author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Hale, Marvin and Caldwell, J J.
    THE AMERICAN SURETY COMPANY OF NEW YORK v. JACOB A. RAEDER, ASSIGNEE, et al.

      Contract with Board of Education for erection of school house— Provision in bond for payment of laborers and material men, valid—
    Where, in a contract with a board of education for the building of a school house, the contractor was required to, and did give a bond for the faithful performance of the contract, providing also that he should pay all just and legal claims for labor performed upon, and for material furnished for the work, and also agreeing that the undertaking should be for the use of any laborer or material man having a just claim as aforesaid, as well as for the board of education, such obligation so far as laborers and material men are concerned is not beyond the powers of the board of education, but is valid, and may be enforced against the sureties on such bond by any laborer or material man who has a legal claim against such contractor for labor performed or material furnished in the erection of the building.
    Error to the Court of Common Pleas, Cuyahoga county.
   Hale, J.

On the 25th day of May, 1895, Peter J. Black entered into a contract with the Board of Education of the city of Cleveland, for the construction of a school-house, and to secure the faithful performance of that contract on his part, executed and delivered to the Board of Education his bond with The American Surety Company of New York, as surety.

The contract is very- lengthy and need not be recited.

The bond, among other provisions, contains the following:

“The condition of this obligation is such, that, whereas the said Peter J. Black, did, on the 27th day of May, A. D. 1895, enter into the foregoing agreement with said Board of Education, which said agreement is made a part of this bond, the same as though fully set forth herein, now, if the said Peter J. Black, designated as said party of the second part, in the said foregoing agreement, shall well and truly perform all and singular, the stipulations of said agreement by him to be performed, and shall pay all just and legal claims for labor performed upon, and for materials furnished for the work specified in said agreement, the same shall remain in full force and virtue in law; otherwise, then, this obligation shall be void. We hereby agreeing and consenting that this undertaking shall be for the use of any laborer or material-man having a just claim as aforesaid, as well as for said Board of Education. ”

It will be seen, that the contract and bond were executed at the same time, each referring to the other.

Black made default and abandoned the building before it was completed.

Bohm & Stuhr had performed labor and furnished materials under contract with Black, for the building, and at the time Black abandoned his contract, he was indebted to them in the sum of $2,900.00, and more. Thereupon, Raeder — ■ assignee of Stuhr & Bohm — commenced an action in the court of common pleas upon the bond, to enforce the collection of this claim.

On trial in the court of common pleas, judgment was rendered in favor of the defendant in error, and against the plaintiff in error. Error is prosecuted in this court to reverse that judgment.

It is insisted by the Surety Company, that the defendant in error has no right of action on this bond, and that under the issues made by the pleadings, the judgment should have been for the plaintiff in error. It is suggested, first, that the contact as well as the bond, was, and is illegal and void, under the provisions of sec. 8899,of the statute under which the Board of Education was organized. That section reads: “No contract, agreement, or obligation, shall be binding upon the board unless an appropriation therefor, shall be first made by the council.” There is no evidence that such an appropriation had been made; that is, nothing is disclosed by this record that such an appropriation had been made. We are of the opinion, however, that neither Black nor his"surety can avoid his or its obligation, by reason ofjthis statute. The contract was partly completed,and some payments at least, made to Black upon it. The Board was in no way in default at the time that Black abandoned his contract, and, so far as disclosed by this record, was ready, willing and anxious, to perform its part of the contract. Under these circumstances, we think this claim can not be sustained.

Again,it is claimed that the Board was without authority to require or receive this bond, and, therefore, it is not binding on the surety; that the whole matter was ultra vires,so far as these laborers and material-men are concerned.

The subject matter of the contract, was clearly within the jurisdiction . of the Board, and the contract one that the Board had ample authority to make,independent of any express provision of the statute. Wé are clearly of the opinion, that that Board, in a contract of this kind,®could secure its performance in any proper manner, one of which would be to require a bond,as in this case.

The Board not only had the powers expressly granted it, but such as were by those expressly granted, implied and necessary for the carrying out of those that were expressly granted.

It is said, again, that there was a mistake of law on the part of the parties executing this bond; and it was sought to introduce evidence tending to establish that fact.

It is not denied that relief is sometimes granted to parties who have entered into a contract under a mistake of law applicable to the transaction, but we do not think this is one of those cases.

Testimony was offered on the trial of the case, by the party who drew the contract, of the intention of the Board of Education in taking this bond, that is, that it was not intended to cover claims of laborers and material-men. That evidence was excluded. We think the intention of the parties should be gathered from the surrounding circumstances and the language embodied in the contract' and bond, and that such testimony was not competent.

The main contention, however, is over the proper interpretation to be given to the bond, and whether it can, in any event, be enforced in behalf of the laborers and material-men. That is the substantial question involved here.

Counsel for plaintiff in error, contend that the bond was given solely for the protection of the Board of Education, and inasmuch as the Board was under no legal obligation to pay any claims against Peter Black for labor and materials, and was in no way indebted to the defendant in error, no cause of action arises on the bond in his favor.

It is made quite clear, from an examination of the language of the bond, that the parties intended to give a right of action on the bond,for finpaid claims of this class,against Black. There is, so far as we are able to find, no direct authority in this state, upon the question involved. There are, however, a number of adjudications in other states, bearing directly on this proposition. 133 Mo., 561, involved the interpretation of a contract in which the city of St. Louis was a party upon one side, and had contracted for improvements upon the streets of the city, and a bond of the contractor taken, the conditions of which were similar to the one we are here considering, — in legal effect, the same. The bond provided, that the contractor should pay to the proper parties all amounts due for material and labor. There was no statute authorizing such a bond, but the supreme court of Missouri sustained the action, and said it was right and proper to enforce the bond according to its terms. There is, in that case, a very careful discussion of the question involved.

Several cases involving the exact questions have been determined by the supreme court of Nebraska. 41 Neb., 655, contract for a street improvement. An action was brought by a material-man and laborer, upon 'the contract which provided that the contractor should pay all claims of laborers and material-men, and was sustained.

See also, 34 Neb., 220; 38 Neb., 794; 64 Iowa, 561; 63 Iowa, 162; 56 Mich., 345 — The opinion in this case was delivered by Judge Cooley, and fully sustains the propositions contended for. On the other hand, a case directly in point, is reported in 69 N. Y. State Reports, 846. This case was determined by the supreme court of the state of New York, in the Buffalo district, and, we understand, is now pending in the court of appeals of that state. The exact question here involved was made, and the court held that the action could not be maintained.

The decided weight of authority is in support of the right to maintain the action.

It has long been the policy of the state to protect laborers and material-men who have performed labor or furnished material to the individual. This has been done by way of mechanics’ liens. These lien laws are founded upon, just and equitable principles; and while it is true that as to the public buildings and public improvements, the general rule is, that no liens can be obtained, still the same equity exists in favor of material-men and laborers.

The case to which I have referred, reported in 6 Mich., states the law as follows:

“It is not ultra vires for a municipal board in contracting for a public building, to stipulate that payments were not to be made to contractors so long as any claim for work or materials stood against them.’’

Judge Cooley, in disposing of the case, said:

“A corporation, when constructing a public building or other public work, is chargeable with a moral duty as an individual would be to see that it is so constructed that people may not be injured in coming near to, or making use of it in a proper manner. In some cases, they may not be legally responsible for failure to perform this duty; but where the moral obligation exists, it cannot be said that any provision for its performance, not improper in itself, is ultra vires. A county may go to great pains and great expense to make the court-house unquestionably safe, that individual citizens may not suffer injuries consequent upon its construction; but if it may do this, it would be very strange if it were found lacking in authority to stipulate in the contract for the building,that the constructor, when calling for payment, shall show that he is performing his obligations to those who supply the labor and materials, and that the county is not obtaining the building at the expense of a few of its people. We cannot think such is the case.”

Garfield & Garfield, for Plaintiff in Error.

Dickey, Brev'er & McGowan, for Defendant in Error.

So, guided by the decided weight of the authorities, and what we believe to be the more equitable rule, we hold that this bond can be enforced by the laborers and material-men, precisely according to its terms.

If the principal and surety in the bond desire not to be held to the language of the contract and bond, it is very easy to provide against it in the execution of the contract and bond.

The judgment in the case will be affirmed.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    (Sixth Circuit — Wood Co., O., Circuit Court,
    October Term, 1897.)
    Before King, Haynes and Parker, JJ.
    BERT STEELE v. WILLIAM EDWARDS.

      Libel — Publication—Mailing postal card—

    Merely mailing a postal card at a postoffice does not amount to a publication to the postal authorities or any person other than the one to whom it is addressed,of any matter written on the side thereof for the message.

