author: Parker, J.,

text:
    PURCHASE OF SUPPLIES FOR SCHOOLS.
    Circuit Court of Lucas County.
    Gosline v. Toledo Board of Education et al.
    Decided, February 29, 1908.

      Schools — Purchase of Goal for the TJse of — Neither Advertising for Bids nor Acceptance of Lowest Bid Necessary — Nor is Advertís-' ing for Trivial Supplies Required — Discretion—Good Faith — Sections 3981, 3988 and I¡011.

    1. Neither Section 3987, Revised Statutes, specifically empowering boards of education, among other designated things, to provide fuel; nor Section 3988, prescribing for bids for certain designated supplies and contracts, but omitting mention of fuel; nor Section 4017, requiring the director of schools, where one is chosen, to advertise for bids, etc., without providing when or how he shall advertise therefor requires advertising for bids for coal or purchase from the lowest responsible bidder.
    2. A broad discretion is reposed in boards of education regarding the purchase of necessary supplies for schools; and in the purchase of fuel, gradation of quality of coal, heating capacity, adaptability to heating apparatus, and experience or skill of janitors and other persons managing school furnaces are essential facts to be considered in making selection therefor, which may render it inadvisable to accept the lowest priced coal offered; and where it appears that the board has complied with the requirement that it act in good faith for the best good of the schools according to the light and understanding of its members, acceptance of other than the cheapest coal will not be enjoined.
    3. A director of schools is not required, under Sections 3988 and 4017, to go to the expense of advertising for bids for every trivial thing in the way of supplies which may have been ordered by the board to be purchased.

      Marshall & Fraser, for plaintiff.

      C. S. Northup, G. H. Masters and J. H. Tyler, contra.
    Wild man, J.; Kinkade, J., concurs; Parker, J., concurs in a separate opinion.
    Appeal from Lucas Common Pleas Court,
   This cause was brought to this court by appeal from the court of common pleas. It was a suit by a tax-payer'in behalf of himself and other tax-payers to enjoin the board of education, director of the public schools and the A. G-. Blair Company from entering into a certain contract for the purchase and sale of six thousand tons of Jackson coal for the use of the schools in the city of Toledo. It is claimed'in behalf of the plaintiff that although the board of education had accepted the bid of the A. Q-. Blair Company to furnish such coal they were not authorized to do so; that the acceptance of the bid and any contemplated contract in accordance with such acceptance were invalid, as not. authorized by the statutory provisions relating thereto; and, also, that the members of the board, in the acceptance of the bid, acted arbitrarily, and not in view of the welfare of the schools.

As to the first claim, it becomes essential to examine to some extent the sections of the Revised Statutes authorizing the purchase of fuel for public schools. The three sections which have some pertinency are Sections 3987, 3988 and 4017, Revised Statutes. The first mentioned section, 3987, empowers the board of education of any district first to “build, enlarge, repair and furnish the necessary school houses, purchase or lease sites- therefor, or rights-of-way thereto, or rent suitable school rooms, provide all the necessary apparatus and malm all other necessary provisions for the schools under its control”; and, second, to provide fuel for the schools and to do certain other things with regard -to the fences and shade and ornamental trees of school house grounds; and to “make all other provisions necessary for the convenience and prosperity of the schools within the sub-districts. ’ ’

It is .to be noted that this authority relates to two classes of acts or proceedings, the one the making of permanent improvements or repairs of school houses and furnishing the same, and the other the making provision for supplies, especially the furnishing of fuel for the schools. Section 3988, Revised Statutes, provides that: “When a board of education determines to build, repair, enlarge or furnish a school house or school houses”— using substantially the phraseology -in Section 3987, Revised Statutes, as to the first of the two classes comprised therein — ‘ ‘ or make, any improvement or repair provided for in this chapter, the cost of which will exceed in city districts fifteen hundred dollars, and in other districts five hundred dollars, except in eases of urgent necessity, or for:the security and protection of school property, it shall proceed as follows: 1. The board shall advertise for bids, ’ ’ and after the bids are opened and examined shall accept none but the lowest responsible one. Nothing is said in this section about the purchase of fuel. The provision stops short of any requirement that advertisements shall be made for bids for the supply of coal or other fuel for the schools, and our judgment is that for this reason Section 3988, Revised Statutes, does not apply to the proceeding adopted by the board of education in the present ease. Nothing in Sections 3987 or 3988, Revised Statutes, requires the purchase of coal from the lowest responsible bidder.

By Section 4017, Revised Statutes, the management and control of public schools of whatever name or character in the district are given to the board of education, with provisions for the appointing of certain subordinate officers or employes. The act provides that, “A board of education in a city district may, at its discretion, elect a director of schools, who shall serve as such for the term of two years, unless earlier removed, * * * and any vacancy in this office shall be filled for the unexpired term of such director of schools.” Following this authority for the election of a director of schools are specific provisions as to his powers and duties, and a careful examination of the section discloses that he is given quite broad discretion and large power in the carrying out of the purposes of this .act. Among other things, he is charged with the care and custody of all the property of the school district, real and personal, except moneys. He is required to oversee the construction of buildings, in the process of erection, and the repairs of the same. Then comes the provision, which is claimed to relate to the transactions- involved in this case:

“He shall advertise for bids and purchase all supplies and equipments authorized by the board. He shall report to the board monthly and oftener if required, .as to all matters under his supervision, and report to the board a statement of its accounts, exhibiting the revenues, receipts, disbursements, assets and liabilities of the board, ’ ’ etc.

There is no provision in this section as to when or how advertisements for bids shall be made. We have only the general direction that he shall advertise for bids and purchase all supplies and equipments authorized by the board.

We are not inclined to think that the Legislature contemplated that for every trival requirement in the way of supplies by the board, the director of schools should go .to the expense of .advertising for bids; because, in many cases, such expense would be greater that the entire cost of the supplies needed. Taking this clause of the statute in connection with Section 3988, Revised Statutes, a construction not unreasonable would require that he should advertise for bids under such circumstances as are contemplated by that section; in other words, that where bids are required by law, the director of schools is to do the advertising for them.

There' is, however, in this section no requirement as in Section 3988, Revised Statutes, that the board shall accept none' but the lowest responsible bid. There is no provision fixing the duties of the director of schools, after the advertising for bids, except the duty that he shall purchase all supplies and equipment authorized by the board. We take it that the board may signify to the director of schools the amount and kind of supplies required, whereupon it becomes the duty of the director to make the proper' purchases, and for this purpose he is empowered to close the contract with the seller. And if the conditions of Sections 3987 .or 3988, Revised Statutes, would require the board of education ,to advertise for bids, it is altogether likely that under the same circumstances, where there is no emergency and the amount and kind of property require a letting to -a bidder, then the director of schools may likewise be required to. advertise for bids. But, as .already suggested, there is nothing in Sections 3987 or 3988, Revised Statutes, that requires any advertising for bids for fuel; and we are unable to find anything in either of these sections in connection with Section 4017, Revised Statutes, that requires anything of the kind.

But assuming for the moment that this construction may not be the correct one, we have' no doubt that the board of education may select the kind of fuel which it desires; it may seek to purchase wood, or it may prefer coal; the heating apparatus in the school house may be adapted to either anthracite or bituminous coal. Surely .a broad discretion is permitted to the board to determine what kind of fuel it will adopt. In the present, case the board of education seems to have concluded that Jackson county coal was better -adapted to the uses -of the schools than either of the other classes -of coal, with regard to which testimony has been given and the furnishing of which was offered in bids.

It sometimes becomes an exceedingly nice question as to how far a discretion is preserved to public bodies or officers to avail themselves of -the privileges possessed-by individuals to buy the best that there is in the market, or on the other hand, as to how far that power is limited by the intent -of the Legislature to guard the public against improvidence and corruption. In the case of permanent structures -or the repair thereof, it has apparently been deemed not a difficult matter to obtain definite plans and specifications so that the public body may avail itself- of the lowest offer made by a competent builder to construct .according to such plans and specifications. But when it comes to the furnishing of supplies like fuel for schools, a far more difficult question arises. There are so many gradations of quality or convenience of adaptability to heating apparatus or the experience of janitors or other persons who manage the furnaces, that to require a board of education or director of schools to buy only that which is apparently the cheapest in price, would, in many eases, draw too narrowly the lines of discretion in enabling public officers to obtain that which is best adapted to the uses of the schools.

In the- cáse at bar we have had much discussion and considerable evidence -as to what was best adapted to the use of these schools, and which kind of coal was the most economical, considering its heating capacity and the price at which it was offered. It seems that there was but one bid for Jackson coal, that of the A. O. Blair Company. There were other bids for Pocahontas .and Coshocton coal and some others; and after a consideration of all, and acting '¡in the light of such experience as the board had had in the use of all .these different classes of bituminous coal, a majority of the board concluded that it was better to purchase the Jackson coal offered by the A. G-. Blair Company -than to accept any one of the bids which had been offered for other qualities, kinds or grades. We think that they might legally do his, not losing sight, however, of that just 'requirement that they should act in good faith and for the best good of the schools, according to their light and understanding.

