author: COOK, J.

text:
    CONTRACTS — PARTIES—WORDS AND PHRASES.
    [Portage (7th) Circuit Court,
    1906.]
    Cook, Burrows and Laubie, JJ.
    Hutson Coal Co. v. Ann Hughes et al.
    1. Pbofer Parties Plaintiff in Action to Recover Royalty.
    An action to recover for the royalty due upon á sale of coal in place, is-a personal action, and must be brought in the name of the personal representative and not in the name of the heirs at law, although the estate is otherwise fully settled up.
    [For other cases in point, see 4 Cyc. Dig., “Executors and Administrators," §§ 178-181 — Ed.]
    2. When Phrase Used in Contract may be Explained by Parol Evidence.
    Where a contract for the sale of coal in place provides that royalty shall . be paid upon all merchantable cóal mined, parol evidence is admissible to show that in the locality where the coal was situate and the contract made, the phrase “merchantable coal" had a special signification and was so used and understood by the parties to the contract
    [For other cases in point, see 4 Cyc. Dig., “Evidence," §§ 3061-3067. — Ed.]
    [Syllabus by the court.]
    W. J. Beckley, T. H. Johnson and A. T. Hills, for plaintiff in error:
    Cited and commented upon the following authorities: Edwards v. McClurg, 39 Ohio St. 41; Manning v. Frazier, 96 Ill. 279;- Caldwell v. .Fulton, 31 Pa. St. 475 [72 Am. Dec. 760] ; Sanderson v. Scranton, 105 Pa. St. 469; Delaware, L. & W. By. v. Sanderson, 109 Pa. St. 583 [1 Atl. Rep. 394]; Dunham v. Haggerty, 110 Pa. St.- 560 [1 Atl. Rep. 667]; Montooth v. Gamble, 123 Pa. St. 240 [16 Atl. Rep. 594] ; Fair-child v. Furnace Co. 128 Pa. St. 485 [18 Atl. Rep. 443, 444] ;■ Kingsley v. Coal & Iron Co. 144 Pa. St. 613 [23 Atl. Rep. 250]; Lazarus, In re, 145 Pa. St. 1 [23 Atl. Rep. 372] ; Plummer v. Coal & Iron Co. 160 Pa. St. 483 [28 Atl. Rep. 853]; Plummer v. Coal & Iron Co. 104 Fed. Rep. 208 [43 C. C. A. 490]; 20 Am. & Eng. Enc. Law (2 ed.) 58Í-,1 Cullom v. Bim, 37 Ohio St. 236; 2 Meehem, Sales Sec. 1340; 2 Benjamin, Sales (rev. ed.) Sees. 983, 984; Wright v. Coal Co. 122 Pa. St. 514 [38 Atl. Rep. 491]; Chicago, G. W. By. v. Bailway, 101 Fed.-Rep. 792 [42 C. C. A. 25]; Topliff v. Topliff, 5 O. F. D. 663 [122 TJ.'S. 121; 7 Sup. Ct. Rep. 1057; 30 L. Ed. 1110] ; Manhattan Life Ins. Co. v. Wright, 126 Fed. Rep. 82; Givens v. Coal Co. 22 Ky. App. 1217 [60 S. W. Rep. 304]; McBride v. Vance, 73 Ohio St. 258; Weyer v. Watt, 48 Ohio St. 545 [28 N. E. Rep. 670]; Revised Statute 6189 (Lan. 9731) ; Pacific Coast Elev. Co. v. Bravinder, 14 Wash. 315 [44 Pac. Rep. 544] ; Biggs v. Armstrong, 23 W. Ya. 760; Beed v. Bandall, 29 N. Y. 358 [86 Am. Dec. 305]; Tenny v. Mulvaney, 9 Ore. 405; Fitch v. Carpenter, 43 Barb. 40; Cullen v. Bimm, 37 Obio» St. 236; Cincinnati v. Gas Light & C. Co. 53 Ohio 'St. 278 [41 N. E. Rep. 239]; Methodist E. Church v. Water Co. 10 Circ. Dec. 648 (20 R. 578); Foster v. Robinson, 6 Ohio St. 90; Frasier v. Monroe, 72 Pa. St. 166; Lance v. Coal Co. 163 Pa. St. 84 [29 Atl. Rep. 755]; Wyatt v. Irrigation Co. 18 Colo. 298 [33 Pac. Rep. 144; 36 Am.- St. Rep. 280] ; Pratt v. Prouty, 104 Iowa 419 [73 N. W. Rep. 1035; 65 Am. St.-Rep. 472]; Robbins v. Kimball, 55 Ark. 414 [18 S. W. Rep. 457; 29 Am. St. Rep. 45] ; Cravens v. Mills Co. 120 Ind. 6 [21 N. E. Rep. 981; 16 Am. St. Rep. 298]; Wiley’s Estate, 187 Pa. St. 82 [40 Atl. Rep. 980; 67 Am. St. Rep. 569]; Kendall v. Klapperthal Co. 202 Pa. St. 609 [52 Atl. Rep. 92]; Connery v. Brooks, 73 Pa. St. 80; Creveling v. Wood, 95 Pa. St. 152; Ringrose v. Ringrose, 170 Pa. St. 593 [33 Atl. Rep. 129] ; Wright v. Gas Co. 2 Pa.. Superior Ct. 219; Coleman V. Chadwick, 80 Pa. St. 81 [21 Am. Rep. 93]; Gillespie v. Iseman, 210 Pa. St. 1 [59 Atl. Rep. 266] ; Jackson v. Ely, 57 Ohio St. 450 [49 N. E. Rep. 792]; Beardsley v. Foot, 14 Ohio St. 414 [84 Am. Dec. 405] ; Ensel v. Levy, 46 Ohio St. 255, 260 [19 N. E. Rep. 597]; McBride, In re, 132 Fed. Rep. 285; Nassoiy v. Tomlinson, 148 N. Y. 326 [42 N. E. Rep. 715; 51 Am. St. Rep. 695],
    A. S. Cole, and Hine, Kennedy & Robinson, for defendant in error:
    Cited and commented upon the following authorities: Mercer Mining & Mfg. Co. v. McKee, 77 Pa. St. 170; Dunham v. Haggerty, 110 Pa. St. 560 [1 Atl. Rep. 667]; Lance v. Coal Co. 163 Pa. St. 84 [29 Atl. Rep. 755]; Wright v. Coal Co. 182 Pa. St. 514 [38 Atl. Rep. 491]; Johnson v. Filer, 201 Pa. St. 60 [50 Atl. Rep. 940]; Hoyt v. Coal Co. 212 Pa. St. 205 [61 Atl. Rep. 885]; Genet v. Canal Co. 163 N. Y. 173 [57 N. E. Rep. 297] ; Genet v. Canal Co. 58 Hun 492 [12 N. Y. Supp. 572] ; Genet v. Canal Co. 59 Hun 623 [14 N. Y. Supp. 939]; 20 Am. & Eng. Enc. Law (2 ed.) 582; Carr v. Fuel Co. 88 Iowa 136 [55 N. W. Rep. 255] ; Cullen v. Bimm, 37 Ohio St. 236; Riggs v. Armstrong 23 W. Ya. 760; 11 Wharton, Evidence (3 ed.) Sec. 966; MacCulsky v. Klosterman, 20 Ore. 108 [25 Pac. Rep. 366; 10 L. R. A. 785]; Ferguson v. Rafferty, 128 Pa. St. 337 [18 Atl. Rep. 484; 6 L. R. A. 33]; Buckingham v. Hanna, 2 Ohio St. 551; McKinzie v. Steele, 18 Ohio St. 38; Pennsylvania Co. v. Platt, 47 Ohio St. 366 [25 N. E. Rep. 1028] ; 16 Cyc. 722; Tobias v. Richardson, 26 O. C. C. 81; Greene Tp. (Tr.) v. Campbell, 16 Ohio St. 11; Winters v. De Turk, 133 Pa. St. 359 [19 Atl. Rep. 354; 7 L. R. A. 658] ; 15 Enc. of PI. & Pr. 733; Pomeroy, Rem. & Rem. Rights Sec. 85:
   COOK, J.

This action was to recover for the royalty upon a large number of tons of coal mined and shipped by the Hutson Coal Company., The action was by Ann Hughes, Fanny Johns and Askenas L. Davies, heirs at law of John A. Davies, deceased.

John A. Davies, the ancestor, by written contract, bargained and sold all the mineral and ¿stone coal underlying 260 acres of land situated in this county, to a number of parties who afterward transferred their interest in the contract and cóal to the Hutson Coal Company.

The contract provides:

“That in consideration of one dollar received, and of the covenants and agreements of the second party, to be performed as hereinafter stipulated, the said party of' the first part does hereby bargain, sell and convey ’unto the said second party all the mineral and stone coal that may underlie the following described tract or lot of land situate in the township of Palmyra, county of Portage and state of Ohio, and is bounded and described as follows:” — that is, the 260 acres less two acres.

