author: Scribner, J.

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    Hannah Reed v. Henry L. Brown, Executor of the Last Will and Testament of Robert Brown, Deceased.
    The prohate court has power, upon the hearing of exceptions to the account of an executor filed in such court, to hear and determine upon evidence, the question as to whether or not such executor has been guilty of collusively and fraudulently selling and conveying real estate of the testator at much less than its fair value, under the authority conferred by the will to sell the same for the payment of debts ; and if thd court finds the executor guilty of the alleged fraudulent conduct, to charge him in his account with the fair value of the lands so sold.
    Error to the Court of Common Pleas of Huron County.
   Scribner, J.

This is a proceeding in error whereby it is sought to reverse the judgment „of the court of common pleas rendered in the case taken into that court by way of appeal from the judgment of the probate court.

In the year 1890, and some time prior to the first of October of that year, one Robert Brown, then a resident of Huron county, departed this life possessed of certain personal estate and seized in fee of a farm containing about 101 acres of land, situate in said county. He left certain persons, named in this proceeding, his heirs at law, and his last will and testament, which was duly admitted to probate in the probate eourt of Huron county, in the fall of 1890. By the terms of this will the defendant in error in this proceeding, Henry L. Brown, was appointed executor. This instrument, among its provisions, contains the following :

Item third. — “I do hereby nominate and appoint my son, Henry L. Brown, executor of this my last will and testament, hereby authorizing and empowering him to compromise, adjust, release and discharge in such manner as he may deem proper, the debts and claims due me. I do also authorize him, if it shall become necessary in order to pay my debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise, as he may think proper, all of my real estate, personal property, and deeds to purchasers, to execute, acknowledge and deliver in fee simple; and after payment of my debts, funeral expenses, and costs of administration, the residue to be equally divided among the legatees hereinbefore mentioned, according to the provisions of this will.”

. The will having been duly and regularly admitted to probate, and the executor having accepted the trust and given bond as required by law, and entered upon the discharge of the duties imposed upon him by law, and required by the will, proceeded with the performance of these duties until the time came for a settlement of his account filed in the probate court of Huron county. To that account exceptions were entered by the present plaintiff in error, who was one of the heirs at law and devisees of the testator. These exceptions were heard by the probate court on the 25th of May, 1891.

The principal matter in contention, as presented by these exceptions, was the claim made on behalf of this plaintiff in error, that the defendant had, by fraudulent collusion with certain heirs, conveyed to them, assuming to act under the authority conferred by the clause of the will which I have just read, the land described therein, being the farm of about 101 acres, for the consideration of $1,200.00.

In filing his account with the probate court, the executor had charged himself with the sum of $1,200.00, as the proceeds of the sale of the real estate which he had made. The exceptions to the account were beard before the probate court, and it was particularly urged as against the executor, that he had acted collusively and fraudulently with the brothers and sisters in conveying to them the farm for what wasclaimed to be the nominal price of $1,200.00. It was insisted on that hearing that the real estate so conveyed was of the value of from four thousand to fourthousand five hundred dollars, and that the executor should be charged, in addition to the sum of $1,200.00, with which he had charged himself as the price or value of this land, with such further sum as would bring the debit side of his account up, as far as the land is concerned, to the sum of from $4,000.00 to $4,500.00.

The probate court sustained the exceptions taken to the account, and charged the executor with an additional sum for the land ; or, the probate court, finding in effect, that the averments made against the executor were true and sustained by the evidence, adjudged that he was bound to account not only for the money he had received, but for the waste and loss caused by his malfeasance in disposing of the real estate in the manner in which he did. The executor took his appeal under the statute to the court of common pleas, and in that court, when the cause came on for hearing, all testimony offered by the present plaintiff in error tending to support the charge of fraud made-against the executor, was excluded by the court, the court being of the opinion that the probate court had no jurisdiction in passing upon the account of the executor, to entertain a question or claim of that kind ; and that whatever remedy the plaintiff had, if any, was upon the official bond of the executor for maladministration of the affairs of the estate.

The proof offered by the plaintiff in error, if received, would have tended to show that the farm was worth from $4,000 to $4,500; that the executor had been offered $4,000 for it and had refused the offer; and in various forms, the plaintiff, by different witnesses, offered to make proof of facts upon which she based her claim, that the executor had been guilty of the acts charged against him in the exceptions to his' account filed in the probate court.

But all this testimony was excluded by the court upon the ground that, in the opinion of the court, it was incompetent for the court to receive or consider it; that the probate court had no power or jurisdiction, upon the hearing of the exceptions to the account of the executor, to consider or pass upon or adjudge as to the validity of the claim made by the plaintiffin error. There were sundry other exceptions taken, disputing the account of the executor as to various small amounts for which he claimed credit, and these objections in the main, were also overruled by the court of common pleas upon the ground that the executor was entitled to be credited in his account with the estate for the sums for which he claimed credit.

. The ruling of the court of common pleas having been against the plaintiff here, a bill of exceptions was taken embodying the testimony that had been given or offered, and the action of the court thereon, and this proceeding in error is brought to reverse the judgment and order of the court ot common pleas, holding that the liability, if any there be, attaching as against the executor, cannot be considered either in the probate court upon exceptions to the account of the executor, or in the court of common pleas upon appeal from the judgment of the probate court. As a matter of course, the question as to whether or not the court of common pleas erred in this regard depends upon the further paramount and important question lying behind it, as to whether or not the probate court had jurisdiction, in passing upon the account of the executor, to hear and determine the question as to whether or not he had been guilty of maladministration or malfeasance in office, and.had fraudulently disposed of real estate of the decedent.

The will conferring the power of sale, it will be observed, confers the power merely ; it does not transfer to the executor the title to the land and then give him power to sell. The authority is conferred upon the executor in these words

“I do also authorize and empower him (the executor), if it shall become necessary in order to pay my debts, to sell by private sale, or in such manner and upon such terms of credit or otherwise as he may think proper, all of my real estate, personal property, and deeds to purchasers, to execute, acknowledge and deliver in fee simple,” etc.

The deed made by the executor, a copy of which appears as a part of the bill of exceptions, recites :

“Know all men by these presents, that I, Henry L. Brown, as executor under the last will and testament of Robert Brown, deceased, late of Hartland, in the county of Huron and state of Ohio, which will was duly proved and admitted to probate by the probate court for said county, on the third day of October, A. D. 1890, do, by virtue, and in execution of the power to me given in and by said will, and of every other power and authority me hereto enabling, the sale of the premises hereinafter described being necessary in order to pay the' debts of the said Robert Brown, deceased, and in consideration of the sum of $1,200,” etc.

The power of sale, it will be observed, is given in the event that it becomes necessary to make a sale for the payment of debts. The deed made in pursuance of the power, recites that it has become necessary to make the sale in order to provide for the payment of debts.

The bill of exceptions contains this further statement:

“ It was further agreed on the hearing of said proceeding, by said executor and exceptor, that the grantees in the deed hereinafter mentioned, are the brothers and sisters of said executor, and that the said Elias P. Brown has been, since the appointment of said executor, his general agent in the management of the affairs of said trust, said executor being a nonresident of Ohio, and that said Elias P. Brown is one of the sureties on the bond of said executor.”

The question then for us to determine is, whether or not the probate court possesses jurisdiction under the constitution and laws of this state, in passing upon the account of an executor, to consider and determine whether or not the executor has, in disposing of real estate of the testator under power conferred by the will, acted fraudulently, with the intent of defrauding certain of the heirs at law, or devisees under the will — whether or not the probate court has power to consider that question and hear testimony bearing upon it; and if it should find that the executor has been guilty of such fraud, then whether or not that court has power to charge him, not only with the sum that he has realized in making the sale, but also with such further sum as he might have realized or should have realized had he managed his trust faithfully and honestly, with due regard to the rights and interest of all concerned.