      Language that imputes no crime — Larceny—
    The words “I want you to call and settle for the fodder you were kind enough to take Saturday without permission. Call and settle at onee, ’ ’ do not impute the crime of larceny to the person to whom they are addressed, and are not in themselves libelous.

      Language not libelous in itself — What must be shown—
    When language is not in itself libelous, but by a person acquainted with extraneous facts may have been understood in a libelous sense, the allegation and proof must show that the person to whom the language was published, was acquainted with such extraneous facts.
    Error to the Court of Common Pleas of Wood county.
   Parker, J.

In this case the plaintiff in error, Steele, was plaintiff below, and filed his petition in the court of common pleas, charging the defendant, Edwards, with having uttered and published of, and concerning him, Steele, a certain libelous writing. The words of the alleged libel which were written upon a postal card and mailed at the post office at Bowling Green, are as follows:

“Bowling Green, 0., Mch. 30th, 1896.

“Mr. Bert Steele:

“I want you to call and settle for the fodder you were kind enough to take Saturday without permission. Call and settle at once.

“Yours,

“William Edwards.”

It is alleged in the petition, that the meaning of these words, as used by Edwards,' was, that Steele had been guilty of grand larceny in taking the fodder referred to, and that therefore, the words were libelous and actionable. It is also averred in the petition, that before the time of writing and mailing the postal card, the defendant had asserted that a certain brad of his fodder had been stolen. The defendant, for answer to this petition, denies each and every allegation contained in the petition, denying therefore, necessarily, all the averments contained in the innuendo, which impute to the language used the meaning alleged; that is, a charge that Steele had committed the offense of grand larceny; and then the answer proceeds to explain the circumstances of the writing and mailing of the card, as follows:

“That a person other than the plaintiff,who,as defendant was reliably informed, was named Bert Steele, was indebted to him for a load of fodder which said person had taken and hauled away from the defendant’s premises during the absence therefrom of defendant. That the defendant, who can neither read or write, instructed his daughter to write to said person, requesting him to call and pay for said fodder, whereupon she did write the postal card mentioned in the petition, and the same was mailed accordingly. That said postal card was not intended for the plaintiff, nor to be delivered to him, and defendant so informed plaintiff when he learned that said card had come into his possession. That if said card was delivered to the plaintiff by Post Office Department, it was through mistake, growing out of the identity of the name of the plaintiff with that of the person for whom it was intended, and to whom it was addressed.”

The reply denies that any person named Bert Steele, was ever indebted to the plaintiff for any load of fodder, and denies that the defendant ever had any information, reliable or otherwise, as to any man named Bert Steele, having taken any fodder from the farm of defendant. Denies that defendant did not intend to have said card mentioned in the petition delivered to plaintiff. Denies that there was any mistake on the part of defendant arising from the identity of plaintiff’s name with any other person’s name, to whom defendant intended to address said card. The reply admits that the daughter of the defendant wrote the card under the direction of the defendant, but denies that the same was a request, or intended as a request, for any person to call and pay for the fodder, and denies every other allegation in the answer not admitted in the reply, to be true.

After the plaintiff had rested his case, the court, on’ motion of the defendant, withdrew the case from the consideration of the jury, and directed the jury to return a verdict for the defendant, which the jury did, and because of this action of the court below, error is prosecuted in this court. No'w, whether the words appearing upon this postal card were libelous, is a question for the court, — a question of law. That is to say,, whether the words alone, without having any special or unusual meaning attached to them by the aid of averment of additional explanatory facts,— whether appearing by themselves without such aids, they were libelous or not, is a question for the court,)and this court is of the opinion, that the natural import of the words does not convey a libelous meaning; that there is nothing about the language used, when given its ordinary significance, that imputes to the defendant the crime of grand larceny or any other crime, or any act upon his part, that would tend to disgrace him, or render him ridiculous,— anything in short, that would make it libelous.

A writing however, which may not be libelous on its face, may be shown to.have been used and understood in a libelous sense. It may be so understood by reason of the situation of the parties; by reason of extraneous facts not appearing upon the face of the writing itself — words that, according to their ordinary signification, may be entirely innocent, or might, under certain circumstances, be understood by persons hearing or reading them, in a sense carrying a charge or implication of crime, or something that would make them libelous. Counsel for the plaintiff m this case, evidently did not regard these words as libelous upon their face, and therefore undertake to set forth in the petition, certain extraneous facts with relation to which the words were uttered or used, and then,by certain innuendoes, undertake to say that they were intended to be understood, and were understoodln the sense of imputing to the plaintiff the crime of grand larceny. In such case, the question whether such meaning was intended by the person publishing the writing, or whether such meaning was understood by the person to whom it was published, becomes a question for the jury. We cannot say that the words,under the circumstances set forth, would not convey the meaning,ascribed to them. The question whether they bore that meaning then, would be a question that should be submitted to the jury. But it is necessary to allege and to prove that there were such circumstances as are alleged — that there was such a situation surrounding the transaction as would make it, at least, possible, if not probable, that the meaning ascribed to the words was the meaning intended, and the .meaning understood.

From the evidence submitted to the jury, it appears that the defendant had had some arrangement with a man by name of Anson Steele, under which Anson Steele had obtained from the defendant, Edwards, certain fodder, and was to obtain more fodder which he was to pay for. That the understanding between the parties was, that he was to pay for it before he removed it from the premises of Edwards, and it appears that Mr. Edwards did not know the Christian name of the Steele with whom he had been dealing with respect to this fodder. That on a certain day, he noticed a person going out of his field with a load of fodder; that he supposed this person to be the Steele that he had agreed to let have a load of fodder, and that the words that he used on that occasion, and the words which he wrote upon the postal card, were with respect to that transaction. It appears that he inquired where Mr. Steele lived, and went to the house where he was directed, and there found a load of fodder; that he supposed,' — taking his testimony for it, —that that was the residence of the Steele to whom he sold' the fodder. He was informed that it was the residence of Bert Steele, and he was still in ignorance of the fact that the person to whom he had agreed to sell the|fodder was not Bert Steele. He did not find Mr. Steele at this house, but returned home and directed his daughter to write a postal card, calling upon Mr. Bert Steele, (whom he then supposed was the Steele to whom he had sold the fodder), to call and settle for what he had taken without permission, the understanding having been, that Steele was not to take the fodder until he had first paid for it. Now, it was upon that statement of the matter to the jury by witnesses, that the court withdrew the case from the consideration of the jury, that there was no testimony tending to show that the language had been used by Mr. Edwards in the libelous sense ascribed to it in the petition, It appears, however, that there was some testimony upon the part of Anson Steele, tending to show that Mr. Edwards had, upon the same day that he had called at the residence of Bert Steele, also called at the residence of Anson Steele, and that not finding the fodder there, he subsequently, upon meeting Anson Steele on the street, in conversation with him, said to him, “I did not find the fodder at your house, but I found it at the house of Bert Steele, and therefore, I have no claim upon you for the fodder. '1 There was some evidence tending to show that this occurred before Mr. Edwards had written this postal card, so that, if the matter were to go to the jury upon the question of what was intended and meant by Mr. Edwards, perhaps it could not be said there was no testimony tending to show that the words were intended by Mr. Edwards to be understood in the libelous sense charged.

But a question which is more important in the case is:— In what sense was the language understood, or in what sense might it have been understood by those to whom it was published? The intent of a person using language, is only inquired into as we understand it, upon the question of malice. The person using libelous language may intend to have it understood in an innocent sense, and yet may be held liable in a civil action for damages. Now, in what sense other than the sense which Mr. Edwards says he used this language, could it have been understood by those to whom it was published? It becomes, important to inquire then, how, and to whom it was published, if at all. The postal card was written by the daughter of the defendant, at his residence. There is no testimony in the record tending to show that after it was so written, it came to the eyes of any other person, or that it was read in the presence or hearing of any other person than the defendant’s daughter. There are many authorities to the effect that it is not sufficient that one may have an opportunity to read a libelous writing to constitute a publication, but it must have been seen and read by, or to someone other than the writer, to make it a publication. It is no part of the business or duty of the post office officials to read a postal card; their doing so, would be an impropriety, if not an unlawful act, and it can hardly be presumed that they do, ordinarily, read the vast number of postal cards that go through the post offices. It would not do to ¿ssume, as a matter of law, that because a postal card has been placed in the post office, it has been read, since there has been an opportunity for the post office officials to read it Therefore, we do not regard the fact of the posting of the postal card at the post office as a publication of the matter written upon it. Technically, perhaps, it was a publication to the daughter. She was not the author of it, but was the amanuensis of the defendant, who can neither read nor write, and it may be said, that it was published to her because she wrote and necessarily read it. It does not appear that any other person ever read it or heard it read; therefore, it becomes important to know in what sense the daughter could have understood this language. Now, it does not appear so far as we have been able to find from- the record,that the daughter had been apprised or made acquainted, with any circumstances that would cause her to understand this language as meaning that Steele had been guilty of grand larceny. She had simply been directed by her father to write a postal card to Bert Seele, to call and settle for the fodder which he had taken without permission. It is a very scant publication to say the least of it, but if it is technically a publication — it was published to one who personally had no knowledge of the surrounding circumstances that would cause her to think that the language used (which sseems to be more her own language than her father’s), imputed the crime of grand larceny to the person addressed. On this subject, I will read from sec. 135, of Townshend on Slander and Libel:

“In allowing extraneous circumstances to affect the construction of language, courts inquire whether or not, the hearer or reader of the language knew such circumstances. If the hearer or reader was acquainted with those extraneous circumstances, the construction will be with reference to them, not because it is impoftant how the reader or hearer understood the language, but because those circumstances form a proper element in determining the meaning to be attributed to the language in question. If the hearer or reader was not acquainted with those extraneous circumstances, then .they will not be taken into consideration in determining the meaning of the language. The hearer or reader not being acquainted with those circumstances which affect the meaning of the language,its effect upon such hearer or reader is as if no such circumstances existed, and the language is to be construed without reference to such circumstances. The circumstance that the act charged is physically or legally impossible, does not always prevent the language being actionable. The alleged test in such case is the knowledge possessed by those to whom the language is published.”

And there are various illustrations given in the text. In the case of Brown v. Myers,in 40 Ohio St.,p. 99,it is held, that language which otherwise- would be actionable, might not be actionable if published under circumstances, or to parties acquainted with the circumstances, which would give to the language a meaning that would not be actionable. That is the converse of the proposition which I have just stated, but is founded on like principles.

In this connection we will consider the question of the sufficiency of the petition, though it was not demurred to. I have called attention to the fact that the petition sets forth that before the committing of the grievance complained of, that is to say, before the publishing of this card, the defendant had asserted that a certain load of fodder, to him, the defendant belonging, had been feloniously stolen, taken and carried away. There was no testimony tending to show that he had ever made such a charge or declaration; but even if that had been shown, there is no allegation that any person to whom the language was published, knew of sucb charge or declaration, or was acquainted with any circumstance which would cause such person to understand the language as imputing to Mr. Steele the crime of larceny. It is not only necessary to prove that, but it is necessary to allege it, or, to state it more logically, it is necessary to allege it and to support the allegation by proof. In the ease of Maynard v. Firemen’s Fund Insurance Co., 34 Cal., 48, (also 91 Am. Dec., at p. 672), the court say:

“The averment in that complaint is, that the defendant intended to have it understood and believed by the language of the resolution, that the plaintiff was dismissed by the defendant because of dishonesty and want of ability to discharge and perform the duties of his occupation, and that he was wholly unfit and unworthy of employment; and further, that to consummate the wrong intended, the defendant caused the resolution to be published among the plaintiff’s acquaintances, and communicated the same to the insurance companies named in the complaint. This may be sufficient to show what the defendant meant by the language used and published, but this alone is not enough.

“How the resolution was understood by those who read it, other than those who composed and published it, the complaint does not state. The plaintiff’s acquaintances and tbe officers of the insurance companies, amongst whom the resolution was circulated, if they read it, may not have understood it as importing anything to the discredit of plaintiff. It is admissible in actions of slander and libel, to aver and prove that the words alleged to be defamatory, and which have a covert or ambiguous meaning, were intended and used with the object of defaming, and were understood in a particular defamatory sense by those who heard them as the case may be. In Woolnoth v. Meadows, 5 East, 463, which was an action of slander, the words were of doubtful import, and the declaration, after the usual introductory matter and setting forth of the words, contained an express averment, that they were uttered and published by the defendant, with intent and meaning to convey, that the same were by the person in whose presence they were uttered and published, understood and believed to convey a charge of the particular crime mentioned in the declaration. Lord Ellenborough, Chief Justice, in his opinion, speaking of the averment, said: ‘Upon a count so framed, the plaintiff must have gone into other proof than the mere speaking of the words, and he must have not only shown that the defendant’s meaning was to impute a crime of that nature to the plaintiff, but that the words were so understood by the hearers.’ ”

The judge presiding in this case, says:

“The complaint does not aver that those who were furnished with the resolution,or copy of it,read it,or that,if they did, they understood it to impute to the plaintiff want of honesty or business capacity. The rule is, that the allegations and proofs must correspond, and the consequence of the rule is another, which is, that the evidence of a matter of fact essential to the support of the action, cannot be heard unless the complaint or other proper pleading contains an averment of such essential matter or fact, Upon the subject of showing by pleading what was intended by the alleged libelous words, and in what sense they were understood by those to whom they were published, we may, in addition to the case cited, refer to Goodrich v. Wolcott, 3 Cow., 239; Andrews v. Woodmansie, 15 Wend., 234; Gibson v. Williams, 4 Wend., 320; Dexter v. Taber, 12 Johns., 239; and Peake v. Oldham, 1 Cow., 275. All these authorities bear more or less upon the questions considered, and maybe read with profit by those who are interested in mastering this branch of the law.”

James & Beverstoclc, for Plaintiff

James 0. Troup, for Defendant.

We hold that the petition, counting upon language which is not libelous in itself, is faulty and insufficient, because it does not allege that the persons to whom the matter was published, were acquainted with facts which caused it to convey to them a libelous meaning,and that there is no evidence tending to show that it was so understood, or might have been,by the persons to whom i.t was published. Therefore, we think the court of common pleas did not err in taking the case from the jury, and the judgment will be affirmed.


author: Marvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    THE PRUDENTIAL INSURANCE COMPANY OF AMERICA v. MARY KILBANE.

      Insurance — False answers in application known to be false by agent — Collusion between agent and assured immaterial—
    Under the statute, sec. 3625, R. S., false answers given by the assured in his application, constitute no defense to a recovery on the policy if the falsehood of such answers was known to the agent of the company, and the fact that the agent and the assured acted in collusion in inserting such false answer in the application, will not relieve the company from liability on the policy.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The case of the Prudential Insurance Company against Mary Kilbane is a proceeding in error brought for the purpose of reversing the judgment of the court of common pleas of this county. The.original action was brougth by Mary Kilbane to recover upon two policies of insurance issued upon the life of John Kilbane who was her husband, and in which policies Mary Kilbane is named as the beneficiary.

The first of these policies was applied for on the 3rd day of August, 1893, and issued on the 21st day of the same month. The amount covered by that policy was one thous- and dollars ($1000.00).

The other policy was applied for on the 9th day of August, 1893, and issued on the 4th of October following, and the amount named in that policy was one thousand and five hundred dollars ($1500.00).

On the 29th of October, the same month in which the last policy was issued, John Kilbane died. The company declined to pay the amount provided in these two policies, and the petition was filed and a separate cause of action set out upon each of the policies.

The answer sets out substantially the same defense to each cause of action, that is, that John Kilbane in the application made for each of these policies, made false answers to questions put to him; that he made such false answers knowing them to be false, and that the company was without knowledge of the falsity of the answers; that these answers were upon matters that were material, and that if true answers had been made by the assured, the policies would not have been issued.

Among the questions required to be answered in the applications was the following, numbered 10, — and that is true as to each of these policies: “Are you now engaged in, or have you any intention of engaging in the manufacture or sale of malt or spirituous liquors?” To this he answered “No.” And in the series of questions provided to be answered by the applicant for insurance, to the medical examiner, the question in reference to this same subject-matter reads as the tenth question in the applications made to the agent except that it adds to the words already given, the word “handling,” so that the question reads: “Are you now engaged in, or have you any intention of engaging in the1 manufactur or sale or handling of malt or spirituous liquors?” And in the medical examination, his answer to that question is “No.”

The occupation of the applicant is required to be given also; there is a blank left for that; and in the application, in each case, the occupation of the applicant is given as “foreman on the docks.”

Now the claim is, on the part of the plaintiff in error, the insurance company, that this man Kilbane was at the time when he obtained his insurance, and at the time when he applied for each of these policies, employed as bar-keeper in a drinking-saloon, and that he continued in that employment more or less from that time until he died.

The evidence tends to show that,though he was employed a part of the time upon the docks in handling ore, he, during a part of the time, but not perhaps as a steady employment, dealt out beer and whiskey at the bar of his father-in-law, It is said that the evidence tends to show more than this — 'that Kilbane was the proprietor of the bar — and, perhaps, this is true. It does show that a government revenue license was obtained in the name of the assured, for that business; and it shows that more or less he was employed in that saloon, though it can not be claimed that he made that a steady employment.

