author: PARKER, J.

text:
    BENEFICIAL ASSOCIATIONS — INSURANCE.
    [Lucas (6th) Circuit Court,
    March 10, 1904.]
    Par her, Hull and Haynes, JJ.
    Kate Pete v. Woodmen of the World.
    1. Membeb op Beneficial Association Conclusively Presumed to Know Constitution and Laws of Order, When.
    “A member of a beneficial association in whose application for membership and a certificate of. insurance it is stipulated that such certificate shall become” null and void in event of his failure to comply with all the laws and rules of the association, and whose certificate also contains a stipulation that it is issued and accepted “subject to all the laws, rules and regulations” of the association and “shall be null and void if said sovereign (the member) does not comply with all * * * the laws, rules and regulations of the Sovereign Camp” and that if the “dues and beneficiary fund assessment levied against the person named in the certificate by the association are not paid as required by the constitution and laws of the order, this certificate shall be null and void” is conclusively presumed to have knowledge of the provisions of such constitution, laws, rules and regulations, and to have assented thereto, and he is bound thereby.
    2. Irregular Acts of Agent Contrary to Laws of Association not Binding Upon Latter.
    Where the laws of the order in such case provide for suspension and loss of benefits in case the member shall be delinquent with respect to payment of assessments, and he is so delinquent, the fact that a local secretary may have irregularly and without authority received from the member or the beneficiaries on former occasions payments of assessments with respect to which the member was delinquent and may have reported the reinstatment of the member, and the further fact that the general officers of the association in ignorance of such unauthorized and irregular acts on the part of the local secretary may have received the delinquent assessments thus collected, will not estop the association from availing itself of subsequent delinquencies as a defense to a suit on the certificate; nor will it therefore be required to accept payment of such subsequent delinquencies under like conditions as previous delinquencies were so irregularly received. A fortiori where when the previous delinquencies were received the insured was in good health and entitled to discharge his delinquencies and be reinstated, irregularities in the receipt of such delinquencies will not affect the right of the association to decline to receive delinquent assessments after the insured is dead or while he is dying; nor its right to defend on the ground that such delinquency terminated the rights of the beneficiaries under the certificate in accordance with the laws of the association.
    K. Payment of Overdue Assessment After Fatal Injury, etc., Comes too Late, When.
    Payment of overdue assessments by a son of the delinquent member after the death of such member or while he is dying will neither prevent the ipso faoto suspension from membership of the delinquent member, or the certificate of insurance held by him from becoming null and void under the laws of the association so provided in such a case, where there are no incidents connected with his relations to the association that would fairly lead him to suppose that reinstatement would he granted if he should become sick while delinquent, or, . that suspension and loss of benefits would not attach by reason thereof.
    4. GENERAL Calls for Assessments Do not Waive an Ipso Facto Suspension of Member.
    Calls sent out by a beneficial association addressed to its local secretaries directing them to collect the assessments therein named, and to mail or deliver to every member of the local order a reminder to pay the assessment and dues on or before certain date, but without specially naming any member, is not a waiver by the association of its constitution and laws providing for the ipso faoto> suspension from membership of delinquent members. Such calls can only be construed as calls upon, such delinquents as are still in good health and present themselves in person for reinstatement, or furnish the prescribed certificate of good health, as required by the laws of the association.
    5. Local Agent Cannot Suspend Constitution op Association.
    A local secretary of a beneficial association is without authority, by, extending the time of payment or accepting overdue assessments without the knowledge or assent of the association or its ofiicers, to suspend a provision in the constitution and by-laws of the association to the effect that nonpayment of assessments at the time they become due shall ipso facto suspend the delinquent from membership, when such authority to agents is expressly denied by the laws of the association, and members of the association are conclusively presumed to have knowledge of such absence of authority.
    Harvey Scribner and A. H. Coldham, for plaintiff:
    The suspension and reinstatement of members was a mere formality-concocted for the purpose of receiving assessments at any time they might be paid, ,if the member was well, and of refusing past due assessments if the member died. This cannot be done, as an insurer will not be permitted to make a show of continued leniency or a pretense of liberality repeated with such uniformity as to put the insured off his guard, and afterward by a sudden change in his conduct without notice to the insured declare a forfeiture when the latter is helpless to avert the consequence and the rule has been held not to be altered by the fact that the in'sured was sick or in bad health at the time the payment was made. 19 Am. & Eng. Ene. Eaw (2 ed.) 56, 57; Hartford Life Arm Ins. Co. v. Unsell, 144 U. S. 439 [12 Sup. Ct. Rep. 671]; Phoenix Mut. E. Ins. Co. v. Doster, 106 U, S. 30 [1 Sup. Ct. Rep. 18]; Insurance Co. v. Tullidge, 39 Ohio St. 240; Thompson v. Insurance Co. 104 U. S. 252; Modern Woodmen of A. v. Tevis, 111 Fed. Rep. 113 [49 C. C. A. 256]; Northern Assur. Co. -v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133]; Modern Woodmen of A. v. Tevis, 117 Fed. Rep. 369 [54 C. C. A. 293]; Swander v. Insurance Co. 25 O. C. C. 3.
    In Union Cent. E. Ins. Co. v. Hook, 62 Ohio St. 2.56 [56 N. E. Rep. 906], cited by defendant in error the policy provided that no agent could extend the time of payment of premium. The court held that this was binding. That does not affect the question here or acquiescence by the company in a long continued and universal custom of an agent to extend the time. 1 The court below suggested that the rule was different in fraternal societies. It wás nót so held in Modern Woodmen of A. v.. Tevis, supra, and the following cases. Sweetzer v. Mutual Aid Assn. 117 Ind. 97 [19 N. E. Rep. 722]; Stylow v. Insurance Co. 69 Wis. 224-[34 N. E. Rep. 151; 2 Am. St. Rep. 738],
    Borgraefe v. Knights of Honor, 22 Mo. App. 127, cited by defendant,, is not good law. If these forfeitures were rigidly exacted, these associations would go to pieces for the reason that the members belong to the laboring class who are not always able to pay promptly. Stylow v. Insurance Co. 69 Wis. 224 [34 N. E. Rep. 151; 2 Am. St. Rep. 738]; Connelly v. Benefit Assn. 58 Conn. 552 [20 Atl. Rep. 671; 9 L. R. A. 428; 18 Am. St. Rep. 296].
    The relation between the grand and subordinate lodge is not,, strictly speaking, that of principal and agent. Gage v. Grand Lodge,. 48 Hun 137.
    In Sweetzer v. Mutual Aid Assn. 117 Ind. 97 [19 N. E. Rep. 722],. insured was behind two assessments when he died; but the court say: It was peculiarly a question of fact for the jury to determine whether or not, under all the circumstances, the conduct of the association was not such as to throw the insured off his guard and to raise an implied agreement on its part to continue in the same course of dealing so long as it received his money without giving notice of a contrary purpose. Gage v. Grand Lodge, 48 Hun 137; Olmstead v. Insurance Co. 50 Mich. 200 [15 N. W. Rep. 82]; Jackson v. Relief Assn. 78 Wis. 463 [47 N. W. Rep. 733].
    Pete was suspended and reinstated at least five times and the sovereign lodge each time made the assessment for the succeeding month while he still stood suspended on their books. This is a waiver of the forfeiture under all the authorities. Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 196 [7 Sup. Ct. Rep. 500]; Globe Mut. L. Ins. Co. v. Wolff, 95 U. S. 326; Wing v. Harvey, 5 De. M. & G. 265; Frost v.. Insurance Co. 5 Denio 154 [49 Am. Dec. 234]; Bevin v. Insurance Co. 23 Conn. 251; Insurance Co. v. Slockbower, 26 Pa. St. 199; Viele v-Insurance Co. 26 Iowa 9 [96 Am. Dec. 83]; Hodsdon v. Insurance Co. 97 Mass. 144 [93 Am. Dec. 73]; Knights of” Pythias v. Kalipski, 163. U. S. 289, 298 [16 Sup. Ct. Rep. 1047].
    In the last case the sovereign lodge was ignorant of the fact that the insured had forfeited his rights for a period of three months and the court held that it could hot plead ignorance as a defense; that it was-its business to know, and this as relating to a transaction with one member. What would the court say of a sovereign lodge that would plead ignorance of the conduct of the secretary of a subordinate in relation to all its members for a period of five years? Supreme Lodge K. of P. v. Wellenvoss, 119 Fed. Rep. 671 [56 C. C. A. 287]; Phoenix L- Ins. Co. v. Raddin, 120 U. S. 183, 196 [7 Sup. Ct. Rep. 500; 30 L. Ed. 644] ; Bacon, Ben. Soc. 1431; Stylow v. Insurance Co. 69 Wis. 224 [34' N. W. Rep. 151; 2 Am. St. Rep. 738].
    Forfeiture of such contracts are not to be favored. Modern Woodmen of A. v. Jameson, 48 Kan. 718 [30 Pac. Rep. ,460] ; Supreme Council A. E. of H. v. Orcutt, 119 Fed. Rep. 682 [56 C. C. A. 294].
    C. W. Neilson and L. T. Williams, for defendant. ■
    Members of a fraternal insurance order are charged with notice of the laws of the order. Bliss, Life Insurance 463; May, Insurance (3 ed.) 552; Gaff v. Insurance Co. 10 Re. 86 (18 Bull. 310); affirmed by Supreme Court, no report, Gaff v. Insurance Co. 15 Bull. 373; Niblack, Insurance 12.
    When a life insurance policy is accepted by the insured, and the policy is in his possession for several years, and he had paid the premiums thereon, lie will be conclusively presumed to have the knowledge of all the provisions thereof, and he is conclusively bound by all the terms of the policy, whether he had read it or not. Union Cent. L- Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E.- Rep. 906] ; Travellers Ins. Co. v. Myers, 62 Ohio St. 529, 541 [57 N. E. Rep. 458; 49 L. R. A. 760]; Allen v. Insurance Co. 123 N. Y. 6 [25 N. E. Rep. 309]; Walsh v. Insurance Co. 73 N. Y. 5; Monitor Ins. Co. v. Buffum, 115 Mass. 343.
    No agreement to extend the time of payment of preipiums or assessments had by a subordinate officer can bind the sovereign camp. Ujnion Cent. L. Ins. Co. v. Flook, 62 Ohio St. 256 [56 N. E. Rep. 906]; Travellers Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760]; Walsh v. Insurance Co. 73 N. Y. 5, 10; Gould v. Insurance Co. 90 Mich. 302 [51 N. W. Rep. 455] ; German Ins. Co. v. Heiduk, 30 Neb. 288 [46 N. W. Rep. 481; '27 Am. St Rep. 402]; Northern Assurance Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133].
    No act or agreement of a subordinate lodge or officer, contrary to the terms of the policy or of the constitution and laws of the order, can estop the order or its supreme lodge from insisting on the exact terms of the policy and of its constitution and laws. Union Cent. L. Ins. Co. v. Buxer, 62 Ohio St. 385 [57 N. E. Rep. 66; 49 L. R. A. 737]; Union Cent. L- Ins. Co. v. Hook, 62 Ohio St. 256 [56 N.- E. Rep. '906] ; Gaff v.- Insurance Co. 10 Re. 86 (18 Bull. 310); Lyon v. Supreme Assembly, 153 Mass. 83 [26 N. E. Rep. 236]; Travellers’ Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458;' 49 L. R. A. 760]; Kocher v. Supreme Council, 65 N. J. Eaw 649 [48 Atl. Rep. 544; 86 Am. St. Rep. 687]; McIntyre v. Insurance Co. 52 Mich 188 [17 N. W. Rep. 781]'; Cleaver v. Insurance Co. 65 Mich. 527 [32 N. W. Rep. 660; 8 Am. St. Rep. 908] ; Thompson v. Insurance Co. 104 U. S. 252.
    The act of the secretary of the local camp in receiving past due assessments in violation of the rules of the order, does not estop the supreme camp from insisting upon the suspension or forfeiture. Modern Woodmen of A. v. Tevis, 117 Eed. Rep. 369 [54 C. C. A. 293] ; Grand Lodge A. C. U. W. v. Jesse, 50 Ill. App. 101; Bacon, Beneficial Societies 426; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133]; Royal Arcanum v. Taylor, 121 Fed. Rep. 66 [57 C. C. A. 406]; Burbank v. Boston Relief Assn. 144 Mass. 434 [11 N. E. Rep. 691]; Lyon v. Supreme Assembly, 153 Mass. 83 [26 N. E. Rep. 236]; McCoy v. Insurance Co. 152 Mass. 272 [25* N. E. Rep. 289]; Union Cent. L. Ins. Co. v. Buxer, 62 Ohio St. 385 [57 N. E. Rep. 66; 49 L. R. A. 737] ; Graveson v. Life Assn. 6 Circ. Dec. 327 (8 R. 171) ; affirmed under report Graveson v. Life Assn. 56 Ohio St. 725 [49 N. E- Rep. 1110]; Phoenix Mut. L. Ins. Co. v. Doster, 106 U. S. 30 [1 Sup. Ct. Rep. 18]; Thompson v. Insurance Co. 104 U. S. 252; Haupt v. Insurance Co. 110 Ga. 146 [35 S. E. Rep. 342],
    Even if a custom of receiving overdue assessments from members in good health is shown and be held binding on the insurer, still that does not show a custom of receiving overdue assessments from members in ill health, and does not bind the insurer ,to a member whose overdue .assessments were paid when he was in ill health. Schmidt v. Modern Woodmen, 84 Wis. 101 [54 N. W. Rep. 264]; Elder v. Grand Lodge A. O. U. W. 79 Minn. 468 [82 N. W. Rep. 987]; National Mutual Ben. Assn. v. Miller, 85 Ky. 88 [2 S. W. Rep. 900]; Lewis v. Insurance Co. 44 Conn. 72; Mutual Ins. Co. v. Insurance Co. 100 Pa. St. 172; Grossman v. Benefit Assn. 143 Mass. 435 [9 N. E. Rep. 753].
    An attempted reinstatement. of a suspended member by a local secretary in any way other than the way prescribed by the laws of the ■sovereign camp is utterly void and of no effect. Royal Highlanders v. Scoville, 92 N. W. Rep. 206 (Neb.) ; Field v. National Council, 64 Neb. 226 [89 N. W. Rep. 773, 775]; Rood v. Benefit Assn. 31 Fed. Rep. 62; Graves v. Modern Woodmen, 85 Minn. 396 [89 N. W. Rep. 6]; Elder v. Grand Lodge A. O. U. W. 79 Minn. 468 [82 N. W. Rep. 987]; Borgraefe v. Knights of Honor, 22 Mo. App. 127; State v. Temperance-Assn. 42 Mo. App. 485; Karcher v. Supreme Lodge, 137 Mass. 368; Hall v. Supreme Lodge, 24 Fed. Rep. 450. ,