And this brings us to the consideration of the second question here, whether the claim in the petition’ has been borne out by adequate proof that they acted arbitrarily, and without regard to the good of the schools. It has been held with almost complete uniformity by the courts, that there is no judicial power to interfere with that discretion which is given to public bodies like city councils and boards of education in .the discharge of their duties, unless there is apparently an abuse of such discretion. In the present ease it appears that there was more or less discussion upon the question of the acceptance of one or another of the bids, and a majority of the members of the board decided in favor of the bid of the A. G-. Blair Company for Jackson coal. They ’ had been furnished with a detailed statement made by the director of schools showing certain tests by experience with different kinds of coal, upon the basis of which he seems to have claimed that'the Jackson coal was not the cheapest. Among the witnesses called here was Homer T. Yaryan, a gentleman who has had a very large experience in the use of fuels in the conduct of heating plants. He had used in many of these plants not only the - Jackson coal, but the other kinds of bituminous coal, and he expresses his decided view that no reliable test can be made in the manner in which 'the tests were made by the director of schools, as is claimed to have been done and to be shown by the tabulated statement submitted to the board of comparisons one season with another of coal consumption. Mr. Yaryan says that a drop of ten degrees in the temperature may cause an increase of 50 per cent, in the consumption of coal -to produce a desired temperature; and, although less coal of one kind might be consumed in a long continued cold season in a particular school, that still the changes of temperature in the one season or another might so decidedly affect the extent of the consumption of the coal as to destroy the value of such comparison. It would also seem from the testimony that the skill of the manipulator of the heating apparatus has something to do with the problem. And Mr. Yaryan says that the use of Jackson coal is attended with less difficulty, requires less experience and skill than does the proper heating of a structure with Pocahontas coal. The board of education might well take into account such matters as this in making their choice of fuel.

I might elaborate véry much more along this line, in considering the question of whether the board of education acted in good faith. The party attacking their proceedings takes upon himself the burden of establishing his claim, and we think that the evidence here falls far short of establishing that the board of education acted in bad faith. Indeed, the petition does not quite charge in terms that there was any corruption or bad intent. If rather charges, somewhat vaguely, perhaps, that they were careless in the discharge of their duties, regardless of the good of the schools; that they were arbitrary in the selection of the bid that was not the lowest responsible one. The evidence, however, does not lead our minds to the conclusion that they have been so regardless, so careless of the good of the schools as to justify the finding that there has been an abuse of the discretion confided to them. They are not held to a knowledge of the heating capacity and economy of the Coshocton coal which they may have subsequently acquired in the use of that coal in the schools after their purchase of the Jackson coal offered by the A. G-. Blair Company had been prevented by injunction in the court below. They are held only to such knowledge as they may fairly be supposed to have had or might reasonably have obtained at the time when they accepted the bid of the A. G. Blair Company; and holding them only to that knowledge, our view is that the burden resting upon the plaintiff to establish his claim has not been sustained. Our judgment, then, is that the injunction should not have been allowed.

There is another reason why at the present time there should be no injunction. The evidence discloses that there is no longer any intention on the part of either the board or the director of schools to close any contract with the A. G. Blair Company. The court below rendered a permanent injunction against the entering into of any contract upon the basis of the acceptance of the Blair bid. Both the A. G. Blair Company and the board of education appealed to this court; at least an official and attorney claiming to represent the board of education filed an appeal bond; but the board of education has disavowed his act and upon its application its appeal has been dismissed. There is here offered in connection with the evidence in the case a very clear indication that the board of education does not intend to enter into any contract with the A. G. Blair Company, and, so far as we are advised, the A. G. Blair Company is not pressing its claim to a contract.

There is no reason to apprehend the doing of the things the preventing of which was the object of the suit; and the only aim of the inquiry before us is to determine whether a judgment for costs which has been rendered against the defendants, including the A. G. Blair Company, should stand, and incidentally, whether the plaintiff as.a tax-payer was entitled to an injunction at the time of the filing of the suit.

Our conclusion, on an examination of the whole matter, is that he was not so entitled to an injunction; that his petition should be dismissed, and that the defendant now in court, who has come to this court by appeal, is entitled to a judgment for its costs. The judgment will be entered accordingly.

Parker, J.,

concurring.

I want to add a word to give my own views about the construction of these sections of the statute (that have been referred to by Judge Wildman. '

Upon looking into the statutes we find that Section 3988, Revised Statutes, in substance, if not precisely in its present form, has been upon the statute books a great many years. I have not gone back beyond 1873, but it was .there then, requiring that boards of education should advertise for bids in certain cases. The earliest provision that I find for a director of schools is in the statute passed April 25, 1904, 97 O. L., 360. My view of the functions of this officer or employe is that he has certain clerical duties to perform, and that he may exercise certain authority by virtue of the statute, and he may do certain other things under authority derived from the board of education. ITe shall purchase supplies and equipments as- .authorized by the board of education, and he is -to attend to the clerical work incident to advertising for bids, in cases where bids are required by the statute, i. e., Section 3938, Revised Statutes.

As to the construction >to be put upon Sectión 3988, Revised Statutes, much light is given by the ease of Board of Education v. Andrews, 51 Ohio St., 199. My view of the matter is that advertisement for bids was not required in the purchase of fuel, •and that the director of schools in purchasing this coal was under the control of the board of education, and that it was a purchase by the board, or a purchase by a director of schools under authority derived from the board. According to the record submitted he does not seem to have been vested with authority to make the purchase, but only to solicit proposals; and that he should first advertise for bids was not required by the board nor by the statute. His action amounted to simply soliciting proposals. When these bids or proposals came in, it became the duty of the board to consider them, and in considering these proposals they were not in any way hampered or controlled by the provisions of the section respecting the acceptance of the lowest responsible bid. Of course they were bound to execute their trust with honesty and fidelity, notwithstanding the absence of such requirement; but we .agree that to impeach or invalidate their action in the premises, it is not sufficient to show that the board may have blundered, may have fallen into some error, or that it may not have done the wisest thing possible under the circumstances. Certain members of the board admit on the witness stand that if they had had the light upon the subject at the time of this transaction, that has been thrown upon it since, they would probably have voted for the acceptance of another proposal, either a proposal to furnish smokeless coal, or the proposal that they did .afterwards accept. But it is not evident to us that such information was .presented to them, or that they were aware that such information was within their easy reach, as would have .apprised -them that other .of the bids were more advantageous to the board of education than the one accepted. The evidence submitted upon that subject is not so clear that it can be fairly said that by failing to avail themselves of this information they abused their authority to an extent that would render the transaction void, or that it ought to move a court of equity to enjoin the contract made.


source: Caselaw Access Project

license: Public Domain

text:
    LIEN AGAINST INTEREST OF HEIR IN PROPERTY SOLD TO PAY DEBTS.
    Circuit Court of Hamilton County.
    Estate of Ottilia Seitz.
    Decided, May 16, 1908.

      Sale of Property of Decedent to Pay Debts — Judgment Lien Asserted •against the Interest of One of the Heirs — Nature of the Proceeding —Oan not be Attached Collaterally — Distribution—Sections 5851, 5358 and 811,5.

    The lien of a magistrate’s judgment may he set up in a proceeding in the probate court to sell the property of a decedent to pay debts, where the party against whom the lien was obtained has an interest in the property as an heir; such a proceeding is not one requiring the issuance of summons for the party against whom the lien was obtained, and an order directing the administrator to pay ' the claim can not be collaterally attacked.
    W. J. Davidson and Harry B. Weber.

      Smith, J.; Swing, P. J., and Giefen, J., concur.
   The judgment recovered against Minnie Flesher by William F. Wagner and the lien acquired upon her real estate inherited from her mother, Ottilia Seitz, under Sections 5377 and 5378, were not improperly set up in the probate court in the suit to sell the real estate of Ottilia Seitz to pay debts:

Section 6145 provides for the' - determination of the equities between parties as well as the priorities of liens, and the order of the probate court merely found that the judgment of Wagner was a lien upon the interest of Minnie Flesher in the premises to be sold, and the administrator was ordered to pay the same from the balance due Minnie Flesher.

This was not such a proceeding on a cross-petition asking affirmative relief as would require the issuance of a summons to bring a party into court, nor on the other hand can this finding or order be collaterally attacked.

Judgment affirmed.


text:
    WHEN A TITLE BY DEVISE TAKES EFFECT.
    Circuit Court of Hamilton County.
    David W. Miller et al v. Howard Douglass, Executor, et al.

      Wills — Title by Devise — When it Takes Effect — Action to Set Aside Conveyance Made by Devisee After Death of the Testator but Before Probate of his Will.

    A title in a devisee relates back from the probate of the will, and takes effect as of the date of the death of the testator; or if not at the death of the testator, the devisee takes upon probate of the will no more than a naked legal title, and where he has made a conveyance of his interest during the interim between the death of the testator and the probate of the will,, he takes the legal title - upon probate of the will as trustee for his grantee.
   It appears from the evidence in this case that John M. Miller, the father of David W. Miller, died on March 21, 1894, leaving a will by which he bequeathed and devised the one-ninth part of his estate, consisting of personal and real property, to David W. Miller. This will was read to the children on March 24, 1894, and thereupon on that day David W. Miller executed a paper writing whereby he set over all his right, title and interest in his father’s estate to Matilda G. Miller, his wife, ‘ ‘ in consideration of certain accounts and notes” due by him and at that time transferred to him. Two days later he executed the following deed:

“Know all men by these presents, that David W. Miller, of Cincinnati, Hamilton county, Ohio, in consideration of one dollar ($1.00) and the indebtedness which he owes to Matilda G. Miller, does hereby grant, bargain, sell and convey to said Matilda G. Miller, her heirs and assigns forever, all his right, title, interest and demand of every kind whatever, in, to and concerning the personal and real estate belonging to the estate of John M. Miller, late"of Hamilton county, Ohio, being all the share and portion of said estate, both real and personal, which was devised to the said David W. Miller by the last will and testament of said John M. Miller, deceased, to have and to hold the same to the said Matilda G. Miller, her heirs and assigns forever. ’ ’

The one dollar consideration was paid by Matilda G. Miller to David W. Miller, and the deed was duly delivered to Matilda G. Miller, and filed for record on the same day. Five days thereafter, on March 31, 1894, the will of John M. Miller was admitted -to probate in the Probate Court of Hamilton County.

