author: WILDMAN, J.

text:
    CONSTITUTIONAL LAW — FORCIBLE ENTRY AND DETAINER.
    [Fulton (6th) Circuit Court,
    January, 1905.]
    Haynes, Parker and Wildman, JJ.
    Isabelle Laver v. E. T. Canfield.
    1. Revised Statutes 6601 (Lav. 10153) Constitutional — Construction. Revised Statutes 6601 (Lan. 10153), providing that one judgment in an
    action for forcible entry and detainer shall not be a bar to another action, is not unconstitutional as class legislation in the interest of landlords, and should be literally construed.
    2. Receiving Rent as an Estoppel to Error Proceedings in Forcible Entry and Detainer.
    During pendency of error proceedings in circuit court for reversal of judgment of the common pleas court, in an action for forcible entry and detainer, demanding and receiving rent for use and occupation of premises in question, from the party in possession, in view of requirement of the court of common pleas and without intention of waiving any rights and without knowledge of such legal effect, does not estop the owner from prosecuting such proceeding in error.
    [Syllabus approved by the court.]
    Error to Fulton common pleas court.

      Ham, Ham & Ham, for plaintiff in error.
    Handy & Wolf, for defendant in error.
   WILDMAN, J.

The present plaintiff in error, Isabelle Laver, brought suit before Esquire A. S. Bloomer, a justice of the peace, under the statute in. forcible detainer, alleging that the defendant, E. T. Canfield, her tenant,, was holding over his term from and after April 1, 1905.

The defendant in that case, while acknowledging that he was the-tenant of the plaintiff and that the original tenancy had been for a period anterior to April 1, 1905, and would expire at that date, claimed that there had been a new arrangement for a subsequent period, entered into between himself and his landlady, by which he remained in possession. The case was tried before the justice of the peace and the judgment in the case was in favor of the tenant, the justice holding that he did not unlawfully and forcibly detain the premises from the plaintiff. ThereafterJ the same plaintiff, Isabelle Laver, brought an action before one A. P. Biddle, another justice of the peace, against the same-defendant, seeking to recover possession of the same land. Upon the trial of this second case, the plaintiff having introduced her evidence and rested, the defendant read and offered in evidence a transcript from Esquire Bloomer’s docket, showing the proceedings in the case to which I have before referred and in which the defendant had recovered a judgment. The claim was made by the tenant, Canfield, that the former decision was an adjudication in his favor and that it was a bar to her proceeding before Justice Biddle. The magistrate, however, held otherwise, construing literally the provision of the statute that a judgment in. a proceeding in forcible detainer shall not be a bar to another action. Thereupon, the case was carried on error to the court of common pleas. The court of common pleas reversed the judgment of the Justice Biddle- and a petition in error was filed in this court to reverse the judgment of the court of common pleas. The case involves a consideration of the section of the statute to which I have referred, Revised Statutes 6601 (Lan. 10183) :

“Judgments either before the justice, or in the court of common, pleas, under this chapter, shall not be a bar to any after action brought toy either party.”

The defendant in error has-filed an answer in the case in the present court, alleging, substantially, matter of claimed estoppel against the plaintiff in error. He says, in substance, that the plaintiff, Isabelle Laver, has demanded and received from him rent for the premises during.the pendency of this proceeding in error and after the judgment in the court of common pleas; but while this is conceded, a reply interposed by the plaintiff denies that it has the effect claimed for it by defendant. Without pausing very long upon this branch of the case, we are of the opinion that the contention of the defendant in error, that, the proceeding in error is barred and that Isabelle Laver is estopped from proceeding with her case in this court, cannot be maintained. Estoppel should be based upon an action of a party with knowledge substantially of its consequences. It does not appear to us that in the receiving of any of this rent it was intended or understood by Isabelle Laver that she was waiving any of her rights to proceed in error. It is contended that it was so intended by the defendant, Canfield, but. whether this latter fact is or is not true, the estoppel to bind her should be her conduct in view of its known effect. We> do not think that she is estopped from this proceeding in error.

We understand from evidence submitted on this issue, that the payment and receipt of rent was rather in the nature of payment for the use and occupation of the land pending the proceeding in error and in view of some requirement of th.e judge of the court of common pleas. Proceeding then to the substantial contention which is involved and the one upon which all the emphasis has been placed by counsel in argument, we have the very interesting question, never expressly decided, so far as we know, by our Supreme Court, as to whether Rev. Stat. 6601 (Lan. 10183), is to be literally construed. The judge below held, as we understand his decision, that the provisicjn that it. should not be a bar to any after action brought by either party had no reference to other like proceedings before justices of the peace or courts of common pleas' of the same nature and between the same parties, as the case in which the first judgment was rendered. It is claimed that this is not a civil action, but a summary proceeding, and that the only design of the section is, that the judgment shall not affect actions in which the title to land is drawn in question — ejectment suits or other suits in which the title may be involved. It is true that Rev. Stat. 6601 (Lan. 10183), relates only to possessory rights; it does not m-volve the title to the land; it goes only to the right of possession. But that is not decisive of the question. The language of the statute is, that the judgment shall not be a bar to any after action brought by either party, and the first question to be considered is, as to whether a forcible detainer proceeding is an action within the meaning of this statute. Referring to Rev. Stat. 6599 (Lan. 103.81), the next section but one preceding that under review, defining the jurisdiction of the justice and the nature of a proceeding in forcible entry and detainer, we find the clause which I quote: * * * “ but such action can only be brought within two years after the cause of action shall have accrued.”

It seems a somewhat forced construction, at first thought, to hold that when the word “action” and the phrase “cause of action” have just been used in reference to proceedings of this character, that the section that judgments shall not be a bar to any after action brought by either party is to be qualified by substantially writing into the statute some words defining the kind of action to which it was not designed to be a bar; actions, for instance, involving not possession alone, but also the ultimate title.

