author: Baldwin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1888.)
    Before Ba’dwin, Upson and Caldwell, JJ.
    E. P. WILMOT v. JOHN H. LYON & CO.

      Replevin — Allegation of ownership—
    1. “An allegation in a petition in replevin that “the defendants wrongfully detain from the plaintiffs the following goods and chattels of the plaintiffs”, is a sufficient allegation of ownership on the part of the plaintiffs, where the plaintiffs claim to be the general owners.

      Sale induced by fraud — Rescission—Title to goods — •
    2. Where a person has sold goods, the sale of which has been induced by the fraud of the purchaser, and the seller has rescinded the sale on account of such fraud, the title of the seller, after the • rescission of such sale, is that of a general owner, and not a special owner.

      Pleading — Sufficient averments in petition—

    3. In such case, it is sufficient for the plaintiffs to allege that they are the general owners of the goods. The fact constituting the cause of action is the ownership of the goods by the plaintiffs. The fraudulent sale and the rescission of the same is evidence of such ownership, and the fact should be plead, and not the evidence of the fact.

      Same — Demand of goods — When necessary—
    á. A demand for the delivery of goods and chattels before bringing suit therefor is only necessary in case the goods and chattels come into the possession of the party holding them rightfully; and where goods are obtained by fraud, the purchaser acquires no lawful possession as against the vendor, and no demand for the return of the same is necessary before bringing suit.

      Fraudulent sale on unsecured notes — Return of notes—
    5. Useless and idle ceremonies are neither favorites of the law, nor required by common sense, and where the seller of the goods has received for the same the unsecured notes of the purchaser, and the seller rescinds the sale on account of the fraud of the purchaser in buying the goods, it is not necessary that the seller should first return the notes to the purchaser before bringing an action for the recovery of the goods. It is sufficient if the seller has the notes in possession so as to be able and ready to return them to the purchaser, if demanded.
    6. It is good practise for the seller to bring such notes into court at the time of the trial of the case, for the purpose of having them disposed of in such way as the court may order.

      Mercantile agencies— Judieial*notice.—
    7. The court will take judicial notice of the[nature[of the business and office of mencantile agencies.

      Same — Statements to commercial agency.—
    8. A person making statements in reference to his [financial condition and standing, or of other facts afl'ecting[his[finaneial responsibility to a commercial agency, makes such commercial agency his agent to transmit such statements to its’subscribers in the usual course of its business.

      False statements to Corn! Agency — Fraud on seller of goods — Effect.-—
    9. Where a person makes to a mercantile agency statements known by him to be false, with the intent that such statements shall be communicated to persons interested ^ascertaining his pecuniary responsibility, for the purpose of thus['procuring credit, and such statements are communicated to one who, in reliance thereon, sells goods on credit to the maker of such statements, the making of such false statements would constitute a fraud in the sale of said goods, such as to authorize the seller to rescind such sale, and re-possess himself of the goods sold.

      Statements of -past fact, when continuing representation — Statements of changeable facts — Reasonable time. — ■
    10. Where a person makes to a commercial agency a statement as to a past fact, which statement must, from the nature of the case, be thereafter either true or false, such statement is a continuing representation, and the subscriber of the commercial agency, to whom the same is communicated, has the right to rely upon the same. If, on the other hand, the statement made is in reference to facts which may be changed by the varying fortunes of the future, a person to whom such statements are communicated by the commercial agency has no right to rely on the same, unless they are so communicated to him within a reasonable time after the same are made. What will constitute a reasonable time thereafter, will depend upon the facts and circumstances of each particular case.

      Right of seller to rely on statements made to commercial agency —

    11. A person selling goods through an agent or broker, has as much right to rely upon the representations of the purchaser made through a commercial agency, as a person selling goods directly to the purchaser.

      Fraudulent purchase defined.—
    12. A contract for the purchase of goods upon credit, made with intent on the part of the purchaser not to pay for- them, is fraudulent.

      Same — -Reasonable expectation of ability to pay.—

    13. If the purchaser has no reasonable expectation of being able to pay for goods purchased on credit, it is equivalent to an intention not to pay.

      False representations made in purchase of other goods admissible —

    14. Where it is sought to set aside a sale, and on the ground that the same was fraudulent on account of false representations actually made, or because the purchaser had no intention of paying for the goods purchased, it is proper to introduce evidence of false representations made in the purchase of goods at or about the time of the purchase of the^goods in question, for the purpose of showing the fraudulent intent of the purchaser.

      Same — Made before or after purchase in controversy.—
    15. It makes no difference whether these other false representations were made before or after the purchase in controversy, if the transactions are so connected in point of time, and so similar in their other relations, that the same motive may reasonably be imputed to them all.

      Replevin of goods from agent — Agent defending in his oxen naxne— Agents’ admissions. — • ■
    16. Where an agent of others is in possession of goods, and they are taken from the agent’s possession in a suit of replevin, and he is defending such suit in his own name, admissions of such agent as to facts material to the issues of the case are competent as against him, although they were not made in the execution of the purposes of his agency.
    Error to the Court of Common Pleas of Cuyahoga county.
   Baldwin, J.

This case comes into this court on a petition in error filed by the defendant below to reverse a judgment of the Court of Common Pleas.

The action below was one of replevin for some goods which were claimed by John H. Lyon & Company to have been sold by them to the Chagrin Falls Paper Company. The action in replevin was not against the Chagrin Falls Paper Company, but against E. P. Wilmot. John H. Lyon & Company claimed that the goods had been purchased from them by the Chagrin Falls Paper Company by fraud; and the frauds that they claimed were two. In the first place they claimed that the Paper Company had made statements of its condition to Bradstreet’s Agency which were false and fraudulent, and that these statements had been communicated to them, and they relying upon these statements as true, had sold tljese goods to the Paper Company.

Secondly, they claim that the Paper Company was very largely insolvent; that the Paper Company, at the time that it bought these goods from the plaintiffs below, knew that it would be unable to pay for them, and absolutely intended not to pay for them; and it was claimed that the Company had schemed to buy a large quantity of goods from various persons, which it had gotten into its possession; that the Paper Company then turned out the goods which were here replevined, with other goods, to certain favored creditors— some eleven or twelve in number — and those creditors delivered the goods to the defendant below, the plaintiff in error, as their agent; so that Wilmot held the goods as agent for the creditors to whom they had been mortgaged to secure their debts. It was not claimed that Wilmot stood as a purchaser, or in any better condition than the Chagrin Palls Paper Company, with some slight exceptions which I shall speak about as I go along.

The first question made was in regard to the sufficiency of the pleadings. The petition in replevin was the short form generally used. It first stated that the case came into the Court of Common Pleas by appeal from the judgment of a justice of the peace. The petition then stated that the defendants, were E. P. Wilmot and E. B. Pratt — and I will say that E. B Pratt dropped out of the case altogether; the goods were apparently in the possession of E. P. Wilmot alone, and I do not know but that the case was actually dismissed as to Pratt; but the substantial allegation of the petiton is this:

“The said defendants, E. P. Wilmot and E. B. Pratt, wrongfully detain from plaintiffs the following goods and chattels of these plaintiffs, to-wit:”
(Then it goes on and describes the goods.) “Said defendánts have wrongfully detained said goods and chattels for the space of — days, to the damage of these plaintiffs in the sum of two hundred dollars.”

The verdict of the jury and the judgment of the court were in favor of the plaintiffs below for the goods, but not for any damages.

It is said, in the first place, that there is here' no allegation that the plaintiffs are the general owners of the goods, and that it is necessary that there be an allegation that they are either the general owners of the goods,or special owners,’ and that if they are special owners of the goods, then the facts must be set forth which entitle them to that special ownership; because there may be a general ownership, and there may be a special ownership which will entitle the special owner to hold the goods even as against the general owner.

Certainly there are no words in this petition that signify that the plaintiffs are the general owners of the goods unless such ownership is inferred from these words: “Wrongfully detain from plaintiffs the following goods and chattels of these plaintiffs.”

Now, the form that is there used is substantially the form that was recommended by the Code Commissioners; and it is the form that is laid down in Bates on Pleading. The form in Bates on Pleading is: “The defendant wrongfully detains from plaintiff the following goods and chattels of the plaintiff;” and that he takes to be equivalent to an allegation of the general ownership in the plaintiff. The form Wilcox gives is still shorter, and seems to be quite a different one. ' The form that Judge Swan gives in his book on Pleading, page 446,- is like that in Bates. The form given in Nash’s Pleading and Practice states more exactly the ownership. But this is substantially the form that has been in general use; and if it be true that that is not an allegation of general ownership, it is a question of a good deal of importance which has been largely overlooked by the profession.

There is not only that question made of there being a want of an allegation of general ownership, but two other objections are made to this petition.