The point of contention is just here: Upon the part of the defendant in error, it is insisted that while‘the liability •of the executor exists, upon the facts stated, to account to the parties who have been wronged by such dishonest conduct on bis part, the remedy to enforce such liability is upon the bond which the executor has given for the faithful discharge of his duties. Whether or not the wrong which (according to the •claim of the plaintiff) he has committed, may be remedied and relief had against him in the probate court on the Settlement -of the accounts of the executor, is the question in controversy. While on the one hand it is conceded that the probate court, in eases of this kind, is vested with very great power, yet it is insisted that pow'er is not conferred upon that court to pass upon a claim such as is here made in a proceeding to settle the accounts of the executor, even if the proofs establish the fact that the wrongful act has been committed as charged.

The provisions of the constitution regarding the powers conferred upon probate courts are as follows: Section VIII, article 4, of the constitution:

“The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses; and for the sale of land by executors, administrators and guardians, and such other jurisdiction in any county or counties as may be provided by law.”

There are also certain provisions of the statute which it is proper to notice, touching the jurisdiction conferred upon the probate court. Among these is section 6006, in regard to the bond an administrator is required to give before entering upon the execution of his trust. And there is another, section 5996, relating to the bond of an executor, which reads as follows:

“ Every executor before entering upon the execution of his trust shall give bond, with two or more sufficient sureties, in such sum as the court shall order, payable to the state, with-condition as follows :
“First — To make and return to the court, on oath, within three months, a true inventory of all the moneys, goods, chattels, rights and credits of the testator which are by law to be administered, and which shall have come to his possession or knowledge; and also, if required by the court, an inventory of the real estate of the deceased.
“Second — To administer according to law, and to the will of the testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, that may bo sold for the payment of his debts or legacies, which shall at any time come to the possession of the executor, or to the possession of any other person for him ; and,
“Third — To render, upon oath, a just and true account of his administration, within eighteen months, and at any other times when required by the court or the law; and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, he shall receive no-allowance for services, unless the court shall enter upon its journal that such delay was necessary and reasonable.”

The other clause of this section, relates to the power of the probate court to dispense with the giving of a bond where the testator has not intended that any bond shall be required.

Section 6023 provides that:

“Every executor or administrator shall, within three months after his appointment, make and return upon oath, into court, a true inventory of all the goods, chattels, moneys, rights and credits of the deceased, which are by law to be administered, and which shall have come to his possession or knowledge, except only that an executor who is a residuary legatee, may give bond to pay all the debts and legacies of the deceased as hereinbefore provided, and he shall thereupon be excused from returning such inventory,” etc.

And section 6025 is as'follows :

“If the court, at the time of granting letters testamentary, or letters of administration, shall think fit, it may order the executor or administrator to also include in the inventory an appraisement of all the real estate of the deceased.”

Section 6028 reads:

“The estate and effects comprised in the inventory shall, unless an appraisement thereof has been dispensed with by an order of court, be appraised by three suitable disinterested persons, who shall be'appointed by the court, and sworn to a faithful discharge of their trust; and if any part of such estate or effects be in any other county, any disinterested justice of such county may appoint the appraisers of the estate and effects therein.”

Section 6179 should also be considered iu passing upon this case ; it reads :

“Every executor or administrator shall be chargeable with the amount of the sale bill as hereinbefore provided, and also with all goods, chattels, rights and credits of the deceased which shall come to his hands, and which are by law to be administered, although they should not be included in the inventory or sale bill; also with all the proceeds of the real estate, sold for the payment of debts or legacies, and with all the interest, profit and income that shall in any way come to his hands from the personal estate of the deceased.”

Section 6180 should also be considered; it reads :

“No profits shall be made by executors or administrators by the increase, nor shall they sustain any loss by the decrease or destruction, without their fault, of any part of the estate.”

Section 6209 relates to the liability of an administrator for unreasonably delaying to convert the assets of the estate, either by collecting the debts, or by selling the real estate, if it should be necessary.

Section 6215 provides as to the manner in which an action on the bond shall be brought, and from this, as well as by decisions of the Supreme Court, it appears that the probate court has no jurisdiction of an action on a bond of the administrator or executor.

If the probate court have jurisdiction in a proceeding for the settlement of the accounts of an executor to pass upon the question as to whether or not the executor has been guilty of dqvastavit, as charged in this proceeding, and has fraudulently disposed of the property of the estate to the prejudice of those interested therein, it would seem to follow that, in the event of a settlement of the accounts of the executor, without the question being,passed upon, as to whether or not he should be charged with the additional sum alleged to have been lost to the estate by his maladministration, the parties interested in the estate might be estopped from afterwards asserting the claim against him for the bad faith and improper conduct charged against him in such a proceeding. For example, an account is filed, as it was filed here; the executor charges himself with a sum of money paid by the grantee to whom he has conveyed the land which is the subject of the controversy. The proceeding usual in such cases, under the statute, is had in the probate court. The probate court passes upon the account, and adjudges that the executor is chargeable with the sum entered in his account as the proceeds of the sale of the land which he has made. The probate court finds, in entering up its conclusion and judgment in the case, that the executor is chargeable with so much money as shown in his account, so much for the proceeds of the personal estate, and so much for the proceeds of the real estate which he has sold; and finds also that he is to be credited with so much paid out in the course of administration, and that there is a balance in his hands of so much money, and it orders that sum to be distributed according to law. This is the only final order he can make. ,

If, after that, an action should be brought upon the executor’s bond by the heirs or devisees who have been injured, charging the executor with maladministration in the affairs of the estate, there would be danger, at least, that the, claimants might be successfully met with the objection that the executor had filed his account, including the debits against himself for the moneys realized upon the sale of the real property; that the account had been passed upon by the probate court and approved by that court, and the balance found due in his hands charged up against him, and an order made that he distribute that sum according to law. In such case we are brought back to the main question arising in the ease, namely: Has the probate court jurisdiction to .determine, in passing upon the acconnt, as to whether or not the executor has been guilty of devastavit, and should be charged with an additional sum of money by reason of it? It would be very difficult, in our opinion, to escape the conviction that the judgment of the probate court approving the account, so long as it remained undisturbed, concluded the parties in interest. If the probate court had not jurisdiction to consider or determine whether or not the executor had been guilty of fraud as alleged, it would follow, as a matter of course, that no estoppel could arise.

The record shows that the only authority this executor had to sell the real estate depended upon the fact that it was required for the payment of debts. He had no power or authority to sell except for the payment of debts. His deed recites, as I have already shown, that it was necessary to sell the real estate in order to provide means for the payment of debts. If there had been no will, or no power conferred by will to make the sale for the purpose, the executor or administrator, as the case might be, would have been required to take proceedings in the probate court, under the statute, in order to effect a sale of the real estate, and from such sale to realize funds with which to pay debts and the costs and expenses of administration.

The question arises in the mind at once as to whether or not a sale authorized by the will of the testator differs in any respect in its consequences, as to the executor who acts upon it, from a sale made by authority of the probate court for the same purpose. In the one case the authority is conferred by the will of the testator ; in the other it is conferred by order of the probate court, acting under a provision of the statute.

It seems to us, after much consideration of the question, that when an executor is required, in the performance of his duties, to sell real estate in order to pay debts and the expenses of administration, the land itself in his hands and its proceeds after a sale made iu execution of the powers and duties devolved upon him, constitute a portion of the assets, of the estate. We think this conclusion may rest for its authority not only upon a fair construction of the language of the different sections of the statute before referred to, but also upon the doctrine of the case of Sheldon v. Newton, 3 Ohio St. 495. See, also, the case found in 17 Ohio St. 548.