Soon thereafter the plaintiff obtained a judgment for $2,770 and costs against David W. Miller, and caused an execution to issue on said judgment and levied on the real estate devised to David W. Miller under said will ,as the property of David W. Miller, claiming that the deed was made without any consideration and was fraudulent and void for want of consideration, and that it cast a cloud on the title of David W. Miller in said real estate so that it could not be sold on execution; that it was made for the purpose of defrauding the plaintiff and other creditors, and for the purpose of hindering and delaying them in the collection of their claims, and asking that the cloud on the title be removed and that the instrument be held to be void.

This raised the question as to what was transferred by the instruments executed by David W. Miller to Matilda G. Miller, after the death of John M. Miller and the reading of his will, and the subsequent probate of the will. The common pleas court answered this question as follows (3 N. P., 220) :

“That when David W. Miller executed the transfer of March 24 and the deed of March 26, 1894, he had no title unless by inheritance from his father; that his title as devisee was a new title acquired subsequent to the deed on the probate of the will; that the deed conveyed such interest as he then had, and did not convey his title as devisee, and which title he or his judgment creditors may assert as against the grantee under the deed. Therefore the plaintiff and such other judgment creditors as obtained a lien after the .title vested may subject the interest of David W. Miller, as devisee under the will, to payment of their liens.” ,

The case was thereafter taken to the circuit court by David W. Miller et -al, where it was heard by Judges Marvin, Douglass and Caldwell, sitting in place of the judges of the first circuit, and on July 8, 1898, a decree was entered reversing the judgment of the common pleas. The ground of the decree was that upon the ripening of the legal title in David W. Miller by the probate of the will, it took effect by relation as of the date of the testator’s death. This case was not reported (an- opinion on -another branch of the ease may be found two or three times repeated), but the decree answers the purpose of a report, and is here subjoined :

“This cause came on to be heard upon the petition in error, the transcript and the original pleadings and papers from the Court of Common Pleas of Hamilton County and was argued by counsel and submitted to the court.
“And the court, being fully - advised, finds that there is error apparent upon the record prejudicial to the plaintiff in error, as follows:
“The court having found the facts and the law separately in the decree rendered in the court below, erred in matters of law in finding that said David W. Miller, at the time of the execution and delivery of a certain conveyance set forth in the decree, to Matilda G. Miller, had no interest in the property mentioned and described therein, under the will of his father, John M. Miller, deceased, and that said Matilda G. Miller took no interest nor title in said property by virtue of s-aid conveyance as against David W. Miller and the other parties to said action.
"The court below also erred in finding that said defendants in error herein, or any of them, acquired any lien upon said property by virtue of the judgments set forth in said action against said David W. Miller, and erred in decreeing said conveyance to be set aside and in ordering any money paid into court.
"This court holds that David W. Miller had an interest in said property under said will at the time of the execution and delivery of said instrument to his wife, Matilda G-. Miller, that might be then conveyed; that' said instrument affected such conveyance ; that upon the ripening of the legal title in David W. Miller by the probate of said will, by relation the title took effect as of the date of the testator’s death and therefore instantly devolved upon said Matilda G-. Miller. Even if it did not thus take effect by relation, David W. Miller acquired no more than -the naked title, and all ownership and beneficial interest were in said Matilda G-. Miller, for whom he held such legal title in trust, and that the defendants in error, by their judgments and levies, obtained a lien upon no more than such naked legal title, and that therefore said Matilda G-. Miller is entitled to the real estate devised to David W. Miller, or the proceeds arising from a sale thereof, and said defendants' in error have no right or interest therein.
“It is therefore adjudged and decreed that the decree of the court of common pleas be reversed and set aside as to the findings of law and the orders based thereon, as herein set forth.
"And it is further ordered that this cause be and is hereby remanded to the Court of Common Pleas of Hamilton County for a decree in favor of the plaintiff in error and such further proceedings, in accordance with the decree, as may be required in the premises.
"And it is adjudged that the defendants in error shall pay the costs of the proceedings, taxed at $-, and it is ordered that a special mandate be issued herein to said court of common pleas to carry the foregoing judgment into execution.
"And said defendants in error except to the finding and decree of the court herein.”


text:
    DE FACTO OFFICERS.
    Circuit Court of Lucas County.
    David T. Davies, Jr., Auditor of Lucas Co., v. State, ex rel William H. Scherer; and William H. Scherer v. Arthur H. Rine et al.
    Decided, June 2, 1908.

      Assessors — Failure to Qualify — How to he Treated hy County Auditor — He Facto Officers — Mandamus—Injunction—Appointment of Assistants — Approval of Bonds — Ministerial Huties — Sections 1-518, 1536-3, 1536-998 and 1536-999.
    1. Failure of an assessor in a municipality to qualify within the period after election prescribed hy law, is deemed a refusal to accept the office which becomes ipso facto vacant, to be filled by appointment hy the county auditor.
    2. A writ of mandamus will not lie at the instance of a mere de facto assessor, to enforce his claims to be invested with evidence of a legal title to the office.
    3. Injunction is the proper remedy by a de facto officer to prevent his being disturbed in the performance of the duties of the office until the legal title thereto has been determined.
    4. Two persons can not, at the same time, be de facto officers of an office for which one incumbent only is provided by law.
    5. Approval of official bonds of assessors and of the appointment of assistant assessors are acts not merely ministerial, but require the exercise of judgment and are not within the legal powers of a deputy county auditor.

      L. W. Morgan and E. B. Thompson, for Davies and Arthur H. Rine.

      L. W. Wachenheimer, Ben W. Johnson and Karl A. Flichinger, for plaintiff.
    Wildman, J.; Parker, J., and Kinkade, J., concur.
   The two cases of David T. Davies, Jr., v. State, on the relation of William H. Scherer, and the case of William H. Scherer v. Arthur H. Rine will be disposed.of in one opinion. The case of David T. Davies, Jr.,-as auditor of the county, against' the State, on relation of Scherer, is an error proceeding brought in this court .to reverse the judgment of the court below rendered in an application on behalf of Scherer, as relator, for a writ of mandamus to compel Davies, as county auditor, to approve the appointment of two persons named by Scherer as assistant assessors, and to' deliver to Scherer books and papers pertaining to the office of assessor, Mr. Scherer claiming that he is the assessor of one of the wards or precincts of the city by virtue of his election thereto. The other case of Scherer v. Rine was instituted in the court below but brought to this court by appeal, and is a suit for an injunction to restrain Rine from disturbing Scherer in the. performance of the duties of the office as assessor.

We are brought first to a consideration of the question whether or not Scherer', at the time of the institution of these suits, was entitled to claim the office of assessor. He had been duly elected thereto on the 5th day of November, 1907, and he attempted to qualify by filing a bond on the 19th day of the same month. The statute, Section 1518, provides that upon the election of an assessor in any ward or precinct of a municipal corparation, the office-shall be considered vacant, in the event of .the failure of the person elected to give bond and take the oath of office for one week after his election. By Section 1536-3, it is provided :

“When the corporate limits of a city or village become identical with those of a township, all township offices shall be abolished, and the duties thereof shall thereafter be performed by the corresponding officers of the city or village, excepting that justices of the peace and constables shall continue to exercise their functions under municipal ordinances providing offices, regulating the disposition of their fees, -their compensation, clerks and other officers and employes, and such justices and constables shall be' elected at municipal elections,5 ’ etc.

By Section 1536-998, it is provided that certain official bonds in nxunicipalities, including, as we construe the statutes, the bond of the assessor, “shall, upon its approval, be delivered to the city clerk,” who shall file .and preserye the same áfter record. By Section 1536-997, it is provided,, that such bond shall be approved by the mayor. Section 1517-1 provides that in municipal corporations divided into wards, an assessor shall be elected in each ward at eVery annual election. lie shall take the same oath, give the same bond and perform the same duties as are provided for township assessors. The section immediately preceding 1517 provides as to the character of the bond to. be given by the township assessor, so that -the two sections must be read together to determine the duties of the municipal assessor. Sections 1517 and 1518, to which I have already referred, are carried into the municipal code, and the code has provided for the amount of the bond to be given.

On April 8, 1908, after Scherer’s election, an official oath was taken by him, and on the 13th the city council undertook to pass a resolution approving his bond, and the mayor undertook to approve the act of the council, the bond having been fixed at one thousand dollars. There was never any approval of Scherer’s bond by the mayor. He did nothing, so far as the record discloses to us, but approve the resolution of the council.

By Section 1536-999, it is provided that:

“The council may declare vacant the office of any person elected or appointed to an office who shall fail to take the oaths required in Section 1737” (which in this 6th edition is given as 1536-996) “or to give any bond required of him within ten days after he has been notified of his .appointment, or election, or obligation .to give a new or additional bond, as the case may be.”

This seems to have application to bonds generally, but by the section to which reference has already been made, 1518, specific provision is made with reference to assessors, and it is provided, in effect, that as to this office, perhaps because of the need of filling it speedily after election, the office of assessor shall be considered vacant, without waiting for the council to declare it so. The Legislature probably made this enactment in view of the conditions existing, of a legislative character, as to the time off election, when, -the enactment was made, but they have permitted Section 15.18 to remain in force notwithstanding the subsequent changes as to the. time of holding municipal elections.