But it is urged, and with much plausibility, that the statute construed literally may work absurdities or injustice. The court below held, in the opinion which has been transcribed and submitted to us, that it would be unjust to construe the statute literally; and it was urged in oral argument before us that if it should be so construed as the intent of the legislature, then the law is unconstitutional. We are not disposed to hold for a moment that this section is unconstitutional. We have had the doctrine enunciated by our Supreme Court in a somewhat recent decision — that long acquiescence by the court and bar in the validity of a statute is in itself a recognition of its constitutionality, and the courts, after such long acquiescence, will not readily disturb a. statute by holding it unconstitutional and invalid. It is claimed by counsel that it would be unconstitutional in this: that it would be class legislation; legislation in favor of landlords; that it would give the landlord power to bring repeated actions before justices to oust tenants from land, and no matter how many times defeated, to pursue that course until success was finally attained; and that a defeated tenant, on the other hand, would have no remedy except by going to a higher court, if permitted, in proceedings in error. We are not altogether clear'that this contention is well founded. The statute making provision for suits in forcible entry and detainer specifies several cases in which the action or proceeding may be brought.

Revised Statutes 6600 (Lan. 10182), provides that “Proceedings under this chapter may be held [had] in all cases against tenants holding over their .terms; in sales of 'real estate, on executions, orders, or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made; in sales by executors, administrators, guardians, and on partition, where any of the parties to ■ the petition were in possession at the commencement of the suit, after such sales, so made on •execution or otherwise, shall have been examined by the proper •court, and the same by said court adjudged legal; and in cases where the defendant is a settler, or occupier of lands or tenements, without color or title, and to which the complainant has the right of possession;” but immediately following is this clause: “this section not to be construed as limiting the provisions of Sec. 6599 (Lan. 10181).”

On looking back to Rev. Stat. 6599 (Lan. 10181), we find that a •person may maintain the action in a case where, after a lawful entry, the lands are held unlawfully. Now, if a tenant' claims that the judgment of the justice of the peace, which is no' bar to either party under the statute, was erroneous, unjust and illegal, he might, perchance, claim that the other party placed in possession by the court, under the .forms of law, was still unlawfully holding. We are not deciding this question; we are only suggesting that it is not altogether free from doubt whether or not the tenant might not, if ousted by one suit before a justice of the peace, maintain an action to recover the possession under this very statute or this series of sections, in view of the other provision that a judgment in forcible entry and detainer shall not be a bar to any after action brought by either party.

But taking the other view of it and considering the argument that the landlord might maintain an unnumbered "series of suits to recover the possession until he finally achieved success, thereby harassing and burdening the defendant with costs and trouble and finally depriving him of the possession of the land, still it may be fairly inquired ■whether it is a condition very different from that which we find in another proceeding — that as to crimes and misdemeanors in examining courts. If the judgment in forcible detainer is no bar to another proceeding, it is somewhat analogous to the arrest which may be made 'before a magistrate under a charge of crime and in which, if the magistrate discharges the defendant, he may be rearrested before another magistrate or .the same one, and another examination may be had, the first discharge being no bar to a subsequent arrest and prosecution. It is said by some of the. authorities cited by counsel that a proceeding in forcible detainer is quasi criminal — the verdict is “guilty” or “not .guilty.” For this reason the illustration which has been given is not, I think, an inapt, one. •

But is it true in either case, that of the prosecution for alleged crimes or the prosecution for unlawfully holding land, that the person «o prosecuted has no redress if by reason of a succession of srn+-s he be unjustly harassed and burdened? Before proceeding to this phase of the matter I desire first to say, that notwithstanding decisions in the courts of some of the other states, cited by counsel in a very able argument manifesting much research among the authorities, and notwithstanding there has been no direct adjudication in our own Supreme Court, we believe that it has been the settled view of the bar and of -courts of Ohio that this statute should be literally construed. Indeed, originally in the cases it does not seem to have occurred to the court or lawyers that it was to be construed in any other way. I need cite in illustration of this but three or four cases in which language is used by the judges indicating this construction of the statute. They may be dicta, and indeed I think in the main, if not entirely, they are, but they none the less evidence the views entertained by the judges who used the expressions.

In Mone v. Pope, 6 Circ. Dec. 384 (9 R. 168), is a case decided by Judge Shauck, then one of the circuit judges of the Franklin circuit and now one of the members of the Supreme Court. On page 384 he says:

“The provision of the statute, Sec. 660Í [Lan. 10183], is, that a judgment under Chap. 9, title 3, ‘shall not be a bar to an after action brought by either party.’ But to the bringing of such ‘after action’ the provisions of Sec. 6602 [Lan. 10184], apply as to an original action, and a party desiring to bring such action must give the notice which the section provides.”

Now note that he is speaking of the bringing of an after action in forcible detainer, because he is talking about the giving of the notice which the statute in forcible detainer requires. This case involved the nature of the notice required in the second action in forcible detainer, or proceeding, — whichever we choose to call it.

See also Smith v. Findlay, 12 Dec. Re. 334 (1 Handy 70), decided by the superior court of Cincinnati in general term, in 1855, before Judges Spencer, Gholson and Storer. The case in its syllabus, contains a query, “'Whether repeated actions, brought evidently to vex and harass the defendant, and put him to the necessity of prosecuting repeated writs of error, would not afford ground for the interference of either the court of error, or other competent tribunal.” On page 335, Judge Gholson, who delivers the opinion, uses this language:

“An action for the forcible entry and detention, or the forcible or’ unlawful detention only, of property, is a summary remedy provided by statute in certain cases, intended to affect only the question of possession. And so far from any adjudication in such an action being-binding and conclusive on the parties even in respect of the right of possession” (and I desire to emphasize these words), “the statute expressly provides, that the judgments either before the justice, or in the court of common pleas shall not be a bar to any after action brought by either party.”

In other words, the statute is not to be deemed a bar in any contention as to the right of possession, not considering at all the question of title.

