval at least of Clyne.

The plaintiff, after averring its corporate capacity, sets forth in its petition that the defendant, the Greenville Screw-Point Steel Pence Post Company, on the 15th day of May, 1895, was a corporation duly incorporated under the laws of Ohio and had an authorized capital stock of $25,000, divided into two hundred and fifty shares of one hundred dollars each, of which one hundred and fifty shares had been subscribed, paid up and issued by said corporation, and there were subscribed, paid up and issued, prior to the incurring by said defendant company the indebtedness to-plaintiff described in its petition, the name of each subscriber, and the number of shares subscribed for, by each, as set forth. •

It then avers that on the 15th of May, 1896, the said Fence Post Company, being wholly insolvent, an action was commenced in Darke county common pleas against the same by certain of the stockholders to dissolve said corporation and to appoint a receiver to take charge of its assets and effects.

And that such proceedings were thereafter had in said action that said corporation on the 15th of September, 1896, was dissolved, a receiver appointed who converted all the assets of said company into money, paid costs of the proceedings and applied the balance in payment upon the indebtedness of said company, and after applying said balance there still remained dne and unpaid an indebtedness against said company of $1,650, of which sum there was due and owing 'plaintiff a balance of $941.44, for money loaned to said company, and for which said company had executed its notes to plaintiff.

The plaintiff then set forth, so far as known, the names of all other creditors of said company. Plaintiff averred that by reason of the premises the defendant stockholders named became liable to plaintiff and the other creditors of said company to an amount, equal in amount to the stock owned by each. Wherefore it prays that the creditors of said company and the amount due each might be ascertained by such method as the court should direct; determine the amount in which each of the stockholders is liable to plaintiff and other creditors of the company, and that the court order the payment of such amount by each stockholder for the purpose of paying said claims, and all other relief as in equity the circumstances of the case may require.

The cross-petition filed by the receiver in this case, and upon the averments of which arise the issues to be determined, after setting forth that the corporation had been dissolved, its affairs wound up and all its debts paid, charges that the defendants, Tilman, Armstrong, Halderman, Van Lue and Eidson, combined and confederated together for the purpose of cheating and defrauding all other parties who had become, or might become, stockholders in said corporation. That the fraud which they together had perpetrated upon their co-stockholders and members of said company consisted in having falsely represented to their associates that the improvement they were purchasing was a valuable invention, and that it could not be purchased from Clyne for less than $15,000, and that they had procured said Clyne to sell the same to the company for that sum, and falsely represented that Clyne had agreed if they could raise $10,000 and that he would remain interested with them to the extent of $5,000 and that thereafter he, Clyne, would dispose of this amount to such persons as the other stockholders might select. That each of the confederates named subscribed $1,000 to the capital stock of the corporation. That these 'subscriptions by such confederates were a mere pretense upon their part; that they neither paid cash nor gave their notes as the others had done. There are other charges of fraud and fraudulent representations not 'necessary to mention here, as the bill does not disclose that any proof was offered to sustain them. Believing such representations, and upon the strength of them, the other parties in good faith became stockholders in the corporation, and complied with all the obligations upon their part respecting the same.

The court below found from the evidence that neither of the five parties charged with the fraud had paid their subscription and entered up a judgment against them respectively for the amount of the same, with interest on the one-half thereof from June 8, 1896, and the remaining one-half from June 8, 1897, and found from the evidence that the defendants, Tilman and Halderman, had secured to themselves a secret profit in the sum of $6,050 by representing to the company that the patent could not be bought for less than $15,000, when in fact, out of the amount raised from the notes given, they paid Clyne $3,000 and no more: that whilst these confederates were representing to the other parties, who became stockholders, that said patent could not be purchased for less than $15,000, they had in fact an agreement with Clyne to purchase it for $3,000; that upon such representations they secured to themselves a profit of $6,050 that belonged to the corporation; and therefore a judgment for that amount was entered up against Tilman and Halderman, in favor of the receiver, together with interest on the one-half thereof from June 8, 1896, and on the remaining one-half from June 8, 1897. From this judgment the defendant, Halderman, took an appeal to this court.

The case was heard upon the pleadings, transcript of the testimony taken in the court below, and some additional testimony taken at the trial here.