A deputy auditor, Mr. Otto Sanzenbacher, attempted to approve the bond of Scherer, but we are quite clear in our view that the approval of an official bond is an act requiring such judgment of the officer attempting to exercise such approval that it can not be done by a merely ministerial officer, and we do not think that a deputy auditor is clothed with the power attempted here to he exercised. The same thing is true as to the appointment of assistants. It is an authority given to the assessor. The assessor names the .assistants, and the appointment is to be exercised or approved by the auditor, and it is a power which he could not delegate to another.

Now coming directly to the question, based upon the legislative enactments to which I have referred, and the view which I have expressed as that of the court, whether or not Mr. Scherer at the time of the institution of these proceedings was the legally appointed and qualified assessor, or in other words, whether he was the de jure officer, I desire to cite certain .authorities which seem to me decisive of the question. I have before me the case of The State, ex rel Attorney-General, v. James M. Matheny, 7 Kans., 327, in which it is held that the failure of a county clerk-elect to file his official oath -and bond with the county treasurer within twenty days after the commencement of the term for which he was elected, vacates his office. In State, ex rel Berge, v. Lansing, 64 N. W., 1104, decided by the Supreme Court of Nebraska in 1905, it was held:

“Section 716, providing that ‘if any person elected or appointed to any office shall neglect to have his official bond executed and approved as provided by law, and filed for record within the time limited by this act, his office shall thereupon ipso facto become vacant’ construed, and held to create a condition precedent to the right of a person so elected or appointed to be inducted into office. ’ ’

This is the decision of the court, although two of its judges dissented. The fourth paragraph of the syllabus is:

‘ ‘ Held, further, that such provision is self-executing, and that unless the official bond, where one is required, is filed within the time provided by law, the person elected loses all right to the office, and the vacancy can be filled without any previous judicial determination of the fact.”

The ease is interesting because of the conclusions arrived at by the court, and .also the comment in the opinion upon other eases, which are collated on page 1109. Numerous cases are cited, and the judge speaking for the court says:

“It will thus be seen that the overwhelming weight of authority under statutes much less mandatory than our own is to the effect that, where a -time is prescribed within which one, in order to be inducted into .an affiee, must .take -the oath or file a bond, -the taking of the oath or the filing of the bond is a condition precedent to the right to enter upon the office, and that the right is absolutely, lost by a failure to perform the condition within the time limited. ’ ’

We have a general provision in our statutes, which has found analogies in the phraseology of those of some other states. Section 19, Revised Statutes', reads as follows:

“Any person elected or appointed to an office of whom bond or security is by law required previous to the performance of the duties imposed upon him by his office, who refuses or neglects to give such bond or find such security,. agreeable to, and .within the .time for that purpose prescribed by law, and in all respects to qualify himself for -the performance of such duties, shall be deemed to have refused to accept the office to which he was elected.or appointed, and the same shall be considered vacant, and be filled -as provided by law.”

This section also should be read in connection with Section 1518 referring specifically to .the office of assessor. In Section 19 we have the provision as to the inference which is to be drawn from the refusal or neglect of the assessor to qualify. He “shall he deemed io have refused” -the office; and in Section 1518 we have the provision specifically provided as to the assessor’s office, that if he fail to take the oath of office for one week after his election, “the office shall he considered vaeanl.” Taking the two sections together, there seems .to be no escape from -the conclusion that the failure to file his bond and take the oath of office within the .time and in the manner provided by law, raises the presumption that he has declined the office, and also that it has become vacant. The statute says “it shall be considered vacant, ’ ’ and the other provision that, under certain circumstances and as to certain municipal officers, the council may declare offices vacant, has no application to the circumstances of the present ease. The vacancy is not dependent on such declaration by the council.

The Supreme Court of the state of Arkansas, Falconer v. Shores, 37 Arkansas, 386, has decided that .the sheriff is by law ex-officio collector of revenue, but if he fails to give bond as such collector by the time prescribed by the statute, the first Monday in January, he forfeits -the office and can not be restored to it by executing the bond afterwards. I cite this case because of the attempt made by Scherer, after the expiration of the time allowed by law for his qualifying, to take the oath of office and file the bond, obtaining the .approval of the deputy auditor. After the office has become vacant, and after the conclusive presumption has been raised of his intention to decline the office, it would seem ¡that there is no power in Mr. Scherer to restore himself to the office by any subsequent acts.

The case cited in the 25th Ohio State at page 567, Kelly v. The State, does not .affect the law governing the present ease. In that case a question of estoppel was raised as against the sureties upon the bond of a county treasurer who had riot qualified within the time required by .the law, and it was held that as against such sureties .the principle of estoppel would arise. The officer attempted to qualify after the expiration of the time provided by statute, and then proceeded to perform the duties of the office, and the public, treating him as an officer de †ado, and transacting business with him, acquired rights by virtue of the equitable principle of estoppel. But no such principle or question has been raised in the present case. On page 577 is some language which is probably diclum, but still should be given such force as we ordinarily give to expressions of that character by the judges of the Supreme Court, and it may be read:

‘ ‘ The effect of the treasurer’s failure to give bond, or take the oath of office, on' or before the- first day of the term, involves a more serious question.”

Then the statute is quoted, which says that upon such failure the office shall be held to be vacant, and malees it the duty of the commissioners to fill it by appointment; and Judge Welch says: '

"I suppose the true construction of this statute ¡to be, that upon such failure to give bond and take the oath, the office ipso facto becomes vacant, without any resolution of the commissioners to that effect, and without the appointment of any one to the office, and that the treasurer-elect in such ease is liable at any time thereafter to be ousted from the office by a proceeding on the part of the public, or of .an appointee. It seems to us, however, that the treasurer an cl his sureties are estopped from setting up this defense. ’ ’

Here we have by this dictum a recognition of the principle which seems decisive in the present case, where no question of estoppel has been raised, where the public has not been injured, and is not seeking to protect its rights as against a defective officer or the sureties upon his bond. A dictum to similar effect appears in the opinion in State v. Hopkins, 10 Ohio St., 511, quid vide.

A more decisive ease is that of The State, ex rel Poorman, v. County Commissioners, 61 Ohio State, 506, holding:

"If one elected to the office of sheriff fails, without justification, to give an official bond before the first Monday of January nest after his election, there occurs on that day a vacancy in the office which the county commissioners should fill by appointment. ”

The court in that ease, and. the decision was per curiam, ap¿ plied the principles of Section 19, which I have read, and also Sections 1203 and 1205 of the Revised Statutes, considering this general section number 19 applicable to the case of the failure of a sheriff to qualify, although there were specific provisions for his qualification, just as in the present case we have specific provisions for the qualification of an assessor, and as to the effect of his failure to qualify within the time provided. Section 1203 of the sheriff act provided that, "the sheriff or coroner shall, within ten days after receiving their commissions, and before the first Monday of January next after their eleetion, give bond to the state with two or more sureties' approved by the county 'Commissioners”; and Section 1205 provided that, “If the sheriff or coroner fails to give bond within the .time above specified, or fails to give additional sureties on his bond, or a new bond, within ten days after he has received written notice that the county commissioners' require such additional surety or new bond, then the said commissioners shall declare the office of such sheriff or coroner vacant and said office shall thereupon be filled as provided by law.” But it will be noted that, although there was the provision quoted as to the declaring of the office vacant by the commissioners, the syllabus of the case holds that the office, on the very day when the bond should have been filed, became vacant.

Without considering for the time being the question whether the appointment of Rine by the auditor made him the de jure officer, it can not be held that Scherer became a de jure officer merely by virtue of his eleetion and his attempted qualification in the April after such election.

The question remains, and has seemed to us one of vital consequence in the ease, whether a merely de facto officer can maintain a proceeding in mandamus to compel the recognition of anjr rights in him as an officer, and an examination of the authorities and a consideration of the principles involved lead our minds to the conclusion at which we have unanimously arrived, that a de facto officer does not possess the same rights as to maintenance of proceedings for mandamus that are held by an officer de jure.

The ease of Ex Parte Harris, 52 Alabama, 87, holds:

“Mandamus is not a proper remedy to try the right to public office, of which there is a de facto incumbent, nor will it lie in any ease to compel performance of duty or exercise of power, unless the relator has a clear legal right to demand it and is without .any other adequate and specific remedy.”

On the qiiestion as to the right of a mere de facto officer to maintain mandamus, I invite attention to the definition of the expression “officer de facto” as found in Mechem on Public Officers, Section 317. I will not stop to read, but in one of the paragraphs of the section it is sa.id:

“Thus if the title of the assumed officer be directly assailed by the state, in a proper proceeding, it will be necessary for him to show himself something more than an officer in fact. So in a direct proceeding brought by the assumed officer himself to secure rights which belong only to an officer de jure, it may be necessary for him to show himself to be such. ’ ’

Now is not that the present ease? Here is a person who claims to be performing some of the functions of an officer, in other words, to be an assessor de facto. He says that he was to a certain extent recognized by the auditor at one time as an assessor; that he came into possession of some of the necessary blanks or papers, and that he inspected or viewed at one time certain structures, and that he was elected by vote of -the people to the office. In order to fortify his pqsition and sustain claims to being a. de jiore officer, he seeks t^ get, other indicia or evidences of his right to the office: But that is a kind of fortification of title which we think it is not the province of the proceeding in mandamus to bring to him. He must do it in a direct proceeding in the nature of quo warranto, or in some other way. He must bring the title to his office directly into issue.

Section 322 of this same work has this language:

“It is evident that two different persons can not, at the same time, be in the actual occupation and exercise of an office for which one incumbent only is provided by law. There can not, therefore, be an officer de jure and another officer de facto in possession of the same office at the same time: Hence if the officer de jure is in, there is no room for an officer de facto; and if the officer de facto is in, the officer de jure can not be in also.’’