The agreement further provides that, “It is agreed by the-party of the second part that they will within six months from the date of this contract, test said land by drilling or otherwise; and in case there should be discovered a minable vein or basin of stone coal of sufficient quantity and quality to justify the opening and mining of said coal in the opinion of said second party, then they agree to mine out said coal and pay the following rate per ton for all coal mined on said premises, to wit: When in thickness two feet and under, ten cents, over two and under three feet, fifteen cents, and three feet and over, twenty-five cents for each ton of 2,240 pounds of merchantable coal. Payments to be made in the following manner:” (Here setting forth the manner of payment.)

The agreement further provides,

“Said party of the second part shall have the right to abandon this contract at any time they shall determine that said coal in quantity, quality, or condition is no longer minable with economy and profit and they may remove the machinery and other structures and property from said land. ’ ’

The first question made is: Are the plaintiffs, as heirs at law of John A. Davies, the proper parties to bring the suit? The defendant by its answer objects to the plaintiffs’ prosecuting the suit and insists that the suit should be brought by the personal representative. The solution of this question depends upon whether this contract made was a lease of the coal or an absolute sale of the same. On behalf of plaintiff in error, it is claimed that it was an absolute sale of the coal notwithstanding the provision that the parties of the second part might abandon the premises and remove their appliances upon the contingency-set forth; and that the provision for the payment of royalty at fixed times was mere payment of the purchase money for the coal and not as rent.

The case of Edwards v. McClurg, 39 Ohio St. 41, is almost identical with the case under consideration — the contract in that ease providing:

“ ‘The first party has agreed to sell and does hereby give, grant, bargain, sell and convey’ unto said second party, their heirs and assigns, ‘all the stone coal lying and being in, under and upon certain premises’ in consideration of thirty cents per ton on all coal when mined. ’ ’ That contract also containing the following clause: “The second party ‘shall have the right' to abandon the contract at any time when they shall determine, in their judgment, that said coal, in quantity, quality and condition, is no longer minable with economy and profit.’ ” Under that contract it was held:
“1. All minable coal in place passed absolutely to the grantees.
“2. After such conveyance no interest in the minable coal remained in the grantor subject to be mortgaged .as land.
■ “3. A mortgage upon the remaining interest .of the grantor in the land, did not cover the purchase money due or to become due from the purchasers of the coal.”

Upon page 49 it is said in the opinion:

“This is not a case for the application of the doctrine, that a mortgagee, after condition broken, may demand the rents from a lessee of the mortgaged premises. The Vienna Coal and Iron Company is not lessee of any part of the premises mortgaged by James L. to Darius M. McClurg. The moneys due and to become due from the company under the deed, September 28, 1867, are not rents, but purchase money. ’ ’

This would seem to be conclusive that the claim for royalty was a part of the personal estate of the decedent, which Upon his death vested in his personal representative.

It may be conceded that the estate of John A. Davies had been fully settled up as he died in 1888, yet that would not affect the question as to-who should be parties plaintiff.

In the case of Davis v. Corwine, 25 Ohio St. 668, it is held that,

“The heirs of an intestate cannot, even after settlement by the administrator, and where there are no outstanding debts, maintain an action in their own names to recover possession of assets belonging to the estate, or to compel the executors of a party who had a life interest in such assets, and has wrongfully disposed of them by will, to' account for the same.” And in the opinion it is stated specifically, that, “all personal actions must be brought by the administrator and cannot be brought by the heirs.”

In the case of McBride v. Vance, 73 Ohio St. 258, it was held:

“The personal property of a deceased person does not vest in his heirs but is in abeyance until administration is granted and is then vested in the administrator by relation from the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action on the note by proof of possession and that he is the sole heir of the decedent.”

We, therefore, hold that the suit was improperly brought in the name of the heirs.

The second question made goes to the exclusion of certain evidence offered by defendant below. The defendant in mining and shipping of coal had three grades: lump coal, nut coal and slack.

The contract, as we have seen, provided that the party of the second part should pay as royalty so much for all merchantable coal mined. Monthly statements were required to be made and the royalty paid. The company made regular statements of the lump coal mined and shipped and royalty was paid upon the same which was accented by the representatives of Davies and receipts given for the same for a long number of years. No statement was made of the nut and slack sold and shipped by the company and no complaint was made of such omission during _all those years by the representative of Davies and no demand made for payment of royalty upon the nut and slack.

This suit is to recover the' royalty upon this nut and slack coal sold and shipped by the coal company, the mine being now abandoned, and for the same royalty as upon the lump coal:

The line of evidence offered by the defendant and excluded by the court was that at the time this contract was made, to wit, in 1884, the words “merchantable coal” had a trade significance in the locality where this land was situated and the contract made; that it meant lump coal. This evidence under objection was rejected by the court upon the theory as we are informed by counsel that the word “merchantable” is in no way ambiguous and could not be explained by parol evidence.

Should this evidence have been admitted 1 True, the word, merchantable, has a general signification but may it not also have a trade signification. Webster’s definition is, “Fit for market; such as is usually sold in the market, or such as will bring the ordinary price-; ’ ’ but he adds to his definition “sometimes a technical designation for a particular kind or class.” Had it a technical meaning in this contract? For nearly fifteen years, close up to the time they would have been barred by the statute of limitations from the recovery of the greater amount of their claim, they remained silent. Month by month they accepted the statements as if the word “lump” was the equivalent of “merchantable.” The important matter is, How did these parties understand this word as applicable to this contract and how did they usé it? If, in the locality where this land was situate at the time the contract was made, it had a technical or trade signification, and nut and slack had no market value, and only lump coal was sold and shipped, could it be said that the parties used the term in its general sense, especially when the parties themselves seem to have understood it in a different sense? Furthermore from what we know of royalty upon coal the price in this case was an exceedingly high one. Is it to be supposed that these parties intended to pay from ten to twenty-five cents a ton royalty upon nut and slack?

Be that as it may, why should not the defendant have been permitted to show the circumstances surrounding the parties at the time the contract was made, and the custom of trade and the kind of coal that was in fact sold in the market.

In the case of Cullen v. Bimm, 37 Ohio St. 236, evidence was admitted to show what was meant by the term “merchantable ice.”

In the case of Barrett v. Allen, 10 Ohio 426, it was held “Where a note was made payable in woolen cloth at a fair wholesale factory price, ’ ’ parol evidence is admissible to show that a certain scale of prices was intended different from the actual wholesale prices in the market.

In Ferguson v. Rafferty, 6 L. R. A. 33, 43n [128 Pa. St. 337; 18 Atl. Rep. 484], in the note it is said,

“A special sense, which vernacular words have acquired in a particular trade, may be shown, coupled with proof that the parties were contracting with reference to that trade.”

That was what the defendant below proposed to prove in this case. That the words “merchantable coal” were vernacular words in the trade, meaning the same as “lump coal.” That in fact there was no traffic whatever in nut and slack coal and therefore the parties were contracting with reference,to “lump coal,” in the payment of royalty.

The evidence should have been admitted and it was error to exclude it.

Judgment of court of common pleas will be reversed and the cause remanded for such proceedings as may be required by law.

Burrows' and Laubie, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    (Judge Wildman of the sixth circuit, sitting in place of Judge Winch.)
    Tenbusch Realty Co. v. Myron B. Vorce
    Validity of Building Regulation.
    A city may, in the exercise of its police power, enact and enforce a building regulation requiring that “all walls built adjoining interior property lines shall be ‘dead’ or solid fire walls,” such a regulation not being unreasonable, and an owner having secured a building permit on a plan showing such a wall cannot enjoin the revocation of such permit when he changes the plan and inserts windows in such wall.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1759-1760. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    White, Johnson, McCaslin & Cannon and C. D. Ainger, for plaintiff.
    N. D. Baker, E. K. Wilcox, H. Payer and W. A. Carey, for defendant .
   MARVIN, J.

This case [Tenbusch Realty Company v. Myron B. Vorce, Inspector of Buildings for the city of Cleveland] is here on appeal. The plaintiff, which -is a corporation, is erecting a five-story brick building at the northwest corner of Prospect avenue S. E., and East Fourth street S. E., in the city of Cleveland, and permission was obtained from the defendant, who is inspector of buildings, before the building was begun. A larg-e amount has been expended in the erection of the building, and it is now nearing completion. Unless restrained by the order of the court the defendant will revoke the permit and will prevent the completion under the present plans of the building, and the plaintiff prays that the defendant may be enjoined from revoking said permit and from interfering with the completion and occupancy of said building. The defendant justifies his proposed revocation of permit and his interference with the completion of the building on the ground that the plans of the building submitted to him at the time the permit was granted are not in accordance with the plans upon which the building is being constructed; that under the plans submitted, the building could have been erected without any violation of the building code, so-called, provided by the ordinances of the city; that such code will be violated if the building is completed upon the plans which will be followed by the plaintiff, unless it is prevented.