    A subordinate officer cannot bind the sovereign camp by accepting overdue assessments after the death of the insured. Union Ins. Co» v. McMillan, 24 Ohio St. 67; Miller v. Insurance Co. 110 Ill. 102 ‘ Brown v. Grand Council, 81 Iowa 400 [46 N. W. Rep. 1086]; Joyce, Insurance Sec. 1284; Thompson v. Dayton, 40 Ohio St. 63, 69; Todd v. Railway Co. 19 Ohio St. 514, 526; Pennsylvania Co. v. Platt, 47 Ohio St. 366 [25 N. E. Rep. 1028].
    The rules and laws of the defendant are competent evidence. Zimmerman v. Masonic Aid Assn. 75 Fed Rep. 236, 238; Myers v. Lucas, 8 Circ. Dec. 431, 434 (16 R. 545); Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill. 617; Masonic Mut. Ben. Assn. v. Severson, 71 Conn. 719 [43 Atl. Rep. 192]; Secs 5284, 5285 Rev. Stat.
    Fraternal societies are not governed by the same rules that govern old line insurance companies. Protected Home Circle v. Tisch, 24 O. C. C. 489, 493; See also, Townsend v. Plarrison, 58 Ohio St. 398 [50 N. E. Rep. 985]; Bradford Belting Co. v. Gibson, 68 Ohio St. 442, 118; Modern Woodmen of A. v. Tevis, 117 Fed. Rep. 369, 371 [51 C. C. A. 293]; Royal Arcanum v. Taylor, 121 Fed. Rep. 66, 68 [57 C. C. A. 106].
   PARKER, J.

This action was brought in the court below by Kate Pete, the beneficiary under a certain certificate of insurance issued to her husband, Joseph Pete, by the Woodmen of the World, on October 23, 1900, entitling her 'to receive $500 upon the death of her husband, if certain conditions upon which this certificate was issued were complied with. It appears that her husband came to his death upon February 6, 1903. She applied to the association for payment and it was refused. Thereupon she began her action.

The defense of the association was that the conditions of the certificate had not been complied with, in that Mr. Pete had failed to pay-assessments which he was required to pay under the rules of the association and under his contract with the association; that he had failed to pay certain assessments which were overdue at the time of his death, so that, under the terms of the contract the certificate had become null and void.

It was admitted upon the part of the plaintiff that Mr. Pete had failed to pay certain assessments at the time they fell due, and that certain assessments were overdue at the time of his death. But it was contended upon her behalf that the association had customarily so treated such. delinquencies as that it had waived the condition and was, therefore, es-topped from asserting it and could not insist upon a forfeiture, but should be required to pay the amount promised.

On behalf of the association, it is admitted that when these assessments became overdue from'time to time, so that under the laws of the order the member became suspended, he was reinstated by the action of a certain representative of the association without being required to comply strictly with the rules of the association in that behalf; but they insist that in so far as the rules were deviated from and violated, this was done by such representative of the association in making the collections of the assessments and transmitting them, without knowledge upon the part of the association that he was thus deviating from the method that he should have pursued under the law; in other words, without knowledge of the fact that he was violating his instructions and his duties as an agent; and therefore the association insists that no claim of waiver can be predicated upon such action, and that no estoppel can arise out of it.

The case was tried by the court and jury and a verdict returned for the defendant under the instruction of the court, and judgment entered thereon, and it is to reverse that judgment that error is prosecuted in this court by the plaintiff in error, who was the plaintiff below.

In order that the controversy may be fully understood, it is necessary that certain provisions of the constitution and by-laws of the association shall be adverted to. This is what is known in general terms as a beneficial association. It is called The Woodmen of the World. It consists mainly of a sovereign camp, which is made up of subordinate camps or branches of the association. Section 2 of the constitution and by-laws of the sovereign camp of the Woodmen of the World provides, among other things, with respect to its powers that:

“ It shall have the power to enact laws for its own government the government of its head camps, and camps, and for the control and manage-, ment of the business of the order generally, except in the Pacific and Canadian jurisdictions, and to provide penalties for the violation thereof. It shall have power to prescribe the rights, privileges, duties and responsibilities of itself, its camps and the membership of the order, and to finally determine the same.”

Section 59 provides that:

“ The following conditions shall be made a part of every beneficiary certificate and shall be binding on both member and order.”
“First. This certificate is issued in consideration of the representations, warranties and agreements made by the person named herein in bis application to become a member and in consideration of tbe payment made when introduced in prescribed form, also bis agreements to pay all assessments and dues that may be levied during tbe time be shall remain a member of tbe order.”