There are two cases from other states bearing directly upon this question. One is that of People, ex rel Sullivan, v. Weber, 86 Illinois, page 283, holding — I read the third, fourth and fifth paragraphs of the syllabus:

“Where one claims rights as an officer, by virtue of his office, he must show that he is legally entitled to act — -that he is an officer de jure as well as de facto.
“The acts of an officer de jure are valid and effectual everywhere when within the limits of his authority; but the acts of a de facto officer are valid only so far as the rights of the public, and of third persons having an interest in such acts, are involved; but such officer can claim nothing for himself.
“The title of a de facto officer can not be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. ’ ’

He is so suing here. He is claiming that he is an officer; he is insisting that he is entitled to the paraphernalia or insignia or indicia of his office; that he must have the tools, the furniture; that he must have everything that pertains to the office which he claims to hold. In other words, the title to the office is drawn directly in question in the first instance, and it is not enough for him to say, “I insist upon being clothed with all the rights and powers appertaining to the office, because I am exercising some of the powers appertaining to the office.”

The Supreme Court of Indiana has made a like holding in Glascock v. Lyons, 20 Indiana, 1:

“If a person, rightfully in the possession of an office to which he is entitled, is ousted therefrom by an intruder, an action for money had and ‘received would lie in his favor against the usurper to recover the fees, when fixed of customary fees are incident to the office.
“And in such an action the title to the office may be determined.
“A person who is rightfully entitled to an office, although not in the actual possession of it, has a property in it; and against a mere intruder, who may perform the duties of the office for a •time,'' and receive the fees arising therefrom, he may maintain an action for money had and received to recover such fees, and such intruder can not retain any part thereof as compensation for his labor.”

We are too prone to forget, in our construction of eases affecting the incumbencies of office,' that an office is not a mere institution like an almshouse or an orphans’ asylum, provided for the benefit of an incumbent, but it is a place of service. It is established for the benefit of the public, and the statutes are to be construed and enforced in the light of -that fact.

We hold that upon the views already expressed, viz: first, that Mr, Scherer has not shown himself .to be 'a de jure assessor, and, second, that the proceeding in mandamus will not lie in favor of one who is not such, that the writ should be refused. Our judgment is strengthened somewhat by the fact that the auditor himself has récognized, and is recognizing, another person as the- de jure assessor; has approved the appointments of assistants for such assessor, and has given him the books and papers pertaining to the office, bringing the case very much on á parallel with that suggested in Mechem, Section 322, supra, where it is said that there can not be two officers, one de facto and one de jure, at the same time, when the de jure officer is in possession. It would seem that at the beginning of these proceedings, no matter what had happened before, Scherer was no more de facto officer than Riñe; that is to say, he was no more acting than Riñe; he was no more in possession of the apparent evidences of an incumbency than was Riñe, and for that reason, in addition to those already suggested, it' would seem as if mandamus was not a proper proceeding to determine which of •the two men was entitled to office. Again, his proceeding is not against Riñe; it is instituted against the county auditor, and no rights of Riñe can be determined in the mandamus proceeding against the auditor. "" '

Coming to the injunction suit which was brought by Scherer, claiming to be at least an officer de facto, and asking that he be not disturbed in the exercise of the duties' of his office, it may be repeated that such application must be made because of the danger to the public, rather than because of any deprivation of benefit to himself. It is because, if he is disturbed in the performance of his duties while he is the one de facto officer, the public will be injured. When the case was first presented to us, and upon the showing then made and citation of authorities, and such examination as we were able to give to them, we concluded that, while the testimony was somewhat meager and vague in support of the claim of Scherer that he was a de facto officer, still there was enough to justify his claim, and we were disposed to grant the injunction. But much light has been given to us in the re-discussion of the case in connection with the presentation of the mandamus proceeding. It is not that new evidence has been offered, but we have had time to give to the whole matter more careful consideration, and it has been brought more clearly to our minds that no interest of the public can be subserved by preventing Rine from going on and performing the duties which are devolved upon him-by the appointment. It is now made probable as between Scherer and Rine, who are both parties to the injunction suit, that Rine is the officer de jure as well as de fació. He was appointed, as the statute requires, by the auditor. He was appointed after the office had become vacant by reason of the failure of Scherer to qualify; and Rine was not appointed by a deputy, but by the auditor, as the statute requires. He has filed his bond with the auditor pursuant to a like requirement; he has, so far as appears, qualified regularly, and under those circumstances we are not now disposed to prevent him from performing the duties of the office, and thereby increasing the entanglement between these two gentlemen who are both claiming to be assessors-.

We have -arrived at -the unanimous conclusion, not only that the writ of mandamus - should be refused, as already stated, but that we should not grant the injunction asked by Scherer. The contrary view previously announced in the injunction suit has not been embodied in any entry on the docket of the court or' the journal, and for this reason it is not necessary to put the present decision in the form of setting aside a judgment. We have simply reconsidered the case, and the judgment of the court will be as an original one. The injunction will be refused and the petition of the plaintiff dismissed. On the cross-petition of Rine, which asks an injunction against Scherer of like character, we have concluded that the facts warrant us in granting it and the judgment will be entered accordingly.


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    ASCERTAINMENT OF DAMAGES WHERE GOODS WERE NOT UP TO STANDARD.
    Circuit Court of Hamilton County.
    The Illuminated Car Sign Co. v. James H. Wilson.
    Decided, March 24, 1908.

      Sales — Construction of Contracts of- — Measure of Damages Where Goods Proved Unsatisfactory — Negligence in Manufacture an Element Which Should, he Excluded in Determining Actual Cost of Manufacture — Evidence—Charge of Cowrt.

    A contract which provided that the plaintiff should receive from the defendant corporation one-half of the profits derived by the defendant from “all signs which it should make and furnish and which should be placed on said Brooklyn Company’s cars as aforesaid,” must be construed to mean that the signs were subject to the approval of the Brooklyn Company acting in good faith.

      Ellis G. Kinkead and John D. DeWitt, for plaintiff in error.

      Joseph W. O’Hara and Orville K. Jones, contra.
    Gíffen, J.; Swing, P. J., and Smith, J., concur.
   Although, there is direct conflict between the testimony of Mr. Hunter and Mr. Wilson, the plaintiff in the original action (the only persons present when the .alleged contract was made), we think the evidence shows the existence of a contract substantially as set forth in the petition.

The measure of damages stated in the petition is as follows:

“That defendant would pay to plaintiff for his said services one-half of -the profits made by defendant upon all the signs which it should make and furnish and which should be placed upon said Brooklyn Company’s cars as aforesaid, which profits were to be the difference between the price obtained by defendant for said signs and the actual cost of manufacturing the same.”

Under this allegation the profits made by defendant Were not limited merely to signs made and furnished, but to those which should he placed upon said Brooklyn Company’s cars as aforesaid, that is to say, in pursuance of the joint efforts of plaintiff and defendant. It amounts to an admission that the signs were subject to the satisfaction and approval of the Brooklyn Co. acting in good-faith, and the plaintiff is bound thereby.

There is testimony tending to prove that the cost of reconstructing the signs and even an admission that part of such cost was due to the negligence of the defendant, which of course would exclude it from consideration in estimating the actual cost of manufacture. The court in its charge to the jury did not give this interpretation to the pleading, but left the question for 'determination by them from the evidence.

As we understand the testimony, it is admitted by Mr. Hunter, president of the defendant company, that the cost of making changes in the bonnet signs, amounting to $2,501-.33, was due to the negligence of the superintendent of the defendant company. Deducting this amount from the cost of manufacture, exclusive of commissions and royalty, as shown by .the books of defendant, there was a net profit of $4,074.80, one-half of which this plaintiff was entitled to, and if he will remit all in excess-of that amount the judgment will be affirmed, otherwise reversed for error in charge of court and because the damages are excessive.

The commissions paid to the New York agent as well as the royalty were not a part of the cost of manufacture, and were therefore properly excluded in ascertaining the profits as defined in the contract. The declaration of the witness, Taylor, to the witness, Perung, “Yes, I know all about that case, there is no question but what Wilson is right in that matter” is not only an opinion of the witness but a declaration that he has knowledge of all the facts necessary to form such opinion — whereas the facts within his knowledge as disclosed in his deposition are wholly at variance with, such necessary facts. He was the representative of the purchasing company whose duty it was, and who did conduct the negotiations for the purchase of 1200 signs from the defendant, hence his testimony that plaintiff took no part in such negotiations is irreconcilable with the declaration which, for the purpose of impeachment, is more significant because made after his deposition was taken and after his attention had been directed to the facts. The admissibility of the declaration -is supported by the following cases: Henitz v. Caldwell, 16 C. C., 630 (affirmed 64 O. S., 583); Dilcher v. State, 39 O. S., 130; Kent v. State, 42 O. S., 426.


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    COSTS ON CHANGE OF VENUE.
    Circuit Court of Guernsey County.
    The Board of County Commissioners of Guernsey County, Ohio, v. Thurlow.
    Decided, November Term, 1907.

      Sheriff — Fees of, Where There is a Change of Yenue and the Accused is Acquitted — Payable Under Section 12S1 and not Under Section 726J¡.

    Where there is a change of venue and the accused is acquited, the sheriff has no claim for fees, under Section 7264 of Revised Statutes as amended, 93 Vol. Ohio Laws, page 7, against the county where the indictment was found; his fees in such cases being provided for by Section 1231 of the Revised Statutes.

      Charles S. Sheppard, for plaintiff in error.