It is said that the title of the plaintiffs at the time of the replevin being by virtue of a rescinded fraudulent sale, and they claiming on the ground that there was fraud practiced by the Chagrin Falls Paper Company, it was their duty to set forth in the petition the fraud. And then it is clainied further that the title of E. P. Wilmot was such that he was entitled to have the goods demanded of him before they were replevined, and that there should have been an allegation of a demand of the goods. I have named these questions together, because practically in the books they are considered in a measure together.

Now, the practice here and elsewhere has been, where goods are replevined on the ground that they have been fraudulently purchased, to use precisely the same short form. It has, in practice, been considered as being the rule that where a person claims as being the general owner of goods, under any circumstances whatever, the allegation should be made in this short form; — just as in actions in ejectment,for instance. An action in ejectment may be based precisely upon a claim of fraud; but it is not alleged and set forth. As far as the form of the pleadings is concerned, the two rest upon a somewdiat'different ground, because in the case of ejectment the Code expressly lays down what shall be a sufficient petition; but the Code does not in express terms lay down in actions in replevin, in the manner in which it does in actions of ejectment, what shall be a sufficient petition.

The two sections of the Code that relate to replevin which I shall read are:

“Sec. 5814. The possession of specific personal property may be recovered in an action as provided in this chapter/'’
“See. 5815. An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in.which the action is brought,when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:
“First- — -A description of the property claimed.
“Second — That the plaintiff is the owner of the property, or has an interest therein; and if the ownership or interest is special or partial, the facts shall be stated.
“Third — That the property is wrongfully detained by the defendant.
“Fourth- — That it was not taken on process issued against the plaintiff, nor for a tax; or, if taken on such process, that the property was exempt from execution expressly, or upon demand or selection by the plaintiff.”

NwW, the practice, as I have said, following the form here prescribed for the affidavit, has been that if the plaintiff claims a general ownership, he may just set it forth, either by the words “that the plaintiff is the owner of the property,” or by the words “the goods and chattels of the plaintiff;” and if the ownership is a special or partial one, then it has been the custom to set forth in the petition the acts which entitle the plaintiff to the possession of the property.

The use of this form seems to be generally sustained by the authorities. There is no direct authority in our own state. Mr. Nash, in his work on Pleading and Practice, says:

“I suppose a statement of facts is only necessary when the plaintiff claims a special property in the goods entitling him to the immediate possession of them as against the defendant, who is the general owner thereof.”

A case in the 1st Colorado, page 89, holds that the rule requiring fraud to be specially pleaded, does not apply in replevin. That is cited in Bates.

In a case in 55 N. Y., page 671, the case of Simmons v. Lyons, it is expressly said that this form, “that the defendant has become possessed of and wrongfully detains from the plaintiff the following goods and cattels of the plaintiffs, ’ ’ is sufficient; and' that doctrine was sustained in a case in 49 N. Y., 262; also in a case of Hoisington v. Armstrong, in the 22 Kansas, 110. The cases have gone upon the ground that the question to be tried is whether or not the party is immediately entitled at the commencement of the suit to the possession of those goods, and that the fact to be alleged is whether or not he is entitled to that possession. And it is quite evident that it has been considered that the particular mode in which he might be entitled to that possession, has been regarded as a matter of evidence, and that if the plaintiffs had been the original owners of the goods, and they had been purchased from them by fraud, those were evidential facts, rather than the final facts which were to be stated in the pleadings.

That this section 5815, which does not in terms apply to the framing of the petition, is, after all, to be regarded in the framing of the petition, is recognized in our Reports. I suppose the fact is that the forms in ¿replevin follow the old practice; but discussing it simply upon the Code as it stands, as I said, section 5815 regulates the form of the affidavit, and it does not say that the petition shall be in accordance with that form. But that the petition is to be framed substantially in the same manner, is recognized in the case of Robinson v. Fitch, in the 26 Ohio St. 663. That was a case where the defendant undertook to set forth what he said was a special ownership, ard set forth the facts. The court said that although he had set forth those facts, and had not alleged that he was the general owner, yet the facts showed that he was the general owner, so that in that particular case his petition was just as good as if he had said in so many words, and in short words, that he was the general owner.. The court say:

“The plaintiff only claimed in his petition to have a special property in the elephants; and counsels for the plaintiffs in error, assuming that he is confined to this claim, and that his rights are thereby limited to those of an owner of a special interest or property, contends that the petition does not state facts sufficient to entitle the plaintiff to recover on the ground of such special ownership. The second subdivision of section 175 of the Code provides that an order for delivery of property shall issue on the filing of a proper affidavit, showing “that the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the same.’’

If, from the statements of the petition, it appeared that the plaintiff had only a special ownership or interest in the property replevined without stating the facts in relation thereto, it is probable that we would concur in the views of counsel for the plaintiff in error, and hold that the petition does not state facts sufficient to entitle th'e plaintiff to recover on the ground of a special ownership or interest; but we have above found, from the facts stated, that the plaintiff is the general ownep of the property, and entitled to its immediate possession.’’

Therefore they said that the petition was sufficient; basing their decision upon a discussion of this same section, 5815.

We come, then, to this question next: Was this a general ownership? Granting that this petition, in form, is a good petition, so that a demurrer would not lie, was the interest of the plaintiffs in that action such an interest that they could not introduce those facts under this genera! petition? Because this petition simply alleged their rights to be that of general owners, an objection was taken to the introduction of the facts on the ground that under the facts as 'they were claimed in the evidence, the plaintiffs were special owners, and not general owners. In short, after goods have been purchased by fraud from a merchant, and the merchant undertakes to rescind the sale and replevin the property, is he the general owner, or has he a special property in those goods? I think it would ordinarily be the sense of the profession that if that sale was elected to be rescinded by the vendor, it was from that time on a void sale. The general theory in regard to fraudulent sales is,that when those sales are set aside, the sales are void; and in regard to real estate the courts have even gone so far in this state as to say that a creditor may levy upon a piece of land that has been conveyed, taking his chances afterwards of having the sale set aside; because, if the sale is fraudulent, the conveyance is void, and may be treated as such: and it does not seem easy to see, if that sale was elected to be rescinded, why the plaintiffs were not, as far as the title to that property was concerned, restored to their original rights — had the right to its possession, had the right to its sale, had the full and complete ownership of that property. And that, under the evidence in this case, these plaintiffs had the full and complete ownership of that property, the right to use it just as they pleased, and the right to sell it to anybody else, is established, unless there is some error in the proceedings, by the verdict of the jury and the judgment of the court below.

A special ownership is one which is partial, and is limited, and sometimes quite limited, in its 'character; for in the Fitch case the court held that the right of the mortgagee of the chattels to take them was that of a general owner.

It is said that no demand was made of the Chagrin Falls Paper Company, and that no tender back was made to the Chagrin Falls Paper Company of a note which had been given by the Chagrin Falls Paper Company to John H. Lyons & Co. for these goods, and that on that ground they had not fully elected to rescind this sale. There was evidence that a demand for the goods had been made of E. P. Wilmot, and that the note which had been made by the Chagrin Falls Paper Company to John H. Ijyons & Co., had been tendered to him before the commencement of the suit.

But it is said that the sale, or contract of sale,having been made with the Chagrin Falls Paper Copmany, the demand should have been made of them, and that their note should have been tendered back to them; and it is claimed that Wilmot stands in the position of an innocent holder of the goods. It is not claimed that he stands in any better position than the Chagrin Falls Paper Company would occupy, but it is said that the Chagrin Falls Paper Company, having come in possession of those goods by contract, came lawfully and properly into the possession of those goods, and that where parties have come lawfully and properly into the possession of goods, a replevin cannot be maintained until a demand has been made for the return of those goods. It is true that where a person comes lawfully and properly into the possession of goods and has a right to the possession, some steps must be taken to put an end to that possession, and this is generally, perhaps solely, by a demand. But the question arises most directly (because, for the purpose of discussing this question, we must assume that the purchase was a fraudulent purpose), the Chagrin Falls Paper Company having fraudulently purchased these goods of John H. Lyons & Co., did they come lawfully into the possession of these goods? Is it true that a person may obtain goods upon false pretenses, and then claim, as a rule upon which his case is to be heard, that he came lawfully into the possession of them ? It seems to me that the bare statement of the question is sufficient to refute the proposition. It cannot be that a person who obtains goods by false pretenses,comes lawfully into their possession, and is entitled to demand for their return. *

But it is said that this note was not returned to the Chagrin Falls Paper Company; that there was something which these plaintiffs got that they did not return. It appears very plainly that they held that note at the beginning of this suit and after they had replevined the goods In fact, they brought that note in and tendered it in this suit, subject to whatever the court might say should be done with it. That note was then over-due. It is plain that the Chagrin Fails Paper Company could suffer no damage for the want of the return of that note to them. They could not be held liable upon it any further than was fair and just. The rights of John H. Lyon & Co. in that paper were subject to whatever changes were made in regard to the liability upon it by their proceedings in replevin; nor could they transfer any higher rights to any other person. Bo' that no damage, particularly, would be done.