We have another case, however, and a later one, decided by the Supreme Court of the state and more nearly in point. Here a remedy is held available to a party who is harassed by a wrong use of the forcible detainer statute. The ease is that of Pope v. Pollock, 46 Ohio St. 367 [21 N. E. Rep. 356; 4 L. R. A. 255; 15 Am. St. Rep. 608], holding:

“An action may be maintained for maliciously, and without probable cause, instituting and prosecuting an action in forcible entry and detainer. ’ ’

It would seem then, not necessary to bring an injunction suit to restrain, as suggested in Smith v. Findlay, supra, because the Supreme Court holds that a party has an adequate remedy at law. It is held that he may bring an action in malicious prosecution, treating this proceeding for forcible entry and detainer precisely as he might treat any criminal prosecution. Judge Spear says, on page 368, speaking for the court:

“Will the prosecution of a suit in forcible entry and detainer, which results in a verdict for the defendant, where the same is prosecuted maliciously, and without probable cause, afford ground for an action in the nature of a suit for malicious prosecution? — is the question in this* case. ”

The statement of facts in the case cited discloses that on May 11, 1885, the defendant instituted a suit in forcible entry and detainer, before a justice of the peace, for the recovery of possession of certain, premises, which suit terminated in a verdict for the plaintiff of “not guilty;” and afterwards on June 17,, 1885, defendant instituted another like suit before another justice of the peace, which also terminated in the same verdict. Each of said actions was claimed to have been prosecuted maliciously and without probable cause. Now near the bottom of page 371 is some language very pertinent to the case which we have here, used in the construction of this statute, or rather in reeognition of that construction which has obtained ever since the enactment of the section in its original numbering. The judge says:

“In many of its aspects, an action in forcible entry and detainer is an extraordinary proceeding. It is summary in its character, and may become, when prosecuted wrongfully, excessively "annoying and harassing. Having given three days’ notice in writing to leave the premises, the plaintiff may commence his action by filing a complaint with a justice of the peace, and in three days more the trial may take place. * * * The complaint need not be sworn to. If a continuance is asked by defendant for more than eight days, security for payment of rent is required. The action may involve the possession, by a defendant, of a home 'for himself and a dependent family. A failure to answer, or unsuccessful defense, may result in immediate and forcible ouster, and this without reference to the condition of the family, or the weather, or other surrounding circumstances. No appeal is allowed, nor is one action a bar to subsequent actions.”

Then he considers some other matters involved in the inquiry between these parties and adds, page 372:

“Then, too, the plaintiff may select from several concurrent jurisdictions within the county. He may commence his* action, if he so desire, in the township farthest removed from the residence of the defendant, or the most inaccessible, thus requiring, it may be, his adversary to travel long distances, and to transport his witnesses at large expense. Failing in one action thus brought, he may continue prosecutions until his pocket book, or his malice, or both, become exhausted. Plainly, in the hands of an unscrupulous prosecutor, possessed of abundant means, this kind of action may become grievously oppressive, and it is idle to say that the small bill of costs before a justice is either a sufficient punishment to inflict upon a malicious prosecutor, or constitutes any recompense to a wronged defendant. The statute gives to such plaintiff the right to resort to his action as often as he may choose, and to bring it before any justice within the county, but this implies no right to prosecute maliciously and withóut probable cause. A groundless action, prosecuted with malice, is never justifiable, and a wrong suffered by such prosecution in forcible entry and detainer should not be without remedy.”

Our conclusion is, that the judgment of the court of common pleas should be reversed and the judgment of the last justice, Biddle, affirmed.

Parker an'd Haynes, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    MINES AND MINING.
    [Hamilton (1st) Circuit Court,
    March 31, 1906.]
    J elite, Swing and Giffen, JJ.
    Artemus-Jellico Coal Co. et al. v. David E. Ulland et al.
    CONTRACT to Take Proportion op ail Nut and Slack Screened not .Mutual.
    A contract for the sale of a certain proportion of all the nut and slack produced from the operation of a coal mine is not mutually binding on the parties and cannot he enforced, when by its terms it is left entirely optional with the sellers whether or not .they will separate any or all of the nut and slack from the run of the mine.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    E. J. Dempsey and W. M. Fridman, for plaintiff in error.
    Drausin Wulsin and Powell & Smiley, for defendant in error.
   GIFFEN, J.

The only error alleged in this ease consists in sustaining the general demurrer to the amended petition and rendering judgment against the plaintiffs. The action was founded upon the breach by the defendants of the following contract, which is set ont in the amended petition :

“Cincinnati, Ohio, May 12, 1903.
“This agreement entered into this day by and between the Artemus-Jellico Coal Co. and the Ross-Jellico Coal Co. of Kentucky, incorporations of the first part, and Laurel-Jellico Coal Co., composed of David E. Ulland and ¥m. T. Ulland, of Cincinnati, 0., of second part, witnesseth:
“Parties of first part have sold to parties of second part ninety (90) per cent of all the nnt and slack made through 1*4 screen at their mines at Rossland and Artemus, Ky., for a term of ten (10) months commencing June 1, 1903, and continuing until April 1, 1904, at one ($1) dollar per ton f. o. b. cars at mines.
“Parties of the second part agree to take the amount,of nut and slack as stated above, and agree to pay parties of first part one ($1) dollar per ton of 2,000 pounds f. o. b. cars at mines for same, paying on the tenth of each month for all coal shipped the previous month, and at any time said payments are not made promptly as agreed without consent to extend by first parties, this contract at the option of first parties shall terminate and he null and void.
“Second parties agree at all-times to keep first parties supplied with shipping orders for said coal, so as not to delay the mining and *oading of other coals, it being understood that the nut and slack must be moved in order to mine and load other grades of coal. It is understood that this contract does not bind first parties to mine any certain amount of nut and slack but includes 90 per cent of all nut and slack they do mine.
“Aetemus-JelliCO Coal Co., “Ross-Jellico Coal Co.,
“Laurel-Jellico Coal Co.,
“By David E. UllaNd.”

The averments contained in the amended petition are no broader than the language employed in the contract itself, and hence, the only question for consideration is whether the contract is mutually binding upon the parties.