The right of the defendant to revoke the permit is founded on Sec. 2, title 3, part 5 of the code. It is said in the brief and I find' what is quoted in the brief as being the section, although I do not quite understand how it is made Sec. 2. It reads Sec. 2, but Sec. 2 under title 3; and this one marked Sec. 2 immediately follows Sec. 29. However, there is authority in the section under certain conditions for an inspector to revoke. The section reads:

“When the work for which any building permit was issued is not being performed in conformity' to the detailed statement, plans or specifications upon which such permit was issued, it shall be the duty of the inspector of buildings to notify the owner or owners, or his or their agent, in writing, that the work is being constructed in violation of the permit,” etc.

And then it proceeds to say that if they do not change the plans so as to1 make them conform to the plans of the building as shown at the time the permit was granted the inspector may revoke'the permit.

The section of the code which it is said, and which it is conceded, will be violated by the completion of the building now proposed by plaintiff, is Sec. 27, title 29, which reads:

“No buildings now or hereafter erected shall be altered or enlarged to encroach upon the minimum required space reserved for light and ventilation or for fire protection purposes, either on the same or on adjoining premises. All walls built adjoining interior property lines shall be ‘dead,’ or solid fire walls, except when built in conformity with Sec. 6, and any such wall having window or other openings in conflict with the aforesaid Sec. 6 or Sec. 8 shall, under the provisions of this code, be deemed an encroachment upon the aforesaid minimum required reserved space, but nothing in this section shall be construed as to prevent an owner from enclosing any interior or outer line court by ‘dead’ .walls along the lot lines, provided the measurement for such courts is taken from the inner face of such enclosing wall.”

The Secs. 6 and 8 referred to do not apply in any wise to such a building as is being erected here. One of the walls of this building adjoins an interior -lot of land. The plans shown the defendant at the time this permit was granted showed this to be a “dead” brick wall,— that is, a brick wall without any openings. The plaintiff proposes to place windows in the upper stories of this building, these windows being small, the frame being of iron, the glass used being what is known as wire glass, being a mesh of wire upon which molten glass or molten material for the making of glass has been turned so as to make the glass throughout with the wire meshes. They are to be placed upon pivots which may be turned in and out. The contention of the plaintiff is, not that such windows will be as effective to check fire as a dead wall would be, but that they are practically as effective for that purpose.

It is urged by the plaintiff in a brief filed today that it would be impossible to make any walls that would be so absolutely fireproof as that no danger could exist from conflagration. And the result as shown by the fires in San Francisco recently and in Baltimore a few years ago, undoubtedly shows this to be true. The evidence shows that the best windows that can be devised for protection against fire are the windows which the plaintiff here proposes to use, notwithstanding that to put in these windows is to violate this section of the code.

Plaintiff says that the ordinance is unreasonable and that the court may, therefore, hold it a nullity; that such regulations may be prescribed by the council as would justify such holding by the court- is abundantly established by the authorities. Some of these are cited and quoted from in plaintiff’s brief. French, Police Power Sec. 142, page 63; Ruhstrat v. People, 185 Ill. 133 [57 N. E. Rep. 41; 49 L. R. A. 181; 76 Am. St. Rep. 30] ; Colon v. Lisk, 153 N. Y. 188 [47 N. E. Rep. 302; 60 Am St. Rep. 609] ; Burke v. Bours, 98 Cal. 171, 173 [32 Pac. Rep. 980], I will not stop to read.

In Deming v. Cleveland, 12 Circ. Dec. 198, this court held that a'É regulation purporting to be a police regulation, passed by the city, was so unreasonable as to be a nullity.

The question then to be considered is, whether this ordinance is so unreasonable as that it may be treated as a nullity and void. It «ought not to be so held, unless it is clear that it is a power in excess of the police power granted to a municipality.

Attention is called by counsel for defendant to the case of Bostock v. Sams, 93 Am. St. Rep. 394 [95 Md. 400; 52 Atl. Rep. 665; 59 L. R. A. 282], and especially to the notes in that case. The «notes are very full and very instructive. Note 2, page 406, is as follows:

‘ ‘ Of course, the authority to enact and enforce building regulations can be sustained only on the ground that it is a part of the police power. This power may be exercised directly by the" state, or its exercise may, in proper cases, be delegated to cities and other municipal corporations, and in every ease where the statute relied upon purports to authorize the imposition of the regulation, the question is, whether it is a legitimate exercise of the police power. While the decisions upon the subject are too infrequent to be relied upon with confidence, we apprehend that here, as elsewhere, certain limitations upon the exercise of the police power exist and must be respected, among which are, that the regulation in question must not be arbitrary in its character, must be one which the courts will not judicially notice to be unnecessary, and must have a tendency to promote the public welfare or safety. The principal case presents, it is true, only the question of. whether the ordinance was one, the power to enact which had been conferred upon the municipality assuming to enact it, but we think the reasoning of the court to be equally applicable to general statutes upon the subject, and hence that it may be safely affirmed that a building regulation, however enacted, must not unnecessarily interfere with rights of property, and if it assumes in any manner to regulate the location, dimensions, appliances, or material of buildings on the property of private pro: prietors, it must be declared unconstitutional, unless its enactment can be defended on the ground that it is necessary for the protection or preservation of the public health or safety.”

Note 6, page 409, reads:

“Regulations intended to promote the public health, safety, or morals, and reasonably adapted to those purposes, are within the police power and may be enforced when enacted by the state legislature or by municipal corporations whose charters or other grants of authority give them power,to enact local regulations upon these subjects.” Citing a great number of authorities.

As already said, the question in this case is, Was this regulation a reasonable one! It seems to us to be a reasonable regulation; a regulation well calculated to protect against danger from fire, and that any violation will be to increase the dangers from fire. It is urged that certain other provisions of this code are inconsistent with this; that one may construct buildings which would be equally dangerous by having them built about a court. It would hardly do to say that this is unreasonable because there is some other section of this code that is unreasonable. We think this is reasonable and it applies to all parts of the city. But it is said that that is one of the facts,that make it unreasonable. It seems to us to be reasonable, and that it is proper to enforce it in this cáse.

If these windows are placed in the building — the building on the adjoining property is but two stories high while this is five stories high, — it would be much more likely to communicate fire to the adjoining building than if this were a dead wall. One of the objects of windows is to have ventilation; that they shall be so hung as to be capable of being opened; if opened and a great conflagration comes on it would be much more likely to communicate to the adjoining building through the windows than if.it were a dead wall.

We have, therefore, reached the conclusion that the petition must be dismissed.

Henry and Wildman, JJ., concur.


author: CHERRINGTON, J.

text:
    CONSTITUTIONAL LAW — FEES—SHERIFFS.
    [Scioto (4th) Circuit Court,
    March, 1906.]
    Jones, Walters and Cherrington, JJ.
    Fred C. Ketter v. Scioto Co. (Comrs.).
    1. Fees foe Making Seevice and Retden on Weits in Conveying Peisonees to WoRKHouse Payable out of County Treasury.
    While Rev. Stat. 1230 (Lan. 2601), allows thirty- cents for making service and return on each writ in conveying sentenced prisoners to the workhouse in Cincinnati, Ohio, there is no provision therein for payment from the county treasury but Rev. Stat. 2101 (Lan. 3433; B. 1536-372), provides for the allowance of such fees, and that the same be paid out of the county treasury.
    2. Compensation foe Conveying Persons to Athens Asylum.
    Revised Statutes 719 (Lan. 1190) as amended 97 O. L. 296, passed April 23, 1904, includes all compensation to which a sheriff is entitled for conveying persons to the asylum at Athens, Ohio, upon the warrant of a probate judge.
    [For other cases in point, see 5 Cyc. Dig., “Hospitals,’’ §§ 45-47; “Insane Persons,” §§ 188-193; 7 Cyc. Dig., “Sheriffs,” §§ 36, 37. — Ed.]
    3. Sheriff has no Recourse foe Payment of Fees foe Committing to Jail otheb than under Rev. Stat. 1231 (Lan. 2606).
    Revised Statutes 1230 (Lan. 2601) allows sixty cents for committing persons to jail and discharging them therefrom, but it is not available to the officer for the reason stated in the first clause above. Revised Statutes 1230b (Lan. 2603) provides for such allowance, and that it shall be paid out of the county treasury, but said section is in conflict with that part of Sec. 26, Art. 2 of the constitution which provides that “All laws of a general nature shall have a uniform operation throughout the state” and is therefore unconstitutional and void, and the sheriff has no recourse for such services other than is found in Rev. Stat. 1231 (Lan. 2606).
    [For other eases in point, see 7 Cyc. Dig., “Sheriffs,” §§ 36, 37. — Ed.]
    [Syllabus by the court.)
    Error to Seioto common pleas court.
    F. C. Moulton, for plaintiff in error.
    H. W. Miller, prosecuting attorney, for defendant in error;
    Right of commissioners to maintain action in their own name. Hamilton Co. {Comrs.) v. Noyes, 36 Ohio St. 201; Jones v Commissioners, 5 Circ. Dee. 152 (11 R. 136); Jones v. Lucas Co. {Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710],
    If the officer draws an illegal fee how can it be recovered back? Debolt v. Cincinnati Tp. {Tr.) 7 Ohio St. 237; Anderson v. Jefferson Co. {Comrs.) 25 Ohio St. 13; Strawn v. Columbia Co. {Comrs.) 47'Ohio St. 408 [26 N. E. Rep. 635]; Jones v. Lucas Co. {Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710],

      Is tlie sheriff entitled to fifty cents for committing and discharging persons from prisons? Tuall v. Commissioners, 4 Dec. 318 (3 N. P. 112).
   CHERRINGTON, J.