There is rather an early case in our state where this subject was discussed — the case of Frost v. Lowry, in 15 Ohio, 215, The judge delivering the opinion, says:

“Where goods are obtained by fraud, the purchaser acquires no lawful possession as against the vendor, for the reason that his assent to the delivery was procured by such means. ”

That case is one also to test the claim that plaintiffs could not recover because they had not returned the note to the Chagrin Falls Paper Company. One of the syllabi is:

“If A obtain goods of B by false pretenses, and gives therefor a accepted draft upon C, an accommodation accept- or, it is no defense to an action of replevin instituted by B against a stranger, in whose possession the goods are found, that he draft had not previously been returned by A.”

It was claimed that there had been a waiver on the part of the original vendee of the return; but in that case the acceptance by the third party was brought into the suit, just as in this case the note was brought into the suit, with the name of the accommodation endorser erased. That is, a change had been made in the form of the paper which was tendered in the suit. The court say:

“It is nevertheless true, that to enable the vendor to repossess himself of the goods, he must restore the vendee to his original rights. The consideration paid must be returned- — the security given must be tendered back, or delivered up to be cancelled. But, if this be waived by the vendee, no other person has the right to complain, and such appears to us to be the. case at Bar. The bill was left, by the consent of Nathan L. Stout, with the attorney, subject to Stout’s order with the acceptance erased. What reason had either the plaintiff in error Frost, or Itockhill, the attaching creditor, to complain of this? They had neither property in, nor lien upon this acceptance, and Stout had the perfect right to waive its return, or to receive the bill without it, and the result, in our view, would be precisely the same — the rescission of the contract.”

That is, there being an accommodation acceptor, the paper, as far as Stout was concerned, in that case was equivalent practically to the note. But the court say:

“But suppose this were not so. Useless and idle ceremonies are neither favorites of the law, nor required by common sense; and if the withholding of the acceptance can, in no event, be of prejudice to Stout, its return is by no means necessary to enable the defendants in error to reclaim the property.”

Now, in this' case at Bar, could these plaintiffs both recover these goods in replevin and then recover the price of them of the Chagrin Falls Paper Company? We are unable to see that the Chagrin Falls Paper Company suffers any damage whatever by the note being precisely where it is.

The rule laid down in Smith & Co. v. McLean, in 24 Iowa, 322, is:

“Demand is only required before replevin when necessary to terminate the defendant’s right of possession or confer the right of possession upon the plaintiff.”

Now, where goods have been obtained by fraud, by false pretenses, the right of possession never passed to the defendant at all. If .the sale is elected to be rescinded, it is because there was no right on the part of the defendant in the outset to the possession of those goods.

“Nor,” say the Court of Appeals in Scofield v. Whitelegge, 49 New York, 262, “is there any necessity for á demand where there was a wrongful taking. ’'

A case very similar to this case — perhaps most similar to this case — is one decided by the Supreme Court of Illinois in the present year, and not jet reported in the regular reports, but which is to be found in 9th Wests’ Reporter, page 498.

A great deal of interesting discussion was had upon the subject of the false representations which were claimed to have been made in this case. There were no representations made directlj'by the Chagrin Falls Paper Company to John H. Lyon & Co,, but there was a statement made by the 'Chagrin Falls Paper Company to Bradstreet’s Commercial Agency in'the year 1880. This sale took place in the latter part of the year 1883. The goods, perhaps, were delivered by John H. Lyon & Co. to the Chagrin Falls Paper Companjr in December, 1883, there having been prior negotiation, which was had mainly through a man by the name of Beebe. The -plaintiff received from the agency, in Ocober, 1883, a report based, as is claimed, upon a report made by the Paper Company in 1880. In November, 1883, the Chagrin Falls Paper Company made to Bradstreet’s a similar statement to that made in 1880, but that did not reach the plaintiffs, the vendors, before they delivered the goods, although it was actuallj' made to Bradstreet’s in New York, and appeared upon their books a little before the time of the delivery of the goods.

The statement made to Bradstreet’s [in 1880 was this: That the corporate style was “The Chagrin Falls Paper Company;’’ that it was located in Cuyahoga county, Ohio; that its officers were: President, D. L. Pope; agent, I. W. Pope; secretary and treasurer, L. I. Pope; that the date of the charter was December 27, 1873; that the date of the organization was January 3, 1875; that the date of the commencement of business was January, 1876; that the capital authorized was'$100,000; that the capital subscribed was $50,000, and that the capital paid up was $50,000. The matter that was claimed to be fraudulent in this statement was the representation that the capital paid in was $50,000. It was claimed that the capital paid in was not $50,000.

The statement made by Bradstreet’s Agency to the plaintiff was this:

“The Chagrin Falls Paper Company of Chagrin Falls, Ohio, Cuyahoga county. D. L. Pope, president; L. I. Pope, secretary and treasurer; I. W. Pope, agent. A stock company, chartered in December, 1875, under Ohio laws, with an authorized capital of $100,000, of which $50,000 is claimed paid in, consisting of real estate, machinery, etc. Business was not actually commenced until January, 1876.”

Perhaps I might as well read that other report right in this same place. The report to Bradstreet’s November 27, 1883, was:

“A stock company, chartered under Ohio laws in December, 1873, with an authorized capital stock of $100,000, of which $50,000 is paid up. Shares $50 each. None for sale. Real estate, plant, etc., valued at $40,000. Insured for that sum, and is clear. We have a surplus of $15,000. Have from $32,000 to $35,000 in stock on hand, with liabilities of about $35,000. ”

It was claimed that the payment of that $50,000'was fraudulent. It was claimed that it was paid in real estate and other property making the plant, and that the property was very largely over-valued; that, in addition to largely oVer-valuing the'property which went to pay the $50,000, the Paper Company assumed and undertook to pay some twenty odd thousand dollars of previous debts of Pope, the man who made the subscription, and who undertook to pay for his $50,000 of stock with that property. So that it was not only a over-valuation but it was a clean payment.or assumption over and above that by the Paper Company of some $20,000. And it was said (perhaps it makes no difference with the facts in this case) that a part of these very preferred debts arose out of those payments undertaken to be made by the Chagrin Falls Paper Company.

There are several replies made to this claim of fraud. It is said that the company had it in its power to make such bargain as it pleased in regard to the disposition of stock. In view of our statute, it hardly seems necessary to discuss that point very much, because other stockholders and creditors have some rights in the matter. Nor, perhaps, does that point fairly arise in this case, because the question whether or not, as between the stockholders and the company, the company had a right to make such bargain as it pleased in regard to the disposition of its stock would not, perhaps, be entirely decisive with regard to the representations made to other persons. It is a fact, however, and the law, that stock must be fairly paid up. If it had been in the power of the corporation to waive the paying up of that stock, still when these parties undertook to tell the Commercial Agency that that stock was paid up with $50,000, they made a substantial statement of fact which, it is claimed, might rightfully be relied upon by other persons.

But it is said that this representation was not made to John H. Lyon & Co., and that it is necessary that a false representation be made to the person who sells the property, and who not only had a right to rely upon it, but who had aright to rely upon it as made to him. And that brings up (and we only purpose to discuss it briefly) the situation of Commercial Agencies. It seems to be a business of which, as is suggested, the court should take judicial notice. We all know perfectly well he manner in which the business is done. These mercantile agencies have agencies in all of the principal business towns of the United States; they do a vast business, influencing, by the representations which they make to their patrons, almost the entire business of the country. The very purpose for which .they are organized and do their business is to state to people who sell goods the condition of those'who wish to buy. So that the whole, purpose of their organization and of their business is, practically, to carry representations. At any rate, a very large share of their information is, very properly, made up from the statements of the purchasers throughout the country. That is the most reliable source of information, and that which the Commercial Agency has the best right to rely upon; and the principal business of these mercantile agencies is to carry these statements from the buyers to the sellers. In this case I have read the statement made by the Chagrin Falls Paper Company itself.

Now, it cannot be true that representations must always be made by word of mouth. A corporation can never act except by agents of some kind. So that if the doctrine is true that a representation can never be made by an agent, then a corporation can never be guilty of a fraud — a doctrine which has been expressly “sat down upon’’ by our Supreme Court. Now, why may not a representation be made and carried as well by a company whose business it is to do that very thing as by any other agent? We are unable to see that there is any distinction between the one and the other. There have been numerous cases upon this subject, and they have uniformly held that where a representation is made to a mercantile agency, and that same representation is carried by the agency to the seller; that is substantially a representation made by the buyer; and it cannot be anything else. The very purpose for which the Chagrin Falls Paper Company made that statement to Bradstreet’s Commercial Agency was to have Bradstreet’s Agency tell persons of whom they wished to buy what their condition was.