The offer made by the plaintiffs in the second paragraph of the contract and accepted by the defendants was to sell and deliver 90 per cent of all the nut and slack made through a one and a quarter inch screen at their mines for a term of ten months thereafter at one dollar ¡per ton f. o. b. ears at mines. This relates to nut and slack coal not ■then in existence, but which may be made in the future during the .months named by running the coal from the mines over a one and a •quarter inch screen, thereby producing the nut and slack which is to Tbe delivered on the cars at mines at one dollar per ton, but it does not •embrace a promise either express or implied, to make any nut and slack through a one and a _ quarter inch screen. It leaves it entirely optional with the plaintiffs to separate the nut and slack from the run of the mine and hence not enforcible against them. But counsel for plaintiffs in error say in their brief:

“It is a fact that the parties to this contract had had previous dealings, when the defendant in error knew the quality of the coal and the relative capacity of the mine, or rather the output of the mine, and the relative amount of nut and slack produced per month.”

And rely upon the general doctrine that contracts should be construed in the light of circumstances surrounding the parties and the object which they evidently had in view. They cite the ease of Minnesota Lumber Co. v. Coal Co. 160 Ill. 85 [43 N. E. Rep. 774; 31 L. R. A. 529]. But in that case it is expressly stated at page 93:

“The plea avers that defendant was engaged in the purchase, use and sale of coal in its business, and that its requirements therein for ’.that season were very large, and that such fact was well' known to the plaintiff.”

in the ease before us, the amended petition contains no averment •concerning the knowledge of defendant in error relative to the output of the mine, and the amount of nut and slack produced per month, and it is elementary that the demurrer admits facts only which are well pleaded.

The last sentence in the contract, to wit: “It is understood that this contract does not bind first parties to mine any certain amount of nut or slack but includes 90 per cent of all nut and slack they do mine,” only confirms the view that there was no obligation resting on the plaintiffs in error to make or to mine any nut and slack coal. If by the other terms of the contract a promise to deliver 90 per cent of all the nut and slack made through a one and one-quarter inch screen in the usual and ordinary operation of the mines were once established, then there would be no difficulty in construing this sentence to mean simply that the parties did not guarantee any certain amount of nut and slack, but only 90 per cent of all that’ may be produced in the usual and ordinary operation of the mines.

There was no error in sustaining the demurrer and the judgment will be affirmed.

Jelke and Swing, JJ., concur.


author: ‘SWING, J.

text:
    CONTRACTS — CUSTOM AND USAGE.
    [Hamilton (1st) Circuit Court,
    February 17, 1906.]
    Jelke, Swing and Gifflen, JJ.
    Commercial Tribune Bldg. Co. v. Potthoff & Frey Iron Co.
    'CONSTRUCTION OP CONTRACT-USAGE IN STEEL STRUCTURAL BUSINESS AS TO WEIGHT of Materials.
    Where an iron company contracts with a building company to erect a structural steel building at a price per ton, and it is admitted that the “ton” refers to the ton commonly employed in this business, and that the weight of materials is customarily computed from measurement of dimensions and by reference to tables, and not by actual weight, it is proper to show, in an action on the contract for the agreed price, that the weight of steel, by general custom in this business, referred to the gross weight as per measurement, and not to the net weight of steel actually employed in the structure after the necessary boring for "rivets and the necessary trimming and shaping for fitting the parts together had been completed.
    [Syllabus approved by the court.]
    Mallon & Vordenberg, for plaintiff in error.
    Fred Hertenstein and Roettinger & Gorman, for defendant in -error.
   ‘SWING, J.

The Potthoff & Frey Iron Company brought an action in the court of common pleas against the Commercial Tribune Building Company for the balance due on a contract for the erection of a certain steel or iron building in the city of Cincinnati.! Judgment was rendered, in that court for the plaintiff. The Commercial Tribune Building-Company brings this action into this court on error to reverse said judgment.

The rights of the parties depend mainly on what construction the court gives to the contract in controversy. The contract in question had its inception in the following proposal:

“Cincinnati, Ohio, July 2, 1901.
“The Commercial Tribune Building Company, City.
“Gentlemen: — We propose to furnish and erect the iron work for your proposed new building, to be erected on the north side of Government Place, between Main & Walnut streets, this city, as per specifications and classifications as prepared by Bert. Baldwin & Co., at the price per ton named on the bid form.
“Hoping to be awarded this contract, we are, yours respectfully,, “The Potthoee & Frey IeoN Co.,
“per W. F. Potthoee, President.”
The said company replied to this as follows:
“Cincinnati,- Ohio, July 3, 1901.
“The Potthoff & Frey Iron Co., City.
“Gentlemen: — The undersigned has decided to award 4o your company the contract for the steel structure for the Commercial Tribune Building, and direct you to prepare the necessary strain diagrams; make modifications in the design and construction that will be acceptable to, and approved by, your engineer; after which you are-to make a carefully itemized estimate as to the weight of different class-of materials required in the structure and figure out a Gump bid’ based upon the prices per pound according to your proposition of July 2, 1901, which estimate will be checked over and approved by the company’s-, engineer before the final contract is prepared and signed.
The COMMERCIAL TRIbune BuildiNG Co.,
“per Joseph C. Butler, Mngr. ”

These are all the nlatters pertaining to this contract that need beset out here in order to determine the questions- arising on this record.

The principal question in dispute depends on how the weight of

tbe iron shall be computed. It is contended by defendant in error that, the gross weight of the iron as determined by the tables used in the iron and steel business shall govern without any deductions for holes punched out for rivets and cuttings made to adjust the different parts. On the contrary, the plaintiff in error contends that under this contract it is only bound to pay the net weight of the iron after it is placed in the building, and that the terms of the contract are explicit upon this point.

The plaintiff below, over the objection of the defendant, was permitted to introduce evidence tending to prove that ever since steel structural buildings have been erected in this country, the usage among ■all persons engaged in this business is to compute the weight of the steel not by actual weight, but by measurements according to the “Carnegie Tables” as it comes from the mill, and that no deduction is made for the holes punched out and the cuttings made in shaping the steel to fit the different parts. The plaintiff in error claims that this was partially erroneous. It does not claim that the usage as to computing by measurement by the tables instead of actual weight was not correct, but only that deduction should be allowed for the steel punched out when the holes are made, and when pieces are cut off in the adjustment of the parts.