The suit below was by the commissioners of Scioto county, Ohio, to recover from Ketter, who was the duly elected, qualified and acting sheriff of this county, certain sums he had collected, viz.: fees which were collected and taken from the treasury of Scioto eounty, claimed to be without warrant or provision of law.

The petition contains sis causes of action. Certain arrangements were made as to .three of the causes, after the institution of suit and after disposition of demurrers to them respectively, which are now out of the case, and there are left simply the first, fourth and sixth eauses of action. • '

The defendant demurred to each of the three causes, assigning two grounds:

First. That plaintiff had no legal capacity to sue.

Second. That neither of the causes stated facts sufficient to constitute a cause of action.

The court overruled the demurrer to each of these causes and entered up judgment for the commissioners.

Error is prosecuted here, and it is claimed the court erred in overruling the demurrer on each ground stated in the demurrer.

And first, as to whether or not the commissioners have capacity to sue, it is sufficient to say that Kev. Stat. 845 (Lan. 2104) expressly confers authority upon the commissioners to sue in this and like cases.

The next question is, as to whether or not the several causes of action, or either of them, state facts sufficient to constitute a cause.of action.

Counsel have argued at length, both orally and on briefs, referring to various sections of the statutes, which it is claimed govern this ease, but I will not undertake to follow the line of the argument, because it would be very troublesome to do so — to refer to these various sections of the statutes; and it must be a<jmitted that the statutes of, Ohio on this subject are in a confused, and I may say, a somewhat incoherent condition, and I will do little more than briefly refer to the sections which we think control in the case; and it would be well in the beginning to bear in mind that the sheriff and other officers of the county are entitled to just such fees and compensation as are provided by statute, and none other.

Now, the first cause of action wqs in recover twenty-five cents which the sheriff had charged on each writ for making service and return thereof in conveying sentenced prisoners to the workhouse in Cincinnati, Ohio.

Counsel for the sheriff claim that he is entitled under Rev. Stat. 1230 (Lan. 2601) to the amount charged. Revised Statutes 1230 (Lan. 2601) provides that he shall have for levying and serving of each writ, not only twenty-five cents which he has charged, but thirty cents; but when you follow out the section of the statute it will be discovered that there is no provision for payment from the county treasury. So this is not an available section as far as payment is concerned to the officer.

Then the question is, whether there is any other section which provides how the payment shall be made. Revised Statutes 2101 (Lan. 3433; B. 1536-372), provides:

‘ ‘ The officer having the execution of the final sentence of any court, magistrate, or mayor, shall cause the convict to be conveyed to the workhouse as soon as practicable after the sentence is pronounced; and all officers shall be paid the fees therefor allowed by law for similar services in other cases, such fees to be paid when the sentence is by the court, out of the county treasury, and when by the magistrate, out of the township treasury.”

That seems to be a general statute, and we think it gives ample provision for the payment of not only twenty-five cents which he has charged under Rev. Stat. 1230 (Lan. 2601), but thirty cents.

Revised Statutes 6801a (Lan. 10395), which the prosecuting attorney cites as exclusive of and superseding Rev. Stat. 1230 (Lan. 2601), allows six cents for transporting a prisoner to the workhouse and nothing more. But it will be observed that that section provides for the transportation of such persons where it is done under an agreement between the commissioners of the county where the conviction took place, and where it has no workhouse, and the proper authority in another county where a workhouse is located. And it seems to provide simply for the transp oration and nothing further.

“And the sheriff or other officer transporting any person to such workhouse shall have the following fees therefor: ” i. e., for transportation six cents per mile, etc. So that is not exclusive. We think, harmonizing and construing Rev. Stat. 1230, 2101 (Lan. 2601, 3433) together, that he is entitled to such service as he has charged, and that the court erred in overruling the demurrer to the first cause of action.

The fourth cause of action is for serving and returning warrants to convey certain persons to the asylum at Athens, Ohio.

We think Rev. Stat. 719 (Lan. 1190) as amended 97 O. L. 296, passed April 23, 1904, is decisive of, and conclusive as to that .matter. That provides for payment — “to the sheriff, or other person, other than assistant, for taking an insane person to a state hospital, or removing one therefrom upon a warrant of the probate judge, mileage at the rate of five cents per mile, going and returning, and seventy-five cents per day for support, and mileage at the rate of three cents per mile for the railway transportation of each patient to and from the hospital, and to one assistant five cents per mile each way, and nothing more, for said service, the number' of miles to be computed in all cases by the nearest route traveled.’'

We are satisfied it was the intention of the legislature that this section should cover all compensation to which the' sheriff was entitled, as stated herein, and that it does not include the charge made in the fourth cause of action, and the demurrer thereto, and judgment thereon was proper.

The sixth cause of action are charges for committing persons to jail and discharging them therefrom. The only section we can find bearing upon this subject is the original Rev. Stat. 1230 (Lan. 2601). There were others cited, but we do not think they apply.

Now Rev. Stat. 1230 (Lan. 2601) allows for such charges, sixty cents, but as in the first cause of action stated, there is no provision as to how it shall be paid. There is no provision that it shall be paid out of the county treasury or otherwise. So that is not available to the sheriff; and we know of no other valid section allowing and providing for this matter.

Revised Statutes 1230b (Lan. 2603) does provide for this allowance and that it shall be paid out of the county treasury, but it will be noticed that it applies to a certain class of counties only, and it is an act attempting to classify counties.

“In all counties which at the last federal census had a population of 22,500 or more, and for which there is no provision made by law for the payment of the sheriff, he shall receive the following fees and compensation.”

The sheriff is allowed in that twenty-five cents for service charged, or allowed at least what he has charged, and it is provided that that shall be paid out of the county treasury.

Now, if that was a valid statute, the charge would be a proper one; but we are satisfied that it is rmconstitutional and void, and the sheriff will have no recourse except under Rev. Stat. 1231 (Lan. 2606), which provides that:

“The court of common pleas in each county shall make an allow-anee of not more than $300, per annum, for the sheriff, for services in criminal cases, where the state fails to convict, or the defendants prove insolvent, and for other services not particularly provided for, to be paid out of the county treasury.”

So we are compelled to hold that the judgment in the fourth and sixth causes of action was correct, but in the first being wrong, it will require a reversal of the entire judgment, unless counsel should prefer that it be modified and affirmed as modified.

Jones and Walters, JJ., concur.


author: DUSTIN, J.

text:
    ACCORD AND SATISFACTION — MARRIAGE.
    [Miami (2nd) Circuit Court,
    April, 1904.]
    Sullivan, Wilson and Dustin, JJ
    William H. Conard v. Almira Bare
    Compromise of Breach of Promise of Marriage not Enforcible Where Party (Jives up no Rights by Reason Thereof.
    An agreement by the terms of which one party agrees to pay the other a sum of money and each agrees to release the other from all obligations on a breach of contract of marriage, is not enforcible as an accord and satisfaction against the party promising to pay, when the plaintiff shows no right nor advantage yielded up by reason of the agreement.
    [For other cases in point, see 1 Cyc. Dig., “Accord and Satisfaction,” §§ 7-10. — Ed.]
    [Syllabus approved by the court.]
    R. J. Smith, for plaintiff.
    A. F. Broomhall, for defendant.
   DUSTIN, J.