      Turnbaugh & Eagleson and A. M. Morris, contra.
    Cook, J.; Burrows; J., and Laubie, J., concur.
    Error to common pleas court.
   T. M. Thurlow, the sheriff of Noble county, obtained a judgment by consideration of the court of common pleas against the board .of county commissioners of this county for serving subpoenaes and other services rendered by him in'the case of The State of Ohio v. Barber. Barber was indicted for a felony in Guernsey county and obtained a change of venue to Noble county, where he was tried .and acquitted. Thurlow presented his bill for his services to the board of county commissioners of this .county, which was rejected, and .an appeal was taken to the common pleas court; and that court rendered judgment in his favor for the amount of his claim.

Thurlow claims that he is entitled to payment of his_ claim under Section 7264 of the Revised Statutes as amended, 93d Vol. Ohio Laws, page 7.

The section as amended provides that:

“The costs accruing from a change of venue including the compensation of the attorneys, appointed to assist the prosecuting attorney, and the reasonable expense of the prosecuting attorney incurred in consequence of such change of venue, and also including the fees of the clerk of the court and the sheriff and the jury fees of the jury, to be paid by the county in which the indictment was found. ’ ’

The part of the amendment specially relied upon is: “And also including the feels of the clerk of the court and the sheriff and the jury fees of the jury, to be paid by the county in which the indictment is found. ’ ’ We do not see that this amendment affects the original enactment at all.

The section as it originally read was:

“And the costs accruing from a change of venue, including the compensation of the attorneys appointed to assist the prosecuting attorney and.the reasonable expenses of the-prosecuting attorney incurred in consequence of such change of venue, shall be allowed and paid by the commissioners of the county in which such indictment was found. ’ ’

Under the section as it then read the matter was before our Supreme Court, 49th O. S., 373, and it was held that the sheriff of the county where the trial was had ivas not entitled to be paid his costs by -the county where'the indictment was found in cases where the state fails to convict; that the only compensation he was entitled -to is the allowance provided by Section 1231 of the Revised Statutes which is payable -out of the county treasury of the county where the trial is had. As a fact the sheriff had no fees or costs that he could claim, as the accused was acquitted; for in such cases the court of common pleas, under Section 1231, makes an allowance -to the sheriff for his services to be paid out of the county treasury of the county where the trial is had. -Noble county is making no claim, and very probably could not do so, as there is no specific provision of law under which it could make any claim.

The county commissioners did right in rejecting the claim. Whether the remedy by appeal was the proper one; it is not necessary for us to inquire, as defendant in error has no claim that he can enforce.

The judgment of ¡the common pleas court will be reversed and the proceeding of defendant in error dismissed at his costs.


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    ACTION ON BOND IN FAVOR. OF COUNTY.
    Circuit Court of Richland County.
    State, ex rel Huston, v. Samuel A. Esswein et al.
    Decided, January, 1908.

      Judgments — For Defendants Should he Affirmed on a Single Valid Defense — Principal and S-wrety — Pleading—Necessary Averments for Recovery on Bond Running in Favor of County — Section 799.

    1. A judgment for the defendants should be affirmed, if among the defenses which were interposed there was any one which was valid, or if there be any other sufficient reason under the law for sustaining the judgment.
    2. Failure to aver, in an action against a contractor and his sureties for damages in failing to complete a contract entered into with the county commissioners, that the contract relied upon was one of binding force and effect, and that the contract was endorsed by the prosecuting attorney in compliance with Section 799, Revised Statutes, and that there has been performance of all other prerequisites necessary to a complete and valid contract, precludes any recovery thereon by the county.
    3. Such prerequisites are not for the benefit and protection of the sovereign power alone, but they are of the essence of the contract, which without them becomes null and void.

      Lewis Brucker, G. M. Skiles and W. H. Bowers, for plaintiff in error.

      8. M. Douglass, G. II. Workman, J. J. Adams, G. E. Crane and Sater c& Seymour, contra.
    Taggart, J.; Donahue, J., and Craine, J., concur.
   This proceeding [State of Ohio, for the use and benefit of Richland County, Ohio, by C. H. Huston, Prosecuting Attorney of Richland County, Ohio, v. S. A. Esswein, W. H. Shinnick and G. J. Carter] is prosecuted to reverse the judgment of the court of common pleas. The plaintiff in error was plaintiff in the case below and defendants in error were defendants therein. To the amended petition filed by plaintiff t'he defendants each filed general demurrers.

In the court of common pleas these general demurrers were overruled, and thereupon defendants filed joint and several answers containing fifteen separate defenses. To each of these defenses except the first the plaintiff filed demurrers, and the demurrers were sustained to each excepting the third and fifth.

The case was heard by the common pleas court, a jury being waived, and a judgment rendered in favor of the defendants. A motion for a new trial was filed, overruled and exceptions taken, and this proceeding is now brought in this court to reverse the judgment of the common pleas court.

We may say at the. outset that -the judgment of the court of common pleas must be affirmed, if there is a single valid defense made in this case, or if, under the law, there is any other sufficient reason for sustaining the judgment.

The Supreme Court, in Sites v. Haverstock, 23 Ohio St., 626, thus, lays down the rule as to the verdict of a jury:

“Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the panties, this is to be taken as a verdict' finding each and all of the issues therein for such party.
“In such ease, if the issues are such that a finding óf either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other. ”

In McAllister v. Hartzell, 60 Ohio St., 69, the Supreme Court lays down the rule:

“Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the count to the jury relating exclusively to one of the issues. ’ ’

The Supreme Court, in the recent case of State v. Dickerson, 77 Ohio St., 34, held that the reviewing court was entitled to look into the record and, if the judgment which was in review was right for .any reason, it was the duty of the reviewing court to affirm the same.

The amended petition that was filed in the court below was based upon a bond which the defendants, Williams and Beaver, as principals, aifd Esswein, Shinnick and Carter, as sureties, had executed and delivered to the board of county commissioners of Richland county, in the sum of $15,000.

The condition of the bond was that — •

“F. H. Williams and H. H. Beaver have this day submitted to the board of county commissioners a proposal for labor and materials for remodeling the court house -at Mansfield, Ohio, as set forth in the proposals hereunto attached. Now, should the said F. H. Williams and H. H. Beaver, within ten days after receiving notice to that effect, enter into a contract to complete said work, and after entering into a contract faithfully to carry out all the conditions, implied and stated, in said contract, a full understanding of which is hereby acknowledged,- and leave the building and premises free from all liens and claims whatsoever, chargeable -to said'county commissioners, then this obligation to be void and of no effect; otherwise to remain in full force and virtue in law.”

The petition proceeds, after giving a copy of the bond and reciting its conditions, -and says that the board of county commissioners heretofore accepted the proposal of Williams' and Beaver and entered into a contract in writing with the said Williams and Beaver to remodel the court house of Richland county. The petition further avers that Williams and Beaver failed, neglected and refused to complete the remodeling of the court house, according to the terms of said contract, wholly abandoning said contract and refusing to complete the same. They further allege that the commissioners of Richland county complied with all the terms of their contract on .their part to be performed.

It will be noted-that, by the averments of this petition, the plaintiff does not allege that Williams and Beaver entered into ‘ ‘ a valid or binding contract, ” that they entered into ‘ ‘ a contract agreeable to the statute in such cases made and provided, ’ ’ that they entered into ‘ ‘ a contract according to law, ’ ’ or that they 1 ‘ duly entered into a contract. ’ ’ So that there is a total lack of averments in this petition that the “contract,” which was so claimed to have been entered into between "Williams and Beaver and the commissioners was of any binding^ force 'and effect whatever. ' '

The Supreme Court, in Wellston v. Morgan, 65 Ohio St., 219, thus states the rule:

“To state a good cause of action against a municipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute.”

So that, at the outset of this ease, so far as there is any averment in this petition, it totally fails to state that the ‘ ‘ contract, ’ ’ or alleged contract, that it is claimed was entered into between the commissioners and Williams and Beaver, was of legal and binding effect.

' We -are also of the opinion that it would be necessary for the plaintiff in this ease to set forth the facts showing a compliance with the statute, such .as is required by Section 799, Revised Statutes, alleging the endorsement by the prosecuting attorney and all the other pre-requisites to a complete and valid contract.

It is elementary, and as-Judge Davis states the rule in State v. Griffith, 74 Ohio St., 80, 92, “There is no proposition of law more firmly, settled in -this state- than that sureties- are not liable beyond, the letter of their contract. ’ ’ These sureties, defendants in this case, could not be boiind beyond the strict letter of their contract. Their obligation was that, if said Williams and Beaver, after entering into the contract, would faithfully fulfill and carry out -all the conditions stated in the contract, then the obligation was to be void and of no effect; otherwise to remain in full force! and virtue in law. We are clearly of the opinion that this presupposed an entry into, on the part of the principals, of a valid, legal and binding contract;

But it appears from the petition itself, and also from the record in the case, that Williams and Beaver either wholly abandoned or failed to complete their contract according to .the terms the contract that they had entered into. The contract which it is claimed they had entered into with the commissioners provided that, after a certain certificate was made by the architect and after written notice given to the contractors, the commissioners were at liberty to enter upon the premises and complete the same. And the petition avers that said certificate was furnished and the county commissioners proceeded, under the terms and provisions of said contract and in .accordance with the specifications and supplemental specifications, details and plans, and with due diligence, to complete said uncompleted contract for the remodeling of the said court house. And then the petition closes with the averment- that they have completed the uncompleted contract in so far as they had power to do so and have paid for the completion of the work.