He worked a part of the time on the dock. But it is said on the part of the defendant here, the plaintiff below, that whatever the fact is as to the employment of the assured, it was known to the agent of the company what his employment was, and it was known that he did more or less work in the saloon; that he was in the saloon behind the bar at the time when one of these applications for insurance was made, and that he furnished a drink, either of beer or whiskey, to the agent of the company at that time. And so it is said that such being the case, it is indifferent as to whether his answer was true or false to the question put, and in support of that view we are cited to section 3625 of the Revised Statutes, which reads:

“No answer to any interrogatory made by an applicant in his or her application for a policy, shall bar the right to recover upon any policy issued upon such application, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is wilfully false and was fraudulently made, that it is material and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, moreover, that the agent or the company had no knowledge of the falsity or fraud of such answer.”

The plaintiff in error complains that the court erred in its instructions to the jury as to the effect of the knowledge on the part of the agent of the company, of the employment of the assured, and erred in its instructions as to the effect of a false answer being made by the assured upon these question.

As to whether John Kilbane falsely stated to the agent of the company what his employment was, we are referred to certain pages of the record where Mary Kilbane, the beneficiary, testified. On pages, both 18 and 27, of the record, she says that her husband told the agent he worked on the dock. She says that the agent was present when her husband dealt out liquor as I have already stated. And another witness, Peter McNeeley, testified to the same thing. And Mary Kilbane says, on page 18, that the agent of the company said to her husband at the time the application for one of these policies was signed: “I have put you down as foreman on the docks.” She cannot swear that the particular paper writing shown her on the witness-stand is the one then signed, — she can neither write nor read writing — but she says that some paper was there that the agent brought to the saloon and laid down before her husband, and then the agent said to her husband: “I have put you down as foreman on the docks.” And Kilbane said: “I don’t care what you put me down, so I can get my insurance all straight. ”

Now it is urged that if, as a matter of fact, the agent knew of the employment of Kilbane as a dealer in intoxicating drinks, there must have been a connivance between the agent and Kilbane,and known to the beneficiary, to defraud the insurance company, and that, therefore, the insurance company ought not to be bound.

On the 63xd page, as I remember, of the bill of exceptions, the occupations in which if people are engaged, the company would not accept their applications or issue policies, are to be found, and among the risks not accepted are those of “bar-keeper, bar-tender, beer-bottling, and saloon-keeper. ’ ’

The general agent of the company testified at the trial that the universal custom of the company was to adhere to these rules and not accept the people engaged in the occupations thus enumerated in the list, and would not issue policies to people engaged in any of these occupations, And they say if it is true that the agent knew that the applicant was engaged in any one of these occupations, and saw fit to put him down as engaged in some other occupation, it was a conspiracy on the part of Kilbane and the agent, known to the beneficiary, and done with the intent to wrong the company; that this relieves the company from liability.

Counsel for the company requested the court to charge the jury:

“If John Kilbane knew at the time the applications were filled out, that the company’s agent inserted a false answer to question No. JO in the applications, and permitted the same to be forwarded by the agent to the company so that the policies were issued thereupon, the policies are void,and plaintiff cannot recover.”

The second request reads:

“If the said John Kilbane falsely represented to the medical examiner of the company that he was not engaged in the 3ale or handling of malt or spirituous liquors, there can be no recovery.”

The third request reads:

“John Kilbane having warranted the statements contained in his applications to be true, if any of said statements are false, there can be no recovery by the plaintiff herein.”

The fourth request reads:

“If the jury find from the evidence, that John, Kilbane agreed with the company’s agent to make false statements as to his occupation, in his applications to the company, and did make such false statements, and the policies were issued on both of said applications containing false statements, there could be no recovery herein.”

The fifth request reads:

“The statute of Ohio, sec. 3625, is not intended to make an insurance company liable upon policies issued on applications containing answers known to the applicant to be false, and inserted in the applications by collusion between the applicant and the company’s agent.”

As to the first three of these requests it is clear that to have given either one of them would have been to have said to the jury that sec. 3625 of the statutes does not mean what it says; for it is clearly provided in that section, that no false answer given by the assured in his application shall be a defense to a suit upon the policy if the same was known to be false by either the company or its agent.

As to the fourth and fifth requests, each involves the question of whether, if the agent and the assured by collusion furnished false answers to the company to material questions.thereby inducing the company to issue its policy, there can be a recovery. It is clear from the reading of the section of the statutes already given that its terms at least include cases covered by the two ¡requests; but it is urged that it cannot have been the intention of the legislature to bind insurance companies by the acts of their agents thus acting fraudulently with the company. The legislature was not content to say that the company should be held upon its policies where false answers were given with its kowledge, but went so far as to say that if the agent had knowledge of the falsity of the answers, such false answers should not prevent a recovery.

Ordinarily, what is known to the agent of a corporation, is known to the corporation, and if the legislature had not intended to make this statute more binding upon the company than results from the fact that what is known to the agent is known to the corporation, there was no reason for expressly designating the agent as one whose knowledge of the falsity of the answers should prevent the company from making the defense.

Suppose that each member of the board of directors of the company knew that the statements in the applications were not true, and agreed with the applicant that he might make these untrue statements and the policy should be issued, could it be claimed that the company could take the money of the man who applied, and then, when the loss occurred, refuse to pay because they had connived with him to have false answers made? If that can not be done, if the officers of this corporation, by acting in collusion with the assured and accepting his false answers, knowing them to be false, caused the policy to be issued, and accepted the money, it can not make the defense sought to be made here. It would seem that under this statute such conduct on the part of the agent, would be equally unavailing asa defense.

My attention has been called to an opinion delivered by Judge Woodbury, in the circuit court of Jefferson county, —the case is not reported, but I have a typewritten copy of the opinion before me; this was a suit upon a policy of life insurance. I am strongly impressed with the soundness of the reasoning in this opinion, and I quote from it as follows:

“The request which raises this question, is marked number 4 a.

“If the jury find that M. S. Longdon, the agent of the defendant, and Jesse R. Adams, conspired together to commit a fraud upon the defendant, and in pursuance with this conspiracy caused false and untrue statements to be made in the application, material to the risk, and if you find that the application, so made, was forwarded to the defendant, and on the strength of that application so made, the policy on which the suit was brought was issued and delivered to the said Jesse R. Adams, then, in that case, the same was and is void for fraud, and your verdict should be for defendant. ”

“This request the court refused to give. Now, in the charge, there is an exception that involves the same question. On page 51 of the record:

“The plaintiff in reply to the answer of defendant, denies that Jesse R. Adams, in the particulars wnerein the defendant says that he made false and fraudulent representations, did make the representations claimed, and avers that as to those particulars he stated to the agent of the company, at the time of preparing the application, the truth, and that the answers in said application which are untrue, were inserted therein by the soliciting agent of the company, upon his own motion, and after he had been truly informed in regard thereto. That the answers complained of by the defen'dant as false and fraudulent, may vitiate the policy and defeat a recovery by plaintiff, you must find in the light of the testimony which has been given before you, that the answer or answers complained of were made by Jesse R. Adams; that the same were wilfully false on his part, and were by him fraudulently made; that the same were material and induced the company to issue the policy, and that but for such answers, the policy would not have been issued, and moreover, that the agent of the company had no knowledge of the falsity or fraud of such answers,

“So far as this charge, itself, is concerned, it is - in the language of the statute, and it is evidently copied from it. Sojwe are brought squarely to the question: What was meant by the legislature in the passage, or enactment, of this statute?

“It is insisted on the part of the plaintiff in error, that it was not the intention of the legislature, under this statute, to provide that the company should be liable under it, if the agent as well as the applicant, should both combine to defraud the company in the application and in the procurement of the policy; that the intent of the legislature was not this, but that in such case it was not the intention of the legislature to provide for a recovery.”

Judge Woodbury then called attention to the evil which had grown up throughout the state by provisions being inserted in policies, both of life and fire insurance companies, to the effect that the agent to whom the application was made, should be held as the agent of the assured, and then says:

“And there had been more or less litigation in the state growing out of the very question involved in this case where false answers had been made,or where the agent himself had practiced a fraud upon the company; and a notable case is a case cited in the 30th of the Ohio St., and the cases following, in the 33d and 39th of Ohio St., where the company were seeking to avoid liability — although, confessedly the fraud had been perpetrated by the agent — yet they were seeking to avoid liability, by charging home the fraud of their agent — treating him as not their party for whom they were responsible — but treating him as a third person whose fraud should relieve the company from liability, as well as the fraud of the applicant.”