October 9, 1903, plaintiff and defendant executed the following:

“This agreement entered into this ninth day of October, 1903, between William H. Conard and Almira Bare, both of Miami county, Ohio, witnesseth:
“That whereas said parties have heretofore on or about February 15, 1903, entered into a contract of marriage, and on or about September 19, 1903, said Almira Bare did notify said William H. Conard that she refused to carry out said contract of marriage with him, by reason of which said William H. Conard claims to be injured in his feelings and property, etc., and the parties hereto having mutually agreed to the amount of compensation to be paid said William H. Conard for his damages sustained by reason of the breaking of said contract, in the sum of $4,000, which sum is now paid or secured to be paid to said Conard, the receipt of which he hereby acknowledges, they herewith release each other from all obligations under said contract of marriage.
“Signed in duplicate this ninth day of October, 1903.
“William H. CoNArd,
“AlMIRA Bare.” ,

Almira’s cash not being forthcoming to William, he brought this action on the above agreement for $4,000; with interest from October 9, 1903, alleging that said agreement on her part was “in consideration of a full release from all consequences of defendant’s breach of a promise to marry plaintiff;” also alleging “that relying upon the verbal promise of defendant immediately to deliver to him $4,000 or its equivalent, he signed and delivered to her, the defendant, one of the aforesaid copies of their agreement, but that defendant had refused to pay him the said $4,000 or any part thereof,” etc.

Defendant demurred on the ground that the petition shows an “accord” but no satisfaction, and hence is not sufficient foundation for an action.

, The common pleas court sustained the demurrer, and plaintiff not wishing to plead further, the petition was dismissed, and plaintiff prosecuted error to this court.

We are of the opinion that the demurrer was rightly sustained upon the authority of Frost v. Johnson, 8 Ohio 393, and Bloomer v. Cist, 7 Dec. 337 (4 N. P. 411-415), as well as upon the general principle governing accord and satisfaction.

Nothing was done by either party to carry out the agreement. Of course plaintiff was not bound by it until defendant paid or tendered the money, and she was not bound until he had yielded some right or advantage. But he had given up nothing, not even the love letters of his late sweetheart. He was in statu quo. If he had brought suit and in consideration of the agreement had dismissed it, the situation would have been different. If, relying on the agreement, he had lost the right to sue within the statutory limit, he might probably bring this action. But he gave up nothing; lost nothing, except of course the affections of the defendant. His civil rights are the same as they were before the violation of the agreement, and he can sue for breach of the promise of marriage, the same as if nothing had occurred. It is, therefore, in our opinion a clear case of accord without satisfaction, and the judgment of the common pleas court is affirmed.

Sullivan and Wilson, JJ., concur.


author: LAUBIE, J.

text:
    LIBEL AND SLANDER.
    [Columbiana (7th) Circuit Court,
    March 31, 1906.]
    Cook, Burrows and Baubie, JJ.
    Temple S. Todd v. East Liverpool Publishing. Co.
    1. Admissibility of Proof of Facts Admitted in Pleadings.
    In an action for libel, the falsity of the charge being admitted in the . answer, if the plaintiff introduces evidence to prove such falsity, it is discretionary with the court whether evidence on this point can be introduced by the defendant and its introduction will not be prejudicial where the court does not submit to the jury the truth of such charge as a defense.
    LFor other cases in point, see 4 Cyc. Dig., “Error,” §§ 1647-1666.- — Ed.]
    2. Necessity of Excepting to Instbuctions to Jury.
    There being a complete record of the entire proceedings below, and the verdict being apparently the result of erroneous instructions, no exceptions need be taken to such instructions to consider them on error to determine whether the verdict is contrary to law. ^
    LFor other cases in point, see 2 Cyc. Dig., “Charge to Jury,” §§ 609-657.— Ed.J
    3. Charges Libelous Per Se.
    A newspaper publication in effect charging a policeman with having taken $40 from a person arrested by him, and secreting and refusing to account for the same, charges him with having committed a crime involving moral turpitude and is libelous per se.

    LFor other cases in point, see 5 Cyc. Dig., “Libel and Slander,” .§§ 1-82.— Ed.J
    4. Repetition of a Charge as a Libel.
    A libelous article does not cease to be a libel because the party charged simply repeated what some other person told him or that he heard some other person say. » v ,
    5. Questions fob Court and Jury in Action fob Libel.
    In such action it is the duty of the court to instruct the jury that the charge made is actionable per se. It is for the jury to determine whether . the meaning ascribed to the charge by the innuendo was intended by the defendant; this, however, affects only the amount of damages and not the right of recovery.
    LFor other cases in point, see 5 Cyc. Dig., “Libel and Slander,” §§ 357-374. —Ed.J
    6. Privilege of Ciiabge as Defense when Falsity is Admitted by Pleading.
    A newspaper making a libelous charge against a public officer and admitting the charge to be false, cannot defend the charge as being a matter of public interest and as privileged.
    LFor other cases in point, see 5 Cyc. Dig., “Libel and Slander,” §§ 105-111; 199, 200. — Ed.J
    7. Necessity of Diligence in Ascertaining Tbutil of Privileged Charge.
    To claim the defense of privilege to a libelous charge the defendant must show that reasonable diligence was used to ascertain the truth of the charge and that the publication was in good faith.
    [Syllabus approved by the court.]
    Error to Columbiana common pleas court. .
    W. H. Spence, for plaintiff.
    J, H. Brookes and R. G. Thompson, for defendant.
   LAUBIE, J.

(Orally.)

This is a proceeding in error by Todd to reverse a judgment of tbe court below in favor of tbe defendant, in an action brought by himself against the publishing company for libel. The article was written by a reporter of the defendant, and published in its newspaper, the Evening Review, at East Liverpool, this county, and is as follows:

“Jenkins wants-his money back. Say officers took $50 from him and that he was sober. Has hired an attorney.
“Officer Temple Sykes Todd has got to convince Bert Jenkins that he knows nothing of the two $20 gold1'certificates, which Jenkins alleges the patrolman took from him on last Thursday evening and refused to turn over to the mayor. A prominent attorney has been engaged by Jenkins and the case will be pushed.
“Jenkins was arrested on a charge of being drunk and disorderly. He was taken to the city hall by Officer Todd and he says that Todd and Night Janitor Turnbull searched him. He claims that Turnbull took a $10 gold piece and some small change from his right pocket and that Todd got the certificates from his left pocket. ■ He says that he asked the officers to count the money in his presence but they refused and Todd told him to get on in his cell, that the money would be attended to. It is said that several members of the board of public safety were present at the time. Jenkins expects to prove by several witnesses that he had the money within thirty minutes prior to the arrest and that he had no way to get rid of it. He also claims that he was not drunk. When the mayor offered to give him about $7 on the morning following the arrest he refused to take it saying that he had two $20 bills coming to him and that he wanted it all.
“The story of his protest was published in a morning paper, but the name of the officer who was accused of taking the money was not published and suspicion therefore rested on the entire force.”

, Plaintiff alleged that the defendant thereby falsely and maliciously intended to and did charge him with having kept, stolen or embezzled $40, the money of the said Jenkins, while acting as such policeman. The defendant in its answer admitted the publication but denied the intent charged, and alleged it published the article as a matter of public interest and in good faith.

It is alleged as one ground of error that the court erred in admitting evidence upon the part of the defendant, to show the truth of the act charged. Of course, under the pleadings it ivas admitted that the charge was unfounded; that it was false, as the truth of the charge was not alleged as a defense; consequently the plaintiff had no reason nor necessity to undertake to prove the falsity of the charge as a fact, but did do it. In the examination of Todd himself when upon the stand, his counsel .proceeded to ask him and-to have him tell that the man Jenkins did not have in his possession two $20 bills, and that he did not take such bills or money from Jenkins. So that the plaintiff opened the door himself. And in such a case where the plaintiff starts the evidence — as it is said, opens the door — then in such case it is in the discretion of the court afterwards to permit the defendant to give evidence upon the same proposition. And the court permitted Jenkins himself to testify that he did have the two $20 bills, and that they were taken from him by Todd the night of his arrest. So that we cannot say there was any error in admitting that evidence, as the plaintiff himself opened the door by attempting to show that which he had no occasion to do, because the falsity of the charge was admitted. If the court had permitted that question to go to the jury in that shape — that is, submitted to them the truth of whether the charge as a defense, was true or false — then of course that would have been error. But the court did not do that, and we cannot say there was any error in the respect named.

The principal ground of complaint, however, is in regard to the charge of the court. And in two particulars: One, as to whether this was a libel per se; and, secondly, whether it was a privileged publication.

There was no exception taken to the charge'of the court. The plain-, tiff below seemed perfectly content and satisfied with the charge of the court to the jury, so far as the record discloses; probably on the ground that there was no question but what he would recover. But it is the principal error here claimed, and relied upon, and of course if the law permits it, we have to consider it. And the law does permit it, under certain circumstances, and the ease at bar is of that class. Where there is a complete record of the whole proceedings — evidence and all as here — and the verdict is contrary to law, and apparently was the result of erroneous instructions, no exception need be taken.