Second. If tbe admission on fees, dues and beneficiary fund assessments levied against tbe person named in this certificate are not paid to tbe clerk of bis camp, as required by the constitution and laws of tbe ■order, this certificate shall be null and void, and continue so until payment is made in accordance therewith. ’ ’

Section 68 provides that:

“No officer, employe 01^ agent of the sovereign camp, or of any camp, has the power, right or authority to waive any of the conditions upon which the beneficiary certificates are issued, or to change, vary or waive any of the provisions of this constitution or these laws. Each and every beneficiary certificate is issued only upon tbe conditions stated in, and subject to the constitution and laws.”
“The constitution and laws of the sovereign camp of the Woodmen ■of the World now in force, or which may hereafter be enacted, by-laws of the camp now in force, or which may be hereafter enacted, the application and certificate shall constitute a part of tbe beneficiary contract between the order and the member. ’ ’

Section 81 provides that:

“Camps shall only have such powers as are given by the constitution and laws of the sovereign camp. They may adopt by-laws for their own government, not inconsistent with tbe constitution and laws of the sovereign camp, but such by-laws must be submitted to and approved by the sovereign commander before taking effect.”

. Section 92 provides among other things that:

“The clerk of the camp shall not, by acts, representations, waivers, or by vote of his camp, have any power or authority not delegated to him or to the camp by the constitution and laws of the order to bind the sovereign camp or his camp.”

Among other provisions to be noted are the following:

“Section 107. On or about the twentieth day of each month the sovereign commander and chairman of the sovereign finance committee shall determine the number of assessments, if any, necessary to provide for the payment of death benefits, monuments and total disability claims, and shall so notify the sovereign clerk.
“Section 108. Every member of this order shall pay to the clerk of his camp, every month, one monthly payment of emergency fund dues and sovereign camp and camp dues, and unless otherwise notified by the clerk of his camp, in the manner herein provided, shall pay to said clerk every month one assessment in the beneficiary fund. He shall pay any additional assessments for beneficiary fund or special general fund dues; •which may have been ordered by the sovereign camp. If he fails to pay' any of the above assessments or dues on or before the first day of the; month following, he shall stand suspended, and during such suspension-, his beneficiary certificate shall be void.
" Section 115. Should a suspended member personally appear and'. apply for reinstatement within three months from the date of his sus^-pension and pay all arrearages, if in good health and is not addicted to" the excessive use of intoxicants or narcotics, he shall be restored to membership and his beneficiary certificate again become valid as soon as said payment shall have been received and recorded by the clerk of his camp.
“ If a delinquent member does not appear in person to pay his arrearages, he must send to the clerk a written statement on the official form furnished by the sovereign camp that he is in good health, and is not addicted to the excessive use of intoxicants or narcotics, as a condition precedent to reinstatement and waiving all rights thereto if his said written statement shall be found to be untrue. No suspended member shall be reinstated until he has either appeared before the clerk in person, and paid his arrears and dues, or the clerk shall have actually received his written application for reinstatement, accompanied with all ar-rearages and dues. An attempted reinstatement shall not be operative or binding, unless the member be in fact in good health at the time.
“ If any of the representations or statements made by said applicant are untrue, then said payments shall not cause his reinstatement nor operate as a waiver of the above conditions.
“ Section 118. No suspended member shall be reinstated, whose health is at the time impaired, or who has used intoxicants to such an extent as to become frequently intoxicated, or who has become addicted to the use of opiatés, cocaine, chloral, or other narcotic or poison to such an extent as to impair his health, or who has made false representations in his application to become a member, or been guilty of any of the offenses mentioned in these laws.
Should any clerk knowingly violate this section, he shall, on proof thereof, be suspended from his office by the sovereign commander and expelled from the order by his camp.
“ Section 119. A member suspended for nonpayment of assessments or dues is not entitled to any benefits of the order. - He shall not be entitled to receive the pass words, ñor to participate in any of the business or social proceedings of his camp. He may be admitted at a meeting only to pay his arrearages and must retire if he fails to do so.”

Section 24, prescribing the duties of the sovereign officers contains this provision:

“As soon as the required’monthly report has been received from a camp, he (meaning the sovereign clerk) shall mail a notice to the last known address of every member reported suspended in said report informing him of the requirements of the laws of the order to become reinstated, but the failure to send such a notice shall in no wise affect the legal suspension of said member.”

It will be observed that under these rules the failure to pay the assessments when due results in the suspension of the member ipso facto, without notice, and that after suspension and until reinstatement, he is entitled to none of the benefits of the order.

Joseph Pete was a member of this order. He became a member upon his application, the original of which is introduced in evidence, here. The application is made upon a regular form provided for that purpose by the association; and, among other provisions in the application is this:

“I hereby certify, agree and warrant that all statements, representations and answers in this application, consisting of two pages, as aforesaid are full, complete and true, whether written by my own hand or not, and I agree that if I fail to comply with all the laws and rules of the order or association now in force or hereafter adopted, my beneficiary certificate shall become void, and all rights of any person thereunder shall be forfeited. I further agree to pay all assessments and dues for which I may become liable as a member of the order, as required by its constitution, by-laws,” etc.

The beneficiary certificate issued to Joseph Pete contains this provision :

“ This certificate is issued and accepted subject to all the conditions on the back hereof, and subject to all of the laws, rules and regulations of this fraternity now in force or that may hereafter be enacted, and shall be null and void if said sovereign does not comply with all of said conditions and with all of the laws, rules and regulations of the sovereign camp of the Woodmen of the World, that are now in force or which may hereafter be enacted, and with the by-laws of the camp of which he is a member.”

It will be observed that the member is called a sovereign. Upon the back of the certificate, among other conditions is this:

“ If the admission fees, dues and beneficiary fund assessments levied against the person named in this certificate are not paid to the clerk of liis camp, as required by the constitution and laws of the order, this ■certificate shall be null and void, and continue so until payment is made in accordance therewith.”

These stipulations in the application and certificate, together with the provisions of the laws of the association quoted, constitute the essential terms of the contract between the insured and the association, necessary to be considered by us, and by which the beneficiary is bound. It is well settled by the authorities that all of these rules, these laws of the order, constitute a part of the contract, binding upon the insured. And it is well settled by the authorities that under circumstances like these shown .in the record here, the insured is conclusively presumed to have known what these laws were and what they required of him.

Notwithstanding this it appears that on various occasions (some five or six occasions during the year 1902) he failed to pay his assessments when they fell due, or within one month thereafter, as is required by the laws of the order; that in pursuance of his duties, the secretary of the local camp from time to time reported his delinquencies; that before the expiration of the three months limit upon the right to rein•statement, the delinquencies were paid, after which the local secretary, in accordan.ce with -the laws of the order would report to the sovereign camp reinstatement of the member. But, as I have read, the laws required that the delinquent should appear in person to pay his arrearages, •or must send to the clerk his written statement on the official form furnished by the sovereign camp that he is in good health, as a condition precedent to reinstatement, and waiving all rights thereto if said written .statement shall be found to be untrue.

It appears that the secretary of the local camp did not require this of Mr. Pete, but permitted him and his wife and son, from time to time to pay up his arrearages, without requiring the personal appearance of Mr. Pete or the furnishing of a written statement that he was at the time in good health, and, upon the arrearages being paid up, he reported the member to the sovereign camp as being reinstated and in good standing in the association.

Now there is no evidence in the record that the officers of the sover* eign camp ever had any notice or were informed in any way of the irregularities, or breach of duty upon the part-of the secretary of the local ■camp in thus proceeding to reinstate this member.

As I have said, Mr. Pete died upon February 6, 1903; he died very suddenly; he was at work upon the streets here in the city of Toledo for the Electric Light and Traction Company, at work at the tracks, when' he fell upon the street. There seems to be some doubt whether his death resulted from some heart trouble or from an accident.' However that may be, he died suddenly. His son, who was present at the time, when it became apparent that he was dead or in a dying condition, seems to have' hurried home to their residence not very far away, and there procured the book upon which entries were made of the payment of assessments,, and with it hurried to the post office in this city, where the secretary •óí the local camp was employed, and where he received payments, and' there without notifying the secretary of his father’s condition, tendered to him the assessments which had fallen due upon the first of December,, 1902, the first of January, 1903, and the first of February, 1903.

It appears that the secretary of the local camp, as a matter of accommodation, had advanced for Mr. Pete, the assessment that fell due-December 1, 1902, without any request on his behalf, but assuming that he would desire it, and that it would be ’a favor to him to have it advanced, so that he had not been reported to the sovereign camp as delinquent on account of that assessment, though Mr. Pete had not paid it and was really owing it to the secretary of the local camp: The assessment falling due upon the first day of February need not have been; paid until the last day of that month, as the member had one month within: which to pay.

In pursuance of what the laws required of. him, the clerk had made-his report to the sovereign camp on the sixth day of February of the-payments received on account of the assessments due during the month-of January — the assessments for that month. This report should have-been sent upon the fifth, but it appears to have been delayed until the-sixth. It had been made out however and mailed before the son of the insured appeared at the office to pay these delinquencies; and in this, report Joseph Pete is reported as one of the delinquents.

Now when the young man appeared there to pay the assessment on. February sixth, he did not make known tp the secretary the condition of his father, and the secretary, assuming and supposing, as appears,, that his father was in condition to be reinstated, received the money tendered and receipted for. it. Immediately upon receiving the receipts, the young man said to him that he had some bad news to tell him, and upon the secretary inquiring what it was, young Pete said to him that his father, Joseph Pete, was dead or dying, that if he was not dead he supposed he would be by the time he, the son, should arrive home, or in. substance that. Thereupon the secretary said to him he was very sorry to say that the payment came too late, that it would not do any good, and he then, or in the evening of that day, tendered the money back to the young man, who refused to receive it. It is insisted that this action, the paying of these assesments under these circumstances, served to reinstate Joseph Pete to full membership, and to restore to him all he may have lost by suspension.

We are of the opinion that the court of common pleas took the proper and correct view of the law of this case when it held that the member could not be reinstated in this way; that there was no estoppel and no waiver arising out of the delinquency of the secretary of the local camp in receiving payments as he had received them from time to time on previous occasions, it not appearing that the sovereign camp was advised of his action in the premises.