The object in the construction of all written instruments is to arrive at the intention of the parties, and when this is ascertained, the court must give it effect, unless restrained by law. The difficulty generally arises in knowing what effect to give to the language used. In arriving at this knowledge, the court may always take into consideration the circumstances surrounding the parties at the time. This is necessary to understand in what sense the parties used the words contained in the instrument; for this reason .usage or custom,, where it is shown to exist in any particular business or trade, is permitted to be given in evidence.

There is a great mass of law to be found in the text-books and adjudicated cases relating to this question, but I deem it necessary to cite only one authority which it seems to me states the principle very clearly. It is found in the opinion by Lord Campbell in the case o Humfrey v. Dale, 7 Ell. & Bl. 274. In speaking of the question then before the court,' he says:

- “Whether this evidence be treated as explaining the language used, or adding a tacitly implied incident to the contract beyond those which are expressed, is not material. In either point of view, it will be admissible unless it labors under the objection of introducing something repugnant to, or inconsistent with, the tenor of the written instrument. And,.upon consideration of the sense in which that objection must be understood with reference to this question, we think it does not.
“in a certain sense every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is inconsistent with it. If, by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations. To take a familiar instance by way of illustration: on the face of a bill of exchange at three months after date the acceptor would be taken to bind himself to the payment precisely at the end of the three months; but, by the custom, he is only bound to do so at the end of the days of grace, which vary, according to the country in which the bill is made payable, -from three up to fifteen. The truth is, that the principle on which the evidence is admissible is, that the parties have not set down on paper the whole of their contract in all its terms, but those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and unvarying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them. To fall within the exception, therefore, of repugnancy, the incident must be such as, if expressed in the written contract, would make it insensible or inconsistent.”

The use of the word “ton” in this contract is certainly indefinite. Its primary meaning is no doubt weight in pounds, but the word “ton” varies according to the business in which it is used — it is not alone fixed and definite. There are three different kinds of tons; long ton, 2240 lbs.; a short ton, 2000 lbs.; and metric ton, 2204.06 lbs. Which of these does the word “ton” mean in this instrument? The instrument should not be held void for uncertainty, for it is easily made certain by ascertaining the meaning of the word according to the usage in the steel structural business. Then again, as said, supra, the primary meaning probably would imply that the steel or iron was to be weighed. How can weight be ascertained except by weighing? And yet both sides rgree that in ascertaining whatever is the proper weight to be ascertained in this ease, the iron is not to be actually weighed, but is to be found from measurements and tables, and this, too, is by reference to the usage prevailing in the iron or steel structural business. If it is permissible in order to show how many pounds compose a “ton,” and to show that the iron is never weighed but estimated by tables and measurements according to tbe usage in tbe iron business, we see no objection to showing by usage in tbe same business whether a deduction is made for the holes punched out and the parts chipped off. The evidence clearly established the existence of the usage, and that it is reasonable there can be no question. Furthermore; if any doubt existed ns tp the understanding of the parties, great weight is properly attached to the construction of the contract given to it by both parties during the •construction of the building. There were no less than twelve preliminary estimates made by the defendant company by its engineer, upon which large payments were made, and all of them in accord with the contention of the plaintiff, and the thirteenth and final estimate was made by the company’s engineer on the same basis of calculation. The company, however, refused payment on this, and under its direction .another estimate was made on the basis of calculation made by it.

We see no error in the charge of the court. The question of usage was properly stated by the court in our judgment, and the contention made by 'the plaintiff in error was not correct as to the character of proof necessary to establish usage.

Judgment affirmed.

Jelke and Giffen, JJ., concur.


author: JELKB, J.

text:
    EVIDENCE — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    March 31, 1906.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati Interurban Co. v. Samuel E. Haines.
    1. If Testimony as to Speed is Best Obtainable and Worthy of Belief Verdict Based Thereon will not be Disturbed. '
    While testimony as to speed is always more or less unsatisfactory, yet when the testimony offered on the subject was the best obtainable and was worthy of consideration, the finding of'a jury with reference thereto and in the light of surrounding circumstances shpuld not be disturbed.
    2. Charge as to Contributory Negligence as a Defense, when no such Defense has been Interposed, and Silent as to Burden of Removing Suggestion of Same Arising from Plaintiff’s Own Testimony is Error.
    A charge of court which dwells upon the subject of contributory negligence as an affirmative defense, when no such defense has been interposed, and says nothing whatever as to the burden of removing a suggestion of contributory negligence when evidence of such has arisen only from plaintiff’s own testimony, is so misleading as to require the reversal of the resulting verdict.

      3. Expressions or Exclamations not Part of Res Gestae unless Automatic-AND INVOLUNTARY'AND NOT EXPRESSIONS OF OPINION.
    . Expressions or exclamations do not become a part of tbo res gestae unless, they were automatic and involuntary, and involved no expressions wbicb were the result of inference or deduction; and an exclamation- by the-decedent as to what the motorman did or failed to do an instant before-the accident occurred is not competent as a part of the res gestae, where the same testimony would not be admissible were the party still living and on the stand.
    [Syllabus approved by the court.]
    ErroR to Hamilton common pleas court.
    E. G. Kinkead and H. K. Rogers, for plaintiff in error;
    Peck, Shaffer & Peck and S. B. Hammel, for defendant in error.
   JELKB, J.

Taking up the grounds of error complained of in the order in which they are presented in the brief of counsel for plaintiff in error:

I. 11 (a) The plaintiff failed to show by a preponderance of the-evidence that the defendant was guilty of negligence in the matter of speed.”