In Mowry v. Kirk, 19 Ohio St. 375, the last head of the syllabus is:

“When the whole case, evidence and all, is before the court, and the error of law occurring at the trial is such as to make the verdict contrary to law, a new trial should be granted, though no exception was taken to the ruling of the court. ’ ’

And in Baker v. Pendergast, 32 Ohio St. 494 [30 Am. Rep. 620], it was held, third head of syllabus:

“Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial. ’ ’

In this case all of the evidence and charge of the court are in the bill of exceptions, and the question whether the verdict was the result of erroneous instructions must be considered. And it certainly was, as there can be no question but that the plaintiff was at least entitled to recover full compensation for all injuries caused by the publication.

The court in this instance, after stating that the defendant did not deny the publication of the article, said to the jury:

“If the article, upon its face, charged this plaintiff with being a thief, with having stolen the money of the man Jenkins, then I would be warranted in saying to you, as a matter of law, that such a charge was in and of itself libelous; but they do not directly charge him thus in the article in question, and the defendant, by its answer, says that it had no intention of so charging this plaintiff. That it did not falsely and maliciously publish nor intend to publish that this plaintiff stole, embezzled or took the money of another. The plaintiff, on the other, hand, says that that is the just and fair inference to be drawn from the language used. Whether or no such fair inference is to be drawn from that article is a matter addressed to the good common sense of you twelve men, and upon your retirement the first thing that you ought to do is to take that article up and read it in its entirety, and consider it in detail to the end that you may answer that question whether or no the article as published was such that, by a fair inference, men reading it would conclude and infer therefrom that the newspaper intended to charge this plaintiff with the taking improperly with the intent to appropriate that money. For if that is not the fair inference to be drawn from that article, then there is no libel, and your labors would be at an end, and you should return a verdict for the defendant.”

So that the court submitted the whole question to the jury to determine whether this was a libelous article, and whether also there was any fair inference that it did charge the plaintiff with being a thief, with having stolen or taken the money.

In this, we think, the court erred.. The article itself is libelous on its face. It starts out with, “Jenkins wants his money back. Officer Temple Sykes Todd has got to convince Bert Jenkins that he knows nothing of the two $20 gold certificates which Jenkins alleges the patrolman took from him on last Thursday evening and refused to turn over to the mayor. A prominent attorney has been engaged by Jenkins and the case will be pushed.”

And after reciting what Jenkins said, and what he claimed, as heretofore quoted, the article ends this way:

The story of his protest was published in a morning paper, but the name of the officer who was accused of taking the money was not published and suspicion therefore rested on the entire force. ’ ’

And the reporter himself, when upon the stand, admitted that he was accusing Todd of stealing the money when he said, ‘‘I named the officer (Todd) who was accused of stealing the money.”

A libelous article does not cease to be a libel because the party charged was simply repeating what some other body told him, or that he heard some other one say. If, in fact, it is libelous — if it accuses ■ another of a theft, or illegally taking property — taking money from the person of another secreting and keeping it, — the question is, whether the statement itself is libelous, and if it is, the party libeled is entitled to compensation, whether the defendant originated the libelous matter, or merely repeated what he had heard some one say. Haines v. Welling, 7 Ohio (pt. 1) 253; Fowler v. Chichester, 26 Ohio St. 9.

The innuendo allegation in the petition is, that the plaintiff wrong-' fully took, stole, or embezzled $40, the property of Bert Jenkins. It does not undertake to set out that plaintiff was thereby held up to public disgrace, but it is alleged that he was thereby injured in his reputation, which is practically the same thing. We think there is no question but what the innuendo alleged is a true one as evidenced by the article itself.

It alleges plaintiff was a policeman. That he arrested Jenkins for being drunk and disorderly, and that he and Turnbull, another officer of a similar character, searched Jenkins and took his money, the plaintiff taking $40 which he did not deposit with the mayor, but kept it himself. That Todd was the officer who was accused of taking the $40, and has got to convince Jenkins that he knows nothing of those two $20 gold certificates. That Jenkins has employed an attorney, and the case will be pushed. So the defendant itself asserted that the burden was on the plaintiff, of proving, in order to exonerate himself, that he knew nothing about these certificates. This statement was not hearsay, but the defendants’ own charge, in effect that plaintiff took from Jenkins $40, secreted it and kept it for his own purpose, which, if true, would subject him to indictment for a crime invoking' moral turpitude and infamous punishment. It plainly was a charge of larceny or embezzlement, or both.

In Cheadle v. Buell, 6 Ohio 67, it was held:

“Words charging a person with having received a letter containing money, to deliver to another, that he gave himself a false name at the time, and that, instead of delivering the letter, he broke it open and used the money, amount to a charge of larceny and are actionable in slander.
“Larceny is a taking and conversion of another’s property in a secret and clandestine manner, and with the intention, by secrecy and fraud, to deprive the owner of his remedy to recover his goods.”

In 18 Eng. L. & Eq. (2 ed.) 473, in discussing the question. What is a larceny? it is said:

“ It is accordingly as obvious as it is well settled that the conversion of goods by one who has the mere custody of them is a trespass, and therefore a larceny.”

Even in cases of bailment, a conversion after the termination of the bailment is larceny. Ib. 479.

This plaintiff, the article in effect states, as a policeman, had the custody of this money. It would not be criminal for him to search this intoxicated party when he arrested him, and to do as he did, — put the money found on his person in an envelope and give it to the mayor to be held until the man’s case was disposed of by the mayor. It was not an illegal act. He properly had the mere custody of the money. But if he refused to count the money and tell how much he took, and secretly kept it for his own use instead of putting it with the other, and turning it over' to the mayor, it was a clear ease of larceny, and that is. the statement made in this publication.

But if it was not, it was at least a charge of embezzlement. If the statements of the article were true, he had committed the crime of embezzlement.

Revised Statutes 6842 (Lan. 10449) provides that:

“An officer * * * who embezzles, * * * or secretes with intent to embezzle or convert to his own use, anything of value which shall come into his possession by virtue of his appointment or employment as such officer, * * * is guilty of embezzlement.”

The plaintiff was an officer, recognized as such in various statutes of the state, and if he obtained the $40 in the manner stated, the money came into his possession by virtue of his office, and he secreted it with intent to convert it to his own use.

The court should have instructed the jury that the article was libelous per .96. There are no two inferences to be drawn from it. It charges, in effect, as alleged in the petition, that he stole the $40. Larceny or embezzlement is stealing, and the party who does it is a thief in the eyes of the law.

“Where the charge, if true, would subject the plaintiff to an indictment for a crime involving moral turpitude, or to an infamous punishment, the-words are actionable per se.” Alfele v. Wright, 17 Ohio St. 238 [93 Am. Dec. 615],

Indeed any false newspaper article, the tendency of which is to degrade and lessen the standing and reputation of the plaintiff in the community, is libelous per se. Tappan v. Wilson, 7 Ohio (pt. 1) 190, 193.

And in Post Publishing Co. v. Moloney, 50 Ohio St. 78 [33 N. E. Rep. 921], the first paragraph of the syllabus is:

“To print and publish of a person, that he ‘is said to have been in the workhouse, and to have had a criminal record,’ is libelous per se.”

The plaintiff, Moloney, was- a policeman, as the plaintiff in this case, and the article in each case would injure the reputation and official integrity, and degrade the officer in the community.

Mauk v. Brundage, 68 Ohio St. 89 [67 N. E. Rep. 152], is about the latest case we have from the Supreme Court. This'was a case where the board of health of the village published a matter in regard to the village physician. And the court, in the second head of the syllabus, hold:

“In an action for libel the question whether the publication is or not libelous per se is a question for the court. And where the publication is claimed to be privileged, the question whether or not the occasion gives the privilege, the controlling facts being conceded, is also for the court. ’ ’

In Kahn v. Cincinnati Times-Star, 10 Dec. 599 (8 N. P. 616), affirmed without report, Cincinnati Times-Star Co. v. Kahn, 52 O. S. 662, this is a portion of the holding:

“1. Any written words are defamatory which impute to another that he has been guilty of any crime, fraud, dishonesty, immorality, vice, or dishonorable conduct, or has been, accused or suspected of any such misconduct, or which suggest that the person is suffering from an infectious disorder, or which have a tendency to injure him in his office, profession, calling or trade.
“2. Everything printed or written which reflects on the character of another and is published without lawful justification or excuse, is a libel, whatever the intention may have been.
“3. Unless the article published was entirely true, the law implies malice and liability will attach and the plaintiff can recover damages. ’ ’

So that as the defendant’s defense admitted that the statements were not true, the question whether the article was a libel per se was for the court; and the court should have instructed the jury that it was a libel per se, and that the plaintiff was entitled to recover full compensation for such defamation. Instead of doing that, as we have seen, the court left it to the jury to determine whether or not it was a malicious libel.