Objection was made to the introduction of the statement made to the agency, and also to the introduction of the statement made by the agency to the purchaser. But it is very plain that the representations made by the Chagrin Falls Paper Company to John H. Lyon & Co. consisted of just these two things — the representation made to the Bradstreet Agecy, and the statement made by it to John H. Lyon & Co. They were both proper to be introduced to enable the jury to say whether Bradstreet’s Agency stated to John H. Lyon & Co. those things which it had been authorized to state to John H. Lyon & Co. or to anybody else who had any good reason for inquiring.

It is said that this representation was made much too long before the sale. This representation was made in 1880, and the sale was made in 1883. But the court left it to the jury whether or not the representation made to Bradstreet’s Commercial Agency was a continuing representation. That was excepted to. Now, if the court ought not to have left that to the jury, the court ought to have determined it for itself; and it really seems impossible to say that that representation made to Bradstreet’s Agency was not made for the purpose of being a continuing representation. It was a statement of a past matter of fact. Now, a statement of a past matter of fact is true or untrue, and it always remains either true or untrue. If a representation had been made of the then condition of the Chagrin Falls Paper Company, and that condition had changed afterwards or had not changed afterwards, it could not be said that that was a representation continuing in the sense that the seller would be authorized to conclude that after that the condition of the Chagrin Falls Paper Company had been unchanged. But here was a statement which expressly represented what had been done at the organization of the company — past facts which if they were once true were true forever, and which if they were once false were false forever. The representation made in November, 1883, before these goods were received by the Chagrin Falls Paper Company, was substantially the same, manifesting that if the Chagrin Falls Paper Company intended fraud by that first representation that was made, it persisted in that fraud and in that claim in November, 1883.

But it is said that the representation made by Bradstreet’s Agency to John H. Lyon & Oo.was that it was claimed that $50,000 had been paid in. What did that mean? It is said that that was literally true — it was claimed that $50,000 was-paid in. It might not have been true that $50,000 had been paid in, but it wás true that it was claimed that $50,000 had been paid in. Now, what was the fair meaning of that when it reached John H. Lyon & Co. ? It plainly was a statement on the part of the agency that the Chagrin Falls Paper Company claimed- — -said, in short — that $50,000 had been paid in. And it does not seem to us that the merits of the case ought to turn on the technical use of language the fair meaning of which it is very easy to understand.

I will refer to one case on the subject of commercial agencies that is found in the 83rd New York—Eaton, Cole & Burnham Company v. Avery:

“Where a member of a firm makes to a mercantile agency statements known by him to be false as to the capital invested in the firm business, with the intent that the statements shall be communicated to persons interested in ascertaining the pecuniary responsibility of the firm, designing thus to procure credit and to defraud such persons, and such statements are communicated to one who in reliance thereon sells goods to the firm upon credit, an action for deceit is maintainable at the suit of the vendor against the partner making such false representations.
“It seems that the court will take judicial notice of the nature of the business and the office of mercantile agéncies. ”

That does not seem to be altogether what the court did in this instance; but that certainly was a matter which, if left to the jury, the defendant below could not complain of, because the conclusion of the court, as far as the nature of commerial agencies is concerned, could not possibly have been different from that which was found by the jury.

It is said that these goods were bought, through one Beebe. It seems that they were bought through correspondence with a man by the name of Beebe, who seems to have been a broker; the terms of sale were agreed upon by him, and the order was turned over to John H. Lyon & Co.,who filled it; and it is said that therefore these parties had no right to rely upon it. Now, that makes no difference. They purchased these goods of John H. Lyon & Co., received them from John H. Lyon & Co.,were bound to pay John H. Lyon & Co. The contract was between them and John H. Lyon & Co. There cannot be any doubt about that. And it makes no difference whether it was the same contract in regard to which Beebe acted or not. If by a contract they bought these goods of John H. Lyon & Co., then John H. Lyon & Co. had just as much right to rely upon the representations that were made to the agency as any other vendor. The representation made to the agency, was for the very purpose, without any7 reference being made directly to the Chagrin Falls Paper Company, of enabling any person of whom they bought or proposed to buy goods to know what was their condition.

I may say that there was testimony that Bradstreet’s report was in the office of the Chagrin Falls Paper Company, and that they referred to it from time to time. ' But, after all, it seems difficult to see why this false statement of past fact was not made by them for the very purpose of being relied upon just as long as it was upon the books of Bradstreet’s Agency as a substantial statement of past fact.

The Chagrin Falls Paper Company were somewhat unfortunate in their business, and it is said that when they made this purchase they were very largely insolvent — -totally unable to pay for those goods; that there could not have been any reasonable expectation that, they would be able to pay for them; that they knew they could not pay for them, and that they never intended to pay for them. It was claimed, substantially, that there was a scheme of fraud, so far as the obtaining of credit was concerned, from the beginning; that, the statement first made of their condition in 1880 was fraudulent, and they obtained credit by that; that they gradually went on in their business, and that when they saw that they were bound to fail their stock was all transferred to one of their members, the president of the company, who was totally insolvent, except, perhaps, single shares of $100 each to enable directors to qualify; that they then made very much larger purchases of goods than they ordinarily made, buying wherever they could obtain goods upon credit, and acquired in that manner a stock sufficient, it was claimed, to last them for a long time, and much larger than they had on hand before; so that they had on hand at the time of their failure a much larger stock of goods than they had had at any previous time; and that that was done for the purpose of procuring it from these various vendors, and turning it over to the preferred creditors, and that the suit is between one of these vendors and these preferred creditors for such goods as are claimed to have been bought of the plaintiffs in this general scheme of fraud.

There was naturally a good deal of discussion in the case as to what kind of a fraudulent concealment of condition would result in making a contract of sale fraudulent. That when a person buys goods, being insolvent, knowing that he is insolvent, and not intending to pay for those goods, that sale is fraudulent, has been decided by the courts of quite a number of states, and by the Supreme Court of the United States in 93 U. S. Reports. The cases seem to be unanimous that under such circumstances such a sale is fraudulent and void. The.leading case in this state — in fact, substantially the only case in this state — goes further. That is the case of Talcott v. Henderson, in the 31st Ohio St. page 162, which went up from this county, and aróse through the insolvency of De Forest & Oo., of this city. The first syllabus in that case_is:

“A contract for the purchase of goods, on credit,.made with an intent on the part of the purchaser not to pay for them, is fraudulent.”

That follows precisely the doctrine that has been laid down in all the cases. The court adds, and it is to this part that the exception is taken, it being claimed that this language was not authorized to be used in this case, that it is not the law, and that if the Supreme Court intended it to be laid down as the law/they were mistaken:

“And if the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay. ”

It is said that the -judge below delivered such a charge as was calculated to mislead and confuse the jury. The charge which he delivered to the jury which it is said was calculated to confuse and mislead the jury, was the reading to them of the syllabus which I have just read, and also such part of the opinion of the court sustaining that as the judge saw proper to read. So that if the judge below did deliver a charge that was calculated to confuse and mislead the jury, it was because he delivered to them the law as laid down by the Supreme Court.