The first question to be determined from the evidence is the relation that the defendants, Tilman and Halderman, sustained to the company or to their associates, each of them being a member of the corporation. If Tilman had been the owner of the patent, then he would have been entitled to any profit there might have been upon the sale of it to the company, although a member of the company. If he purchased the patent in his own name and then sold it to the corporation, although it was organized by him, he would not be a trustee of the corporation. See Milwaukee Cold Storage Co. v. Dexter, 74 N. W. Rep., 976 (99 Wis., 214), fifth syllabus:

“Any man or number of men who are the owners of any kind of property, real or personal, may form a partnership or association with others, and sell that property to the association at any price which may be agreed upon between them, no matter what it may have originally cost, provided there be no fraudulent representations made by the vendors to their associates. They are not bound to disclose the profit they may realize by the transaction.” Densmore Oil Co. v. Densmore, 64 Pa. St., 49.

See Milwaukee Cold Storage Co. v. Dexter, 74 N. W. Rep., 976 (99 Wis., 214, 229).

If Tilman was simply the agent of Clyne to sell the Patent and Tilman’s compensation was simply a share of the proceeds of such sale, then Tilman could not be held for any profits he may hwe made, but would be liable only for any damages accruing to the corporation from any false representations made by him, not authorized by Clyne.

However, it is not necessary in the present status of the case to determine whether Tilman acted simply as the agent of Clyne or whether Clyne and he were acting together in the organization of the corporation and the sale of the patent to it, as the evidence,- we think, clearly shows that Tilman’s representation to those he was seeking to induce to become stockholders was that the patent was held by Clyne at $15,000, and that he could not purchase it for the company from Clyne at a less figure, holding out to such parties all the time that the corporation, of which he was a stockholder and which he was active in promoting, must pay that figure to Clyne before they could get the patent, concealing all the while from his associates the arrangement he had made with Clyne, as stated in his own testimony. His entire conduct was such as to invest his associates with an honest belief that the entire sum was to go to Clyne, and that the reward, or rather remuneration he expected for his efforts in accomplishing the organization of the company and getting, it to operating, was that which would come to him on his stock, just like any other stockholder. We think his own conduct contradicts the claim he now makes, that he stated to all the parties, except two, that he was simply endeavoring to sell the patent as Clyne’s agent.

We think the evidence shows that he was inspired solely to become a member of the company and thereby induce his associates to believe that he was interested in the enterprise, with no other expectation of profit to himself except such as would accrue in common to all, for no other purpose except to enable him to make a profit upon a sale of the patent to the company.

We,have very high authority defining who and what are promoters. In Yale Gas Stove Co. v. Wilcox, 29 Atl. Rep., 303, 307 (64 Conn. 101), reading from the opinion of the court, in which the court says “who and what are promoters, so called, of corporations, and what their relations are to the corporations which they help to form, has been more frequently judicially considered and determined by the English courts than by those of this country. A ‘promoter’ has been defined to be a person who organizes a corporation. It is said to be, not a legal, but a business term, usually summing up in a single word a number of business operations familiar to the commercial world, by which a company is generally brought into existence. '* * # That such persons occupy a fiduciary relation toward the company or corporation whose organization they seek to promote, is well settled by the decisions of both countries. ’ ’

The original instrument, drawn with a view to the formation of a partnership, was inspired by him, and he was active throughout, and therefore a promoter. In his relation to the company, it was his duty to act for the best interests of it like any other stockholder, and therefore he could not withhold any secret profit made by him.

Tilman’s first object was the formation of some kind of a company with a view to the sale of the patent. The kind of company that could best do this, and thus accomplish the end he had in view, may not have been in the beginning very clear to his mind, but he ultimately succeeded in forming one and reached the result he was after, i. e., sale of the patent. He became a member himself, and certainly concealed from every one that the effort he was making was for an expected profit from such sale. He was then a promoter, and sustained a fidu-. eiary relation to the company, and as the court say in the case last above cited, page 122 of the opinion, “he must make full disclosure to the company of his relations to the property, that is the subject of his deal. Suppression, concealment, or misrepresentation of material fact is fraud; upon proof of which rescission of contract or repayment of secret profits will be compelled. ’ ’

Though he may have been acting as agent of Clyne,'yet the relation he sustained to the company was that of promoter and as such it was his duty to have disclosed the true arrangement he had with Clyne. Yale Gas Stove Co. v. Wilcox, 29 Atl. Rep., 303 (64 Conn. 101); Exter v. Sawyer, 47 S. W. Rep., 951 (146 Mo., 302), 2d Syllabus; Franey v. Warner, 71 N. W. Rep., 81 (96 Wis., 222).