1 There is a great deal of law bearing upon this question, in the form of precedent cases similar to this, and in the text books, and it is presented in the briefs of counsel and has been reviewed upon the argument, very fully and very ably. But our time will not permit of a review of all these decisions. We content ourselves with simply announcing .the conclusions we have arrived at. We remark, however, that the authorities upon which we rely chiefly and those which seem to us to be most directly in point, and to clearly sustain our conclusions are the cases:

Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133]; Royal Arcanum v. Taylor, 121 Fed. Rep. 66 [57 C. C. A. 406]; Modern Woodmen of A. v. Tevis, 117 Fed Rep. 369 [54 C. C. A. 293]; Union Cent. L. Ins. Co. v. Buxer, 62 Ohio St. 385 [57 N. E. Rep. 66; 49 L. R. A. 737]; Union Cent. L. Ins. Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906]; Travelers Ins. Co. v. Myers, 62 Ohio St. 529, 541 [51 N. E. Rep. 458; 49 L. R. A. 760]; Gaff v. Insurance Co. 10 Re. 86 (18 Bull. 310), affirmed by Supreme Court, no report, Gaff v. Insurance Co. 15 Bull. 373.

Though the laws respecting reinstatement were not strictly enforced by the secretary of the local camp, nor complied with by the assured, it does not appear that the assured was ever in bad health, or otherwise disqualified from becoming reinstated as a member at any of the times when his overdue assessments were accepted and receipted for by such secretary; so that, at most, the waiver could not be said to have gone beyond the formalities prescribed for reinstatement. There was nothing in the incidents that could fairly lead the insured to suppose that if he became sick while delinquent, the reinstatement would be granted; or that if he should die before reinstated the plainly prescribed result of suspension would not attach, but the certificate would be honored just the same as if he had been in good standing at the time of death; and there was nothing in the evidence tending to show that he so thought. The conduct of the son, evidently with the concurrence of the wife, in proceeding with such dispatch to try to discharge the delinquencies while the father and husband was lying dead or dying upon the street indicates that they, at least, had not been misled, but keenly appreciated the critical situation and the necessity of doing everything possible to avert the apprehended consequences. ■

But we may lay aside all consideration of possible erroneous impressions -that may have been made upon the minds of the insured and his family, for the contract was perfectly plain and explicit, and the sovereign camp does hot appear to have been in any way responsible for any notions they may have had that the order would not insist upon substantial compliance with the conditions thereof. The assured having expressly agreed to be bound by the laws which became a part of the contract between him and the company, and having had full opportunity to acquaint himself with such laws (especially the essential parts pertaining to suspension and the results thereof incorporated into his beneficiary certificate which had been in his possession ever after its issue), we hold that he is conclusively presumed to have had knowledge of all the provisions of such certificate and laws affecting his rights and interests, and that he was bound thereby.

We also hold that under the laws of the order the secretary of the local camp was not authorized to extend the time of payment of assessments or accept overdue assessments, except in the manner and under the circumstances prescribed in section 115 of the laws of the order, i. e., either upon the insured appearing personally before such secretary, so that he may see the insured is alive and well' or upon being furnished with the prescribed written statement to that effect.

The unauthorized acts of the secretary of the local camp in irregularly accepting overdue assessments and thereupon reporting to the sovereign camp that the member was reinstated, so long'as such irregularities were unknown to the sovereign camp or its officers, did not have the effect of a waiver by the latter of any of the conditions of the contract; nor did such acts estop the sovereign camp from insisting upon suspension and forfeiture because of the nonpayment of assessments before they became overdue. Having failed to pay the assessments for January, 1903, before the expiration of that month, the insured was ■ipso facto suspended and his reinstatement did not result from, nor were the consequences of loss of benefits to the beneficiary obviated by the payment made by the son to the secretary of the local .camp on February fi, 1903, while the father was dying of after he was dead.

We do not find in the record a scintilla of evidence tending to show that the unauthorized and irregular practice of the secretary of the local camp in accepting overdue assessments and reporting the reinstatement of the delinquent member was known to the sovereign camp or the officers thereof. Therefore, we hold that the trial court was right in directing a verdict for the defendant.

There is another matter upon which I should make a further remark. It appears that official calls for assessments were sent forward from time to time by the sovereign camp of the Woodmen of the World to the subordinate camps. The laws however provide that there shall be one assessment due from each member upon the first day of the month, which he shall be required to pay unless excused and notified; that he may be required to pay in one month more than one assesment and in such case he is to be apprised of the fact that he is called upon to pay the additional assessment; but the one assessment per month becomes due and payable regularly and the obligation rests upon him to go to the secretary of the camp and present himself there and make the payments without any notification from anybody, unless he is expressly excused from so doing.

It is contended by counsel on behalf of the plaintiff in error that there is something in the notifications or calls sent out from time to time by the sovereign clerk which amounts to a recognition of the fact that those who are delinquent on account of nonpayment of assessments are still in such standing in the order as that they may be properly called upon to pay assessments; and that 'under certain circumstances where an association thus recognizes the standing of a delinquent by calling upon him to pay assessments subsequent to those with respect to which he is delinquent, such recognition amounts to a waiver of the forfeiture arising out of the delinquency.

This call is directed to the clerk of every camp and it calls upon him to collect the assessment mentioned in the call, and' it says that he is requested to mail to the last known post office address or deliver to every member of his camp on or before a date stated a reminder to pay said assessment and dues. It does not name the persons who are to be called upon to pay, but it says .he is to call upon every member, and it is urged that since Mr. Pete was, notwithstanding his delinquency, for certain purposes, and in certain respects, a member, it amounts to a call upon Mr. Pete to pay, and a waiver of his delinquency.

We cannot regard the call as having that effect. • We do not think it was so intended, it cannot fairly be so understood. We think it does not amount to a waiver or abrogation of the law with respect to delinquencies, but it is simply a call upon the clerk to collect from those who are entitled to pay, including delinquents who may be still in good health and present themselves in good health or furnish the prescribed certificate.

-1 should also mention that counsel for plaintiff in error rely upon a case decided by this court, Swander v. Insurance Co. 25 O. C. C. 3. We do not see that anything said or decided there has any legitimate influence here. The cases are very different, entirely different. That was an action against an old line "company and in that policy there was no condition of forfeiture whatever, and in that respect the case is radically different from this.-

I wish to add that if counsel consider this case of enough importance and interest to have my remarks published, I desire that the points stated by counsel in their briefs, together with the authorities cited, may be published therewith, since the authorites are very fully collated; and we have taken a great deal of pains in their examination; and the report would then show the points of contention and the authorities considered.

Finding no error in the proceedings or judgment of the court of common pleas, it is affirmed.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    STREET RAILWAYS — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    June 25, 1904.]
    Hull and Haynes, JJ.; Parker, J., not sitting.
    Toledo, B. G. & F. Ry. v. Conrad Pfisterer.
    Section Hand Attempting to Replace Trolley Wheel on Wire not a Volunteer, When.
    One who is employed as a section hand by an electric railway company, and is, while riding to his place of work in one of the company’s passenger cars, thrown therefrom and injured while attempting in a proper manner to preserve the company’s property from danger by replacing the trolley pole wheel on the wires, is not to be considered as a mere volunteer, but is entitled to protection as an employe against the company’s negligence in the premises, where it also appears that the conductor, whose special duty it was to replace the wheel, was inside the car taking up tickets at the time, and was unaware of the situation, and that plaintiff was experienced in, and had performed the same service before to the knowledge of the conductor and the superintendent and manager of the company.
    Error to Lucas common pleas court.
    King & Tracey, for plaintiff in error.
    C. A. Thatcher, for defendant in error.
   HULL, J.

Conrad Pfisterer was tbe plaintiff below, and brought his action against the railway company to recover damages for injuries which he claims he sustained on account of the negligence of the railway company. The railway company claimed that-it was not negligent in the respect ■complained of, and further, that Pfisterer, in what he did and was doing at the time of his injury, was a volunteer merely, not in the employ of the company for that purpose, and therefore that the company was not liable to him.

The plaintiff in error, the defendant below, was operating an electric street or interurban railroad between Perrysburg and Bowling Green, Wood county, Ohio, at the time of Pfisterer’s injury in June, 1900. He was employed at that time as a section man, engaged either in building or repairing the road somewhere in the neighborhood of Bowling Green, and on the morning of the day of his injury, he, with other section men, left Perrysburg on a car leaving there at 6:10 o’clock to go to the place where they were to work. After they had proceeded a few miles, the evidence tends to show that Pfisterer was standing in the vestibule of the car. There is some evidence that he was. inside, and went out, but the evidence tends to show that at the time of his injury he was standing in the vestibule. The car was going from twenty to thirty-five miles am hour. There is some conflict on this, but it was clearly going at a high rate of speed. There is some question as to wheré the conductor of the-car was at the time, but we think the evidence shows that he was some-, where inside the ear, probably within three or four seats of the rear of the car. The trolley pole wheel came off the wire as the car was running along at this rate of speed. There were cross wires, as is usual, some ninety feet apart — guy wires, perhaps, called — and when the trolley pole came off it struck these wires.

The evidence shows that Pfisterer was standing in the rear of the vestibule of the ear, right at the window, and took hold of the trolley rope for the purpose of putting the wheel back on the wire, and when he pulled down on the rope, the pole became detached from the top of the car, came out of its socket, and fell off the car and struck the ground, and Pfisterer became entangled in the trolley pole rope at the rear end of the car, and it became wrapped around his body or limbs, and when the pole struck the ground Pfisterer was suddenly gulled out of the back window to the ground, striking the ground violently. The trolley pole rope was attached to the car, and after Pfisterer was thus pulled, out of the window he was dragged along by the rope quite a distance behind the car, until it was cut by the conductor. He was seriously injured. The trial resulted in a verdict of $1,250, on which judgment was entered. These proceedings in error are to reverse that judgment.