If the lands become assets of the estate, when the situation is such that it is necessary to convert them into money, why should not the executor be chargeable with them as with any other assets, or with their proceeds or their value, precisely as with the persoual property which is committed to his care ? He is required by law to sell the real estate when necessary to pay debts. He is directed and authorized by this will to perform that duty without resort to the process of the probate court in order to accomplish it. It is true that under a decision of the Supreme Court, such portion of the proceeds of real estate, when sold to pay debts, as is not required for the payment of debts, is to be distributed precisely as the real estate is by law or the will distributed; that is to say, the fact that the executor, in order to raise the necessary funds to enable him to perform and discharge the trust, has proceeded to sell real estate, and the sale produces more than is required to pay the debts, does not interfere with the due descent of the fund which represents the lands; that is, of the money or proceeds of the sale which are not required to pay the debts. This does not interfere with the rule that should be applied in such cases as to whether or not this money, a portion of which, or the whole of which is required for the payment of debts, should be treated as assets in the hands of the executor. The extent to which the fund should be treated as assets usually depends upon the question as to what portion of it is required for the payment of the debts of the decedent. The whole of the proceeds may be required, or a part only.

But the proceeds, notwithstanding the rule prevailing in such cases, not required for the payment of debts, in the hands of the executor, are to be treated, so far as his liability is concerned, precisely as the portion of the fund which may be required for the payment of debts. Lands required for the payment of debts, and sold by the executor in the performance of the duties imposed upon him by the will, for the payment of debts, are, in fixing the measure of his liability, to be regarded as assets of the estate, and we think as such they are within the terms of his liability asan executor holding or chargeable with assets.

In our view, it is not the difference between what the executor sold the land for, and what he should or might have sold it for, that constitutes the measure of liability, or strictly the subject of the liability; but it is the land itself which came into his hands under the will, and which he sold by virtue of the terms of the will and in pursuance of the requirements of the statute for the payment of debts. He is not simply to be charged with what he might have realized from the sale of the land. If it be shown that he has been guilty of fraud, collusion and malfeasance, as is charged against him, and which this record and the evidence offered in this regard tend to show he was guilty of, it is not that he realized only $1,200.00 when he should have realized $4,000.00 or $4,500.00, or the mere difference between what he received and the price offered; but he should be charged with the fair value of the land as assets in his hands, for which value he and the sureties on his bond, so far as the bond imposes liability, are required to account.

I desire to again call attention to the condition of the bond as required by the statute (section 5996), which I read a few moments ago, and to ask counsel to consider how far the terms of this section, specifying the condition that the bond shall contain, affect the sureties in the bond for the misfeasance charged in this case.

The bond or the condition is to be as follows:

First — “ To make and return to the court, on oath, within three months, a true inventory of all the moneys, goods, chattels, rights and credits of the testator which are by law to be administered, and which shall have come to his possession or knowedge ; and also, if required by the court, an inventory of the real estate of the deceased.

Second — “ To administer according to law, and to the will of the testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, that may be sold for the payment of his debts or legacies, which shall at any time come to the possession of the executor, or to the possession of any other person for him ; and,

Third — “To render, upon oath, a just and true account of his administration, within eighteen months, and at other times tvhen required by the court or the law ; and failing so to do for thirty* days after he shall have been notified of the expiration of the time by the probate judge, he shall receive no allowance for services, unless the court shall enter upon its journal that such delay was necessary and reasonable.”

It is a serious question, if counsel for defendants in error are correct in their views, as to whether malfeasance of the character now in question, is within the letter or strict terms of these requirements of the statute.

If the land, under the circumstances shown in the record, can not be regarded as assets of the estate, how can liability arise on the bond of the executor framed under the provisions of the statute, for wasting or dealing dishonestly with it? And if the land be assets when sold by the executor under the power conferred by the will, for the payment of debts and expenses of administration, how can it be consistently said that the probate court has not jurisdiction to deal with such assets and the conduct of the executor, in settling and adjusting his accounts and ascertaining the amount with which the executor should be charged ?

. There are some other matters of minor importance that arise upon the record of this case; certain exceptions to items credited to the executor in his account. One item is for insurance on the farm buildings, and other items for expenses incurred in traveling from the state of the executor’s residence to Ohio, in order to look after the business of the estate and things of that kind.

Our time has been so much occupied in the consideration of the main points of this case, as well as questions arising in other cases that were argued, that we have had little opportunity or time to consider properly these questions, and are not in a position to pass definitely upon them. We have our impressions, however, and they are these : First, as to the item of insurance; that the executor is not entitled to credit for. Until the property was sold, or until the executor took steps to sell it, he had nothing to do with it, and his duty did not require him to insure the property; we do not see that he had any right to do it. So far as the item of expenditure is concerned, in coming to Ohio from another state to look after the interests of the estate, we are inclined to think that that constitutes a proper charge; he was the executor. The testator had a right to choose whomsoever he wanted, and a person was chosen from another state, and in order to accept the trust, he was compelled to come to Ohio to perform the duties of his office, and it occurs to us that these items are a proper charge against the estate; but we prefer that no finding should appear in the record. We offer this merely as a suggestion, but we do not wish to be bound by it.

G. Bay Graig and S. A. Wildman, for plaintiff in error.

G. P. & L. W. Wickham and Andrews Bros., for defendants in error.

For the error of the court in rejecting the testimony offered by the plaintiff in error, the judgment will be reversed and the ease remanded to the court of common pleas for further proceedings.


source: Caselaw Access Project

author: Bentley, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas County, O,, Circuit Court
    Jan’y Term, 1894.)
    Before Bentdey, Haynes and Scribner, JJ.
    The State of Ohio v. J. M. Bour.

      Prosecution under act punishing adulteration of vinegar, etc. — Judgment by , common pleas acquitting defendant final; and on exceptions by the state the circuit court has no jurisdiction to entertain a petition in error.

    Error to the Court of Common Pleas of Lucas County.

      G. A. Palmer, for plaintiff in error.
   Bentley, J.

Bour was prosecuted before a justice of the peace of Lucas county for a violation of the statute regarding the sale of adulterated vinegar, and convicted, and sentenced to pay afine and the costs of prosecution and the costs of analyzing and inspecting said vinegar. On Bour’s petition in error in the court of common pleas, that court reversed said judgment, and an exception was entered on behalf of the state. The state now presents this petition in error in the circuit court to reverse said judgment of reversal.

Held, by the circuit court: That it has no jurisdiction of such an action, and that the said judgment of the common pleas is final as to the State. See State v. Simmons, 49 Ohio St. 305.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga County, O., Circuit Court
    Jan. Term, 1893.)
    Before Baldwin, Caldwell and Hale, JJ.
    The Society for Savings v. Frank B. Drake et al.
    Where a wife joins the husband in a mortgage on real property in which she has a dower interest and which is sold on foreclosure, for more than the mortgage debt, she is dowable of the entire proceeds of the sale.
    Appeal from the Court of Common Pleas of Cuyahoga County.
   Hale, J.

This case is submitted upon the pleadings and an agreed statement of facts. The issues in the case, except one, have been determined and finally disposed of. The mortgage which the plaintiff held has been foreclosed, the premises sold, the mortgage paid, and the remainder of the money is now in court in the hands of the clerk.