Upon the discovery of the wrong perpetrated by Tilman upon his associates, three remedies were open to them to redress such wrong: (1) They could, by restoring Tilman to his original situation, have rescinded the contract and recovered their money; (2) or they might have offered to restore, and by keeping such offer good, sued in equity for a rescission of the contract and a recovery of their money; (3) or, as in this ease, without- restoring’ or offering to restore, all stockholders who were in a similar situation could join in a suit in equity to charge the guilty parties as trustees of the profits fraudulently retained by each, and an accounting.

This being an action to require an accounting for the secret profits, made by Tilman between the amount actually paid Clyne and that which was obtained from the company, what part, if any, does the evidence show was received by Halderman ? The bill does not show by any direct or positive evidence that he received any part of it; neither is it shown by any of the circumstances. At best the evidence merely creates a suspicion that ITalderman participated in such profit.

There are many things that were done by Halderman that would seem to justify such suspicion. First, the active part he took in securing others to go into the enterprise, and his knowledge that some were securing advantage over others. Second, his association with Tilman. And, lastly, his conduct and contradictory statements made with reference to the notes he gave after trouble arose. However Tilman swears that Halderman never received a dollar of the profit, and not only that, but he swears that Halderman never knew but what it was true that $15,000 was to be paid to Clyne. Halderman swears to the same. True it might be claimed that they were not entitled to credit, and that these sworn statements in this respect should not be received. But they are corroborated by the fact that none of the notes given were made payable to Halderman; not a particle of evidence that any were endorsed over to him, or that he ever presented any of them for payment. On the other hand, the evidence shows that all that were sold were negotiated by Til-man and Clyne, and the proceeds of such sales were divided between Tilman and Clyne, Tilman receiving the smaller amount when the division was made.

Yet it is urged that with all this, Tilman could have divided the money he received with Halderman. Fraud must be shown by clear and conclusive evidence, and if the court should so find, it would have to do so from suspicion alone, and not from the evidence. It is, however, claimed that though Halderman may not have received any such profit, yet he, being a confederate with Tilman, and aiding Tilman in the perpetration of the wrong, that therefore he is equally liable with Tilman. This would be true if the evidence showed that Halderman knew that the representations made by Tilman to secure such profit were false and fraudulent. There is no evidence showing that he did know. He never saw Clyne; never knew him; never had any correspondence with him. He and Tilman both swear that Halderman never knew anything of the arrangement between Til-man and Clyne. Halderman evidently believed that the improvement was a good thing, and there is no evidence but what the improvement is fully worth every cent paid for it. There is no such clear and conclusive evidence as the law requires to justify the conclusion that he did know. If he did not, then he could not be held liable for any part of the profit received by Tilman.

Ellist & Chenowith and John C. Clark, for plaintiff in error.

Anderson & Bowman, Allread & Teegarden and Williams & Krickenberger, for defendant in error.

What Halderman should have done when the wrong of Til-man was discovered, was to have paid the amount of his subscription to the treasurer of the company instead of to Tilman; we think the evidence shows he paid it afterward.

Judgment therefore for the amount of his subscription will be entered up against him in favor of the receiver, with six per cent, interest on the one-half from June 8, 1896, and on the remaining one-half from June 8, 1897, and to be paid within ten days from the date of this decree, or execution will issue therefor; and judgment against Tilman for $6,050 with interest at six per cent, on the one-half thereof from June 8, 1896, and on the remaining one-half from June 8, 1897, less the amount of notes returned by him with interest thereon, as provided in said notes. Several of said notes are endorsed by Clyne and we presume they are good. In any event Tilman should not be charged with anything not received by him. Judgment against Tilman to be paid in ten days from date of decree, or execution to issue therefor.

The costs of appeal and those of this court will be taxed up to Halderman and Tilman in the proportion as the judgment against them bear to each other. This case will be remanded to the court of common pleas to carry these judgments into execution. In view of the fact that there will be other services to be performed by counsel for the receiver in that court that can not now be estimated, the amount of fees for such counsel may be fixed by that court.

Entry may be drawn setting forth the above finding and judgments.


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    INJURY FROM DEFECTIVE SIDEWALK.
    [Circuit Court of Lucas County.]
    City of Toledo v. William Radbone.

    Decided, October 26, 1901.

      Damages — For Injury from Fall on Defective Sidewalk — Proof of Constructive Notice of Condition of the Walk — Injury Treated with Home Remedies and Grows Worse — Pleading—Charge ■of Court— Exceptions to Charge — Verdict not Excessive.