There were various grounds of negligence set up in "the petition— as to the speed the car was going; the fact that the rope was attached to the rear of the car, and other claims were made by the plaintiff — but the case was finally submitted to the jury upon one ground of negligence; that the trolley pole was insecurely fastened in its socket on the top of the car, and as a consequence the plaintiff was injured in the manner stated. All the other claims of negligence were excluded by the court in its charge to the jury.

The railroad company claims that Pfisterer at the time was a mere volunteer, and therefore not entitled to recover. He was not employed, it is urged, to do anything in the way of running or managing the ear. He was simply going to his work, it is said, as a section man; and that it was the duty of the conductor to run the car; that therefore Pfisterer comes under the rule of law that one who' volunteers to interfere with, the business of another, cannot recover.

It is claimed, on the other hand, by Pfisterer, that he did this at the request of the conductor, and that the circumstances were such at that time that lie ought not to be regarded as a volunteer. It is claimed further by Pfisterer that he and other section men had performed this service upon the cars of the road in the presence of the superintendent and manager of the company, while riding on the cars, so that the service would be regarded as having been done under the authority and with the consent of the company; and that therefore he was entitled to the same protection when doing that work as when doing work as a section hand.

The court in its charge to the jury required the jury to find, in order to entitle the plaintiff to a verdict, that this work had been done by Pfisterer or other section men in the presence of the manager and officers of the railway company such a length of time as to show their knowledge and consent to his performing such service, and that unless they found this, they should return a verdict in favor of the defendant. Upon this charge a verdict was found in favor of the plaintiff.

It is claimed by the defendant in error that he was entitled to recover whether the jury was warranted by the evidence in finding that the company had knowledge that he was performing such service or not. A number of authorities have been cited by counsel both for the plaintiff and for the defendant, upon the question of the liability of.the company to Pfisterer while performing this service.

It has been held by the Supreme Court in Clev. T. &. V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142], and Street Ry. v. Bolton, 43 Ohio St. 224 [1 N. E. Rep. 333; 54 Am. Rep. 803], substantially, that where one is requested by an employe of a company to perform a service for the employe in behalf of the company, that if such person complies with the request, and has at the same time an interest in the performance of the work himself, that he is entitled to protection from the negligence of the employer or the servants of the company. It is said that a person thus situated is not to be regarded as a trespasser or as a volunteer; that he is upon the premises of the master, while not with his consent, yet without his objection, and that at the same time he is doing something in which he himself is interested, and that he is not to be regarded, as the court say, as a volunteer or as a servant, but that his position is somewhere between the two; that he is doing this work, as the Supreme Court say, by suffranee of the master; that he himself having a personal interest in doing it while doing it, he is entitled to protection. This question is discussed at some length in Clev. T. & V. Ry. v. Marsh, supra. This is said in the third paragraph of the syllabus:

“One who is invited by a servant of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of :So assisting, is not a volunteer, and is entitled while so assisting, to be protected against the negligence of the servants of the'company.”

And the question is discussed quite fully in the opinion by Judge Burket. In this case it was the duty of the station agent of the railroad company to set the lights in the switches near the station house. Instead of doing it himself, he employed a boy, the plaintiff, to do it for him, and gave him some compensation for the service; and while the boy was doing the work, he was injured by a torpedo that had been left on the track. The court held that the boy was not to be considered as a mere volunteer or trespasser, as he was doing the work at the request of an employe of the company, and had himself a personal interest in it.

Street Ry. v. Bolton, supra, is cited in Clev. T. & V. Ry. v. Marsh, supra, with approval. In this case a man was riding on a street car, a horse car evidently, and the car had gone past a siding where it was to pass another car. It became necessary to shove the car back to the switch to allow the other car to pass, and this passenger assisted at the request of an employe of the railroad company in doing that work, and while so doing, was injured. The court held he was not a mere volunteer, for the reason that while he had no financial interest in this .transaction, he was interested in continuing his journey, and having the ear proceed without delay, and he having done this at the request of the employe of the company, he was held to be neither a volunteer nor a trespasser.

It was sought to show in the case at -bar that Pfisterer had a financial interest in having the car proceed. It was claimed that his day’s work, his time for the day, did not begin until he had reached his work; that he ought to be there at 7 o ’clock in the morning, and if he was not there, he would be ‘ ‘ docked. ’ ’ This, however, was disputed, and it was claimed on behalf of the company that his time began-from the time he got on the car at 6:10 in the morning, and that he and the other workmen stopped at 5 in the evening. We are inclined to think that the weight of the evidence shows that his time did begin when he got on at 6:10 in the morning, and therefore he was traveling on the “company’s time, ” as it is called, at the time of the accident.

It is clear from the record that no objection had ever been made by the officers of the company, and there is evidence tending to show that section men had done this kind of work before, and that plaintiff and others had done it on the work train. The evidence tends to show that on a former occasion the conductor had requested Pfisterer to do this work for him.' Kinney was the name of the ■conductor. He was not called as a witness, and the testimony of the plaintiff was undisputed that Kinney had before that requested him to do this work for him, at times when the conductor was busy in the car.

No ease has been called to our attention exactly like this one, but it ■seems to us, after reading this record very carefully, that under the circumstances Pfisterer was entitled to protection against the negligence of the company. He was in fact in the employ of the company; at the time he was not a trespasser on the ear; he was on his way to his work; he had performed this service before at the request of the conductor; he was not interfering arbitrarily, or interfering where he knew his services were mot required; he was not doing anything that he had been told not to do. The conductor, at the time this occurred, according to the weight of ■the evidence, in our judgment, was inside the car where he could not immediately attend to the matter, engaged in taking up tickets. Pfisterer, we think, as he claims, was standing in the vestibule when the wheel came off the wire, and if so, he was the nearest to the rope. There were some other men standing there, but no one nearer than he. As soon as the wheel came off the pole began to strike upon the guy wires. It interfered with the progress of the car. If it had not been gotten on again •soon, it would have been necessary to stop the car. The property of the •company was in danger of damage; the cross wires were in danger of being broken or injured. It seems to us, in view of the facts that he was at the time in the employ of the company, that the property of his master was in danger of damage, that the speed of the car upon which he with other section men and passengers was being interfered with and impeded by this accident, that he had the right, as such employe, and that it was his duty, to put out his hand to replace the pole and protect the property of the company in whose employ he was.

It does not appear that he did this work in any improper manner. The evidence shows that he had had experience in doing this kind of work. It does not appear that he was incompetent to do it. He had ■done it before on both passenger and work trains.

We find no case directly in point. There are many cases where a servant has stepped out of the scope of his - employment at the request of employes, without any reason for doing it, where it- has been held that he could not recover, and where an outsider with no interest himself has been called in by an employe to aid him in his employment, it has been held that he was a mere volunteer and could not recover.

We all know as a matter of common knowledge, when a trolley wheel comes off the wire, with the car going twenty-five miles an hour, what the consequences are. It seems to us it ought not to be the law, where an employe is standing by under such circumstances, that if he lifts his hand to preserve the property of the company, attempted to do a thing which he was perfectly competent to do, that he did this at his own risk, and was not entitled to protection against the negligence of his master. And we think, regardless of the way in which the case was submitted to the jury, that plaintiff had the right to the protection of an employe of the company.

The court, however, did not go that far. It instructed the jury that the plaintiff could not recover, unless they found that this had been, before that, done with the knowledge and consent of the company, through its officers, and there was evidence tending to show that the plaintiff and others had done this when the manager and superintendent were on the cars. It appears from the testimony of the manager that the company did not, so far as he was concerned, at least, disapprove of a section man doing this kind of service, if he was on the car at the time and where he could take hold! of the rope. He was asked this question: “As a matter of fact, you expect every employe of the company to look out and preserve the property of the company, don’t youl” And he answered, “Yes, sir.” We are-not prepared to say that the jury were not warranted in finding that this-work had been done by section men on former occasions with the knowledge and consent of the officers of the company.

As to whether fhe company was negligent or not in the matter of the trolley pole, we think the evidence tends to show quite strongly that this pole had been loose in its socket for some considerable time before this accident, and that the jury were warranted in finding that it was' out of order and had been for such a length of time as to charge the' company with notice -of its condition. That being our view, it is not necessary to discuss the question as to whether inspectors of cars were fellow servants of the plaintiff or not.

We feel that the plaintiff should not be considered a mere volunteer, but that he was entitled to protection against the negligence of the company while performing this service. The judgment of the court of eommon pleas will therefore be affirmed.

Parker and Haynes, JJ., coneui.


author: COOK, J.

text:
    EVIDENCE LANDLORD AND TENANT.
    [Columbiana (7th) Circuit Court,
    October Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Paul Metzger v. Ellis Roberts.
    ' Evidence of Contemporaneous Paéol Agreement — When Admissible.
    Upon an action to collect rent, evidence is admissible ior the purpose of’ showing that a contemporaneous parol agreement was made at the time a written lease was executed by which the lease was only to be used in organizing a corporation, and transferring the same to it, and under no; circumstances to be a valid lease between the original parties.
    Error.
    A. W. Taylor and W. H. Spence, for plaintiff in error.
    L. T. Farr and C. P. Rothwell, for defendant in error,
    cited:
    21 Ene. Law (2 ed.) 1097, note 4, and cases cited; Blewitt v. Boorum, 142 N. Y. 357 [37 N. E. Rep. 119; 40 Am. St. Rep. 600]; Reynolds v. Robinson, 110 N. Y. 654 [18 N. E. Rep. 127]; Ware v. Allen, 128 U. S. 590 [9 Sup. Ct. Rep. 174; 32 L. Ed. 563] ; Michels v. Olmstead, 157 U. S. 198 [15 Sup. Ct. Rep. 580; 39 L. Ed. 671]; Naumberg v. Young, 44 N. J. Law 331, 336 [43 Am. Rep. 380]; Thompson, Trial Evidence Sec. 423; Heisel v. Heisel, 8 Dec. Re. 653 (9 Bull. 110); Richards v. Hale, 24 O. C. C. 468, 472.
   COOK, J.