The issue that is not determined arises upon the application of the widow of Abner Drake, deceased, for the assignment of dower in the entire proceeds arising from the sale of the premises sold under the decree of foreclosure. The contention is between the widow and the sons and heirs of the decedent. The sons claim that the widow is endowable in the surplus only after the payment of the mortgage, they having a conveyance from their father made prior to his death. We find that Abner Drake at the time that the mortgage was executed was the owner in fee of the real estate concerning which this contention arises; that a mortgage signed by the husband and wife was given to the plaintiff to secure a debt of the husband ; that after the execution of the mortgage, to-wit: July 23, 1891, the husband, by deed in which the wife did not join, conveyed the premises to his sons, the defendants herein. The conveyance was without consideration, except as stated in the answer that the mother of these boys, prior to her death, owned these premises; that after her death the boys conveyed by deed to their father long before this mortgage was executed. The suit for foreclosure was commenced and went to a decree after the death of Drake. The conveyance to the boys was made July 23, 1891, and Drake died in November, 1891.

There is some conflict in the authorities as to the law applicable to this state of facts. If the wife had pledged her separate property to secure her husband’s debt, in addition to the security given by the husband, it would not be claimed that her property should be sold before all the property of her husband was exhausted. In such a case the husband would be the principal, and the wife the surety, and entitled to all the rights and benefits as such. It was long ago said by Chancellor Walworth : “ It is the settled law that when the wife pledges her separate estate, or her reversionary interest in real estate, for the debt of her husband, she is entitled to the ordinary rights of a surety.” This language has been many times approved by our own Supreme Court, and we see no good reason, on principle, for distinguishing the two cases, the one where the wife has pledged her separate estate, which she held entirely separate from her husband, to secure his debt, and the other where she has pledged her property by way of right of dower in his property.

It is the settled law of this state that the contingent right of the wife, during her husband’s life, to be endowed with his real estate at his death, is property having a substantial value. It is so held in a case reported in 46 Ohio St. 407. If that be so, we see no reason on principle, for making a distinction between this and any other case where the wife has pledged property to secure the debt of the husband ; and if this case was to be determined independent of authority, we would, without hesitation, hold the widow to be rightfully dowable of the entire proceeds of this sale. The proceeds of the sale were more than sufficient to pay the mortgage, and give the widow the value of her dower interest in the entire proceeds of the sale, and still leave a balance to the sons. Nor are the rights of the wife, in our judgment, at all affected by the fact that the husband, just prior to his death, conveyed these premises, as we find, without consideration.

As we have said, the cases in this state are not in entire harmony upon the exact question here involved. Three cases have been determined by the Supreme Court which bear more or less upon this question. The first is the case of The Bank v. Hinton, 21 Ohio St. 509. Counsel representing the sons rely upon this case, and insist that it is exactly the case we have here. In that case, Hinton being the owner of property in 1845, executed, with his wife, a mortgage upon the premises he then held, and in 1847 he conveyed the premises to the grantee for a full consideration. In 1860 the mortgage was foreclosed and the premises sold prior to his death. He died in 1865, the money, however, being in court and not being distributed. The wife then made application to be endowed in the proceeds arising from the sale of the premises, and the only question which was argued by the counsel in that case was whether the wife was entitled to dower at all. The court held, that the wife was entitled to dower in the surplus only, after paying off the mortgage in which she had joined.

The next case is that of Kling v. Ballentine, 40 Ohio St. 391. In that case Ballentine died the owner of certain premises, upon which he and his wife had executed a mortgage. The administrator made application to sell the property mortgaged to pay debts generally. The premises were ordered sold, the mortgage first paid out of proceeds of the sale and the balance distributed. The contest was between the heirs at law of Ballentine and his widow. The court held in that case that the widow was entitled to be endowed of the entire proceeds of the premises, which were sufficient to pay off the mortgage and give her the value of her dower estate in the whole premises.

The next case is the case of Mandel v. McClave, 46 Ohio St. 407. In that case Mandel, being the owner of premises, had executed two mortgages to secure debts of bis own, bis wife joining in the mortgages. After the mortgages were executed, Mandel became indebted to MeClave and others, who put their claims in judgment and secured liens upon the real estate mortgaged. One of the judgment creditors brought an action to marshal the liens and obtain a sale of the premises to pay the various liens. The husband was still living. Two questions were there raised: First, whether this contingent right of dower of the wife was property of a nature, the value of which could be fixed and the wife protected in it; and, second, if it could, upon what basis it should be done. The court held that in this state the value of the contingent right of dower of the wife was capable of being reasonably fixed, and ascertained, and the wife thereby protected; and having so held, the question was, shall she be endowed of the surplus after paying the mortgages, or in the whole value of the property, she asking that her dower be ascertained in money and given to her. In discussing that question the court very pointedly criticised the case reported in 21 Ohio St., saying: “ One Ohio case is not in harmony with our view, but the able judge who wrote the opinion in that case, rested the decision respecting this point upon the authority of two New York cases Hawley v. Bradford, 9 Paige, 200, and Bell v. New York, 10 Paige, 49, and entered upon no discussion of the principles necessarily involved therein. The conclusions reached by the court in these two cases in Paige, were legitimately drawn-from the doctrine which obtains in New York respecting the nature of the contingent right of the wife to dower, and the effect of a release of it by her, by joining with her husband in a deed or mortgage; but they by no means follow from the rules laid down in Ohio cases on the same subject, and therefore those cases cannot be regarded as of sufficient authority to prevent our deducting from the Ohio cases such results as legitimately follow from them.”

“Whether Bank v. Hinton, above, resting as it does upon those cases in Paige, has become a rule of property in this state, which we would deem ourselves bound to follow in cases coming within its exact terms, we need not stop now to inquire.”

Williamson & Gushing, for Society for Savings.

Norton & Pinney, for F. B. & G. W. Drake.

Abner Stutz, for Mary Drake.

It seems to us this is a plain declaration of the Supreme Court in condemnation of the doctrine of the case reported in 21 Ohio St., although not in. terms overruled.

■ In the case before us the foreclosure took place after the death of Drake. ' At the time the proceedings in foreclosure were commenced the dower had become fixed. In the case in 21 Ohio St. the foreclosure took place before the death of Hinton. There is this difference between the two cases. We are inclined to hold, in accordance with the reasons announced in Mandel v. McClave, that the wife is entitled to dower in the entire proceeds arising from the sale of the property, there being more than sufficient, to pay off the mortgage and to pay her the value of that dower.

(Note. — See to the same effect the decision of the Supreme Court in Finley v. First National Bank, 32 W. L. B. 382.)


author: Day, J.

text:
    (Sixth Circuit—Wood County, O., Circuit Court
    April Term, 1894.)
    Before Bentley, Scribner and Day, JJ.
    Village of Bowling Green v. C., H. & D. Railroad Co. Same v. T., C. & C. Railroad Co.
    (No. 288);
    (No. 289).
    1. Ordinances requiring the lighting of railroad crossings in a municipal corporation and assessing the expense of such lighting against the company or person operating such railroad, if duly enacted, create a valid claim against such company, and may be collected in any court having jurisdiction.
    2. Copies of such ordinances, attached to and filed with a petition as an exhibit, form no part of such petition, and their validity cannot properly be determined on a general demurrer to the petition.

      3. If the facts stated in such petition constitute a cause of action, a general demurrer should be overruled, notwithstanding there is also much surplusage and immaterial allegations in such petition.
    4. If a notice is served on the officer or agent m charge of the railroad and operating it byffiis correct name, a misnomer in the description of the office or position held by him is immaterial.
    Error to the Court of Common Pleas of Wood County.
   Day, J.

These two cases are similar except as to one question, a misnomer in No. 288.

The plaintiff, the Village of Bowling Green, brought suit against the railroad company to recover amounts claimed by the village on account of lighting the track of the railroad company at the crossing of certain streets in the village. Allegations deemed sufficient to show liability against the railroads were made in the petition, and the ordinances providing for the lighting and the assessment of the expense against the company were copied bodily into the petition.