Section 799, Revised Statutes, provides, in respect to public buildings and bridges, in contracts of this character—

“If such contractor or. contractors fail or refuse to proceed with the work specified in .his or their contract or contracts, * * ® the commissioners shall have power to declare such contract or contracts annulled, and shall proceed to make another contract or contracts for the completion of such work, in accordance with .the provisions of this chapter. ’ ’

Now, the provisions of this chapter provide that there shall be competitive bidding in all cases where the .amount is over $1,000. It is unnecessary to quote at length the statutes governing" this provision.

As we have called attention, this petition affirmatively states that they proceeded to complete theuncompleted contract in so far as they had power to do so, but there is not a single averment that they attempted "to comply with .the law in a single respect, so far as letting the contract by bids, having .the subsequent contracts endorsed by the prosecuting attorney, or having the certificate of the auditor -that the money was in the treasury therefor. It does appear in the record in this case that they did attempt -to let the contract by competitive bidding and that one Whissler made a bid which was, as shown by the record, above the amount the auditor certified was in the fund to the credit o£ the -building fund for -that purpose. The record .shows that they rejected .the bid on the ground that it was -illegal to accept the same, and then, in total disregard of the law, as we find in the record, they entered into separate contracts, without any competitive bidding, without having the contracts endorsed by the prosecuting attorney, or without, it seems to us, complying with any of the provisions which are provided for the safeguarding of the public funds. So that, so far as the sureties are concerned, this petition is fatally defective; and, so far as the record goes, we .think it shows affirmatively that, at the time of the default of the principals, Williams and Beaver, the county commissioners wholly failed to observe the law in respect to buildings of this kind.

In respect to the principals, Williams and Beaver,- if no valid contract was entered into between them and the commissioners, they could not be held to complete the contract, and there would be no default on their part if, before its completion, they had abandoned, failed or refused to complete the same. If the parties to this contract were bound to complete said, contract, it would present the .anomalous position that they could be compelled to give their time, labor and effort to supply the county with a remodeled court house, and the commissioners at the end refuse to pay, or a tax-payer enjoin the payments, and these parties be without remedy.

But it is urged on our attention and Claimed earnestly in argument that these provisions are for the benefit of the sovereign power, and that .the parties .to the contract can not take advantage of the failure to comply with the law. For the failure to have a contract endorsed by the prosecuting attorney, the statute says ’that the contract shall be null and void, and for failure to comply with the other provisions, certifying the money, etc., the statutes provide it shall be null and void, and you can not add to, or take from, the clear and expressive language of the statute.

If anything were needed to interpret the meaning of these words, we call attention to a case in Buchanan Bridge Co. v. Campbell, 60 Ohio St., 407, 425, where the court, speaking through Judge Burket, uses the following language:

“No notice of the proposed letting was published; no recgrd of the contract was entered in the minutes of the commissioners by the auditor; no plans or specifications were ever made, approved or deposited with the auditor; no contract was ever submitted by the commissioners to the prosecuting attorney for his approval, and none was ever approved by him.
‘ ? These omissions are fatal .to the validity of the contract, and, by force .of the above cited sections of the statute, the contract is totally void and imposes no obligation on either party to it.
‘ ‘ The statutes .are notice to the world .as to the extent of the powers .of the commissioners, and the bridge company is bound by that notice. It knew, or was bound to know, that the commissioners had no power to thus enter -into a contract, and .that a contract thus attempted to be entered into would be null and void, and would not bind either party.”

As we view it there was no valid contract between the commissioners and Williams and Beaver and none is alleged in this petition .and, therefore, there could be no recovery.

Upon the issues made by the answer in this action, we think that the judgment .of the court upon the third and fifth-defenses was sustained by the proof in this ease, and the judgment of the court .of common pleas was right and is affirmed. Exceptions will be noted and the cause will be remanded to the court of common pleas for execution.


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    LIABILITY FOR. BROKER.’S COMMISSION.
    Circuit Court of Hamilton County.
    Haskins v. Lewis.
    Decided, July 18, 1908.

      Factors and Brokers — Liability of Owner for Commissions — Order for Goods Refused When Offered by Broker, but Afterwards Accented, From the Customer.

    Where a broker brings a contract to his principal, which the principal declined to accept for the reason that there would be no profit on the sale after payment of a commission, but afterward the principal accepted the same contract direct from the customer, he is liable to the broker for his commission.

      Boettinger '& Gorman, for plaintiff in error.

      Alfred B. Benedict, contra.

      Swing, P. J.; Gieeen, J., and Smith, J., concur.
   This w.as an action for a brokerage commission by Lewis against Haskins on a certain glassware contract. There is little dispute as to the facts. The evidence is largely made up of correspondence between the parties. In brief, it shows that during the year 1904 Lewis was a glass broker, doing business in Cincinnati, and Haskins was a glass manufacturer, doing business at Martins Ferry, Ohio. In the early part of this year the parties commenced transacting business with each other, Lewis as broker and Haskins as manufacturer, and this relation continued during this year to .the entire satisfaction of both parties, .although it was claimed by Haskins that he had not made any money on certain of the contracts, but it was not charged that this was by reason of any fault of Lewis as broker.

It appears that Haskins during this year had accepted through Lewis a contract to furnish certain goods to the Standard Oil Company. Haskins was not able to supply all the goods desired by the Standard Oil Company owing to the fact that,.his factory had not been fully equipped, but it appears from the correspondence that Haskins ^ras desirous that" Lewis should get for him the entire contract of the Standard Oil Company for the year 1905. This contract was very large, consisting of 10,000 barrels. This contract was to be let in the early part of January, 1905. On January 3, 1905, Lewis went to Wheeling, West Virginia, with this contract .and met Haskins and urged him to accept it. There is a conflict in the evidence as to what was said between the parties about .this contract at this meeting, but we don’t regard a decision .as to this conflict as determining the rights of the parties in this action. Haskins said at this conference that he told Lewis that he had lost money on the .Standard Oil contract for the year 1904, and that he would never sign the contract for the 10,000 barrels at the price named, to-wit, $2.10 per barrel and pay Lewis a commission of five per cent., which was the amount of the commission -that the parties had agreed Lewis should receive in this business and which amount had been paid him the year previous. Lewis denied that Haskins made such a statement. But disregarding this conflict it is dear that at this meeting Haskins .objected to entering into this contract at the price offered, and that Lewis urged its acceptance.

Afterwards, on or before January 23d, Haskins entered.into the contract with the Standard Oil Company for the 10,000 barrels at the price.named, to-wit, $2.10 per barrel, for the year 1905. Lewis demanded his commission of five per cent, on this contract, which being refused he brought this action and recovered in the court of common pleas.

The answer of Haskins was a general denial and a further defense that he had notified Lewis that he would not accept this particular contract through him, presumably for the reason which he says in his evidence, that he told Lewis on January 3d that he could not accept the contract and pay him five per cent, commission and come out whole. There is no evidence which tends to show that at the conference on January 3, 1905, the relation of broker "and manufacturer had been broken off or terminated. Lewis still continued to urge Haskins to accept this contract and after Haskins had made the contract with the Standard Oil Company he, Haskins, still wanted to do other business with Lewis. The reason given by Haskins for making the contract with the Standard Oil Company was that the low prices did “not carry a profit justifying a commission” to Lewis. There being no controversy as to the facts, it becomes a question of law for the court.

Lewis during a course of business which existed between him and Haskins, as a broker, brings to Haskins a contract which Haskins accepts. Is Haskins liable to Lewis for the commission? On all other contracts which Lewis had brought to Has-kins he had paid Lewis commissions, in accordance with their agreement. Why should he not pay this commission? Has-kins’ reason why he is not liable is, that he told Lewis on January 3d that he would never enter into the contract and pay him a commission, and further that he wrote Lewis on January 23 d, after the contract was made, that he made the contract, with the Standard Oil Company direct, for the reason that the profits would not justify a commission. There is no claim that Lewis agreed to release ITaskins from the payment of the commission.

The decisions on brokerage commissions are mostly on real estate sales, but the principle seems equally applicable to all brokerage commissions. The principle applicable to such contracts is thus stated in 140 Mass., 339:

“If the owner of land employs a broker to sell it for a stipulated compensation, the broker is entitled to receive .that sum, if in pursuance of his employment he substantially effects a sale by introducing to the owner a person to whom the owner sells the land.”

In this case, ¡the facts are undisputed .that Lewis furnished to Haskins a customer, to-wit, .the Standard Oil Company, with whom Haskins contracted on the terms of the proposition as submitted by Lewis; and on all such'contracts it was agreed between Lewis and Haskins that Lewis should recieve five per cent, as a commission. It seems to us clear that Lewis should recover. The fact that Haskins said he told Lewis that he would not enter into the contract and pay him a commission, even if true, would not relieve him from his obligation to pay Lewis his commission, unless Lewis had agreed to it, and there is no claim made that Lewis ever assented to this.

The ease in 8 C. C., 513, relied on by plaintiff in error, does not seem to us to be controlling in this ease. The facts in that ease differ materially from those in this case. When the contract was made in that case the Eureka Company was no longer the agent of the other company, while in this ease the’ contract was entered into while the relation *of broker still existed.

The facts being admitted, the case became one for the court, and if the judgment is correct, and we think it is, errors in the charge of the court to the jury, if any, are immaterial.

Judgment affirmed.


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    APPROPRIATIONS FALLING UNDER. THE BURNS LAW.
    Circuit Court of Noble County.
    Sarah M. Hurst v. Incorporated Village of Belle Valley.
    Decided, November Term, 1907.

      Municipal Corporations- — Ordinance Appropriating Money for a Dike— Within Provisions of the Burns Law — Appropriation—Injunction— Section 1586-205.