The action below was to recover an installment of rent due upon a lease of real estate from plaintiff, Paul Metzger, to defendant, Ellis Roberts, in Salem, this county.

The lease is in the ordinary form and demised a vacant factory, known as Salem Lock Works.

To the petition of plaintiff defendant set up two defenses: First, a general denial and second, that at the time of the signing and delivery of the lease, a parol contemporaneous agreement, was entered into by and between plaintiff and defendant, by which the lease was not to be a binding contract between plaintiff and defendant, but was to be used by defendant in organizing a corporation for the manufacture of automobiles in the premises of plaintiff, Metzger, and in securing subscriptions of stock to such corporation, and if the necessary amount of stock was procured and the corporation organized, then said defendant, Roberts, was to assign and transfer the lease to the corporation so organized; but if defendant, Roberts, failed to procure the stock and organize the corporation, then such lease was to be of no effect whatever, and furthermore never was to be effective between Metzger and Roberts personally at any time; and the defendant asked that the lease be canceled and held for naught.

Upon trial before the common pleas court this contemporaneous parol agreement was permitted to be proven over the objection and exception of the plaintiff, Metzger.. The cause was tried to the court, a jury being waived, and the court dismissed the petition of plaintiff, as it was fully justified in doing, if the evidence of the parol contemporaneous agreement was admissible.

The term by the provisions of the lease was to commence on December 1, 1902, and end on November 30, 1907, and it is said this evidence directly contradicted the terms and conditions of the written lease. Did it do so ?

Evidently the object of the pleader in pleading the contemporaneous parol agreement was not to contradict the written lease, but was for the purpose of showing that no contract or agreement had ever been entered into that was binding between these parties.

In 21 Am. & Eng. Enc. Law (2 ed.) 1097, it is said:

“One class of apparent exceptions to the general rule includes those cases in which parol evidence is received to show that an instrument which purports to be a written contract is in fact no contract at all. In these cases, the extrinsic evidence is not received to vary or contradict the instrument, but to show that no binding obligation ever existed.”

The text is supported by numerous decisions from a large number of states as well as from, federal courts, and they all seem to justify the statement of the author.

In the case of Ware v. Allen, 128 U. S. 590 [9 Sup. Ct. Rep. 174; 32 L. Ed. 563] it is held:

“Parol evidence is admissible in an action between the parties, to show that a written instrument executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional ánd was not indeed to take effect until another event should take place.”

It is said by counsel for plaintiff that, conceding this is the general ■doctrine in the states, and in the. federal courts, yet it is not the rule in Ohio. It is true that all the text writers in their announcement of this rule, do not include the state of Ohio as supporting it, and some of them distinctly state that this is not the doctrine held by the Supreme Court of our state. An examination of the authorities in Ohio will show that nearly all the cases, if not all of them, in which the question has been discussed, arose on promissory notes; it is true some of them between the original parties, and there is no doubt but what the lines are clearly drawn upon the admission of parol evidence in such cases, but we do not think they have gone to the extent claimed by counsel in argument.

In Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795] which is the strongest case upon the subject it is held:

‘1 Evidence of a parol agreement made at the execution and delivery of a note, by which it is not to be operative, unless, within a given time, the makers are able to realize a given sum of money from property purchased, and for which the note was given, is not competent. ’ ’

By reference to the opinion on page 65 which was by the court, it is said:

‘ ‘ On the trial an exception was reserved to the admission of evidence offered by the defendants, to the effect that, by an oral agreement, the notes were not to be transferred, ‘and were to be null and void,’ unless within a year the makers should be able to make $1,750 net from the manufacture and sale of the patent right.”

From the whole ease it would seem to decide that, in a case of a valid note given as such, parol evidence should not be admitted to show that it should become invalid upon the happening of certain conditions; which is not the case under consideration.

In the case of Morris v. Faurot, 21 Ohio St. 155 [8 Am. Rep. 45], it was held:

“A brings an action, as indorsee, against B, and others, as indorsers upon a blank indorsement of a nonnegotiable promissory note, made after maturity. The defense is, that the plaintiff, who was a stranger to the note, at the request of the makers, and for the makers, paid the amount of the note, in full, to the defendants, as holders, and thereby discharged the same; that after such payment, the defendants, without indorsement, delivered the note to the plaintiff, for. the use of the makers; that after such delivery, the defendants, at the request of the plaintiff, wrote their names on the back of the note, (the indorsement sued on), with an express understanding, between the parties, that such indorsement was to be used by the plaintiff, as evidence, to the makers, that he had paid the note for them, and for no other purpose: Held, that the admission of parol proof of such defense, is not a violation of the rule of evidence, that parol testimony is inadmissible to explain, contradict, or vary, the terms of written instruments. ’?

Judge Mcllvaine in the opinion says, page 159:

“That parol testimony is inadmissible to contradict or vary the terms of written instruments, and that the contract of an indorser- of a promissory note, whether the indorsement be in blank or otherwise, is within the meaning of that rule, as general propositions of law are true, may be admitted for the purposes of this case. But the question in the case, as we understand it, was not as to the terms of the contract, or the nature or extent of the indorser’s liability, but, whether there was any contract at all, out of which any liability could arise.
“A blank indorsement, which evidences a contract, the terms of which cannot be contradicted or varied by parol testimony, is one made in the usual course of business, for the purpose of transferring the title of or giving credit to the paper. The defense in this case was, that no transfer of title was intended, nor was credit intended to be given this note by the transaction, but that it was paid and discharged by the makers through and by the plaintiff, who was' acting for them and at their request.
“The object and tendency of the testimony objected to were to prove this defense; to show that the note itself; as well as the indorsement thereon, at the time of delivery to the plaintiff, were nullities, and not evidences of subsisting obligations. We can see no reason why such proof, upon such an issue between the parties to 'the transaction, should not be allowed.”

From these considerations we are of opinion that the court did right in admitting the evidence.

There is another view of the case that leads to the same result.

The second defense was inffaet a cross petition, seeking to cancel the pretended agreement on the ground that it was fraudulent as against the defendant and to permit its enforcement would be a fraud upon him. There can hardly be any question but what the evidence would be admissible upon that issue. Possibly that issue, being an equitable one that went to the merits of the case, should have been tried first, but the parties, without objection, tried the whole case together to the court, a jury being waived, and they having so done, if the action of the court was right in admitting the evidence upon the equitable branch of the case, no error was committed.

The judgment of the court of common pleas will be affirmed.

Laubie and Burrows, JJ., concur.


text:
    MUNICIPAL CORPORATIONS —EMINENT DOMAIN —PROBATE COURT.
    [Mahoning (7th) Circuit Court,
    October Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Erie Railway Co. et al. v. Youngstown (City).
    .APPROPRIATION OF PROPERTY BY A MUNICIPALITY — NECESSITY OF PASSING RESOLUTION Required by Section 1536-105.
    In a proceeding by the council of a municipal corporation to appropriate property against the will of the owner, for the purpose of extending a street, it is necessary for the council to pass the preliminary resolution, and give notice to the owners of the land as required by Lan. R. L. 3589 (B. 1536-105); but the probate court, before which application is made to assess compensation, has no jurisdiction to determine whether or not the preliminary resolution so required was passed, and the notice given; the only remedy of the landowners in such case is an action to restrain the municipality from proceeding to assess compensation, and from taking possession of the property.
    ERROR.
    Hiñe & Kennedy, for plaintiff: in error.
    S. S. Conroy, for defendant in error,
    cited:
    Little Miami Ry. v. Dayton (City), 23 Obio St. 519; Railway v. Belle 'Centre (Vil.), 48 Obio St. 273, 295 [27. N. E. Rep. 464]; Pitts. C. C. & St. L. Ry. v. Greenville, 69 Obio St. 487 [69 N. E. Rep. 976]; Tyler v. Columbus, 3 Cire. Dec. 427 (6 R. 224).
   COOK, J.

Tbe council of tbe city of Youngstown passed an ordinance to appropriate property of plaintiffs in error for tbe purpose of extending Reserve street over the railroad company’s tracks. No resolution was enacted before the passage of tbe ordinance, as called for in Lan. R. L. 3589 (B. 1536-105; original section 2235).

Tbe city filed an application in the probate court of Mahoning county to assess the compensation of tbe defendants for tbe appropriation of their property. The railroad company filed an answer denying tbe right of the city to cross the tracks, setting forth that the appropriation will unnecessarily interfere with the reasonable use of their property. This was denied by the city.

The probate court, after hearing the evidence, dismissed the application of the city. Error was prosecuted in the court of common pleas, tbe judgment of tbe probate court reversed and tbe cause remanded for further proceedings. To tbe judgment of tbe common please court, error is prosecuted in this court.

Tbe evidence in the probate court shows that no preliminary resolution was enacted by council and notice served upon tbe railway company, and also tended to show that the appropriation will unnecessarily interfere with tbe reasonable use of the railroad company’s property.

The first question made is: Was it necessary for council to pass tbe resolution required in Lan. R. L. 3589 (B. 1536-105) and give tbe notice as therein set forth ? We think it was.

It is claimed on tbe part of the city that the ordinance of the city council was the appropriation of the property, and that the action of council is governed by Lan. R. L. 3924 (B. 1536-132, original section 2642), and no resolution is required.