The court told the jury, “Whenever you go to your room the first thing you do, take up this article and read it in its entirety, and consider it in detail,” to the end that they might “determine whether or not, by a tair inference, it charges him with the taking improperly with the intent to appropriate that money. ’ ’ It was a question of law, and not of fact, yet the jury were to take it and construe it as if it was a superior judicial tribunal to the one that was giving the instruction.

The court also left it to the jury to determine the inference to be drawn from the article. And upon this proposition counsel for the defendant rely upon, and refer us to, the case of State v. Smily, 37 Ohio St. 30 [41 Am. Rep. 487], which was a criminal action for libel. The concluding statement of the eminent judge that delivered the opinion shows that the case does not sustain the contention of counsel of this defendant. It is as follows, page 35:

“Mr. Starkie states it to be the duty of the court to determine whether the language will bear the meaning ascribed to it by the innuendo, and if it will, that the question whether such meaning was intended, must be submitted to the jury. # * * This we believe to be the true .rule, and applying it to the present ease, we think the point admits of little doubt, that the language employed by the defendant will bear the meaning which the innuendo ascribed to.it, and that in holding otherwise the court erred. ’ ’

It is the court’s duty, therefore, as laid down in that case, to determine the inference — whether the language would bear the meaning ascribed to it in the innuendo. Instead of doing that the court, in the case at bar, left it to the jury to determine whether or not the language would bear the meaning ascribed to it in the innuendo, although the language was too plain for doubt.

The further proposition is entirely distinct from that. That is, if the language of the article will, in the opinion of the court, bear the inference alleged' in the innuendo, then the court may submit to the jury whether such "meaning was intended by the defendant. That, however, is only on the question of damages, as a matter of excuse in mitigation of punitive damages, and not as a defense that would prevent a recovery. After the court has determined that it' is a libel per se, that from its language the inference must be as charged in the innuendo, if the question may go to the jury, whether the defendant intended such inference, it could only be as bearing on the question of actual malice. But the court left every question in the case — malice included — to the jury as questions of fact. So that in all of these respects we think the court erred.

“Malice may be evinced in circulating slanderous reports as well as originating them; and if the words repeated are actionable in themselves, the malicious intent in publishing them .will be inferred, unless it be shown that the circumstances under which the words were uttered and published were such as to repel the inference. ’ ’ Fowler v. Chichester, supra, page 14.
“In the absence of a justifiable occasion for the publication, malice is but an inference of law, and should not be left as a question of fact for the jury.” Mauk v. Brundage, supra, page 98.

As to privilege in regard to a libel there are two classes, at least. One is an absolute privilege that is possessed by the party who publishes the libel, and the other is a qualified one arising from the circumstances of the ease, as it is said in regard to the newspaper press, that it may print in regard to certain things, and as to certain parties, that which will be conducive to the public welfare or morality of the community.

The court in this ease charged this:

“A newspaper, — under the constitution of the state of Ohio, embodied in its bill of rights, — like an individual, has a right to write,, speak and publish just criticism, even though it be severe, concerning: public officers or private individuals. The constitution in that respect reads thus: That ‘every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right. No law shall be passed to restrict or abridge, the liberty of speech or of the press.’ And one of our courts in speaking in respect to that constitutional provision has aptly, I think, used this language:
“ ‘The right to exercise reasonable criticism should be extended liberally to the newspaper press. Just criticism, though severe, may be a great conservator of the character and morals of the people. To truthfully and fairly hold up to public view and condemnation conduct that is wrongful and detrimental to social well-being is a very useful and important office of the newspaper press.’
“You are therefore instructed that whenever the object of any newspaper publication, fairly considered, is not to injure the reputation, but to correct and to hold up to public condemnation that which is hostile to morality and official integrity, does not come within the definition of libelous matter so long as the author or authors keep themselves reasonably and in good faith within the line of truth and wholesome criticism.”

Thus the court correctly quoted to the jury the provisions of the constitution and the declaration of the Supreme Court upon this question, which the court affirmed in the emphatic language quoted; but it was a mistake to apply such doctrine to the case in hand. This was not a ease where the defendant was “holding up to public view and condemnation conduct of the plaintiff that was wrongful and detrimental or “hostile to morality and official integrity.” If Todd had been convicted of larceny, or it was shown as a fact that he had stolen the money, then his conduct might have been held up and commented upon in the public press. But that was not this case. It was not a case where he had, in fact, taken the money. It was admitted that he had not. It was admitted that the charge was false, and admitted in such a shape that the defendant could not possibly controvert it.

Where an act is really done by an officer — actually performed— there the public press may comment upon it and bring it up before the public for public condemnation, if it is wrongful. But it must be such a case to justify such criticism. This was a different case entirely, and the law thus, given to guide the action of the jury had no application to it, nor should this question have been submitted to the jury at all. The controlling facts being conceded, as in the case of Mauk v. Brundage, supra, the question whether occasion gave the privilege was for the court. It was not a privileged communication, because the defendant did not attempt to assert its truth, but admitted plaintiff had not committed the act. Then why should they attempt to hold him up, or be justified in holding him up, to public condemnation, for doing that act,— an act which he did not do, and which they admit he did not do ?

' And again: As to a qualified privilege growing out of the circumstances which might relieve the defendant from punitive damages. The cases that I have referred to bear upon this question. And’ they show that when, as in a case like this, the newspaper company that undertakes to set up that the article referred to was a matter of public interest, and that it was justified in commenting upon it, must show, in order to rebut actual malice and prevent punitive damages, not only that it acted in good faith, but that it had used reasonable diligence to ascertain the truth.. But the court in the charge eliminated all question as to reasonable diligence upon part of the defendant, and instructed the jury that good faith alone was sufficient to uphold such claim. This man Jenkins was arrested for being drunk- and disorderly, and he pleaded guilty and was fined, and the defendant knew it, and yet it declares in this article, “Jenkins says he was not drunk.” So the defendant ought to have known that he was lying, and yet it took no steps to ascertain the truth of this charge against the plaintiff. Take the statement of the reporter himself when on the stand.

Question. “What steps did you take to ascertain what there was in the story?”

Answer. “After hearing the story that Mr. Jenkins had accused Mr. Todd of stealing $40 from him, and that he had not been able to get the money back at the city hall, and had employed an attorney to get the money back for him, I then called up the attorney to corroborate the story. And the attorney told me that he had taken the case and would see what there was to it.”

Then he states that there had been a publication of the matter in the other city paper, the “Tribune,” and he is asked:

Question. “In what particular did yours differ from the Tribune story ? ”

Answer. “Well, about the only particular I think was the fact that I named the officer who was accused of stealing' the money, and that the case had been given to an attorney.”

And that is all the means he took to ascertain the truth. He had called up Jenkins’ attorney and asked him, and the attorney said he had taken the case and he would see into it — giving him no assurance of the truth of Jenkins’ statement. In the article itself the reporter states that when Jenkins was searched and the money taken, several persons were present, as follows:

“It is said that several members of the board of public safety were present at the time, and Officer Turnbull was there and helped to search. ’ ’ And yet he made no effort at all to reach either of those parties— parties that were said to be present. Several members of the board of public safety, and another officer present at the time the money was taken, and who, the evidence showed, saw the money laid out upon the table and put into an envelope, and it was twelve dollars and some cents. The evidence, therefore, shows clearly and conclusively that he did not use reasonable diligence in ascertaining, before publishing this article, the truth of Jenkins’ statement; and therefore the publication was in no sense shown to have been privileged.

In Post Publishing Co. v. Moloney, supra, page 84, 87, it is said:

“Publications having a qualified privilege are more numerous, and are those where the privilege arises out of the circumstances of the publication. Good faith in the publication, and the exercise of reasonable diligence to ascertain the truth of its statements are essential to the privilege, which is said to be qualified because the plaintiff may recover, if actual malice be shown, notwithstanding the existence of the circumstances which would otherwise make the publication a privileged one.”
“It was proven on-the trial, that the plaintiff was a policeman of Cincinnati at the time of the publication, and had been for a long time prior thereto; that he had never been in the workhouse, nor charged with any crime, or misconduct; and that his general reputation was good. The evidence also tended to prove that the truth could have been easily ascertained by the employe of the defendant who wrote the article, upon proper inquiry, and that he had information of the facts before the article was published.”

And that doctrine applies here. This reporter could easily have ascertained the truth by inquiring of these members of the board of public safety, and of Turnbull, who were present when the man was searched, and the money taken out and laid upon the table. And that important element in this ease the court eliminated, entirely in its charge to the jury.

For the reasons stated, and because the verdict is clearly against the weight of the evidence, the judgment is reversed and cause remanded.