It is said that a judge may confuse and mislead a jury by delivering to them law that is perfectly correct, but inapplicable; and that is true. But it seems as if the circumstances and the evidence in this case were similar in character to the circumstances and evidence in the case at bar. So that that law laid down by the Supreme Court was applicable here. Judge Mcllvaine, in delivering the opinion, says:

“An intention on the part of the purchaser of goods not to pay for them, existing at the time of purchase, and concealed from the vendor, is, undoubtedly, such a fraud as will vitiate the contract. But it is certainly true, on the other hand that, where no such fraudulent intent exists, the mere fact that the purchaser has knowledge that his debts exceed his assets, though the fact be unknown and undisclosed to the vendor, will not vitiate the purchase.
“Whether, therefore, a contract of purchase, where the purchaser fails to disclose his known insolvency, is fraudulent or not, depends on the intention of the purchaser; and whether that intention was to pay or not to pay, is a question of fact, and not a question of law.
“In the solution of this question, though it be one of fact, it is true, however, that certain presumptions arise, which are entitled to consideration and force.
“Thus, while it may be said that fraud must be proved, and will not be presumed, there is a presumption that every reasonable person anticipates and intends the ordinary and probable consequences of known causes ' and conditions. Hence, if a purchaser of goods has knowledge of his own insolvency, and of his inability to pay for them, his intention not to pay should be presumed. I would go a step further, and hold that an insolvent purchaser, without reasonable expectations of ability to pay, should be presumed to intend not to pay. Indeed I would not deny that an intention not to pay might be inferred from the mere fact that the purchaser had undisclosed knowledge of his gross insolvency; but, in such case, the inference may be rebutted by other facts and circumstances. ”

Now, it is said that this was obiter in this case. The fact is that the verdict of the jury in the case of Talcott v. Henderson was the other way. The facts were similar to the facts in the case atibar, as were the claims made. Of course, the evidence may be much stronger in one case than in the other. This case goes further than any other case, anywhere. The law is laid down much more strongly in Ohio than it is anywhere else, The judge delivering the opinion, says further:

“True, the decisions of different courts upon this question are not uniform. The discrepancies, however, are not so much on the point whether a fraudulent intent on the part of the purchaser is necessary to avoid the purchase, as to the question of conclusiveness, under the circumstances of each case, of the inference of fraudulent intent, from the fact that the purchaser had knowledge of his insolvency, and failed to disclose it to the vendor.
“There is no well considered case, as far as I have examined the authorities, which holds that fraud is conclusively presumed from these facts alone. Where, in addition, it is shown that the appearance and circumstances of the purchaser indicate solvency and wealth, there are cases which hold the inference of fraudulent intent to be conclusive. Of course, we admit that if the appearance of solvency be assumed for the purpose of deceiving, as in 1 Root, 58, the existence of fraud is actually shown; but we think that where such appearance is entirely innocent, the question of the existence of fraud is still open to further inquiry.
“From these views, how stands the case before us? At the date of the contract, De Forest & Son were largely insolvent. They had knowledge of the fact, and did not disclose it to the plaintiff, who was ignorant of it. They were also in possession of a large stock of merchandise, and were doing an extensive business. From' these facts, it might well be inferred that they intended to obtain the plaintiff’s goods without paying for them; at least, that they had no reasonable expectation of being able to pay for them at the maturity of their promise. If the court below_had so found, we would not disturb the finding.”

Now, it certainly seems that the court was justified in laying down the law as it did. This clause that is objected to, “and if the purchaser has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay, ’ ’ is a matter the consideration of which arose solely out of the facts of that case, and it is simply our business to apply the law as laid down by the Supreme Court; and, as I have said, the objection that is made to the charge of the court below, is that he read to the jury this very law, which, if it is good law, is applicable to the circumstances and evidence in this case.

There were various exceptions taken to the evidence — in fact, I believe there were oyer a hundred of them in this case, but it is not necessary for us to discuss them at length. They run very largey into classes, which are practically disposed of by the discussion which we have already had. We could take a large amount of time in the discussion of each particular objection, but there are quite a number which we do not deem it necessary, -although we have looked at them, to discuss. There are, however, general exceptions to a considerable class of evidence.

There were allowed in evidence in this case representations that had been made to other parties. There were allowed, as has been seen,representations made to Bradstreet’s Agency in November, 1883, which was after any representations reached these plaintiffs, because the representations reached them in October, 1883.

Before the sale was made there were representations made to divers other persons; one in February, 1883, and possibly one after .the sale was made; and the admission of these representations to other persons was objected to. It was not denied that it was quite competent to introduce false representations made to other persons to help sustain the charge that false representations were made to the plaintiff, in some instances. But this nice question was made: Whether, if the jury came to the conclusion that there was no fraud in the representations that had been made to Bradstreets, these representations would bear upon the question of whether there was a fraudulent concealment. The court told the jury that if they came to the conclusion that there was no fraud in the original representations made, or that this sale was not void on account of false representations, nevertheless, these fraudulent representations made at other times and to other persons were admissible for the purpose of showing that there was a fraudulent concealment of their condition, and an intention on the part of that corporation not to pay John H. Lyon & Co. for those goods.

Now, the claim made by the plaintiffs below was that there was, as I have said, this general scheme of fraud, in pursuance of which they purchased during the last year a very large and unusual amount of goods of these various vendors with the intention of not paying for them, but of turning them over to certain creditors whom they designed to prefer. In short, it was claimed that it was a scheme by which, being indebted to various parties whom they desired to pay, they proposed to get the goods of other persons and turn them over to these parties, and that they did that, very likely, where they could, by simply concealing their gross insolvency, taking the goods without an intention to pay for them, which was a clear fraud. Now, if there was that fraudulent scheme on the part of the Chagrin Falls Paper Company, why does not testimony as to representations which were fraudulent and false, made by them to various persons in the furtherance of that scheme, tend most directly to show whether or not there was a fraudulent intention on the part of the Chagrin Falls Paper Company in their conduct toward the plaintiffs? It seems as if there could hardly be any more direct evidence. I do not see why it is not as forcible and as pointed to show fraud iff the one case as in the other — ■ and, on my word, it seems almost even more so.

But it is said that our own Supreme Court has given some intimation upon that point. I will read first a brief decision in Hall v. Naylor, in the 18th N. Y. 588, which is a decisión directly upon that point:

“Where the question is whether a vendee of goods procured the sale of them through fraud, evidence is admissible of purchases made by him at or about the same time,involving similar frauds.
“Evidence is admissible of co-temporaneous sales procured by affirmative representations of the purchaser’s solvency, though the issue is upon an alleged fraudulent concealment of facts material to his credit. ’ ’

Comstock, J., says:

“It does not appear that Kerr & Company, on purchasing the goods in question, made any representations of their ability to pay for them. If, however, they concealed the fact of their insolvency, with a design of procuring the goods and not paying for them, it was a fraud which rendered the sale void, if the plaintiff chose so.to regard it. On the trial of such an issue, the quo animo of such a transaction is the fact to be arrived at; and it is, therefore, competent to show that the party accused was engaged in other similar frauds at or about the same time. The transactions must be so connected in point of time, and so similar in their other relations, that the same motive may reasonably be imputed to them ail. It is not necessary, however, that the means of accomplishing each fraud should be the same. Where the question is, whether goods have been procured by a fraudulent suppression of facts material to credit given, it will be competent to prove that, in other instances, they have been obtained by actual misrepresentation, concerning the same facts. The concealment in one case, and false representation in the other, are evidence merely of a fraudulent design, common to both transactions, of procuring goods without the ability or the intention to pay for them. These observations are a sufficient answer to several objections which were taken at the trial to the admission of the evidence.”

I will say right here that although these representations have been very generally and freely admitted, from a careful examination which we have made of the authorities on that subject, it is quite evident that the courts have differed in the reasons that they have given for such admission.

It is said that there has been an intimation, as I said, by our own Supreme Court, that they would not be admitted, and that is based upon this language in the case of the United States Life Insurance Company v. Frank H. Wright, in the 33 Ohio St. 533:

“Where a recovery is sought on the ground of fraudulent representations made to the party aggrieved, similar representations made by the same persons to others, are admissible in evidence only for the purpose of showing that they were known to be false by the person making them; therefore, where there is no evidence tending to show such knowl edge, they should be excluded.”

The court undertook to tell the jury in this case that they not only bore upon the subject of false representations, but they bore upon the subject of fraudulent concealment. Now, it will be noticed that this is carefully limited by the Supreme Court to a case where a recovery is sought upon the ground of false representations; but a recovery was sought in this case not only upon the ground of false representations, but on the ground of fraudulent concealment, and the court evidently do not mean to say there at all that such evidence would not be admitted where the issue was one of fraudulent concealment; and the trouble in that case was precisely this: There was no evidence at all that the representations which were made to the party claiming fraud were false. The court say:

“This evidence was admissible for no other purpose than to show that the representations made to plaintiff were known by the agent to be false. There was, however, no evidence given tending to show that the statements made to others were false, or known by the agent to be untrue. The evidence, then, afforded no light upon the point on which alone it was admissible; and therefore should have been ruled from the jury.”

In the case of Edwards v. Owens, 15 Ohio, 500, it is said that ‘‘proof of general representations made at the same time to others, by which they were defrauded, may be given in evidence to show the intention of the debtor in making the false representations complained of. ”

That is limited by the language employed there, but at the same time it is evident that in that case, and in every case, it is impossible that the representations should be made at precisely the same time, and we know cf no case which has lowered the limitation below that which was laid down by the Court of Appeals in this casé in 18 New York.

There is an analogous case in 26th Ohio St. 176, George Brown v. The State of Ohio. It was claimed that the defendant below had injured horses of his neighbors. His business was to cure horses, and he told his neighbors that an epidemic was coming on that would injure horses, for the purpose of treating them. Testimony was admitted of similar damage done to other horses. The court say:

“While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicted, cannot be given in evidence against him on trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, must have existed between the offense charged in the indictment and others of a similar nature. When such connection exists; evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses. ’ ’

I think that is a happier statement than is sometimes made of the ground on which these fhlse representations are admitted.