    An ordinance of a municipal corporation appropriating private property for tbe building of a dike is an ordinance for tbe expenditure of money and is void if- no certificate bas been previously filed and recorded by tbe proper officer as required by Section 1586-205 of tbe Revised Statutes, known as tbe Burns law; and an injunction will be granted restraining tbe municipality from proceeding in tbe probate court to assess compensation to tbe land owner for tbe land appropriated.

      Okey & Frazier, for plaintiff in error.

      Bye & Smith, contra.
    Cook, J.; Burrows, J., and Laubie, J.,.concur.
    Error to Noble Common Pleas Court.
   The council of the Incorporated Village of Belle Valley in this county duly passed-a-resolution and an ordinance to build a dike within said corporation and also to appropriate the private property of the plaintiff, Sarah .Hurst, for that purpose; the costs of the same to be paid out of the general fund. After the pássage of such resolution and ordinance a proceeding was commenced by the solicitor on behalf of the village in the probate court of the county to .assess the compensation to be paid to plaintiff as damages for such appropriation.

Immediately upon the commencement of -such proceeding plaintiff instituted a suit in the common pleas court to enjoin the village from prosecuting such action. A temporary injunction was granted by the common pleas court which, upon final hearing; was dissolved .and the case is now before us on error.

At the time of the passage of the resolution and ordinance no certificate such as is provided, in Section 1536-205, had been filed with council that -.the money necessary to pay the -amount of the compensation to the plaintiff in error or the costs of the proceeding was in the treasury, .and that was the ground upon which the injunction was sought in the court below and the only reason assigned before - us why the injunction should have been allowed.

The question is therefore directly made: Whether or not in such case such certificate must be filed and recorded before the passage of the resolution .and ordinance -and, if not, is such .resolution and ordinance void? No serious contention is made but that if the case -is one that is controlled by Section 1506-35 that the proceedings in council were void and hence the injunction should have been allowed.

There has been no direct decision by .our Supreme Court upon this question .and the decisions by our circuit courts are directly opposed to each other.

In the case of Tyler v. City of Columbus, 6 C. C. R., 224, it was decided in the second circuit that when a city council deems it necessary to condemn private property for street purposes, that the statute does not apply and no certificate is necessary, while in the case of Rhodes et al v. City of Toledo et al, in the same volume, page 9, the court in the sixth circuit held directly the reverse.

These are the only two cases we find reported that have been decided by the circuit court of the state where the question of the appropriation' of private property is directly involved.

From the opinion in'the c^se of Tyler v. City of Columbus it appears that the reason for the decision in that case was that in appropriation cases damages are indeterminate, that therefore the amount in the treasury necessary for the improvement could not be ascertained, and that therefore the Legislature did not intend that a certificate should be filed in such cases. Tt might be said in answer to that, as it was said in Rhoades et al v. Toledo et al, all that was required is for the .auditor to exercise his best judgment.

'Without entering into a discussion of the controversy, we have only to say that that - difficulty has been considered in several -adjudicated cases since the determination of the case of Tyler v. City of Columbus, in which, cases thait objection is held to be more fanciful than real.

In the case of L. H. Bond v. Village of Madisonville, 2 C. C. R., 449, first circuit, it was held thait a contract made between a village and an attorney at law for professional services, he to receive for his services the reasonable value thereof, was held to be within the statute and absolutely void, and that no recovery could be Rad for the value of the services rendered by the attorney. The opinion of Chief Justice Smith makes a strong case and is difficult to answer.

The ease of Braman v. Elyria, 5 C. C.—N. S., 387, affirmed without report; 73 O. S., 346, is not applicable to this case, as in that case a certificate was filed and recorded and the only question was as to whether or not it was done in time.

' We have said that there is no direct decision of our Supreme Court upon this question, but at the same time there have been decisions that indirectly tend to show that an ordinance for the appropriation of land for a public improvement is controlled by the statute.

In the ease of Ryan et al v. Hoffman et al, 26 O. S., 109, the section of the statute was under consideration. The principal question involved was whether or not it applied to cases where the ordinance was passed prior to the date of the .act or to ordinances passed Subsequent to the date of the act appropriating money to pay expenditures made under such prior ordinances, and it was held it did not, but in the opinion it is said:

“The ordinance condemning the land in question is an ordinance for the expenditure of money but it was passed and took effect in September, 1872, long before the law in question was passed and therefore is not affected by it; and the passage of the ordinance of March, 1875, appropriating money for the payment of the land condemned under the former ordinance was not in contravention of the third section of the law. ’ ’

In the case of City of Cincinnati v. Holmes, Adm’r, et al, 56 O. S., 104, Judge Minshall says in the opinion on page 113:

“It may be said that the indebtedness is not created until a contract for the improvement is made. It is true that it does not exist in favor of an'y particular creditor, nevertheless, on making the order the successive steps — the advertisement for bids, action on them, the letting of the work and making of the required contract — all follow as a necessary sequence under the statute. If .the council should refuse to take any of these steps' without cause, it could be compelled by mandamus to do so. ITenoe, if the Burns law can have any application to this statute, according to its spirit it must apply to the order of council that the improvements be made. It is this order that fixes- and entails the indebtedness upon the corporation. It is in fact an order for the expenditure of money.”

We are therefore of opinion that an ordinance for the appropriation of private property such as is involved in this- case is an ordinance for the expenditure of money and that such ordinance is void for the reason that no certificate was filed and recorded .as required by the act.

The judgment of the court of common pleas -must therefore be reversed, and the court proceeding to render such judgment as that court should have rendered, a perpetual injunction is granted as prayed for in the petition.


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    ALIMONY FOR. MAINTENANCE AND AS A SHARE OF THE PROPERTY.
    Circuit Court of Hamilton County.
    Anna Louise Madden v. John E. Madden.
    Decided, July 18, 1908.

      Husband and Wife — Marriage a Business Partnership — Dissolution of —Alimony—Revision of Ddcree on Account of Changed Circumstances — Termination of Allowance as of the Date of Re-marriage —Interpa-etation 'of the Words “Issttes Joined” as Used in Decree —Determination as to Character of Alimony Which w/as Allowed —Section 5103.

    1. While the dissolution of a marriage works the dissolution of a business partnership, a court will not on á petition for alimony alone anticipate a decree for divorce and the consequent division of the • property, unless- the. facts require it, and the judgment expressly shows that the allowance is made as a division of the property, and not for support of the wife.

      “2. Where the petition was for alimony alone, under Section 5702, and the allowance which was granted contained a provision for payment in monthly installments, with a reservation in the decree of the right of either party, in the event of changed circumstances', to apply to the court for a modification or termination thereof, an application by the husband for a termination of the allowance will be granted, where it appears that subsequent to the making of the allowance she obtained a divorce and married another man who is abundantly able to support her in her former state.
    3. In such a case evidence offered at the hearing for alimony, which tended to prove assistance by the wife in acquiring'the property, will be regarded as presented for the purpose only of increasing the allowance, and it will be presumed that whatever increase the evidence warranted was merged in the judgment.

      Charles W. Baker, for plaintiff.

      William Lindsay, Workum <& Bowdle and Charles B, Wilby, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The petitioner seeks to revise the decree for alimony entered February 7, 1906, and .the chief question presented is whether the allowance was intended for the maintenance or support of the wife, or a division of the husband’s property. If the latter it is final, but if the former it may be revised or terminated according to the changed .circumstances of the parties. The amended petition upon which the decree was granted was for alimony' alone under Section 5702, Revised Statutes, but contained an averment that she materially assisted her husband in accumulating his property, which averment was denied in the answer.

The court found “on the issues joined in favor of the plaintiff and that the plaintiff is entitled to reasonable alimony out of the defendant’s real and personal,property as prayed for.” It is claimed that this finding includes the issue that the plaintiff assisted her husband in acquiring his property, and that the alimony was allowed, not for the support of the wife, but as a permanent division of the husband’s property. The only issues joined which entitled the plaintiff to reasonable alimony were such only as were based upon the statutory grounds for alimony. The efforts of the'wife in acquiring the property were relevant only .to the amount or reasonableness of the' alimony and would have been considered by the court as well without as with the averment to that effect.

Suppose the court had found no statutory ground for granting alimony, would it nevertheless have proceeded to render a judgment in favor of the wife for her share of the property? We think .not, as the very nature of the ease requires such finding to support any judgment whatever.

In the case of Weidman v. Weidman, 57 O. S., 101, at 104, it is said:

“The property of the husband is usually the result of the joint efforts of both husband and wife, and upon dissolution of the marriage she is entitled to her equitable share of the property as alimony.”

The dissolution of the marriage works a dissolution of a business partnership such as is averred in the amended petition; but a court will not, upon a petition for alimony alone, anticipate a decree for divorce and the consequent division of the property, unless the facts require it, and if they do then the judgment should expressly show that the allowance is made not for support of the wife, but as a division of the property.

Convincing evidence of the character of the alimony is found in the fact that no petition for divorce had been filed; in the provision for payment in monthly installments, and in the reservation by the decree itself of the right of the plaintiff or defendant, in the event of a change of circumstances, to apply to the court for a modification or termination thereof — all tending to show the allowance was intended as maintenance.

Whatever effect may have been' given to the evidence tending to prove assistance of the wife in acquiring the property, was merged in the judgment» for alimony and only increased the amount.

The changed circumstances relied on to terminate the allowance are the divorce subsequently granted to plaintiff and her marriage to another man, who is abundantly able to support her as in her former state. It is also admitted that plaintiff claims nothing by way of support.

Our conclusion therefore 'is that the alimony be terminated as of the daté of remarriage.