Cook and Burrows, JJ., concur.


text:
    APPEAL — STOCKHOLDER’S LIABILITY.
    [Franklin (2nd) Circuit Court,
    June, 1906.]
    Wilson, Sullivan and Dustin, JJ.
    F. M. Marriott v. Columbus, S. & H. Ry.
    Where Issues as to Certain Parties are not Determined Orders as to the Lia-bh,itt or Others are Interlocutory only and not Appealable.
    Where a suit has been brought to enforce the statutory liability of stockholders in a corporation and the trial court has left undetermined some of the issues as to certain parties, so that the pro rata liability of ail may not be finally determined with certainty, a reviewing court has no jurisdiction to entertain an appeal by certain of the parties on orders made as to them by the trial court. Such orders are interlocutory and not final.
    [For other eases in point, see 1 Cyc. Dig., “Appeals,” §§ 287-296; 5 Cyc. Dig., “Judgments and Decrees,” §§ 22-51. — Ed.] ,
    [Syllabus approved by the court.]
    Q. H. Stewart and F. C. Rector, ior plaintiff.
    W. O. Henderson and others, for defendant.
   DUSTIN, J.

Upon a discussion of the form of entry to be made herein (based upon a former opinion of the court) it was suggested for the first time that the issues as to certain parties herein (alleged stockholders) had not been determined by the common pleas court, but had been expressly reserved.

The attention of the court had not previously been called to that fact, either in brief or oral argument, by any of the numerous counsel engaged in the case; nor had it been observed by the court.

It presented at once an embarrassment to the final settlement of the ease, which the court suggested might possibly be remedied by a unanimous consent that such issues be considered and disposed of by this court, before final judgment upon the whole ease.

Unanimous consent could not be obtained to that plan; and the court, on reflection, is of the opinion, that even by unanimous agreement, such issues could not legally have been brought into this court, without a previous determination by the court below.

We are brought, therefore, face to face with the very serious question as to whether this court has any jurisdiction at all, in view of the failure of the lower court to determine whether certain parties were liable or not as stockholders.

Upon the theory that the' case is inseparable so far as determining the ratable liability is. concerned, we held that the appeal of one party brought up the whole ease.

Conversely, is it not true that the failure of the trial court to pass upon the liability of one party prevents an appeal by the remainder 1

There can be no final judgment rendered until all the issues as to liability are determined; because the determination of any one of them would either increase or diminish the pro rata liability of the remaining stockholders.

We are of the opinion, therefore, that the order of the common pleas court of July, 1905, was interlocutory -and not final. Dougherty v. Walters, 1 Ohio St. 201.

The Supreme Court, in the case of Mason v. Alexander, 44 Ohio St. 318, 335 [7 N. E. Rep. 435], makes a very proper distinction between cases where the debts of the corporation undoubtedly exceed the liability of all the stockholders, and cases where a partial assessment only is necessary. Spear, J., says:

“The position would be different if it were necessary to order contribution, an adjustment of equities, and an equalization of burdens among stockholders. But that necessity, we have found, does not exist here. The liability of no stockholder against whom a judgment was rendered could possibly be increased or diminished by the disposition of the issues to be determined later. The debts of the corporation, as found by both referees, and not disputed, far exceeded the capital stock; so that, in any possible event, every stockholder that could be holden at all was liable for an amount equal to his stock.”

In our former opinion we referred to the liability of the stockholders for the face value of their stock, but did not say that we would render judgment for that amount.

We preferred to consider further the. question of amount, especially as to the margin to be allowed to cover costs (including counsel fees) and the various contingencies liable to happen before final settlement.

tinder the findings of the master, there seems to be no necessity, even to cover contingencies, to render judgment for 100 per cent.

Therefore, the holding in Mason v. Alexander, supra, does not come to our relief.

The case being undisposed of, in vital respects, in the common pleas court, is not appealable and we have no jurisdiction.

The suggestion of certain counsel, that creditors will waive, so far as the remaining parties are concerned, the proportionate liability of those whose issues were undisposed of below, does not relieve the situation. The old proposition, that consent cannot give jurisdiction, interferes. The order, we must find, was interlocutory and not final.

The question as to fees of counsel, therefore, is not before us. ' Nor is it necessary to indicate our views as to the full' amount of the judgment to be rendered, to pay which an assessment of only 25 per cent of the stock seems to be at present required.

The appeals will be dismissed. •

Wilson and Sullivan, JJ., concur.


author: WINCH, J.

text:
    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    November 12, 1906.]
    Marvin, Winch and Henry, JJ.
    T. K. Dissette, Exr. of, etc. v. Lawrence Publishing Co. et al.
    Proper Party Plaintiff to Recover Converted Corporate Funds,
    When officers of a corporation have converted corporate funds to their own uste, the corporation or a person who is a stockholder at the time suit is brought, suing in the name of the corporation, is a proper party plaintiff to recover such funds; but if a dividend previously declared has been converted, then any person holding stock at the time of the conversion can maintain such action in his own name.
    [For other cases in point, see 3 Cyc. Dig., “Corporations,” §§ 764-766.— Ed.]
    [Proofs of this decision and syllabus were submitted to Judge Winch and corrected.]
    Error to Cuyahoga common pleas court.
    Dissette, Dissette & Dissette and W. M. Raynolds, for plaintiff in error.
    Carr, Stearns & Chamberlin, for defendants in error.
   WINCH, J.

This was an action brought by plaintiff against the defendant company and its directors and officers to recover his share of money claimed to have been unlawfully paid out by the company to said officers and directors as salaries, when it should have been paid out as dividends. He alleges that he was a stockholder of the company at the time the acts complained of occurred and that he brings his action for the benefit of all stockholders who may. desire to join with him in prosecuting the same.'

There is no allegation that plaintiff was the owner of any stock in the corporation at the time he brought his action, and for this reason a demurrer to the petition was sustained.

The allegation with regard to the wrongdoing of the officers and directors is as' follows:

“That in the month of October, 1904, the defendants or said directors, being officers and employes of the Lawrence Publishing Company, without any notice to this plaintiff, at a meeting of said'directors, did make a distribution or dividend of the net earnings of said company to the amount of about $45,600. That said sum of $45,600 was in fact a dividend duly declared out of the profits of said company by said directors, but in order to defraud this plaintiff of his proper proportion of said dividend, said sum was made payable to themselves alone by way of salaries; said salaries in said resolution being made to date back some ten months prior to the passage of said resolution. That besides the said estate and defendants herein, there is but one stockholder of said corporation. That no one not a director or an employe shared in said dividend, but said directors wrongfully converted the entire sum of $45,600 to their own use, and have refused and do now refuse to give to this plaintiff his proper proportion of said dividend. That said salaries were excessive and were fixed by their own votes alone and for the purpose of depriving non-offiee-holding stockholders of their fair share of the profits.”

If this allegation is to be construed as intending that the directors duly declared a dividend of a certain per cent payable to all stockholders of record at the time, which fund the officers subsequently converted to their own use, then manifestly, plaintiff might maintain his action at law against the corporation for this debt due him. But we do not so construe the language of the petition. We think the pleader states that instead of declaring a dividend, as they should have done, the directors voted the surplus funds to themselves and other officers, as additional salaries.

This wrongdoing created a cause of action in favor of the corporation for the recovery of the money thus unlawfully disbursed. The money when recovered would be available for a dividend to be then declared, payable to the stockholders then owning the stock. Upon the corporation’s refusing to bring the action, any stockholder might bring it in behalf of the corporation, but one who had ceased to be a stockholder could not bring it. He has no further interest in the corporation, for undeclared dividends belong to the purchasers of shares.

This view is taken in the case of Zinn v. Baxter, 65 Ohio St. 341, 366 [62 N. E. Rep. 327].

Counsel for plaintiff; contend that unless such action can be brought by one who owned stock at the time the wrong occurred, but has since parted with his stock, then no action can be brought by anybody, because a stock holder who acquires his stock thereafter cannot maintain the action.

■ This argument not only involves a non sequitur, but the last proposition is not the law in Ohio.

The case of Hawes v. Oakland, 104 U. S. 450 [26 L. Ed. 827], is cited -as authority for the rule that only a stockholder who was such at the time of the transactions of which he complains, can maintain an action in equity against the corporation and its directors and officers to recover on rights primarily assertable by the corporation.

It is true that such is the doctrine of the federal courts and, at the time the case cited was' decided, the Supreme Court of the United States formulated that principle as part of rule 94 of practice in equity.

The reason for the holding as well as for rule 94 is apparent. There had been so many collusive transfers of stock for the purpose of vesting jurisdiction of such cases in the federal courts, that extreme measures were necessary to prevent the practice.

We are inclined to think that the more reasonable rule and the one most likely to be adopted in a. proper case in Ohio, is expressed by the Supreme Court of North Carolina in the case of Moore v. Mining Co. 104 N. C. 534 [10 S. E. Rep. 679], where it is said that it should appear that the plaintiff is a bona fide owner of stock; that he bought the same in good faith and not for mere vexatious purposes.

Judgment affirmed.

Marvin and Henry, JJ., concur.