It is said that there was error in admitting an admission of Mr. Wilmot regarding the value of the property. It will be noticed that it was one part of the case of the plaintiffs to show that the Chagrin Falls Paper Company, at the time of that purchase, was largely insolvent, which, of course, would be done by a comparison of its property with its liability. Wilmot was called upon by them to testify in a deposition, and testimony was introduced upon the stand of statements which he then made.

The objection made to them was that he was the agent of these creditors, and that they were undertaking to use the admission of the agent, not made in .the line of ■ his agency, against the principals. The rule is very well established that the- admissions of an agent, if they aré to bind this principal, must be made in the execution of the purposes of his agency. It is plain that Wilmot, who was the defendant in this case, and who was obliged by the plaintiffs to attend before a notary public and give his deposition, was not in that instance their agent in making those admissions. He did it very much against his own will, very likely, and just, as likely against the will of those who were alleged to be his principals; and the question arises ’ directly, what was the relation of Wilmot, as far as this suit is concerned, in regard to admissions which he was not authorized to make by those parties who are claimed tobe his principals?. It is said that whatever takes place in this suit binds the principals — -that they are privy to this action. It is not necessary for us to pass upon that question one way or the other; but it is quite certain that Mr. Wilmot'himself had a personal interest in this case. He was liable for the costs; damages were claimed against him; and we cannot see why, when the question in this case, as between these plaintiffs and E. P. Wilmot, was whether E. P. Wilmot had the right to the possession of these goods as against them, any admission of his which bore upon the subject of his right as an individual to hold those goods against them could not be used as against him. No authority was produced at all — it was said that the question was new. It probably is new for the reason that it never has been maintained that an admission under such circumstances was not admissible.

We have discussed, I believe, all the questions which we have thought it necessary to discuss, and at somewhat more length than I expected to when I commenced.

The judgment of the court below will be affirmed.

Estep, Dickey '& Squire, for plaintiffs in error.

Everett, Dellenbaugh & Weed, for defendants in error.

(Affirmed by the Supreme Court, see Per Curiam, 49 Ohio St. 296.)


source: Caselaw Access Project

author: Smith, J

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    PETER RENNER v. NICHOLAS BURKE.

      Execution — Money made ,by Sheriff ”on an execution on a judgment in favor of a party, may be applied by him on an execution [held by him against such party.

    Error to the Court of Common Pleas of Hamilton county.

      Mr. Werner, attorney, for plaintiff in error.

      Mr. Disney, attorney for defendant in error
   Smith, J

We are of the opinion that where the sheriff has in his hands an execution against a certain person, collects the money from him thereon, and at the same .time holds an execution against the person to whom the money so collected would be payable, that such sheriff has the right to credit thereon so much of the same as is necessary to satisfy in whole or in part such execution This is the express statement of the law by Judge Swan, in his Treatise, page 282, and it seems entirely reasonable and proper In such case a return oh the facts by the sheriff upon the execution, will operate to discharge him from liability to pay the money so credited, to the judgment creditor, as otherwise he would have been bound to do

The judgment of the court of common pleas will be reversed, and the cause remanded for further proceedings


author: Laubie, J.

text:
    (Seventh Circuit—Columbiana Co. Circuit Court
    Jan. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.
    JOHN W. HARTZELL and JOHN F. PATTERSON, partners in business under the firm name of JOHN W. HARTZELL & CO. v. MARY E. WARREN.
    1. The act entitled “An act to prohibit the use of fictitious names in partnership,” passed May 19, 1891 (91 O. L. 357), is not in conflict with section 16, art 1, or section 28, art. 11 of the Constitution.
    2. The word “maintain” in the sec. 6 of same act, as used therein, is intended to include the bringing of an action, as well as the carrying of it on thereafter.
    3. Want of legal capacity in the plaintiffs to bring the action, can be raised by demurrer only when the incapacity appears on the face of the petition; and, in an appeal case, the court cannot look to the transcript of the justice for evidence of facts in support of such a demurrer. McCullough v. Cramblett, 1 G. G. R. 330, overruled.
    1. It is not necessary, however, for the plaintiffs to allege in their pe - tition, that they have complied with the requirements of said act before the bringing of the suit, and a demurrer will not lie to the petition for want of such averment. That is a matter of defense to be taken advantage of by answer.
    5. Where such partners have complied with the requirements of such act before any attempt to take advantage of their failure to comply therewith is made by the defendant, the action should not be dismissed, but should be permitted to proceed upon such terms as to costs as may be just and_ reasonable.
    Error to the Court of Common Pleas of Columbiana County.
   Laubie, J.

This is a proceeding brought to reverse the judgment of the court below in an action brought by plaintiffs in error against the defendant in error, before a justice of the peace, to recover upon a debt due to them from the defendant, in which the court sustained a demurrer to the second amended petition, and dismissed the proceeding. ■

The question presented, to the court was in reference to the construction of the act entitled, “An act to prohibit the use of fictitious names in partnership, ” passed May 19, 1894 (91 O. L. 357), and the court held that these parties plaintiff, as partners, had no legal capacity to sue, and therefore the petition should be dismissed.

Section 1 of that act provides, “That except as otherwise provided in the next section, every partnership transacting business in this state under a fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of -the court of common pleas of the county in which its principal office or place of business is situated, a certificate stating the names in full of all the ¡members of such partnership and their places of residence, and publish the same once a week for three successive weeks in a newspaper published in the county, if there be one, and if there be none published in such county, then in a newspaper published in an adjoining county.”

Section 6 provides, “That after the passage and approval of this act, any persons doing business as partners contrary to the provisions of this act, shall not maintain an action on or on account of any contracts made, or transactions had in their partnership name in any court of this state, until they shall have first filed the certificate and made the publication herein required; provided, however, that if such partners shall at any time comply with the provisions of this act, then such' partnership shall have the right to maintain an action on all such partnership contracts and transactions entered into prior as well as after such compliance with this act.”

The demurrer to the petition was special: “That the plaintiffs have not the legal capacity to sue.”

Counsel for the plaintiff in error claims that this statute is •unconstitutional; that it is retroactive in its terms, and applies to past transactions. We think this contention is not well taken, and is not sustained by the language of the act. While it took effect immediately upon its passage and, by its terms, applies at once to partnerships and to transactions theretofore entered into, yet there is a saying clause, “that if such partners shall at anytime comply” with the requirements of the act, then they may sue in their co-partnership name upon all contracts and transactions entered into prior thereto; and they ^re not, therefore, cut off from recovering their debts by reason of the fact that the act took effect immediately upon its passage and approval.

It is also contended that the act is unconstitutional because it throws a burden upon one class of citizens and not upon all alike. This contention, we also think is not well-founded, because the statute applies to all citizens of the state alike. It is true, not all the citizens of the state may be engaged in partnerships, but that does not effect the question. It applies alike to all the citizens of the state doing business under the conditions referred to.

Again, it is said that the prohibition in section 6, does not prohibit the bringing of actions, its language being, “Shall not maintain an action” on account of such transactions. The contention is, that the word “maintain” does not include the beginning or commencement of an action, and that the action may be commenced and thereafter the provisions of the act complied with, or a right to recover may thereafter belong to the parties by showing that after the commencement of the action they had complied with the provisions of the act. In this we cannot agree with counsel for the plaintiff in error. We think the word “maintain,” as used in the act, includes the beginning of the action as well as its subsequent prosecution.

A more difficult question in the case, is whether or not the court properly sustained the demurrer to the petition,on the ground that the parties plaintiff had no legal capacity to sue. Where that is the point desired to be made in a proceeding, when and how may it be taken? When may it be raised by demurrer? The statute settles that question.

Section 5062 of the Revised Statutes, declares when a demurrer may be filed for that purpose.

“Sec. 5062. The defendant may demur to the petition only when it appears on its face either:

“1. That the court has no jurisdiction of the person of the defendant, or the subject of the action.

“2. That the plaintiff has not legal capacity to sue.”

And again, section 5063, provides, “When any of the defects enumerated in section five thousand and sixty-two do not appear upon the face of the petition, the objection may be taken by answer.”

The statute is express and positive, that the defendant may, in such case, demur to the petition only when it appears upon the face of the petition that the plaintiff has not legal capacity to sue.