The defendant railroad company promptly attacked the pleading of the village by motion, to compel it to strike out of its petition the copy of the ordinances incorporated therein, and to make it definite and certain in other respects. This motion was sustained, and an amended petition was filed in which a copy of the ordinances, by order of the court in sustaining the motion, were left out; copies of the ordinances were however filed with the petition and referred to as exhibits, but not made part of the petition. A motion to strike out of the amended petition allegations deemed immaterial, was overruled by the court. This motion should have been sustained in part, at least, but the overruling of it was not prejudicial in any material sense, and therefore not a fatal error.

The next movement against the amended petition was by general demurrer, which, on consideration, was sustained. Plaintiff not desiring to further amend, there was judgment on the demurrer dismissing the plaintiff’s petition and rendering judgment for costs against it. This action of the court dismissing the petition, and rendering judgment for costs, is assigned for error, and a petition in error is filed in this court to reverse that judgment.

The only question presented is as to the sufficiency of the petition. Does the amended petition state a cause of action against the defendant railroad company? There is no doubt but that the council of a municipal corporation has a legal right to require the lighting of a railroad track at a street crossed by a railroad company, and if the company neglects to perform the requirement, the village may erect the necessary lamps and fixtures and furnish the light at the expense of the railroad company, and collect it by suit, if necessary. This is to be done by pursuing the methods marked out in the statute.

The general assembly has enacted the necessary law, and the Supreme Court has, in the 32nd Ohio St. 152, held its provisions not in conflict with the constitution ; and by following the provisions of the law, municipal corporations can secure the lighting of railroad tracks at public crossings, at the expense of the company. Section 2494, Revised Statutes, authorizes city or village councils to pass ordinances, when deemed necessary, requiring persons or corporations owning or operating a railway in a municipal corporation, to light such railway within a specified time. Section 2495 provides, that the ordinance shall specify the manner of lighting, the number and style of lamp posts and lamps, and time to be kept lighted. Section 2496 requires notice of requirement to light twenty days before the company shall be considered in default, and this notice may be given by delivering to any person having possession or charge of the trach or railway to be lighted, a copy of the ordinance. Section 2497 provides, if the person or company operating such railway fail or neglect to light it for twenty days after notice, the council may at once cause the lighting to be done at the expense of the person or company operating the railroad ; and having had this done, section 2498 authorizes the council to direct the manner in which the expense of lighting shall be assessed and collected, and providing that when assessed it shall be a debt due and payable against the operating company, and a lien to be enforced as other liens are.

The amended petition avers as fact, and the demurrer admits the truth of the averments, that the defendant company, the C., H. & D. Railroad Co., is a corporation operating a railroad within the corporate limits of Bowling Green ; that in December, 1891, the council duly passed an ordinance, (the title of which ordinance is copied into the petition, and a copy of the ordinance itself is attached and filed with the petition, and marked “Exhibit A”), requiring the defendant company to light portions of its tracks within the corporate limits with electric lights, placed at definite points named, the posts, lamps and attachments to be similar in all respects to lamps no'w used by the village in lighting; directing how many hours lights should burn, time when theTighting should commence, and that on January 9,1892, a copy of this ordinance was served on one C. Neilson, who had charge and management of the railroad to be lighted; that the defendant refused and neglected to comply with the requirements for more than twenty days after notice was served upon it, and on March 1, 1892, the village caused the lamp-posts and lamps to be erected and the track lighted at the points indicated, at an expense of $202.05 ; that on the 8th of August, 1892, a second ordinance was duly passed assessing the expense against the defendant railroad company, and directing the city solicitor to collect from the company.

There is an averment that there is due the plaintiff, the Village of Bowling Green, from the defendant railroad company, $202.05, with interest from the date mentioned, and a prayer for judgment.

The petition contains a statement of every fact required by the statute to create a legal liability against the defendant.

It is urged by the demurrant that the ordinances passed and attached to the petition as Exhibits “A” and “B,” are part of the petition (and this, in the face of the fact that copies of the ordinances which were part of the original petition were stricken out on a motion of counsel for defendant); that the ordinances are so incoherent and vague that they are void and form no proper basis upon which liability of the defendant can be predicated ; and this criticism forms the main ground of the attack on the petition. It must be confessed that, in orderly arrangement, composition and syntax, the ordinances are not models of literary excellence, but we are of the opinion that, at this stage of the proceeding, they are not before the_ court, and their merits cannot be considered by the court. The Supreme Court of this state, in 29 Ohio St. 13, held that copies of written instruments attached to and filed with the petition, form no part of the pleading.

Another decision, 27 Ohio St. 421, is to the effect that it is not good pleading to copy the written instrument into the pleading, nor to attach a copy making it a part thereof, and in such case, upon motion, a reformation of the pleading will be ordered. Copies of certain instruments must be attached to and filed with the pleading, see sections 5085-6, Revised Statutes; but as to all other instruments not specified in these sections, the holding seems to be that attaching them to and filing them with the pleading is an improper method, and that even when they are attached, they form no part of the pleading, and are to be not regarded.

If this interpretation of the holding of the Supreme Court is correct, it practically disposes of the demurrer adversely to the claim of the defendant as to the alleged defects of these ordinances.

There were other propositions argued at the hearing which, perhaps, with one or two exceptions, could not well be raised by demurrer, but should be raised by motion to make more definite and certain.

It was gravely urged that electric lighting was undiscovered in 1869 when this law was first enacted, and, therefore, it could not have been the legislative intent to authorize counoils of villages to require lighting by electricity, but that it must be confined to methods and appliances for lighting then known and in use, and excluding the more recent discoveries along the line of making light. This argument is ingenious, but has a tendency to subtract from the recognized wisdom and prescience of our Solons, and is not permissible. The statesmen who assemble annually, or biennielly, at the capitol, always legislate for the present and the future. They always have in mind the probable developments, progress and successes, sure to be accomplished in the march of civilization, and make their laws pliable, so as to meet and fit the ever changing and better conditions of the race. This court takes judicial notice of the fact that the legislature that enacted the law now on the statute book, intended that the village council of Bowling Green might require electric lighting of railroad tracks at the public crossings in the village in the year of grace, A. D. 1892.

In the case first named, No. 288 (The Village of Bowling Green against the C., H. & D. R. R. Co.), there is an alleged fatal misnomer. In other words, that the notice of the ordinance requiring the lighting, which must, under the provisions of the statute, he served upon the company that is operating or controlling the track to be lighted, was not served on any official of the .C., H. & D. Railroad Co., but that it appears from the allegation in the petition that it was served on a party who was an officer of the C., H. & D. Railway Co., and that is true.