Judge Woodbury further says:

“Now, in this condition of things,the legislature stepped forward, and evidently deemed it just that there should be some legislation that should settle this matter in the state of Ohio; and so they have provided, in the first instance, that no answer shall be held to preclude the right to recovery, unless it shall be clearly shown that they are fraudulent — second, that they are material- — -third, that the policy would not have been issued if the true answers had been given; and then — -to meet the further perplexity in regard to the agent, they further provide, ‘Moreover, that the agent or company had no knowledge of the falsity or fraud of such answers. ’ ”

“Now, the effect of this is,perhaps, to place it where the knowledge of the agent has been shown — exactly the same as if the company itself, by its authorized officers, had possessed the knowledge which the agent, himself, is alleged to have possessed.”

Again quoting from Judge Woodbury:

“Now, with the agent standing exactly in the same relation to the company, and with a statutory provision providing that, before the false answer shall defeat a recovery, that it must be clearly shown that the agent of the company did not know, or, moreover, that the agent of the company had no knowledge of the falsity or fraud of such answers. Wé think the legislature intended to meet just such a case as this.”

Without stopping to read the charge — the things complained of grew out of this same view, that is to say, the court not only refused to charge the requests, but charged that sec. 3625 applied to this case, and that knowledge on. the part of the agent of the falsity of the answers would make the defense of such falsity unavailing in this case.

We find no error in the refusal of the court to charge as requested, and no error in the charge as given.

But there is another complaint made, which is, that the court was requested by the insurance company to submit two special findings to the jury, which the court declined to do. The right to have these questions submitted is claimed under a statute found in vol. 91 O. L., sec. 5201, page 298:

“But the court shall, at the request of either party, direct them to give a special verdict in writing upon, all or any of the issues, and in all cases when requested by either party, the court shall instruct the jurors if they render a general verdict, to find specially upon particular questions of fact to be stated in writing, and shall direct a written finding thereon, and the verdict and finding must be filed with the clerk and entered on the journal.”

Because of that statute, and relying upon j^that statute as the authority for doing it, the defendant duly requested that these two questions be submitted to the jury for special findings:

“First: — 'Did the agent of the defendant company, know at the time that John Kilbane signed the application for the first policy of insurance sued upon here, that the said John Kilbane was engaged in the sale and handling of spirituous liquors?”

“Second: — ’Did the agent of the company know that the said John Kilbane was engaged in the sale or handling of spirituous liquors?”

Of course, if one of these requests should have been submitted to the jury, both should have been. The court did not submit them. Now, if these questions were calculated to mislead the jury — if they did not fairly submit to the jury the question which was in issue in the case,then it was error not to decline to submit them to the jury. ¡The questions assume that Kilbane was engaged in the handling and selling of liquor.

If the questions had been in effect: “Did the agent of the company, know in what business John Kilbane was engaged at the time he made his application for insurance,” it would have been entirely proper, and should have been submitted to the jury. Or, if this question had been asked to be submitted, “Was John Kilbane, at the time of the making of his application for either of the policies, engaged in selling or handling spirituous or malt liquors,” it should have been submitted to the jury.

But there is a dispute in this record, as to whether Kiibane could be fairly said to be engaged in such sale or handling of liquors. The jury, if the questions proposed had been submitted to them, might have believed, as a matter of fact, that John Kilbane was not engaged in the handling or .sale of liquor, and so must have answered to each of these questions,“No.” If such answer had been made,and a verdict had been rendered for the pla-intiff below, it would háve been urged that the general verdict was inconsistent with' the special findings, and the jury might well have reason to say, “if we answer these questions “no,” it will be said' that we must find a verdict for the defendant.” Yet, it is clear, that if they believed that Kilbane was not thus engaged in the liquor business, the answer to each of these questions must have been “no.”

It was not error on the part of the court to refuse to submit these questions to the jury.

There is one other matter complained of, and that is, the court in its charge said to the jury, that it was wholly indifferent whether Kilbane was a foreman on the dock or not, or whether he said that he was such foreman. The meaning of the court clearly was, that if he was employed on the dock, it was of no importance whether he was, or was not, a foreman.

There is nothing in the record to show that the plaintiff in error could have been prejudiced by this language in the charge, and the judgment of the court of common pleas is affirmed.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    BERNHARD J. KROWENSTROT v. THE STATE OF OHIO.

      Criminal law — Venue—Discrepancy in affidavit and information—
    1. Where an affidavit lays an offense as committed in Lucas county, is filed in the police court of a city in said county, and afterwards, by an information duly filed in such court, the offense is laid in said city and county, the defect as to venue, if any existed in the affidavit, is cured by the information.

      Prosecution under act to regulate practice of medicine — Negative averment in information—
    2. In a prosecution under the “act to regulate the practice of medicine” passed February 27, 1896, it is not necessary to negative the provisions and exceptions as set forth in see. 4403 f. in the information.

      Same — Action of Board of Examiners in refusing certificate, not reviewable—
    3. In such a prosecution, it is not competent for the defendant to show that the Board of Medical Examiners acted improperly or mistakenly in refusing him a certificate.

      Criminal law — Evidence of other transactions than those described in information, not admissible—
    4. Ordinarily, in criminal cases, the state is confined in its proof to the transactions described in the indictment or information, and will not be allowed to show others not set forth.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Plaintiff in error was charged before the police court of Toledo with the violation of some provisions of an act entitled “An Act to regulate the practice of Medicine in the State of Ohio,” which was passed and become a law on February 27th, 1896. Some errors that are claimed to have occurred in that trial I will notice briefly.

It is asserted that the court erred in entertaining jurisdiction of the cause, the information varying the offense and the statement of it from the statement contained in the affidavit, and that the court had no jurisdiction whatever under the affidavit as it was filed. The affidavit charged that the offense described was committed in the county of Lucas; tbe information charged that it was committed in the city of Toledo, within the county of Lucas and state of Ohio. It is said that the police court had no jurisdiction of the offense as charged in the affidavit, because the police court of the city of Toledo does not have jurisdiction of an offense committed co-extensive with the county; that its jurisdiction is limited by a statute which prescribes that it shall have jurisdiction in the city of Toledo and within the territory within four miles of the same. Whether a conviction might have been had upon the affidavit we do not decide; but immediately after the filing of the affidavit, and pursuant to an ordinance of the city of Toledo, the prosecuting attorney of the police'court filed an information in which he charged that the offense was committed in the city of Toledo, and that did not exclude the police court from its jurisdiction. It then had the power to try > the case.

The next objection to the information is, that it charges that the defendant did for a fee of $25, “prescribe, direct, and recommend for the use of one Kresantia Weissenberger, a certain drug, medicine, or agency, to-wit: one bottle of dark liquid and one bottle of white liquid, the name and composition whereof is unknown, for the treatment and cure of a certain bodily infirmity * * unknown, the said defendant at the time not having received or obtained from the State Board of Medical Registration and Examination a certificate, ’ ’etc.; and it is said that the statute under which he was prosecuted provides that the act does not apply to certain cases, and that all of those cases should have been stated in the information negatively. The provision of the statute.is quite long, but it provides that the statute shall not be construed to prohibit services in cases of emergency, or of domestic administration of family remedies, and shall not apply to any commissioned officers of the U'. S. army or navy or marine hospital service, We do not think it was necessary to negative in the information these provisions of the law. They do not come within the rule requiring a negative averment in the information. That matter was fully discussed by the able .judge of the court of common pleas in reviewing this case on error, and with his opinion upon that question we are entirely satisfied.

The information, as I have already read, charges that the defendant did prescribe and recommend to the person named a certain drug, medicine, or other agency, to-wit: one bottle of dark liquid and one bottle of white liquid. On the trial of the case, the state, to make its case, called Mr. •Weissenberger, the husband of the patient, as well as the patient Mrs. Weissenberger herself, and also a young lady by the name of Sophia Wasserman, and proceeded to show, and did show, against the objection of the defendant, that on or about the 14th of January, 1897, Mr. Weissenberger and his wife, pursuant to an appointment with the defendant, called at his office, where they met this lady, Miss. Wasserman, and that the defendant then proceeded with a knife and other instrument necessary, to perform an operation upon the arm of Miss Wasserman, by which he inserted a tube with an air pump, and pumped blood from the arm of Miss Wasserman into the arm of Mrs. Weissenberger. And the operation is described at some length by all three of the witnesses I have named, all the testimony being objected to. It is further shown in evidence that Mr Weissenberger, the husband of the patient, contracted with the defendant for the performance of this operation, for which he agreed to pay him the sum of $25; and the $25.00, as shown by the evidence, was for nothing else except for the payment for this transfusion of blood. The evidence further shows that after the operation was performed, the defendant gave to Mrs. Weissenberger two bottles of medicine substantially like that described in the information, and subsequently gave her other medicines, for which he charged, and which Mr. Weissenberger testifies that he paid him at other times and in different sums, amounting to $22.