In O’Neil v. Blessing, 33 Ohio St. 34, there was a demurrer to the second amended petition on the ground ’’that this court has no appellate jurisdiction of the subject-matter of this suit,” under subdivision 1 of said section 5062,

That case came into the court of common pleas by appeal, and the contention was, that the justice of the peace had no jurisdiction, and consequently the common pleas had none. On that question the court (p. 37) says:

“The plaintiff, by leave of the court, filed a second amended petition. To this, a demurrer was filed and sustained, on the ground ‘that the court had no appellate jurisdiction of the subject-matter of the action. ’ There were two reasons, at least, why this demurrer should have been overruled. First — The petition did not show on its face that the action had come into that court by appeal, and the demurrer did not, therefore, raise the question of jurisdiction.”

We cannot resort to the transcript, or to the papers in the action other than the pétition to sustain a demurrer on the ground of want of capacity to sue, or for want of jurisdiction.

If the defect does not appear on the face of the petition, the only remedy to a party who wishes to avail himself of it is by answer. See also Whittaker’s Annotated Code, under the head of Demurrer.

So well established is this rule, that where a paper is attached to a petition as an exhibit, not authorized by law to be made a part "of the petition, and not made a part of it in terms, it is held that it cannot be looked at in aid of the averments of the petition; and consequently, on the other hand, it cannot be looked at to modify or defeat the effect of such averments.

I was the dissenting member of the court in McCollough v. Cramblett, 1 C. C. R. 330, and it follows from our present holding that that case is now overruled; but we do not thereby mean to be understood as holding that the overruling of the demurrer in that case was such prejitdicial error as called for a reversal of the judgment in the case.

In this petition it does not appear on its face that the plaintiffs had not complied with the requirements of the statute before the action was commenced. 'It states when they complied with it, having been compelled to do so upon motion, but it does not appear on the face of the petition that that was after the action was commenced before the justice of the peace. In order to ascertain that fact, the court must have resorted to the transcript to find when the action was commenced before the justice of the peace, and then have compared that date with the date alleged in the petition when the plaintiffs complied with the requirements of the statue.

But in any event, were the plaintiffs obliged to aver that they had complied with the provisions of this act in order to maintain the suit?

An opinion has been published, since the argument of this case (The New Carlisle Bank v. Brown, 11 C. C. R. 77), to the effect that it is requisite in order to make a cause of action, or show a capacity to sue, that the petition should contain an averment of compliance with the requirements of the act before suit brought. It is there held:

“To entitle such partnership to ‘maintain an action,’ it is necessary that compliance with the conditions mentioned should be averred in the petition. The absence of such an averment would render the pleading obnoxious to a general demurrer, or to a special demurrer on the ground of want of legal capacity to sue; that is, if it otherwise appeared in the petition as in this case, that the firm was within the prohibition of the statute.
“The defendant should not be driven to tender an issue in respect to compliance with such conditions — -vital as we have seen to the maintenance of such action- — -if such compliance is not a fact. If the fact exists, the plaintiff can easily aver it in limine, thus avoiding delay which would ensue if such fact was available only by way of defense. The plaintiff must bring himself within the terms of the statute by affirmative averments, showing his right to sue. Haskins v. Alcott, 13 Ohio St. 210, 216.’’

We cannot agree with that learned court in this holding; and the ease of Haskins et al. v. Alcott et al., 13 Ohio St. 210, cited to support it, is opposed to such holding, when properly considered. That was a case where the plaintiffs had filed a petition in a firm name, not setting out the names of the individuals composing the firm, nor alleging that it was a firm engaged in doing business in this state. It is there said:

“It is an elementary principle in pleading, that where a statute, upon certain conditions, confers a right,- or gives a remedy, unknown to the common law, the party asserting-the right, or availing himself of the remedy, must, in his pleading, bring himself, or his case, clearly within the statute.
“A suit by or against a company not incorporated by its firm name, without disclosing the names of the several partners, could not be maintained at common law. It lacked the certainty deemed essential to judicial proceedings. * ****** This somewhat inconvenient rule has been modified in part by the statute above referrd to (R. S., section 5011), but the act, as we construe it, only permits this to be done by and against unincorporated companies doing business within this state. It would, therefore, seem to follow, that the averment that the plaintiffs are a firm doing business by that name, without superadding ‘within this state’ or other equivalent words, would not entitle them to maintain an action in the name of the firm. The plaintiffs do not bring themselves within the statute creating the exception.”

And upon the more difficult question as there said, how the defendants may take advantage of the defect, the court came to the conclusion that a demurrer would reach it where it does not appear upon the face of the petition that such firm .was formed for the purpose of doing business within the state. That was a case where the plaintiffs had no capacity to sue at common law in the name of the firm without disclosing the names of individual members. Such remedy was a new one, given by statute only, and hence it was properly and well held that the petition must show that they were of the class to whom'the remedy was awarded by the statute. But that is not the case here. Here the parties had a right at common law to sue in the name of the firm by stating the names of the individual members of the firm. Having alleged the names of the persons comprising the firm, they were not required to allege any thing more to show their capacity in law to maintain the action. It is therefore an entirely dissimilar case from the case cited. In that case the statute in question was an enabling statute, while in this case it is a disabling, or partially disabling, one. Some illustrations under other disabling provisions of law, written and unwritten, will make this plain. All persons have a right to sue in their own names, unless they are under the disability of infancy, coverture, insanity, or under guardianship as habitual drunkards. Would a demurrer lie to a petition, on the ground of incapacity of the plaintiff to sue, because it did not allege that the plaintiff was of legal age, or was of sound mind, or if a woman, that she was unmarried; or, that plaintiff was not under guardianship as an habitual drunkard? Or if aliens were prohibited from suing, that the plaintiff was not an alien? In such cases, would a motion lie to compel the plaintiff to state when he became of age, or that he was of sound mind, etc., etc., as was done in this case, where, upon motion of the defendant, the plaintiffs were compelled to state whether they had complied with the requirements of this act, and when.

These plaintiffs having the right, at common law, to maintain the action in the character in which they sue, if the defendant desired to take advantage of their non-compliance with the requirements of the statute, it should have been done by answer.

The fact that the plaintiffs had not complied with the requirements of the statute was not a fact peculiarly within their own knowledge; an inspection of the record in the clerk’s office would have disclosed it.

We think the court below erred in sustaining the demurrer to the petition.

Again, we think the court should not have dismissed the petition, assuming that it was asked to do so because the plaintiffs had not complied with the requirements of this statute when the action was commenced.

It appears by the record, that the action before the justice of the peace was commenced but a few days before the certificate was filed by these parties with the clerk of court, as required by the statute in question. The court dismissed the petition, after sustaining the demurrer, and rendered judgment for costs against the defendant. We think that was a mistake, because averment of capacity to sue under our statute is a matter of amendment as well as anything , else. It is to be governed by the general rules as to amendments, and to be allowed, if equitable and just, and in furtherance of justice. The petition in this case was filed long after the parties had complied with the provisions of the statute, and, although the action itself had been commenced before such compliance, yet the plaintiffs were then in a position, under this statute, to sue on the past transaction.

This question was substantially passed upon in Becker v. Walworth, 45 Ohio St. 174, 175, where it is said:

"The filing of the first petition in the case is claimed to constitute an election. In the caption to that pleading the defendant was described as ‘Michael Becker, executor of the estate of Abram Rafeustein, deceased,’ and in the body the allegations.purported to charge him as executor. Before answer, on leave, the petition was amended so as to'charge his personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
‘"Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement .of the action by the filing of an original petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless.”

The reasons there given, apply in this case.

The statute in question provides that if such partners shall at any time comply with its provisions, then such partnership shall have the right to maintain an action on all past transactions. So that the real question is simply as to the costs, in such a case All that the defendant can justly claim, is that the plaintiffs shall pay the costs of the action up to that time, because, if dismissed, they have the right to immediately bring another suit for the same cause.

C. D. Dickinson, for plaintiffs in error.

J. B. Morgan, for defendant in error.

There is another reason why the case should not have been dismissed as disclosed by the papers and by the statement of counsel in argument; and that is, that plaintiffs commenced suit by an attachment because of non-residence, and levied upon the property of the defendant about to be taken out of the state. The plaintiffs would lose the benefit of their lien if their action was dismissed; and the property has, in fact, been placed beyond their reach.

The case must be reversed and remanded for further proceedings.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    THE TOLEDO CONSOLIDATED STREET R’Y. CO. v. WM. LUTTERBECK.

      Negligence — Street Railroad — Passenger stepping off car attempting to cross other track without looking for cars.

    It is negligence on the part of a passenger on a street car, getting oE the car where there are two tracks on the street, to step on the other track for the purpose of crossing the same without first looking whether another car is coming on such other track.
    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

The petition here is prosecuted for the purpose of reversing the judgment of the court of common pleas in an action pending in that court, which was tried in that court, wherein William Lutterbeck was plaintiff, and The Toledo Consolidated Street Railway Company was defendant. The action was brought by Lutterbeck for injuries alleged to have been received by him while alighting from a car of the defendant company, at a point nearly opposite the depot of the Pennsylvania Railway Company, in Lower Town.