Testimony, as to speed, is always somewhat unsatisfactory. While it is a statement of fact, it necessarily involves matter of opinion. It usually must be expressed in various modifications of 'the adjectives “fast” and “slow,” and these expressions are correlative to surrounding facts and circumstances so that they furnish very little satisfactory information. Definite and exact statements and estimates as to sp.eed are also unreliable, and are to be scanned with close scrutiny because most witnesses are incapable and unless there is some particular reason,, qualified witnesses at the time are not usually making mathematical estimates of speed and particularly directing their attention and exerting their faculties in such determination. It is even then a matter into which error is very likely to creep. This being so, while the testimony on the subject of speed in the record is not of such satisfactory character as we usually look for to make out a preponderance on other clear cut issues of fact, yet it is evidence, the best obtainable and entitled to consideration, and the finding of a jury on this point made in the light of all surrounding facts and circumstances should not be disturbed. We are, therefore, unwilling to find error in this regard.

“(b) ' It is contended that the plaintiff failed to show by a preponderance of the evidence that the defendant was guilty of negligence in that'the motorman was not maintaining a proper lookout ahead.”

If we take the record with all the evidence on this point admitted by the court- below, we find no error in this regard. But our conclusion may be affected somewhat by what we decide later herein as to the admissibility of the exclamation of Mrs. Haines to her husband, immediately priQr to the accident. v

II. As to the charge of the court, relating to the burden of proof as to contributory negligence, it appears that although in its amended answer the defendant company alleged that the death of Mrs. Haines was caused by the negligence and carelessness of her husband, Samuel E. Haines, at the trial the defendant rested at the close of plaintiff’s testimony and offered no testimony on this point or any other. Whatever. issue of contributory negligence there may have been herein must have arisen, therefore, on the plaintiff’s own testimony. The charge cf the court was as follows:

“Upon the question of contributory negligence or want of ordinary ■care upon the part of the plaintiff as I have stated it to you, the burden ■of proof is upon the defendant who alleges the contributory negligence ■of the plaintiff, to prove such by the greater weight of the evidence just as the plaintiff must prove the negligence of the defendant alleged by him by the greater- weight of the evidence, so the defendant alleging contributory negligence must prove such contributory negligence in the same way by the greater weight of the evidence.”

This is a charge on the subject of contributory negligence only as an affirmative defense, and says nothing whatever about the burden of proof of removing a suggestion of contributory negligence arising from the plaintiff’s own testimony. We think, in view of the condition of the case at the time of its submission to the jury, this was error. It is contended that this is erroneous under the decision of Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1.

The case at bar seems to us to be more aggravated than the Forrest case, because here the court not only charged as to the kind of contributory negligence that was not under submission to the jury, but failed to charge as to the only kind of contributory negligence that the jury could consider. This being so, the charge in this regard was very misleading, and we think was error requiring reversal.

/ As to the third point, we think that the objection taken by counsel for plaintiff is good, but had we not determined to reverse this case on ether grounds, we would hardly find the use of the word “saw” here to constitute reversible error. Of course limiting the charge to the sense of sight, was erroneous, but we believe that a liberal construction might make this charge cover apprehension by all of the senses.

As to the fourth objection, finding fault with special charge No. 6, the criticism is one which applies to all special charges and can hardly be avoided. All the law on any point can hardly be stated in a single paragraph, nor in a single special charge. We find no reversible /error in this regard.

V. We are of opinion that the court erred in admitting the testimony of plaintiff as to what his wife said shortly before the accident. Counsel for defendant in error very properly took their stand on the only defensible ground for admission of this testimony, viz.: that it was' part of the res gestae. We think this is pressing the doctrine of res gestae too far. It would result in hearsay testimony of opinion of the decedent wife, as to what the motorman did or failed to do, being given by the surviving interested plaintiff husband as to matter and under circumstances as to which it would be absolutely impossible for the defendant railroad to in any way verify or safeguard itself. We think no case cited justifies the admission of this testimony. If the. wife were living, and were upon the stand herself, she could not give this testimony. Taking words from the brief for counsel for defendant in error, and the authorities cited by them, expressions to be part of the res gestae must be automatic, involuntary, and must not involve intellectual processes and matters of inference and deduction.

VI. We find no reversible error in that part of the bill of exceptions where the court permitted a witness to testify as to the difficulty of seeing a vehicle at a reasonable distance.

VII. Having determined to reverse the case on the second and fifth grounds, there is no occasion for us to express any opinion-as to the amount of the verdict.

Judgment will be reversed, and cause remanded for a new trial.

Swing and Giffen, JJ., concur.


text:
    ERROR — QUIET TITLE.
    [Hamilton (1st) Circuit Court,
    March 3, 1906.]
    Jelke, Swing and Giffen, JJ.
    Mary A. Meyer Oehler v. Herbert F. Walsh et al.
    1. Proceedings in Error — "Pour Months,” in Statute Defining Time for Commencing Error Proceedings, Means Calendar Months.
    When an act is required by statute to be performed within a certain number of months after a certain date, the word “months” will be construed to-rnean calendar months, whether of - twenty-eight, twenty-nine, thirty or thirty-one days, and proceedings in error commenced on the corresponding day of the fourth month after the rendition of the judgment comply with the statute in this regard.

      2. Judgment Quieting Title Against Tax Deed not Binding on Owner not a Party to Suit.
    The judgment rendered in a suit to quiet title to land against a claimant under a void tax deed is not binding upon the real owner who is not a party to the suit.
    3. Deed Presumed to be Delivered on Date oe Execution.
    In the absence of evidence to the contrary, it will be presumed that a deed was delivered on the date of its execution.
    [Syllabus by the court.]
    ERROR to Hamilton, common pleas court.
    L. H. Pummill, for plaintiff in error.
    W. A. Goodman, for defendant in error.
   GIFFEN, J.

Tbis action was commenced in the court of common pleas to recover possession of a strip of land seventy-two and forty-three hundredths feet in width, taken evenly off the west side of a tract of land containing one and sixty-five hundredths acres. The defendants in error are owners of a tract of land containing forty acres lying west and adjoining the one and sixty-five hundredths acres; the real contention between the parties being over the boundary line between the two tracts.