The averment in the petition is as follows :

“On or about the 9th of January, 1892, a duly certified copy of said ordinance was served upon C. Neilson, the general superintendent of the C., H. & D. Railway Co., being a person having charge and management of said track of railway required to be lighted, and it was served at Cincinnati, Ohio, by sending the same to him in a United States registered letter, which was placed in the post-office at Bowling Green, addressed to C. Neilson, General Superintendent C., H. & D. Railway Co., Cincinnati, Ohio, and received by C. Neilson, and that a written receipt by the clerk of said Neilson, as is provided bylaw, was returned.” * * * When the motion was filed to strike out portions of this amended petition, an opportunity was afforded the court 'to perform its duty and strike out about three-fourths of the allegations in the petition; and in failing to do‘that, perhaps the court was in error; but, as said, it was not an error prejudicial to the defendant. But very much of this- allegation is surplusage, very much is descriptive of the person, the party upon whom the notice was served. *

Here is the substance of the averment which we have in the petition :

“On or about the 9th of January, 1892, a duly certified copy of said ordinance was served upon C. Neilson, a person having charge and management of said track of railroad required to be lighted.” That was a sufficient averment. The statute requires that a copy of the ordinance requiring lighting shall be served upon the person having charge or management of the track of railway to be lighted. The averment is made here directly. The rule obtaining in determining a demurrer is that no matter if there be surplusage, or awkwardness in the pleading, if there can be fished out from the mass of allegations the necessary fact constituting a cause of action, the demurrer is not to be maintained. We find in this case in that respect, that the misnomer complained of is simply in the description of the office of the person who, it is said, had charge of the management of the track, upon whom the notice was served. That makes the misnomer entirely immaterial. There are other criticisms that might be made of this pleading; but, as I have said, the questions could not well be raised except by a motion to make more definite and certain. The averment is made that the company was required to light and to erect certain electric lights by causing one electric light to be placed at each of certain crossings, similar in all respects to those used by said village in lighting its said streets. The averment may be open to the criticism that it is not a certain averment of any particular style of lamp. There is no direct averment that there was a particular kind of lamp used in the village at the time the particular requirement was made. And although a motion to this probably ought to have been sustained, the fact is sufficiently implied as against a demurrer.

B. B. Moore, City Solicitor, and Jas. O. Troup, for plaintiff in error.

JR,. D. Marshall and F. A. Baldwin, for defendant in error.

Now, we think as against the general demurrer this petitition states a cause of action, and if that conclusion is correct, then the court of common pleas was in error in sustaining the demurrer and dismissing the petition. We find in this there was error, and we reverse the judgment on that account, and this court entering the judgment that the court of common pleas should have rendered, overrules the demurrer to the amended petition in both cases, and remands the cases to the court of common pleas for further proceedings.


text:
    (Sixth. Circuit—Lucas County. O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    Lake Shore & Michigan Southern Ry. Co. v. Charles Raitz.

      Railroad company liable for injury caused io employe through defective machinery — Sudden movement of locomotive.

    Error to the Court of Common Pleas of Lucas County.
   Scribner, J.

On the 2nd of April, 1890, .Raitz was an employe of the railway company, and his duty was to clean the ash-pan of locomotives when they had come in from a run on the road. On that day he went under the engine standing over the ash-pit, for that purpose. The hostler on the engine, at Raitz’s request, let steam into the cylinders, and caused the engine to move about two feet backward so as to get it in the proper place to clean the ashes out, and then closed the throttle, applied the steam brakes and stopped the engine, and then let off the brakes and set the lever on the center, the cylinder cocks being 'open. Raitz then put his hand out from under the engine and just back of the wheel of the forward trucks, in order to wet the ashes down, when the engine started and the truck, wheel ran over his left hand, and cut it off. He claims that the valves of the engine were leaky, and that in consequence of that the engine suddenly moved as aforesaid. Proof was given to show that this movement of the engine occurred five or six minutes after the steam had been shut off and the brakes released, and that it would not have occurred unless the valves were defective. His evidence also tended to show that about four years before, in 1886, at Elyria, the same engine had “run away” while the engineer and fireman were away from it for a few minutes, and smashed its pilot, and that it had been taken to the shop for repairs, and that again, in 1888, about two years before the accident to Raitz, the engine had been sent to the repair shop on account of its leaky throttle valve, and repaired. It was claimed by the company that the engine was in perfect order and condition when Raitz was hurt, but that he put his hand out for the hose immediately after the brakes were let off, and that the uncxpandéd steam in the pipes moved the engine a few feet, and that such a movement is usual, and does not indicate any defect in the engine or the valves of the engine. The jury rendered a verdict in favor of Raitz, and the court of common pleas, having refused a new trial, rendered a judgment upon the verdict.

Judgment affirmed by the circuit court in a majority opinion.

(The coincidence is noted that this accident occurred in the early morning of the very day that the law of 1890 was passed, (87 O. L. 149, passed April 2, 1890), providing in substance, that where an injury occurs to an employe of a railroad company by reason of defective machinery, the company shall be presumed to have had notice of the defect, and to have been negligent.)

JE. _D. Potter, Jr., for plaintiff in error.

Scribner & Hurd, for defendant in error.


text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    The Pennsylvania Company v. Charles Fox.

      Freight cars running in yard without brakeman. — Yardmaster having assigned a sufficient number of brakemen to attend to freight cars being moved about the yard, the company is not liable to other employe for being run over by freight cars moving on track without a brakeman attending them.
    Error to the Court of Common Pleas of Lucas County.
   Scribner, J.

Fox was in the employ of the Pennsylvania Company at its yards in Toledo as a “ car recorder,” his duty being to take the numbers of freight cars coming into the yard. On the -day of-a freight train came into said yard, and Fox placed himself in the center of a track parallel and next to the track on which said freight train was coming, in order to note the numbers of the freight ears as they passed him. Adjoining the track upon which Fox stood was an open space where he could have safely stood to take the numbers of the cars. As he placed himself on the track, he looked up that track to two switches substantially in line with each other, the further one being about 125 feet from him. As he glanced to the switches he saw some empty passenger cars, and perhaps a box car, being pushed by a switch-engine toward him on the track at about the place of the further switch, but as he thought he saw the cars were starting from the track upon a sidetrack at the further switch, and were not coming further toward him, he turned his back towards those empty cars, and addressed himself to noting in his book said freight car numbers, and in a few minutes thereafter he was struck and injured by said empty ears, which had not, as he supposed they had, gone in on the sidetrack, but continued to advance towards him till they struck him. In his petition against the company, Fox charged that the company was negligent in the person of the yardmaster, in not performing his duty and following a long observed custom known to Fox, and upon which he relied, of having on the front of cars moving about the yard, as these empty passenger cars were, a brakeman to stop them and warn persons to get out of the way. Though no brakeman was on the front of the cars on this occasion, the evidence showed that the yardmaster had assigned a sufficient number of competent men to move and switch the empty cars, and did not know that they were not doing their duty. The company denied that it or the yardmaster was negligent, and charged that Fox himself was guilty of negligence in standing where he did, or not keeping constant watch for his safety. On the first trial of the case a verdict and judgment were rendered for Fox, which the circuit court, by a majority opinion, affirmed. These judgments were afterwards reversed by the Supreme Court, on the ground that the court of common pleas refused to charge the jury as requested in the 8th request of the Pennsylvania Company. This request was, in substance, as follows: That if the yardmaster assigned a sufficient number of competent men to do said switching, he was not bound to go with them to see that they did' their duty, and was not negligent in omitting to do so.” The Supreme Court having reversed the judgment, with the full record before it, settles the law of the case that the yardmaster is not negligent if he assigns a sufficient number of competent men to do the work, though he does not go with them to see that they perform their duties. The evidence not showing that the yardmaster knew that these men would not do, or were not doing their duty, the necessary implication from the decision of the Supreme Court in the case reverses the judgment of the court of common pleas, and sets aside the verdict and remands the case to the court of common pleas.