The facts of the case as claimed by the plaintiff below, are, that he was residing in Lower Town at that time, and. was employed by the Toledo Iron Metal Wheel Company, out at Auburndale, as a night jwatchman; that he was accustomed to go out there at night, remain there over night in the performance of his duties, and would board defendant’s cars near the Milburn Wagon Works, a little before seven o’clock in the morning, for the purpose of returning home; that on the morning in question, having taken a car, he proceeded down and was transferred to a Summit street car and came down to the Pennsylvania depot. There were on this car two or three other parties, apparently destined to the Pennsylvania depot, and himself. That the other three parties got off the car at the depot, and he followed them— the car being upon the right hand track as you go east — and he proceeded to get out upon the left hand side as the car headed east, which brought him facing the other track — the left hand track. That as he came out he sprang off the car, stepped onto the track, and>, just then, was blinded by a flash of electricity and he made a spring, and he claims that he was hit in his side,' and thrown some distance across the track, landing upon the paved street and was severely injured, from which injuries he has been suffering ever since.

The testimony upon the part of the defendant company ■tended to show that he got off the car upon the right hand side of the car as the car was going east, being the side next to the depot — and walked around the rear end of the car from which he had alighted and then proceeded to cross the track, and that just as he stepped upon the track he stepped in front of a car that was proceeding west,and which at that time was being brought to a stop by themotorman in charge of it.

Evidence was given by the plaintiff to show that there was an ordinance of the city retiring that cars, when they meet, should slow up, their rate of speed not to exceed two miles per hour, and the plaintiff claimed and alleged and offered evidence tending to prove, that the car, at the time he was struck by it, was running at a gretater rate of speed than two miles per hour. This ordinance is paragraph eight of section 6(M, of the General Ordinances of the City of Toledo, which provides:

“ Every street railway car shall slacken speed on approaching^another car standing upon a track for the purpose of receiving or discharging passengers, at a distance not greater than one foot from the front thereof, and shall not pass said car while stationary, at a speed greater than two miles per hour. ’ ’

Evidence was given by the plantiff to show that in coming down to take the cars to go to his work, his natural route would be out Magnolia street to Summit street. But he says the cars had run there rather rapidly, and, for that reason, he had been in the habit of coming to the Pennsylvania depot — a distance of a block and a half — and taking the cars there. He says the cars always stopped there at night, to take on and let off passengers, and he got on there. There was a question^ to whether they stopped there in the morning, and there was some evidence tending to show that they stopped there in the morning as they went east, usually— that is, that the car that went east and • the one that went west, stopped — that he had seen them stop.

We think the testimony shows very clearly that the plaintiff got off on the right hand side of the car as it went east; that at or about the time he got off the car started forward to go on its course; that he passed around the rear end of the car and stepped upon the other track of the street railway without looking up or down, to the right or to the left, or making any examination to see whether a car was coming from the east; that as he stepped on, there was a car in fact coming from the east and going west, and was at that Time being brought to a stop for the purpose of receiving a passenger -who was standing upon the opposite side of the street, and that, just as plaintiff stepped upon the track, some one shouted and he sprang forward and crossed the outei*rail of the track, and the step of the car hit his right foot and tripped him and he fell upon the street, and that whatever injuries he received were incurred by his so falling. The car at the time it struck him was very near to the usual stopping place, was going very slow, and was brought to a stop immediately afterwards. There was some testimony showing that it moved about 47 feet before coming to a stop, and other testimony showing that it was only the length of the car. How much power the motorman put on at the time, is not shown, excepting that he brought his car, after the man was hit, to a standstill, and that car received the injured man upon it and carried him up town.

We are clearly of opinion that in this matter there was no negligence on the part of the railroad company, or its employes, that contributed to this injury — at least anything of a marked degree. For myself, I do not think there was any negligence on the part of the defendant company. But we do think there was negligence on the part of the plaintiff in stepping upon that track- — -dashing forward upon it, without looking.

The case has been argued here also upon some alleged errors in the charge of the court to the jury. The record shows that at the close of the testimony by the respective parties, the plaintiff and defendant each requested the court to give certain propositions of law in its charge to the jury, evidently to be given before the case was argued; and the court did give certain propositions which it had been requested to. charge, both by the plaintiff and the defendant, and then, at the close of the arguments, the record states this: “And thereupon after the arguments by the respective parties to the jury, the court said to the parties that inasmuch as the requests to charge which had been approved and given, presented so fully the propositions of law involved, the court would submit the case to the jury without further instruction unless counsel wished additional instructions given by the court, and counsel replied that they- had no further requests.”

Under section 5190, it is the duty of the court, when requested to do so, to charge or refuse to charge the propositions that may be asked by either party. The 5th section of the statute reads as follows:

‘4 When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

We hav-e held that it is the duty of the court to give or refuse these propositions as they are presented to it, without any change or modification. And then the statute further provides, in section 7:

“The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”

It will be seen that this section provides that the court, after the argument, shall proceed to charge the jury. We do not look with favor upon the giving of a series of propositions in the final charge to the jury; but the propositions which were given by the^ court before the charge, he was to give or refuse to give as they were presented, and the court did, as a matter of fact, give nearly all that were presented by the plaintiff and the defendant, and after the argument to the jury attention was called to the fact that these propositions had been given, and the statement made by the court to counsel that the court would not give any further charge unless requested so to do, and counsel announced that they were content. Now, on this state of facts, the plaintiff in error claims that the court erred in giving two propositions on behalf of the defendant. One of these is the 7th, and reads as follows:

“If the jury find from the evidence that the plaintiff directly contributed in any degree to the injury complained of in his petition, by his own negligence, then he cannot recover, and your verdict should be for the defendant. ’

And that the court gave and added to it — reading from Judge Peck’s definition of the word “negligence’’ from one of the Supreme Court Reports, as follows:

“Ordinary care is not defined in the charge copied in the bill of exceptions, but it is well known to mean that degree of care which persons of ordinary care and prudence are accustomed to use and employ under the same or similar circumstances, in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and the objects to be accomplished. ”

The 10th proposition was excepted to. It reads as follows :

“If the jury find from the evidence that the plaintiff knew or by the exercise of ordinary and reasonable care would have known, of the danger of crossing the' tracks, and that by looking along the tracks before stepping upon them, with ordinary care, he could have seen the approaching car in time to have avoided it, and if the jury further find that the plaintiff failed to exercise this ordinary care,and thereby contributed to the injury complained of in his petition, then your verdict should lie for the defendant. ’ ’

The 7th proposition has not given as much trouble, and we pass that by.

The 10th proposition is one that has given us some trouble. As I have stated, there was some evidence tending to show — but to my mind, after reading it carefully, only remotely, to show — that the cars had been accustomed to stop at this point — the cars going east and the cars coming west —for the purpose of letting passengers off; and it is contended in argument that the plaintiff had a right to rely upon the fact that these cars did stop at that point, and to be governed by that knowledge in getting on and off the cars; and it is urged very earnestly that this proposition should have been modified, or been refused, and that it is erroneous in this: that it did not, in addition to what was contained in the 10th proposition, add this — unless the jury shall further find that the plaintiff relied upon any regulation of the company or ordinance of the common council which would justify the plaintiff in omitting to look along the track — that is to say, that he himself recognized the fact that there was an ordinance requiring the cars to be slowed down to two miles an hour, and the further fact that the cars usually stopped there It will be sufficient, we think, for the disposition of this case, to say that after the argument by counsel and at the time the court should have given a full charge, there was no request whatever made in regard to this 10th proposition, or any request made to the court to charge the law as the plaintiff’s counsel claims the 10th proposition should have been; indeed, the case was tried upon an entirely different theory; it was tried upon the claim that if the car was running faster than the ordinance prescriibed, that that of itself would make the company liable and the evidence was framed and given in regard to that view of the law, and the general course of counsel in conducting the case was based upon that theory or idea. We are inclined to the view, however, that under the facts of the case as they stand, with the evidence as it was at the time, that there was no error in the court giving the proposition as it stood. We desire to say, however, that counsel some times press a point in this class to the extreme point that they should be permitted to go; they seem to be afraid that the jury may decide against them, and seemingly desire to have the court rule as a matter of law in a manner that is certainly very close to the danger point of error, and this charge itself lies very close to that point, and is very nearly subject to exception in that respect, but, for the reasons that we have stated, we are of opinion that we ought not to reverse this case for any alleged errors in charging or refusing to give the propositions, and the judgment of the court of common pleas will therefore be affirmed.

A. W. Eckert & E. Ii. Hurd, for plaintiff in error.

Smith & Baker, for defendant in error.