It is claimed that it was error to admit the testimony relating to this occurrence of the transfusion of blood. We think it was. As described in the testimony of the witnesses, it is clearly a different transaction from that set forth specifically in the information. It had, so far as the evidence discloses, nothing whatever to do with the administration of medicines, or with the administration of the medicines contained in the two special bottles, but was an entirely distinct operation, contracted for and paid for by the husband of the patient independently of the administration of the medicine which he did administer, charged separately, and received his pay separately for it.

The information undertakes to set forth specifically the medicine administered. They proceed at great length to show an entirely different transaction, having no real or apparent connection with the administration of the medicine.

It is not enough to say that both of these transactions were intended to cure the same disease. The state having seen fit to set forth the precise remedy employed, or the means employed, in this matter, they should be confined in their proof to that. And we think it was clearly a departure in attempting to show such a transaction as this transfusion of blood was

In the course of the trial the defendant offered, both upon the cross-examination of the state’s witnesses and by his own, considerable testimony to show that he was a practicing physician of good repute, and allowed by the laws of the state-of Ohio to practice here, and had been for many years — more than ten; that he had made application to the state board of registration to be registered; that 'he had sent to that board or deposited with it the fee prescribed by the statute, 'and had received a receipt for the amount of the fee, but that for some reason unknown to him, but which he alleged and sought to prove were none of the reasons prescribed in the statute, they had refused him a certificate of registration. We think that the court did not err in the exclusion of all that testimony; that the statute itself must be followed; and if defendant is charged with having practiced without a proper certificate, he can not show why the state board refused him one. He cannot show that the board of medical registration, has erred in the performance of its duty, or that, if justice had been done him by them, he would have received from them a certificate. We do not think he could go into that in his defense.

Gr. A. Bassett, and James & Beverstoek, for plaintiff in error.

O. E: Sumner, for defendant in error.

It is urged again.that this statute can not be made to apply to him; that it is retroactive, and to that extent — to the extent that it interferes with his right to practice medicine —it is unconstitutional, We decline to pass upon that question, but will remand the case to the police court for a new trial. We decline to pass upon it for the reason that, as we are informed, a case involving that question has already been argued in the supreme court, which will undoubtedly be decided in a few days; and if the court passes upon it there, the question will be decided; if they do not pass upon it, and if this case should ever come before us again, it will be time enough then to consider and decide that question.

A new trial will be awarded, and the case remanded to the police court.


text:
    (Eighth Circuit — Cuyahoga Co., O., Cir. Court
    Nov. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    IN THE MATTER OF THE ANNEXATION OF CERTAIN TERRITORY TO THE TOWNSHIP OF NEWBURGH.

      Annexation of part of one township to another, where a hamlet is situated in part in each of such townships — The word “council” as used in section 1380, Revised Statutes of Ohio, includes the board of trustees of a hamlet. Such trustees are authorized to adopt a resolution directing the filing of a petition with the county commissioners for the annexation of so much of one township as is included in the hamlet, to an adjoining township in which the greater part of such hamlet is situated, and upon the filing of such petition the commissioners have jurisdiction to act thereon.
    Error to the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

One of the mnicipal corporations of Cuyahoga county is the hamlet of Newburgh, which is situated chiefly in the township of Newburgh but partly in the township of Independence,

On the 7th day of December, 1896, the Trustees of this hamlet passed a resolution directing the filing of a petition with the commissioners of the county praying that so much of said township of Independance as is within the boundaries of the hamlet,be annexed to the township of Newburgh.

In pursuance of this resolution such petition was filed on the 31st day of March, 1897. Notice of such filing was given by the commissioners, and a protest against such annexation was thereafter filed with them.'

The matter came up for hearing on the 9th day of June, 1897, when said petition was dismissed, the commissioners holding that they were without jurisdiction to act upon the petition.

A petition in error was thereafter filed in the court of common pleas seeking to reverse this action of the commissioners, and, on hearing, that court made its order reversing the judgment of the commissioners,and remanding the case to them for further action.

The case comes to this court upon a petition in error seeking to reverse the judgment of the court of common pleas.

It is conceded by counsel for plaintiff that if the trustees cf the hamlet are authorized by law to direct the filing of a petition with the commissioners for the purpose for which this petition was filed, then everything required by law was done.

Unless authority for such action is found in sec. 1380 of the Revised Statutes, no such authority exists. Said statute reads:

“If the limits of a municipal corporation * * * include territory lying in more than one township, and the council of such corporation shall * * * by vote of a majority of the members thereof, petition the commissioners of the proper county for a change of township lines so as to make them identical, in whole or in part, with the limits of the corporation, such board of county commissioners may, on presentation of such petition with the proceedings of the council duly authenticated, at any regular or adjourned session, change the boundaries of the township' or townships accordingly.”

It will be observed that the only body named in this section as authorized to act for the corporation is the “council”, so that unless that word in this section is held to include the trustees of a hamlet, the authority for such action is not found in this section.

The question, therefore, is, whether the word “council”,, as here used, does include the trustees of a hamlet.

That a hamlet is a municipal corporation, is fixed in the classification of municipal corporations, section 1546 of the Revised Statutes. Section 1648 provides that the trustees of a hamlet shall have the control of the hamlet — that they constitute the legislative body. A hamlet has no council j That the legislature have overlooked the distinction between the municipal corporations having a council and those not having a council, in more than one instance, is manifest by referring to the statutes.

Section 3438, which is a section in reference to the right to construct street railroads, reads:

“The right so to construct or extend such railway within or beyond the limits of a municipal corporation can be granted only by the council thereof, by ordinance.”

Section 1651 provides that the board of trustees of the hamlet shall have exclusive jurisdiction over the streets and alleys of such municipality.

Section 2501 provides that nothing shall be done toward the construction of a street railroad in the streets of a municipal corporation until consent of the council of such corporation is obtained.

Keeping in mind the fact that the trustees have exclusive jurisdiction of the streets and alleys of the hamlet, it seems clear that they constitute a body which must act for the municipality, under the provisions both of section 3438 and of section 2501; and.this court in a recent case, viz., The Hamlet of Newburgh v. The Akron, Bedford and Cleveland Railroad Company, held, that the consent for the construction of such railroad along the streets in the hamlet of Newburgh must be obtained from the board of trustees of such hamlet; that board having, as already noted, exclusive ■control of the streets and alleys.

On the 21st day of May, 1894, the legislature passed an act, found in 91 Ohio Laws, page 397,providing for the use of electricity as a motive power in the propulsion of cars on railroads, and in this act it is provided that:

“Before any poles rand wires shall be constructed through or along the streets, alleys or public grounds of any municipal corporation, plans of such construction shall be submitted and approved by the municipal council of such corporation.”

It is clear that if the holding of this court in the case hereinbefore noted was correct,the word “council,” as used in this section,must include the trustees of the hamlet.

Section 1619, read in connection with section 1617 of the Revised Statutes,makes it manifest that the word “council, ” as used in section 1619, must include the trustees of a hamlet. The chapter is devoted to the advancement or reduction in grade, of municipal corporations. Section 1617 leads in part:

“To. ascerfain what cities of the second class are entitled to become cities of th.e first class, what villages are entitled to become cities, and their proper class; and what hamlets are entitled to become villages,” etc.

Now,the way in which they may be changed, as provided in section 1619, is:

‘‘When the statement has been published, the council of any corporation which, according to such statement, shall have the required population to be advanced to a corporation of a higher class or grade, shall have the power at any time by ordinance passed for such purpose, to submit to the voters of the corporation the question whether such corporation shall be advanced.”

Now remembering that in section 1617, one of the municipal corporations, for the advancement of which ■ provision is made, is" a hamlet,and that in section 1619 the body which shall pass the resolution is the council of such municipal corporation, it is clear that sec. 1619, when it uses the word council, means the legislative body, and includes the trustees.

Again, in sec. 2835 of the Revised Statutes, as found in Smith & Benedict, the statute before the last amendment, this language is used:

‘‘Whenever it is desired by the voters of a township or municipal corporation” to do certain things which are enumerated there, ‘‘the trustees of the township or the council of the municipal corporation may issue and sell their bonds. ”

Provision is here made for townships and for municipal corporations to issue and sell bonds for certain purposes, and the provision is that the trustees of the township and the council of the municipal corporation shall do certain things in order to accomplish it. Section 2836 throws, as we think, some light upon this: ‘‘For the payment of bonds issued under the preceding section, the township trustees or municipal council shall levy a tax.” Now, taking sec. 2836 in connection with sec. 2885 as amended in the 90th vol. of the Ohio Laws, at page 229,. and the proposition that the legislature has not kept clearly in mind the fact that a hamlet is a municipal corporation,, and that the legislative body is not a council, is very manifest.