E. W. Tolerton, for plaintiff in error.

I. Kent Hamilton, for defendant in error.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.

    The State of Ohio ex rel. The John H. McGowan Company v. The Village of St. Bernard et al.
   Mandamus. Appeal from the Court of Common Pleas of Hamilton County.


author: Smith, J.

text:
    Theodore Neiman v. The Village of St. Bernard.
    Injunction. Appeal from the Court of Common Pleas of Hamilton County.
    1. Where the trustees of the water works of a city, acting under the provisions of sections 2415 and 2419, Revised Statutes, have taken proper and reasonable care to advise themselves whether one of the bidders for the pumping engines for the village could be depended upon to do the work bid for, with ability, promptitude and fidelity, and on the knowledge thus obtained, in good faith came to the conclusion that he was not, the court, even if satisfied that such opinion was incorrect, ought not to interfere with their subsequent action in awarding the contract to the next lowest bidder, if his bid was in proper form and complied with the advertisement for bids. The duty and discretion of deciding this question is imposed upon the board of trustees, and not upon the courts.
    2. Under the advertisement made for bids, in this case, where no definite description is given as to the character of the pumping engines required, or that they should be of any designated pattern, or be of a certain system of operation, other than that mentioned in very general terms, then, if there be bids therefor by two or more persons, offering to furnish engines of a substantially different character in one or more respects, and the trustees acting with due care and on proper inquiry and consideration, in good faith, are of the opinion that one of them is not in accordance with the terms of the advertisement for bids in any substantial respect, and that one is much preferable to the other, and that the interests of the village would he better subserved by choosing the one rather than the other, they might legally do so, though the bid for this was higher than the other.
    S. In this ease it appearing that such care, diligence and good faith were used and exercised, the court will not interfere with the conclusion arrived at, though the ground upon which it was placed was not properly supported, for the reason that in other respects the proposal of the lowest bidder was in some matters not in accordance with the advertisement for bids.
   Smith, J.

At the hearing of these cases, for the information and guidance of counsel as to the points as to which evidence should be introduced and argument made, we announced that our examination of the statutes bearing on the points at issue, sections 2415 and 2419, Revised Statutes, had led us to the conclusion, first, that if the evidence shows that the trustees of the St. Bernard water works took proper and reasonable care to advise themselves whether one of the bidders for the pumping engines for the village could be depended on to do the work bid for with ability, promptitude and fidelity, and on the knowledge thus obtained, in good faith came to the conclusion. that he was not, then, in our judgment, the court ought not, even if satisfied that such opinion was incorrect, to interfere with their subsequent action in awarding the contract to the next lowest bidder, if his bid was in proper form and complied with the advertisement. This is a discretion which the law has conferred upon the board of trustees, and not upon the courts; and second, that under the advertisement made for bids in this case, where no definite description is made as to the character of the pumping engines required, or that they should be of any designated pattern, or' be of a certain system of operation other than that mentioned in very general terms, then, if there be bids therefor by two or more persons, offering engines of a substantially different character in one or more respects, and the trustees, acting with due care and-on proper inquiry and consideration, in good faith, are of the opinion that one of them is not in accordance with the terms of the advertisement for bids in any substantial respect, and that one is much preferable to the other, and that the interests of the village would be better subserved by choosing the one rather than the other, that they might legally do so, though the bid for this was higher than for the other. In such case the one selected might well be the lowest bid for that particular kind of an engine, and in such case a court ought not to interfere with the discretion conferred upon them.

We understand that counsel on both sides accepted and consented to these statements as being correct and the law applicable to the cases on trial, and thereupon the evidence and arguments were heard by the court, and the principal question^presented for our determination is, whether, in the award by the trustees of the water works of the village of St. Bernard to the Laidlaw-Duun-Gordon Company of the contract for furnishing and erecting engines for said village at a bid largely in excess of that of the John H. McGowan Company for pumping engines (which we think the evidence fairly shows were of substantially the same character and of equal power and quality), there was any such want of good faith by them in the investigation of the merits of the engines, or in the investigation and decision of the question whether the McGowan Company could be depended upon to do the work bid for with ability, promptitude and fidelity, or in awarding the contract to the Laidlaw Company, which was not the lowest bidder. If there was any such want of good faith on their part as to either of those matters, we would deem it to be our duty to grant the relief prayed for.

With some hesitation and doubt we have reached the conclusion that the evidence does not do this satisfactorily. It is entirely clear, that long before this controversy arose, the trustees has selected an engineer to have the charge of the erection of this plant, who was certainly skilled and had considerable experience in matters of this kind, and was in good repute as a skilled engineer. And it is apparent, too, that they depended to a very great extent, and properly so, on his advice and judgment as to the comparative merits of the engines proposed to be furnished to the village under the several bids, and as to the best manner in which they should be placed and operated. It is shown by the evidence, however, that the board was not content to rely wholly upon the advice of their engineer, but were diligent in their examination of engines then in operation in other places, and that what they saw, naturally and properly led them to the conclusion that the engines they saw in these other water works plants in the villages in the neighborhood did their work well, and were admirably suited for use in the plant which they were about to establish at St. Bernard. It is true that those they saw were most, if not all, from the Laidlaw Company, but it was, perhaps, the misfortune of the McGowan Company, that though it owned one of the largest and most successful pump making plants in the country, with an experience of about fifty years, it had not hitherto gone extensively into the business of supplying pumping engines for water works in villages, and the result was that the trustees became convinced that the engines of the Laidlaw Company were admirably fitted to perform the work desired. But the trustees did visit the McGowan works, and examined other engines in the shop, made by the company, of a different character, perhaps, and took other steps to satisfy themselves in regard to the ability of the company — among other things having held conferences with the different bidders after their bids were received.

Having used these means to inform themselves, it is shown that after the bids were received, the trustees then formally submitted them- to their engineer for his advice as to what should be done in the matter. This too, would seem to have been the proper thing to do. It was on a subject as to which the opinion of an expert would be almost a necessity. It is not expected that men unfamiliar with such things could know which one of several engines bid for was the best suited for their purpose.

, The report of the engineer made to the company shows that the bid of the Laidlaw Company for the engine proposed to be furnished was $5,007.00, which was $1,467.00 more than the bid of the McGowan Company for what we esteem to be substantially the same engine; but the engineer states that in the bid made by the Laidlaw Company it was proposed to make a finish of black walnut around some of the machinery, and do other work upon the same, not called for in the specifications, the cost of which they say will be about $1,200.00, and which the engineer says will reduce the difference between the two bids to about $267.00. He further says in his report:

“While the John H. McGowan Company are known for many years as successful builders of small steam pumps of various patterns; they have, within the past few months, concluded to also become contractors for the construction of machinery adapted to water-works purposes, and in this case it is to be regretted that they are as yet unable to refer to a waterworks plant, having pumping engines such as are desired here, which are of their design and construction. I will further remark, but do it reluctantly, that in the absence of examples of actually built machines, the drawings submitted with their proposal are very incomplete and unsatisfactory for either illustrating what the company really proposes to furnish, or in the manner of the general arrangement of the plant. There does not appear a single figured dimension on the drawings, neither is the scale given to which the drawings are made. The Laidlaw-Dunn-Gordon Company, upon the other hand, are experienced builders of water-works machinery, and they refer you to a number of places where they have machinery, such as you ask for, and of which they are the builders. In addition to this, they submitted carefully executed working drawings for this, particular work on which are given figured dimensions of all essential facts, and a quite satisfactory arrangement of all the water and steam pipe work. * * It is quite evident from the character of the drawings submitted by the bidders for this work, that the Laidlaw-DunnGordon Company bestowed more thought and care in thepre-r paration of their proposal to successfully install the machíncry for your works than the McGowan Company did on their’s. For that reason, and from the fact that the latter company has not heretofore built pumping engines as contemplated in the specifications, I fear that their first attempt would be to^ a great degree experimental and uncertain, and under these circumstances I can not recommend the awarding of the contract to that firm as the lowest bidder.”

Thereupon the trustees, having read the report, and on due consideration, as it appears from their minutes, adopted a resolution to the effect that, in their opinion, the John H. McGowan Co. could not be depended upon to do the work and furnish the pumps called for in the specifications and advertisement with ability, fidelity and promptness, and that, in the ■opinion of the board, after careful investigation and thorough inquiry, the plan, kind and design of the pumps submitted by the Laidlaw-Dunn-Gordon Company is the most desirable, and, all things considered, the cheapest; therefore they awarded the contract to that company.