Judgment was rendered for the defendants, and to this judgment the plaintiff in error now prosecutes error, the only ground urged being that the court erred in overruling the motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence.

The first question to be considered is a motion made by the defendants in error to dismiss the proceedings for the reason that they were not commenced within four months after the rendition of the judgment — the judgment having been rendered on the thirtieth day of June, and the petition in error filed on the thirtieth day of October. When an act is required by statute to be be performed within a certain number of months after a certain date, the word “months” will be construed to mean calendar months, whether of twenty-eight, twenty-nine, thirty, or thirty-one days. The judgment in this case having been rendered on the thirtieth day of June, and the proceedings in error commenced on the corresponding day of the fourth month thereafter, a compliance with Rev Stat. 6723 (Lan. 10315) is shown. McMurchey v. Robinson, 10 Ohio 496; Strong v. Birchard, 5 Conn. 357; Guaranty Tr. & Safe Dep. Co. v. Railway, 139 U. S. 137 [11 Sup. Ct. Rep. 512; 35 L. Ed. 116]. The motion will be overruled.

Coming now to the merits of the case, the plaintiff failed to show a good title by deed to the premises in controversy. She claims title through Henry Lore, who, by deed dated August 18, 1842, conveyed to Andrew Ammerman the following described land:

“Beginning at the southeast corner of Joseph Pouder’s land, thence south five (5) chains, forty-eight (48) links, thence east five (5) chains, forty-eight (48) links, thence north five (5) chains, forty-eight'(48) links, to the south line of Samuel J. Pouder’s land, thence west with the south line of said Samuel J. Pouder’s land, to the place of beginning, containing three acres of land, strict measure. ’ ’

A part of the above described premises lies west of the middle line running north and south in the northeast quarter of the section, and embraces the strip of ground now in controversy. At the time the deed was executed, the grantor, Henry Lore, had no title to any part of the west half of the northeast quarter, and the claim of title by deed by the plaintiff through him therefore necessarily failed. But the .grantee, Andrew Ammerman, took possession of the land described in his deed, and erected a house upon that part here in controversy, and he and his successive grantees held adverse possession from 1842 to 1888, a period of forty-six years. It is claimed, however, that the title to said strip of ground was quieted by the court of common pleas of this county, in an action begun by William Disney, the owp.er of the forty acre tract, against Joseph A. Meyer, the father of the plaintiff, who was alleged to have a tax title to said forty acres. The record of the case is incomplete, none of the pleadings being in evidence, although it appears from the judgment that the plaintiff is adjudged to be the owner in fee simple of the premises described in the petition and that the defendant has no estate or interest therein. It appears from the abstract of title offered in evidence that William Disney, at the time this suit was commenced, in 1887, was the owner of the forty acre tract, and we may, therefore, assume that this property was described in the petition.

The only evidence of the tax title asserted by the defendant is the auditor’s deed which describes the property as follows: “Situated in Hamilton county and state of Ohio, to wit: R. 1, I. 2, Sec. 13 N. E. Colerain Tp., 40 acres, Val. $1,480.”

The most that can be said of this description is, that it pertains te forty acres somewhere in the northeast corner of Section 13, and is entirely too indefinite to bind the real'owner of the property, she not being a party to the suit.

Defendants have been in possession since 1888, a period of seventeen years before the commencement of this suit, which is not sufficient length of time to invest them with the title by adverse possession.

It is further claimed that tbe plaintiff could not maintain this •action because although she had a deed from her father for his life estate, and although dated a few days prior to the commencement of this suit, yet it does not appear from the evidence that there was any delivery of the deed to her. Counsel claims that in the absence of other proof, the presumption is, that the deed was delivered when left for record with the recorder of the county.

In Devlin, Deeds See. 178, it is said:

“But when the time of actual delivery is doubtful, resort must be ¡had to presumption. And the presumption in cases of this kind, it may be stated as a general rule, is, that a deed is delivered at its date. ’ ’

We therefore conclude that this deed was delivered before the •commencement of this action, which could, therefore, be maintained by plaintiff. The evidence shows that the defendants have made valuable and lasting improvements upon the land in controversy, .amounting to $400, which should be paid to the defendants, unless they pay to the plaintiff the value of the land exclusive of such improvements. Revised Statutes 5786 (Lan. 9323).

Judgment will be reversed upon the ground that it is not sustained by sufficient evidence, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


text:
    PAYMENTS.
    [Hamilton (1st) Circuit Court,
    March 3, 1906.]
    Jelke, Swing and Giffen, JJ.
    Alice V. P. Epply v. George B. Von Phul et al.
    1. Payments by Debtoe Applied to Debt Shown to Exist.
    In the absence of equitable considerations, payments made by a debtor to a creditor without designating their application should be applied to the only debt shown to exist.
    2. Subsequent Payments Peesumed Made in Extinguishment op Same Debt as Eablieb Payments.
    Where the debt is in the form of a lien reserved in a deed, and specific application was made by the parties of the early payments to the ex-tinguishment of the lien, subsequent payments in the absence of circumstances indicating the contrary will be presumed to have been made for the same purpose.
    [Syllabus by the court.]
    L. W. Goss, for plaintiff.
    N. M.,Fridman, for defendant.
   GIFFEN, J.

The plaintiff in this case claims that a lien for $2,000, reserved in a deed for real estate executed and delivered in the' year 1876, has been paid in full. In support of tbis claim she offers in evidence certain receipts given by her son, Thomas H. Wood, the owner of the lien., in which it is specified that the payments were made upon the lien in question. Other receipts are offered in evidence in which no application is made of the payments thereby evidenced. "These latter payments, if applied to the lien, would be sufficient to satisfy it in fuIL The sole question therefore, is whether payments made by a creditor to a debtor, without designating their application, shall be applied to-the payment of the only debt shown to exist.