Granting that the passage of the ordinance was the appropriation of the property, yet that no resolution was required, does not necessarily follow. It will be observed that Lan. R. L. 3924 (B. 1536-132), is found in Chap. 4, Div. 2, of the municipal code, which applies to the care, supervision, and control of public streets, and the dedication, opening, and vacation of the same, while Lan. R. L. 3589 (B. 1536-105) is found in Chap. 2 of Div. 2 which provides for the appropriation of property and specifies the manner in which compensation may be made when it is necessary to go into court for that purpose. That is, Chap. 2 provides for what shall be done by council when it is necessary to take the property of the owner against his consent, and to assess the compensation, and damages due him, by a proceeding in court. Indeed Lan. R. L. 3924 (B. 1536-132; old section, R. S. 2642), specially provides that the proceeding for such appropriation shall be as provided in Chap. 3, Div. 7 of this title. Chapter 3, Div. 7 was the chapter respecting appropriation of property before the codification and is now Chap. 2, Div. 2, the language of old Sec. 2642 being, no doubt by inadvertence, permitted to remain.

The reason for the necessity of the passage of the preliminary resolution, and the giving of notice to the owner of the property is apparent. Council appropriates the property. It is entirely different from the action of railroad companies and other public service corporations in dim appropriation of property. They are required to go into court and show, after notice to the owner and full hearing, the necessity of the appropriation. But with municipal corporations it is not so. If the owner’ desires to object to the taking of his property by a direct proceeding, her must do so before tbe council, as tbe council determines tbe matter of appropriation. Hence tbe necessity of tbe resolution and tbe notice tbat tbe owner may be beard before tbe council.

It is said, the case of Tyler v. Columbus (City), 3 C. D. 427 (6 R. 224) is authority for tbe claim tbat it is not necessary to pass a preliminary resolution. It is held in tbat ease in tbe third paragraph of tbe syllabus:

“When a city council deems it necessary to condemn private property for street purposes, it must proceed under Sec. 2642 Eev. Stat. and no preliminary resolution such as is provided in Sec. 2235 or 2304 is necessary.”

There is some indication in tbe opinion on pages 429 and 430 that it was intended to apply to a case like tbe one under consideration, but it will be seen by an examination of the facts of tbat case, tbat tbe question under consideration was betwen the city and persons who had been assessed to pay tbe costs and expenses of opening a street which would come under Chaps. 4 and 6, Div. 2.

If the case of Tyler v. Columbus (City), supra, could be considered as an authority for tbe claim tbat it is not necessary to pass a preliminary resolution when it is proposed to take property against tbe will of the owner, although we have the highest respect for the court making the decision, we would not be inclined to follow it.

We have examined the case of Krumberg v. Cincinnati, 29 Ohio St. 69 referred to in tbe case and we do not think it sustains tbe claim that no preliminary resolution is necessary under tbe statutes as they now are.

Tbe next question presented is as to the jurisdiction of tbe probate court in tbe matter.

The court proceeded to enter into tbe inquiry as to whether or not tbe preliminary resolution bad been enacted and also as to the question whether or not tbe appropriation would unnecessarily interfere with tbe reasonable use of tbe railway property. Could it do so ? It would seem tbat under Lan. R. L. 3590, 3591, 3592 (B. 1536-106-107 and 108) tbat all tbe court could inquire into was: Had tbe necessary notice been served in a legal manner and bad five days elapsed from tbe date of service 1 If so, it was the duty of the court to set a time for tbe calling of a jury and the assessment of compensation.

This was tbe bolding by the Supreme Court in the case of Pitts. C. C. & St. L. Ry. v. Greenville (City), 69 Ohio St. 487 [69 N. E. Rep. 976], respecting tbe question as to tbe unnecessary interference with the reasonable use of the company’s property and we see no reason why a different rule should apply as to the question whether or not the preliminary resolution required under Lan. R. L. 3589 (B. 1536-105) had been passed or not.

In this ease it is held that the only remedy is by a suit in equity for •an .injunction, and on pages 496 and 497 of the opinion it is said:

“We have said that in proceedings to appropriate for streets and alleys, étc., by municipal corporations, the council makes the appropriation by resolution, and when that is properly done, the nest step is the filing of an application in one of the courts, in order to have compensation to the owner made by a jury in a constitutional manner. The application may be filed in the probate court, which, on such subjects, has merely statutory jurisdiction. And if it be filed in the court of common pleas, it still is a special proceeding and strictly regulated by statute.
“There is no provision by which the railway company has a right to file an answer to the application in either of the courts. Answer to what? The application would contain the proceedings before the council, including the resolution to appropriate and the giving of the preliminary notices, and a pertinent description of each parcel of property •appropriated, and ask for the impaneling of a jury to assess compensation. An ‘answer’ to such application would present no issue on the right to appropriate. The court, on such an application, makes no order •of appropriation, if the statute is followed, because Sec. 2238 provides that, ‘ If it appear to the court or judge that such notice has been served 'five days before the time of the application, or has been published as provided in the preceding section, and that such notice is reasonably •specific and certain, the court or judge may set a time for the inquiry into and assessment of compensation by a jury, ’ etc. Nor is there any authority for filing a cross petition by the railway company setting up the unnecessary interference with its property. No provision is made for the making or trial of such an issue, and the court is without authority to render a judgment upon such issue if made. In practice, counsel may instance a case or cases, where some such pleadings were allowed to be filed against the application, and an inquiry made under it. We ■cannot find any authority for it even by implication from the statutory provisions on the subject. Even if, in the exercise of the discretion of the court, such an answer or cross-pleading can be filed, it cannot be respected as a remedy, much less an adequate remedy at law. A party has no adequate legal remedy if it exists wholly within the discretion of a court. To be adequate and legal it should be one that, he can invoke without let or hindrance, as the assertion of his rights. ’ ’

This ease which is a very late, one would also seem to be conclusive on the question as to whether or not the preliminary resolution should be enacted by the council and notice given as required in Lan. R. L. 3589 (B. 1536-105). The learned judge in the opinion distinctly points out the necessary steps to be followed where it is proposed to appropriate .property against the will of the owner and lays special emphasis on the passing of the resolution, and giving of notice, so that the owner may be heard in council, although such hearing may not be final.

The common pleas court did not err in reversing the judgment of the probate court for the reason that it had no jurisdiction over the matters in controversy, its only jurisdiction being the assessment of compensation, and the judgment of the common pleas will therefore be affirmed.

Laubie and Burrows, JJ., concur.


text:
    CANCELLATION OF ELECTION OF WIDOWS.
    [Columbiana (7th) Circuit Court,
    October Term, 1904.]
    Laubie, Burrows and Cook, JJ.
    Anna Laura Mellinger v. Albert W. Mellinger et al.
    Cancellation of Election of Widow Undeb Lan. R. L. 9503 (R. S. 5964).
    A deputy clerk of the probate court has no authority under Lan. R. L. 9503 (R. S. 5964) to receive the election of a widow to take under the will of her deceased husband; and when such election is made before a deputy clerk the same will be cancelled and vacated upon a suit in equity for that purpose.
    Appeal from common pleas court.
    S. W. Ramsey, for plaintiff.
    Respecting the election of widows, Lan. R. L. 9503 (R. S. 5964) imposes a duty upon the probate court to explain the provisions of the will and the right under it and the law in event of tjie refusal of the widow to take under the will. TO Am. & Eng. Enc. Law (2 ed.) 351; 26 Am. & Eng. Enc. Law (2 ed.) 598, n. 1 and 2; 665, n. 5; 688, n. 5; Sling-luff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574] ; State v. Chase, 5 Ohio St. 528; Householder v. Granby, 40 Ohio St. 430; Davis v. Davis, 11 Ohio St. 386.

      As to the probate record. 24 Am. & Eng. Enc. Law (2 ed.) 192,193, 194; Davis v. Davis, 11 Ohio St. 386.
    C. S. Speaker, for defendant.
   COOK, J.

The question made in this case is upon the election of a widow tO'' take under the will of her deceased husband.

On October 10, 1901, Melchor Mellinger died testate. On October 30 of the same year the will was probated and the widow, plaintiff,, elected to take under the will.

The election was taken by Miss Atchison who was said .by counsel to be deputy probate judge, but in fact under .the statute could only be deputy clerk of the probate court, Lan. R. L. 819 (R. S. 533).

The object of this action is to cancel the election to take under the will made in the probate court.

Invthe case of Davis v. Davis, 11 Ohio St. 386, it was determined that the party is entitled to such relief where the election was procured by fraud or imposition or entered under such a mistake as would justify its rescission.

It is claimed by plaintiff that she was not fully informed of her rights under the law by Miss Atchison, as required by Lan. R. L. 9503 (R. S. 5964) and the evidence supports her claim; but the more important question is, was she informed at all ?

What authority had Miss Atchison, as deputy clerk, to take the election? She could perform such clerical or ministerial duties only as pertained to her as clerk of the court. Warwick v. State, 25 Ohio St. 21.

Taking the election of a widow and advising her of her rights under the will, and under the law, are judicial functions and can only be exercised by the judge in his judicial capacity. In giving such advice he must know the law and exercise judgment and judicial discretion in ascertaining whether or not the widow understands her rights. What would a mere deputy clerk who has possibly been in the office but a few weeks or months know about her rights under the will or the law?Indeed it is difficult sometimes for those well versed in the law to know what a beneficiary’s rights are under a will. Laning R. L. 9503 (R. S. 5964) seems to provide that the advice must be given by the judge. It says:

“It shall be the duty of the court to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will.”

Decree will be entered as prayed for in the petition, that the entry in the probate court be cancelled and vacated, and the plaintiff restored to her rights in the same manner as if no such entry of election had been made.