In view of all these facts and of the explicit evidence given by the trustees in explanation of their action, and of their good faith in the matter and their reliance upon the opinion of their engineer, we must hold that good faith on their part is shown. And yet we can not refrain from the expression of cur'opinion that the board was badly advised, and, in the resolution adopted, went much farther than they should have gone, and, so far as their resolution could do so, have placed an unjust stigma upon the character and business reputation of a corporation which, the'evidence abundantly shows, could be depended upon to do the work and furnish the pumps ■called for in the specifications with ability, fidelity and promptness, and that, in our judgment, there was not, in fact, sufficient. evidence before the board to warrant the contrary opinion.

We incline to the view that the drawing or blue prints which the specifications required should accompany each proposal or bid, and which were furnished by the McGowan Company, did not strictly conform to the terms prescribed by giving dimensions and sectional views of pumps and cylinders of the horizontal compound engines proposed to be furnished. There is some question as to this, but we think they did not, and the rejection of the bid might, perhaps, have been more properly placed on this ground. This was one of the objections urged by the engineer in charge, and had more substance than others which are now urged against it. We are impressed by the evidence that the engineer had a strong partiality for the engines of the Laidlaw Company, and desired that this company should receive the contract. Doubtless, he had good grounds for his gbod opinion of their engines and of the reliability of the company. But, while under the law of the state, advertisements for such work are required, and the purpose of the statute is that the contract therefor should be let to the lowest and best bidder who can perform the work with fidelity and promptness, there is reason to fear that the action of the trustees in this case, though made in good faith, has not resulted in fair treatment to the lowest bidder here, who, as we have found, was entirely able to perform his contract in the manner prescribed for by the statute, or, in effect, awarding the contract to the lowest and best bidder.

Theodore Horstman, Johnson & Levy and W. H. Jones, for plaintiffs.

Frank M. Gorman, John Boutet and Willis M. Kemper, contra.

In view of the foregoing, we are of the opinion that the plaintiffs were justified i'n bringing these actions, and though the petition will be dismissed, it will be at the cost of the village. »


text:
    (First Circuit—Hamilton County, O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    Charles W. Baker v. Leo. Schott, Treasurer, the Village of Norwood et al.
    1. Where the owner of an improved lot which has a frontage of 50 feet on one street, and which abuts 136 feet on another street, signs a petition to the council of a village, asking for the improvement of such side street in a certain manner, “and that an assessment (to which we hereby specially assent), to pay the costs and expenses of such improvement, be made according to the law of assessments, levied per foot front upon all the lots and lands so abutting upon said improvement,” and such petition is signed by the owners of more than two-thirds, but less than three-fourths of the feet front abutting thereon, the lot of such owner is to be assessed on but fifty feet thereof, under the doctrine of the ffaviland case, 50 Ohio St. 471.
    2. Such petition not having been signed by the owners of three-fourths of the feet abutting on such improvement, the provisions of section 2272, Rev. Stat., making the whole assessment collectible, do not apply, and the assessment upon such lot for such improvement, amounting to over twenty-five per cent, of the value of the same after .the improvement is made, is invalid, under the other following provisions of such section.
    3. When the owner of such lot also signed a petition to the council asking for the construction of a sidewalk for 136 feet along said lot on Carter street, “ one-half to be paid by the village in accordance with sec. 2334a, S. & B. Rev. Stat., the other half to be assessed upon all of the lots and lands so abutting upon the improvement,” and this petition was also signed by the owners of two-thirds of the feet front of the property abutting upon the proposed improvement, and the improvement was made accordingly at the instance and request of the petitioners, the said petitioner is bound thereby and must pay the assessment for the one-half the costs of his said improvement.
    On Appeal from the Court of Common Pleas of Hamilton County.
   Smith, J.

The petition of the plaintiff avers that he is the owner of lot No. 20 in Baker’s Subdivision. That it fronts 50 feet on Cortland avenue, which is the actual front of the lot, and extends along Carter street 136 feet. That the village has undertaken to improve Carter street along the side of this lot, and to assess plaintiff therefore $661.50, when the real value of the lot is but $300 or $400. That he has notified the village to correct the same, but it has not done so, but has' certified it to the county auditor, who placed it on the duplicate for collection with a penalty thereon. That the village has also put a sidewalk along Carter street on this lot, and has added an assessment against the lot for 134 feet thereof, amounting to $108.50. That such assessments are illegal and void, and for double the value of the lot. Wherefore he prays for an injunction against tbTcollection of any part thereof. The answer in effect is a general denial that the asssesment is illegal.

The evidence in the case shows that lot 20 is a vacant corner lot — not improved in'any way. That it fronts on Cortland avenue, and does not front on Carter street. The value of the lot after the improvement was completed is agreed to bej$400.

Before the improvement of the street was commenced, a petition had been presented to the council of the village of Norwood, signed, as we understand the evidence, by the owners of more than two-thirds, but less than three-fourths, of the feet front abutting on the part of. Carter street asked to be improved, (and. which was improved as prayed for), praying for its improvement “by grading the same, macadamizing the road bed, paving gutters, laying crossings, and constructing necessary culverts and drains, and that an assessment (to which we hereby specially assent,) to pay the costs and expense of such improvement be made, according to the law of assessments levied per front foot upon all of the lots and lands so abutting on said improvement. This petition was signed by the plaintiff, for this and other lots on said street, purporting to abut on said street 294 feet.

It is admitted that the lot of plaintiff was assessed for this improvement for 136 feet, its full length on on Carter street. It is also contended that under the doctrine of the Haviland case, the village had no right to do this, and could only assess thelotas if there were fifty feet fronton Carter street. But itis urged that this petition signed by plaintiff estops him from making such claim. We think it does not have this effect — in the first place, it does not represent that plaintiff’s lot 20 fronts 136 feet on Carter street. At the furthest it may be understood that it abuts thereon for 136 feet, but this is uncertain, as this and other lots are mingled together. But in the next place, it only asks that the assessment be made according to the law of assessments, and this has been settled by the decision of the Supreme Court referred to. No more then of the assessment levied against this lot can be maintained than the 50-136 part thereof. And this, even if the petition was one signed by the owners of three-fourths of the feet front abutting thereon, But no such petition was filed here, under section 2272, Revised Statutes, and as a consequence,- the assessment so made for the improvement of Carter, street could not as against said lot No. 20 be valid for a greater sum than 25 per cent, of the value of such lot after the improvement is made — in this case, under the agreement as to the value of the lot, $100.

As to the assessment for the sidewalk, we are of the opinion that the whole should stand. A petition was presented to council signed by Mr. Baker for this lot, said by him to be 136 feet on Carter street, asking for the construction of the sidewalk, “one-half to .be paid by the village in accordance with section 2331a, S. & B. Rev. Stat., the other half to be assessed upon all of the lots and lands so abutting on sai.d improvement.” This petition was signed by the owners of two-thirds of the property abutting on the improvement, and the assessment was made at the instance and request of the petitioners, and in the manner prayed for; and the plaintiff is bound thereby.

It is objected by the counsel for the village that the plaintiff cannot maintain his suit without having tendered the amount admitted to be due. He did not admit that anything was due. But the court can by its decree require him who seeks equity, to do equity, and the order here will be that, on the payment by the plaintiff of the amount found to be legally assessed for the street improvement, viz: $100, and for the sidewalk, viz: $108.50, and any proper interest and penalty thereon, the collection of the residue of said assessment will be enjoined. Under the circumstances, each party should pay one-half of the costs.

(7. W. Balter, for plaintiff.

Wm. E. Bundy, for defendant.