The amended section 2885 reads: “The trustees of any township or hamlet, or the council of any municipal corporation may issue bonds. ’ ’“Now, the legislature clearly overlooked the fact in this amendment that a hamlet was a municipal corporation at all. It is manifest that they undertook im sec. 2835 to provide that these bonds might be. issued by the townships, hamlets and other municipal corporations, yet, the only way of providing for the payment of such bonds is found in sec. 2836, which speaks of the township trustees and the council of municipal corporations.

That disposes, as we think, of the question that the legislature may have meant to include hamlets among the municipal corporations which could seek the annexation to the township in which it was chiefly situated, of such parts of other townships as contain some part of the hamlet. In short, the fact that the word “council” is used, does not necessarily indicate that it must be only such municipal corporation as has a council. The only way to give effect to all of the language of sec. 1380 is, to hold that the word “council” includes trustees of a hamlet, as it does in the other statutes to which attention has been called. And to so hold, as we think, results in carrying out the clear intention of the legislature. That intent was doubtless to do away with the inconvenience of having those residing in different parts of the same municipal corporation, residing at the same time, in different townships, often necessitating the providing of separate ballots and boxes to be used at the same polls for the voters of the several townships, the exercise of jurisdiction by justices of peace,and of authority by other officers of the several townships in different parts of the same municipality, and other inconveniences. Judge Ranney says in bis opinion in the case of The State v. Blake, 2nd Ohio St. 152:

Carpenter & Young for Plaintiff in Error.

M. W. Cope, for Defendant in Error.

“It is a settled rule of construction that the intention of the law-maker is to be deduced from a view of the whole, and every part of the enactment, taken and compared together. He must be presumed to have intended to be consistent with himself throughout, and at the same time to have intended effect to be given to each and every part of the law. And from this it results that general language, found in one part, is to be modified and restricted in its application, when it would otherwise conflict with specific provisions found in another, and this from the reasonable and almost irresistible conclusion, that when the mind is directed to any particular subject, the language used is more likely to express the intention than the general words which might otherwise cover it, but from which it does not appear that the particular case was intended to be provided for * * *

We, therefore, hold that the court of common pleas was right, and the judgment is affirmed.


author: King, P. J.

text:
    (Sixth Circuit — Wood Co., O., Circuit Court,
    October 1897.)
    Before King, Haynes and Parker, JJ.
    THE NORTHWESTERN OHIO NATURAL GAS COMPANY, v. CLARK A. BROWNING et al.

      Gas and oil lease — Construction—Forfeiture—Record of extensions—

    'The owner of a tract of land by a written lease granted to the lessee all the oil and gas in or under the soil, upon condition that the lessee should drill wells within a time limited, or to pay the lessor a certain sum per year at the beginning of each and every year during the continuance of the term named in the lease, or re-convey the premises, under which agreement the lessee elected to pay the sum named in the lease at the time stated, and did not drill the wells nor reeonvey the premises; the parties thereto, by subsequen written agreement endorsed on the lease, extended the term indefinitely, and provided for the payment of a larger sum per year than originally agreed upon. These terms were fulfilled by the lessee by payment of the amount of annual rental, and at the expiration of the last year for which payment was made and accepted, he tendered to the lessee the proper sum for another year which was. refused, and the lessee thereupon treated the lease as forfeited and immediately re-let the premises to another. Held:
    First: That the second lease was void; that if lessor had the right to refuse the tender of payment for a succeeding year, still the lessee had the right, after the expiration of the year for which he had paid for delay in drilling, to a reasonable time thereafter, in which to drill and operate the premises.
    ¡Second: That the original endorsements upon the lease of extension of time and of a change in the amount to be paid for delay in drilling, were not of themselves leases, or assignments of leases, or assignments of an interest in a lease required by the statute to be recorded, and no record thereof was necessary in order to be of binding force upon the parties to the agreement.
    Error to the Court of Common Pleas of Wood county,
   King, P. J.

This action was to enjoin the defendants from entering •upon certain lands to develop them for oil or gas, to which the plaintiff claims it has the right by a prior lease. The facts are, that on January 16, 1888, Philiph Barnhisel, the •owner of the land in question, entered into a contract with William Fleming, to whose rights the plaintiff has succeeded, 'to operate the premises described in the contract under the provisions of that contract, which provisions are substantially as follows: That in consideration of the payment of ■sixty dollars, by Fleming to the owner, and of the covenants and agreements contained in the contract, the owner ■of the land did grant to Fleming, all the oil and gas in and under the premises described, together with the right to ■enter upon the premises for the purpose of operating for •oil, gas or water; to erect such structures and machinery as were necessary for the production and transportation of the product, provided that the owner should have the right to use the premises, excepting in so far as they might be needed by the second party. The contract further provided, that the grant first described, was made upon the following terms: That Fleming agreed to drill a well within thirteen months from the date of the contract, or thereafter pay to the owner, sixty dollars yearly, in advance, until the well was drilled, or the property granted re-conveyed to the first party. Then there is a provision, that if oil is found, that the owner should have one-eighth part of it; a provision that if gas is found, the owner should have one hundred and fifty dollars per year in advance, for each and every well from which gas is used off the premises; that the first party was to have free gas for use in stoves in residences; that the lessee should bury all pipe lines, and that no wells should be drilled nearer the house than three hundred feet. The seventh condition is as follows:

“Second party may, at any time, remove all his property and re-convey the premises hereby granted, and thereupon this instrument shall be null and void. This grant is made in lieu of the lease made to the Hancock Oil & Gas Co., dated February 10th, 1886, which lease is hereby cancelled. Unless a well shall be drilled on said land, within two years from this date, this contract shall become null and void, unless time further extended by first parties.”

This instrument was properly executed, filed for record, and recorded, as required by the statute, sec. 4112a. Before the expiration of the two years named in the lease, the parties to it, or rather, the plaintiff in place of Fleming, and the owner of the property, entered into a contract that in consideration of one hundred and twenty-five dollars, paid by the Gas Company,and the further consideration that the Company should furnish gas free to January 1st, 1890, and continue that through during the continuance of the extension, the lessor consented to the extension of all the terms and conditions of the lease for one year, from January 16, 1890, or to January 16, 1891. This was signed by the owner of the land, December 11, 1889. On November 8, 1890, a further agreement in writing, was made on the original contract:

“In consideration of the sum of one hundred and fifty dollars, to me paid by the N. W. 0. Nat. Gas. Go., and their further agreement to continue to furnish me gas free of charge, for household use, as they are now doing, I consent to the extension of all the terms and conditions of the within lease, for one year, or until January 16, 1892, and agree that it shall be optional with the said company, whether they drill or continue to pay me the same sum in advance, from year to year hereafter, and continue my gas free.”

Neither of these instruments were recorded. The money stipulated to be paid, was paid by the plaintiff when it became due, or in advance, .until the last payment that was due on or about January 16, 1895. The Gas Company also furnished the gas to the residence of the owner free of charge, and continued to furnish that, until after the commencement of this action. The Company did not drill any well under this lease. On January 16, 1896, or within a few days theréafter, the Company tendered, or offered the owners, the one hundred and fifty dollars, stipulated in the last written endorsement on the contract, and the owner refused to receive it, and on the 4th of February, 1896, made another lease, or contract, for the right to operate these premises for oil and gas with the defendants, and shortly after the execution of that lease; the defendants entered upon the premises and drew in material, and soon after began the erection of what is called a rig, and were about to drill when this action was commenced on the 8th day of April, 1896, to enjoin them from drilling or operating, and from coming on the premises for that purpose.

One question of fact arises, as to whether or not a tender was made. We think the evidence is sufficient to show that the tender of one hundred and fifty dollars was made. It is more doubtful as to the date upon which it was made, but we are disposed to hold that the evidence of the witness who testified to offering one hundred and fifty dollars, on the 16th of January, 1896, to the owner, is entitled to belief. It is denied generally by the owner, that any such offer was made. The witness testified it was made to him on the road, in the presence of his wife. He gives a number of facts which would seem to show, at least, that he could not be mistaken as to the date, and the wife of the owner is called as a witness, and she does not testify about the transaction at all. The owner simply says, nothing of the kind ever occurred, but tnat some days later, and as he puts it, on the 25th of January, another gentleman called at his residence, and did offer him one hundred and fifty dollars, which he refused. There is no dispute betweer the parties that this other gentleman did call and offer the one hundred and fifty dollars. He testified he made this offer on the 17th of January, or the next day after it was claimed that the first offer was made in the road. Those witnesses may be mistaken about the date, but we are inclined to believe the testimony of the witness who made the offer on the 16th. It may not be very material whether the offer was made on the 16th, 17th,or 25th.