Laubie and Burrows, JJ., eoncut.


author: McCARTY, J.

text:
    OFFICE AND OFFICERS — WORDS AND PHRASES.
    [Perry (5th) Circuit Court,
    November Term, 1904.]
    Voorhees, McCarty and "Winch, JJ.
    (Judge Winch of the eighth circuit sitting in place of Judge Donahue.)
    State ex rel. O. F. Sears v. Richard McGonagle.
    1. Superintendent of County Children’s Home Appointed Under Lan. R. L. 2217 (R. S. 930) not a Public Officer, but an Employe.
    The superintendency of a county children’s home, which is provided for by Lan. R. L. 2217 (R. S. 930), is not a public office, but a mere employment, and the incumbent thereof is an employe and not a public officer. Hence, a proceeding in quo warranto under Lan. R. L. 10357 (R. S. 6764) to recover the position from a wrongful incumbent, cannot be maintained.
    2. Pubmc Office Never Created by Contract, etc.
    A public office is never created by contract, but owes its origin and authority in some act or expression of the governmental power; where authority is conferred by contract, it is regarded as an employment, and not as a public office, notwithstanding provision for the employment is made by statute.
    3. Terms “Franchise” and “Office,” Used in Lan. 10360 (R. S. 6767), Distinguished.
    The term “franchise,” as used in Lan. R. L. 10360 (R. S. 6767), is con-tradistinguishable from the term, “office,” in that the former is ordinarily applied to a private corporation, or something in connection therewith, while the latter ordinarily has reference to the governmental or sovereign power.
    QUO WARRANTO.
    T. B. Williams, H. D. Cochran and John Ferguson, for plaintiff.
    Spencer & Donahue, for defendant.
   McCARTY, J.

The petition in this case has been demurred to, and the- question arising upon the petition as to whether the action can be maintained by the relator is one of the questions to be considered by us. It is claimed in behalf of the demurrer that the office which the relator claims is wrongfully usurped by the defendant is not an office at all; that if it is a county office at all the relator is not entitled to it on the face of the papers because he has not been elected thereto. The question then is raised on the demurrer as to whether the position of superintendent of the Children’s Home of Perry county, Ohio, is an office or an employment.

The statute, Lan. R. L. 10357 (R. S. 6764), provides who shall bring-the action, and it provides among other things:

“A person claiming to be entitled to a public office unlawfully held and exercised by another may, by himself or an attorney at law, upon giving security for costs, bring an action therefor.”

Laning R. L. 10359 (R. S. 6766) provides that when the action is against a person for usurping an office the petition shall set forth the name of the person who claims to be entitled thereto, with an averment of his right thereto, and judgment may be rendered upon the right of the defendant, and also upon the right of the person so averred to be entitled, or only upon the right of the defendant as justice requires. Laning R. L. 10360 (R. S. 6767) reads:

“All persons who claim to be entitled to the same office or franchise may be defendants in the same action, to try their respective rights to such office or franchise. ’ ’

Now there is a difference between an office and a franchise; and the term, “franchise,” as used in the statute is ordinarily applied to a corporation, or something in connection therewith, and is clearly distinguishable from an office.

The question then that is raised on the demurrer is whether the position of superintendent of the Children’s Home of Perry county, Ohio, is such a public office as will entitle the relator to maintain quo warranto or give this court jurisdiction therein.

Laning R. L. 2217 (R. S. 930), provides for the organization of a, county children’s home, for the appointment of trustees thereof, and further provides as follows:

“Said board of trustees shall designate some suitable person who shall act as superintendent of said home, and who * * * shall also be clerk of said board of trustees and shall receive for his services such compensation as the board of trustees designate at the time of appointment ; and he shall perform such other duties, and give security for the faithful performance of them, as the trustees by law direct.”

Does this section, so far as it pertains to the superintendent of the children’s home, create a public office, and one that will give this court jurisdiction in quo warranto proceedings, or,cloes it not?

In distinguishing between an office and an employment, the fact that the powers in question are created and conferred by law is an important item to be considered in determining the question, for, though an employment may be created by law, it is not necessarily so, but is often, if not usually, a creature of contract. A public office, on the other hand, is never conferred by contract, but finds its course and limitations in some act or expression of the governmental power. Where, therefore, the authority in question was conferred by contract, it must be regarded as an employment, and not as a public office. This is clearly laid down in Mechem, Public Officers Sec. 5.

Another distinguishing characteristic as appears from this statute, Laning R. L. 2217 (R. S. 930), is, that it fixes no time or length of term for said superintendent of the children’s home; nor does said section fix any salary, but leaves the matter entirely in the hands of the trustees of said home. Therefore it is insisted that the relationship between the superintendent and the public is contractual, and is in no sense an office, but merely an employment. The section further provides that “if in their judgment (that is, the judgment of the trustees), it is for the best interests of the home and of the county, to dispense with a superintendent and authorize the matron to assume the entire charge of the home and its management,” they may do so. This seems to fix and determine the nature of the position of the superintendent of the children’s home, for an office created either by the constitution or statute could only be dispensed with by the power creating the same.

If the position of the superintendent of the Children’s Home of Perry county, Ohio, is an office at all, it is a county office, and could only be filled by election. Our attention has been called to See. 1, Art. 10, of the constitution, which provides: 1

“That general assembly shall provide, by law, for an election of such county and township officers as may be necessary.
“Section 2. County officers shall be elected on the first Tuesday after the first Monday in November by the electors of each county in such manner, and for such term, not exceeding three years, as may be [provided by law.”

On the face of this petition it clearly appears.that the relator was not elected to this office by the people, or that he was appointed to fill any vacancy; so that we have, then, the case of an attempt to provide for the selection of a county officer by appointment, not temporarily or to fill a vacancy, but for a full term, and subject to the will of the board of trustees, who have the power to remove and appoint a successor. This is in the face of the constitution, which in one section gives power to the general assembly to provide only for an election of county officers, and in the nest section provides that they shall be elected and for a term not to exceed three years; and nowhere does it, even by implication, give authority to fill such office save as to vacancies in any manner other than by election.

In the case of State v. Brennan, 49 Ohio St. 33, 39 [29 N. E. Rep. 593] in the opinion is found this language:

“The office of ‘stationery storekeeper’ is created for the county of Hamilton. The duties relate to the purchase and custody of the property of the county, and the salary is to be paid by the treasurer of the county from the general fund of the county.
“We have, then, a case of an attempt to provide for the selection of a county officer by appointment; not temporarily, to fill a vacancy, but for as full a term as the act creates, which term is made indefinite and subject to the will of the clerk of the court of common pleas, who, by reasonable intendment, has power to remove and appoint a successor. This in the face of a constitution which, ip one section gives power to the general assembly to provide only for the election of county officers, and in the next section, provides that they shall be elected, and for a term not to exceed three years, and nowhere, by implication even, gives any authority to fill such offices, save as to vacancies, in any manner other than by election.”

The decision goes on to say, on page 40:

“A more obvious attempt to override the constitution can hardly be conceived of. Under our constitution county offices cannot for a full term be filled by appointment. There is not a shadow of authority for the kind of legislation of which this act is an example. The portion of the 'act which assumes to give authority to the clerk 'of the court of common pleas to appoint a storekeeper, is clearly and palpably in'conflict with the sections of the constitution quoted, and, there being no provision for an election, the act as a whole is absolutely and wholly void.”

In the face of this holding of the Supreme Court can it be claimed that the legislature, in Lan. R. L. 2217 (R. S. 930), did attempt to create a public county office to be filled by appointment 1 Under the heading of that section it appears to fis that the only intention on the part of the legislature was to give the trustees of the children’s home the right to empoly some person to act as superintendent; or, in other words, that if the trustees in tbeir judgment believed that it was necessary to have a superintendent at all, they could by contract employ such superintendent, fixing his salary and time of service as they might see proper; and under no other theory would Lan. R. L. 2217 (R. S. 930), be constitutional.

In State v. Kendle, 52 Ohio St. 346, 355 [39 N. E. Rep. 947], second paragraph in the opinion, the court says, in passing upon a similar question with reference to the appointment of jury commissioners by the common pleas court, that:

“It is also claimed that the statute is invalid, because it provides for the appointment of the members composing the commission, instead of their election by the electors of the county, as is required in the case of all county officers by Sec. 2, Art. 10, of the constitution. This presents a question of more difficulty; for if within the meaning of this section, the commissioners are to be regarded as county officers, they cannot be appointed and the statute is invalid.”

In the case of State v. Jennings, 57 Ohio St. 415, 424 [49 N. S. Rep. 404 ; 63 Am. St. Rep. 723], opinion, the court says: “Many efforts have been made to define a public office; and it is only the incumbent of such an office whose rights can be challenged in a proceeding in quo warranto. But it is easier to conceive the general requirements of such an office, than to express them with precision in a definition that shall be entirely faultless. It will be found, however, by consulting the cases and authorities, that the most general distinction of a public office is, that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state. Thus in Mechem, Off. & Off. Sec. 4, it is said: 'The most important characteristic which distinguishes an office from an employment or contract, is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the county, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.’ ”

So, that taking all that is stated in this petition to be true, and the demurrer admits the truth- of the facts therein stated, is not the conclusion irresistibly reached that the superintedent of the Children’s Home of Perry county, Ohio, is a mere employment, and not a public ■office? ¥e are of the opinion that it is a mere employment, not for any definite time, but a matter of contract, and to be served during the will of the contracting parties, and not controlled by the constitution or stat utes as to the duties of public officers.

We then go back to Lan. R. L. 10357 (R. S. 6764), supra: “A person claiming to be entitled to a public office unlawfully held and exercised by another may, by himself or an attorney at law, upon giving security for costs, bring an action therefor. ’ ’ So that it will be observed that in the first line of this statute, “A person claiming to be entitled to a public office” is the party who may bring the action. This not being a public office, the' claim made by the relator utterly fails to state the ground for the relief that he claims.

Reading that section in connection with Lan. R. L. 2217 (R. S. 930) heretofore quoted, it leaves no question in our minds as to. the utter absence of any right on the part of the relator, as he has stated in his petition, not having been elected to a public office, and that the employment of superintendent of the Children’s Home of Perry county is not a public office, that he cannot maintain this action.

The demurrer will therefore be sustained, and the action dismissed at the costs of the relator, and exceptions noted in behalf of relator.

Voorhees and Winch, JJ., concur.