    1. An averment of knowledge on the part of a municipality of the dangerous condition of a sidewalk is a sufficient basis for the introduction of testimony tending to establish constructive notice of the condition of the walk.
    2. It is not competent for one who has filed a general exception to a charge of the court to afterward select a single sentence or paragraph for complaint, where the court was not asked to charge specifically on that point.
    3. Where it is complained that the trial judge has made a correction •in his charge since it was delivered, and has thereby eliminated error from- it, and it appears that the correction did no more than make the charge consistent throughout, a reviewing court will take the record of the charge as it finds it.
    4. One who has suffered an injury through the negligence of another is not barred from recovery therefor, because he did not call a physician at once, but treated himself with home remedies until a serious complication developed.
    5. ft suffered a fall on a defective sidewalk, causing abrasions and contusions of the skin, which developed into ulcers, incapacitating him to a considerable extent and causing him great distress. Held: That a verdict of $1,500 damages was not excessive.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on error.

      Affirmed by the Supreme Court.

   William Radbone brought an action in the court of common pleas of this county to recover from the city of Toledo on account of injuries which he averred he sustained by falling upon a sidewalk which he charges was defective. He says that his fall and his injuries were in consequence of this defeet, and that the city was negligent in permitting this defect to exist. It is said on behalf of the city, that the verdict is against the weight of the evidence, but this is not insisted upon in argument; nevertheless, being assigned as a ground of error, we have carefully read the record, and are of the opinion that the verdict is fully sustained by the evidence; that the defendant in error made out a very clear case against the city.

The petition avers that the city had knowledge of this defect for some time before plaintiff sustained his injury. Upon the trial of the case, evidence was admitted tending to show that the defect had existed for so long a time that the city was chargeable with constructive notice thereof. .There was no proof of any actual or direct notice, or of any actual knowledge by any person whose knowledge would be knowledge of the city. At the close of the evidence, counsel for the city moved the court to direct the jury to return a verdict for the defendant, on the ground that the petition did not allege constructive notice, and that no actual notice had been proven.

We think there was no error in admitting this evidence in support of this allegation, or in overruling this motion. We think an averment of knowledge in a case of this character may be sustained by evidence of facts from which constructive notice would arise; in other words, that from such a state of facts as is shown here, the city is chargeable with all the effects of knowledge.

It is complained that there was error in the charge as it was given upon the subject of the circumstances that would render the city liable, but it is conceded that there is no error in the charge as it stands now in the record. It is said that there has been a correction made, and it appears that this correction was made by the judge who delivered the charge.

We must take the record as we find it. We will say in passing that it appears to us to be quite apparent that the correction was right; that the learned judge never gave the paragraph to the jury, standing alone as a proposition by itself, as it stood before the correction was made. In other words, the sentence as it stood would have been in effect a direction to the jury to find a verdict for the plaintiff below; and that, in view of the course pursued upon the trial by counsel and the court, and the pains the eonrt took before this, and afterward in the charge, to lay down all the rules of law applicable to the cause, would be entirely inconsistent, and would be very absurd. The sentence standing right after that — “it is your duty to find a verdict for the plaintiff, unless guilty of negligence himself directly contributing to his injury,” as charged, is correct. That is simply the termination of a long sentence, setting forth the circumstances under which the city would be responsible, which is entirely unobjectionable. The correction consisted in striking out a capital “A” of the word “And,” at the beginning of a part of this sentence, and putting in a small “a,” and changing a period to a comma — a mere correction in the punctuation of the sentence.

It is also contended that there is error in the charge upon the subject of the duty of the plaintiff below to employ a physician. It appears that when he fell he bruised and knocked the skin off his shin, and that he undertook to treat the injury himself, supposing that it was trifling, by the application of some home remedies, such as arnica, bandaging, etc. In the course of about three weeks he found that the hurt was not healing, but was becoming worse, and thereupon employed a physician. The injury ultimately resulted in ulcers, which caused him a great deal of distress, and disabled him to a great degree.

The part of the charge on this head which is complained of is a single sentence in a paragraph which is devoted to this subject, which sentence reads: “A mistake in treatment to his limbs, a mistake in judgment in the result, would not bar his recovery or mitigate the damages.”