It is claimed on the part of the defendants,that this lease ended on the 16th of January, 1896, at the election of the owner; that he might thereafter treat it as if it were at an end; that there had been no development of the property, and he might then lease it to others, and that in doing so on the 4th of February, he did what he had a perfect right to do.

The terms of this lease are somewhat different in some respects from others that have come before this court. It was executed to develop the property for gas, in 1888, before there was any oil development in that neighborhood, and provides for an absolute grant of ail the oil and gas underlying the property, and if it ended at the place where the conditions begin, it would be a sale of all the oil and gas m these premises, with the right to enter at all times to take it out, and upon the consideration of the payment of sixty dollars. Now, the first of these conditions upon which that grant is made, and upon which it rests, is that the second party shall drill a well within thirteen months from the date of the contract, or pay sixty dollars a year in advance, until a well is drilled or the property re-conveyed. If the contract stopped there, it would amount, not only to a grant of the oil and gas,, but to a perpetual license to enter and develop the property, and the obligation would rest upon the grantee in this contract, to either drill a well in thirteen months, or pay sixty dollars a year in advance, or re-convey the premises; but a subsequent provision, which is the printed part of the seventh condition, provides, that the “Second party may, at any time, remove all his property and re-convey the premises hereby granted, and thereupon this instrument shall be null and void.” With the seventh and first conditions of this grant standing there, and nothing following, the conclusion would be, that a perpetual license or right was granted to the company to enter upon these premises and take this oil and gas, or to pay sixty dollars a year in advance, or, if they desired to abandon, or to get rid of the contract, they must re-convey the premises, and if they failed to,re-convey and failed to pay or drill, it is clear, that under this contract the owner would have ft right of action against them at the beginning of each and every year, until the contract had been rescinded or property abandoned, for the recovery of the sixty dollars. This is clearly settled in the case of the Woodland Oil Company v. Crawford, in 55 Ohio St., page 165, which was a lease somewhat different in its terms as to the grant from this, but which contained in it a provision,called a forfeiture clause, reading as follows: — “And a failure on the part of the second party to complete such well, or wells, as above specified, or instead thereof, to pay the rental as above provided, shall render this lease and agreement null and void, together with all rights and claims, and not to be binding on either, party, and not to be revived without the consent of both parties hereto, in writing;’’ and it was there held, that upon a failure to drill a well as stipulated in the contract, with a condition of forfeiture which was in favor of the grantor only, that the obligation to pay attached, and that an action could be maintained for the rental. Another addition to the alternative condition in this lease, of drilling a well or paying, is, that the premises are to be re-coneyed; so that if the company desired to annul this contract, and release themselves without drilling, they must re-convey the premises. That is the only way they can abandon these premises., Until they do that, there is a continuous obligation resting upon them to pay sixty dollars a year in advance, and at the beginning of each year that would become due.

Now, the conditions which I have read, were incorporated in the lease on record, but in addition, there was written on the lease, further, that unless a well be drilled on the land within two years from the date of the contract, it should become null and void, unless time be further ex« tended by first parties. So the lease, then, by its terms, weighing and considering them all together, was to become null and void at the expiration of two years from its date, subject however, to the condition that the first party might extend the time. Now, it is clear from the evidence, that .before the two years expired,the first party did agree to extend the time for one year. They stipulated, and it was agreed to by the company for a different consideration, but that is of no moment. That was paid and accepted, and so the conditions of the contract were extended for one year. What conditions? The right to enter upon these premises and drill, and all the conditions of the contract were extended for one year; not only the right to enter upon the premises, but the right' to refrain from drilling for the consideration of one hundred and twenty-five dollars. Before the expiration of that year, a new contractor agreement was made, which amounted to an extension so far as the first parties were concerned, of all the rights of the parties,— all the conditions and terms of the original contract for one year longer, upon a still different consideration. That stipulation is in a little different language than the first, and contains perhaps, some additional provisiops. I have said, that the first memorandum stipulates that the Company should furnish gas, which they did, a condition not in the original contract. Then, before the expiration of that year, it was agreed that for one'hundred and fifty dollars, and the furnishing of gas free of charge, as they were then doing, the first party consented to the extension of all of the terms and conditions of the lease for one year, or until January 16, 1892, and agreed that it was to be optional with the company whether they drilled or continued to pay the rental named in advance from year to year. Now, they had that right in the original lease to continue to pay, at least for two years, and they had that right under the lease to pay longer if the first party consented to an extension of the time. The payment dí the sixty dollars named in the original lease, would continue this lease as long as the first party agreed to continue it without including the obligation in the contract to drill the property at all. That is perhaps more clearly set forth in the last memorandum made; that upon payment of one hundred and fifty dollars, in addition, it shall be optional with them whether they shall drill or pay, and it may continue indefinitely. Now, the Gas Company fulfilled that obligation. They paid, and they paid in January, 1895, not exercising their right to drill through that year, and that gave them the right, we think clearly, to refrain from operating these premises during that year. It was the acceptance of one hundred and fifty dollars by the owner of the property, in lieu of the fulfillment of the obligation to drill a well, or to operate this property as it ought to be operated. It relieved the lessee of the obligation to drill, and was accepted by the lessor in the place of his right to insist on operations, and that was the condition of affairs up to the 16th of January, 1896. The parties had rested upon that agreement and understanding, up to the 16th of January, 1896, and on that date the Gas Company, acting under, and pursuant to the provisions of this lease, made a tender to the owner of the one hundred and fifty dollars, stipulated in the contract. Now, whether he was bound to receive it or not, is, we think, unnecessary to decide, and we are not inclined to go further than is necessary to go in this case; but at least, we ought to say, that if he intended to treat this contract as at an end, he should have in some manner notified the Company that he should treat it at an end so far as the payment of the money was concerned. The owner testifies, that he said he would not receive this money,and wanted his property developed. If he said that, and it should be treated as a notice to the Company that he refused further to continue this agreement, that would give, as we have held, heretofore, the Company the right to a reasonable time under their lease to enter upon these premises and properly develop them. Probably the obligation would have required them to sink off-setting wells, but that is neither here nor there, as nothing of that kind was needed or required, on the 16th of January, 1896.

If we are so far correct, then the Gas Company had at least a reasonable time, after January 16, 1896, to enter upon and into the possession of the premises, and drill for oil and gas, and we do not tbink that reasonable time had elapsed before he granted all these rights away to the ¡defendants in this case, and their rights attached. It is said that plaintiff delayed; but it would be unreasonable to hold that they were bound to drill pending this action. The litigation was pending, and we do not think it was bound to drill while the defendants were asserting a right to the possession of the property. It could wait until its rights were determined before it expended more money.

A question is raised here, whether those stipulations on the back of the lease ought to have been recorded; but we think the language of the recording statute does not fairly bring those terms within it. As has been before stated, this lease as originally made, until you reach the' clause providing that it shall become null and void at the end of two years, is a perpetual grant to enter there, and even the force and effect of that limitation was done away with by the provision, that it shall not become null and void if time shall be further extended. That was in the lease as recorded. New, the statute provides, that “all leases and licenses, and assignments thereof, or of any interest therein, heretofore executed, given or made, for, upon, or concerning the lands or tenements in this state, whereby any right is given or granted to operate, or to sink or drill wells thereon for natural gas and petroleum, or either, or pertaining thereto, shall be recorded in the lease-records in the office of the recorder, etc.”

“Leases, licenses and assignments thereof.” Assignment, certainly refers to assignment of leases and licenses, and of any interest therein heretofore executed. We think the proper construction of that clause is: “Assignment of any interest therein shall be recorded.” Now, the only effect so far as the question before the court is concerned of those writings on the back of the contract, is to extend the time of the contract for the benefit of the Gas Company. That is the only effect of it, and there is nothing in the statute that would warrant us in holding they should be recorded. They are neither leases, licenses or assignments thereof, or of any interest therein. It is simply a stipula-, tion that the time within'which the first party had the right to insist upon the development is extended,and the contract as recorded, stipulates that time may be extended by the consent of the first party, and that consent,we take it, need not have been in writing unless it were an agreement that for some reason or other would be inimical to the Statute of Frauds. So far as the agreement itself is concerned, it would have been fulfilled if it were shown by the facts and circumstances that the owner consented to an extension of time. The provisions of the lease were notice that the lease was still subsisting, and that both parties had rights under it;' — the landlord having the right to insist on the payment of the sixty dollars rental, and the grantee the right so long as it had not been relinquished, abandoned, or forfeited, to enter upon the premises and drill at any time.

Jas. O. Troup, for Plaintiff.

Baldwin & Harrington, for Defendants.

We think that the merits of the action are with the plaintiff, and the injunction should be made perpetual.