It is insisted that the court should have qualified this by saying that if the mistake in judgment was such as an ordinary prudent man might have made, would not be barred from recovery. W]e think that no qualification is required; that the injured person is to proceed upon his own judgment, or such judgment as nature or his Creator has given him, and is not bound to satisfy the judgment of somebody else. But taking the whole paragraph on that subject together — I will not take time to read it — it seems to us to be entirely correct. It is not admissible for a person who has filed a general exception to the charge, and has not asked the court to charge specifically upon a subject, to afterwards pick out a single sentence in a paragraph and complain of that. He must take the whole charge together. "We think there was nothing wrong, nothing mislead-' ing, in this charge upon this subject.

M. R. Brailey and C. K. Friedman, for plaintiff in error.

King & Tracy, for defendant in error.

Finding no error in the record, the judgment of the court below is affirmed.


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    FIDELITY BONDS RENDERED INVALID.
    [Circuit Court of Lucas County.]
    Imperial Building & Loan Co. v. United States Fidelity & Guaranty Co.
    Decided, October 19, 1901.

      jfidelity Bond — False Answers by Applicant For — Render the Bond Invalid, When. ,
    Answers by an applicant for an indemnity bond, to tbe effect that he had never applied to another company for bond and had never been refused bond by another company, are material and vital; and where such answers are false, and the party for whose benefit the bond was executed had knowledge of their falsity, the bond is rendered invalid.
    Parker, J.; Haynes, J., and Hull, J., concur.
   In the court below the parties stood in the same position upon the record as they stand in this court, The Imperial Building & Loan Company being the plaintiff and The United States Fidelity & Guaranty Company the defendant. The action was upon an undertaking by the defendant guaranteeing the faithful performance by one James Thomas Morris, of Mansfield, Ohio, of his duties as agent for the plaintiff. It appears that as agent for the plaintiff he had colletced some $524.75, which he had embezzled. Defendant had given bond to indemnify the plaintiff against any frauds of this character upon the part of Morris. Morris,, upon being required by the plaintiff to give some surety for the faithful discharge of his duties, had made application to the defendant to guarantee his fidelity.

In the application, which was upon a blank furnished by the defendant, certain questions were asked of him and answered by him, and among others, these:

“Q. Have you ever applied for a bond in this or any other company ? A. No.
“Q. If so, state name of company, the date, name of employer, and whether accepted or declined. A. No.
‘ ‘ Q. Have you ever been refused the issue or continuance of a bond on your fidelity by any company? If so, give particulars. A. No.”

The employer, the plaintiff, was also required to make a statement, upon a blank furnished by the company, and the statement which it made reads as follows:

“The replies of the applicant herein are to the best of my knowledge and belief correct. He has been in the service of the undersigned employer since December 1, 1898, filling position of solicitor, and has continuously filled the position for which this bond is required since December 1, 1898, but we add new duties now. He has always, to the best of my knowledge and belief, given satisfaction in his personal conduct and performance of duties, and kept his accounts faithfully and without default. ’ ’

There is more of this, but the material part is, “The replies of the applicant herein are to the best of, my knowledge and belief correct.” This is signed by T. E. Brady, the secretary of the company, on behalf of The Imperial Building & Loan Company, the employer.

It appears that shortly before this application was made to the defendant, Morris had made application to another company, The American Surety Company, for a bond of this character to be given to this same employer, which application said company rejected, and that this secretary of the plaintiff was aware of that fact, and of the fact that The American Surety Company had not passed favorably upon the application, is fairly inferable from the evidence. There is correspondence between the secretary of the plaintiff' company and Morris^, indicating that they were both aware of the fact that this application had not been accepted, but had been rejected, before these answers that I have read were made by them respectively.

Clayton W. Everett, for plaintiff in error.

Chittenden & Chittenden, for defendant in error.

The falsity of these answers is adduced as a defense to the action upon the bond. Without entering into a full discussion of the matter, we have simply to say that we regard the representations contained in these answers to these questions as being material and vital. They are representations with respect to matters about which the defendant had a right to be informed, as affecting the hazard involved in the giving of this bond. They are similar in character and of like effect with representations made by a person applying for life insurance; for instance, that he had never been rejected by any other company; or by a person applying for fire insurance, that the risk had not been rejected by any other company; or that he had not suffered any loss by fire. If truthful answers had been made to these questions, it can not be doubted but the defendant would have at once rejected the application, or at least have advised itself as to the grounds upon which The American Surety Company had rejected the application. The defendant had the right to know the facts, and to require truthful answers to these questions.

The judgment of the court below was in favor of the defendant upon this defense, and we discover no error in that.

It is also contended that the bond is not broad enough in its terms to cover this particular occupation, but upon that question also we think the conclusion of the court below was correct. Therefore the judgment of the court of common pleas will be affirmed.