In the ease of Hansen v. Kirtley, 11 Iowa 565, the last proposition of the syllabus is as follows:

“If A owes B a debt and pays him money, the law presumes in the absence of any agreement to the contrary that it was the intention to apply it to the payment of the debt. ’ ’

In Masser v. Bowen, 29 Pa. St. 128 [72 Am. Dec. 619], the syllabus, is as follows:

“A check drawn on one person in favor of another and paid to-the latter is presumed to have been received on account of a debt shown to have existed at the time. The party alleging that it was not so received must produce such proof of .the account upon which it was made as will change the presumption.”

If we follow these decisions, it is clear that plaintiff, having shown payments of money sufficient to extinguish the debt, is entitled, in tÉe-absence of anything shown to the contrary, to have them so applied. But counsel for the administrator of the estate of Thomas H. Wood-claims that the case of Somervail v. Gilles, 31 Wis. 152, is supported by the better reason and should govern in this case. The first two-propositions of the syllabus are as follows:

“1. The presumption that a note is unpaid, arising from the-payee’s possession thereof, uncaneeled, and unextinguished by indorsed payments, is not sufficiently met by showing payments of money by the maker to the payee, without further showing that there were no other dealings between the parties, upon which such payments might have-been made. .
“2. Where such absence of other dealings is shown, proof of moneys paid by the maker to the payee would create a strong and almost conclusive presumption that they were paid upon the note.” .

, In that case the presumption that an -outstanding note is still unpaid was. founded upon well-known usages applied to such paper as. shown.'by the reasoning of the judge at page 156; but no such custom exists or could apply to a lien reserved in a deed conveying real estate. It is claimed, however, that the lien should have been canceled of record, but it is not customary to reserve such lien, the ordinary practice being to take a mortgage back for the unpaid purchase money, the cancellation of which is provided for by statute. And although it may be’ proper to make a cancellation of a lien reserved in a deed upon the record thereof, the ordinary person would not know that such cancellation could be made. The failure, therefore, to make the cancellation upon the record could hardly amount to a presumption that the lien was still unpaid. The payments are numerous, some being in small amounts, and some large, most of them being made for the support and maintenance of Thomas H. Wood and his family, and the total amount being in excess of the lien, together with interest.

It would seem from this state of facts that the parties themselves probably did not know that the entire debt was paid, and, therefore, made no effort to have the lien canceled of record.

It is further claimed by counsel for the administrator,' that inasmuch as some of the receipts specified that the payments be applied on the lien, the parties would have made the other receipts as specific if the payments were so intended to be applied. We do not accede to this proposition but on the other hand think that only one debt having been shown and the parties having made specific application of certain payments to its extinguishment, subsequent payments, in the absence of any circumstance to the contrary, would be presumed to be made for the same purpose. The precise question here involved has not been passed upon by our Supreme Court, but in the ease of Stewart v. Hopkins, 30 Ohio St. 502, the fourteenth proposition of the syllabus is as follows:

“The creditor cannot divert a payment so made by his debtoi, from the appropriation made by him, upon mere equitable considerations, that do not amount to an agreement between the parties giving the creditor a right to appropriate the payment otherwise than directed by the debtor, though mere equitable considerations may control, where the payment is made without designating its application.”

In this case it is equitable that the debt be paid, and inequitable that a son and his family should be supported by his mother, and still claim that the money thus received by him should not be applied to the payment of a debt owing by the mother to him.

We are of opinion, therefore, that the receipts offered were evidence of the payment of the lien, and that the administrator of the estate of Thomas H. Wood, deceased, is not entitled to the relief prayed for.

Jelke and Swing, JJ., concur.


author: JELKE, J.

text:
    DEEDS — WILLS.
    [Hamilton (1st) Circuit Court,
    February 7, 1906.]
    Jelke, Swing and Giffen, JJ.
    Lillie Wissel v. Lena Pierson et al.
    Deed Executed in Place op Will — Good Delivery.
    Where a grantor executes deeds with a testamentary purpose, and delivers them to his wife with the direction to keep them until he is done with them and then “deliver them to the girls,’' his action taken together with all the other circumstances of the case must he held to constitute a good delivery.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    C. L. Hopping and N. A. Hicks, for plaintiff in error.
    F. M. Coppock and S. B. Hammel, for defendant in error.
   JELKE, J.

We are of the opinion that when Mr. David L. Cosbey gave the deeds m question to his wife, and said to her, ’“Put them away in my possession until he was done with them and then deliver them to the girls,” it became a good delivery. It is probable that the wife did. not remember the exact words spoken by her husband at the time he gave her the deeds. She does not say that these were his exact words. In order, therefore, to arrive at the correct meaning to be given to these words, the court should look at the surrounding circumstances. The deeds were executed to take the place of a will, and were testamentary in their nature. Cosbey was undoubtedly informed by the justice of the peace that he could not retain possession of the deeds and have the title pass after his death and, therefore, when he gave them to his wife, to be by her kept in her possession and after his death delivered to his daughters, the evident purpose was to make a good delivery, and it was his purpose to lose dominion over the deeds, and put them in possession of his wife. And the subsequent conduct of both parties in regard to the deeds bears this out, for the wife always kept them in her own papers. The expression “until he was done with them” is not very definite, and not of controlling importance; standing alone it has no certain meaning, but taken in connection with the whole subject-matter, it probably means after his death.

Judgment affirmed.

Swing and Giffen, JJ., concur,.


text:
    CONTEMPT OF COURT.
    [Lucas (6th) Circuit Court,
    July 21, 1906.]
    Haynes, Parker and Wildman JJ.
    Thomas H. Tracy et al. v. State of Ohio.
    1. CHARGES AGAINST JUDGE, WHEN CONTEMPTUOUS.
    Charges against a judge, made not in due course of procedure, may be contemptuous, even if true. ,
    2. Chaeges Impugning Motives or Conduct op Judge not Contemptuous, when.
    Where a trial court had adjudged as guilty of contempt, attorneys for convicted and sentenced defendants, on the ground that motions filed by such attorneys to vacate the sentences and withdraw pleas of guilty, charge the judge of the court with irregular or improper conduct in Inducing and receiving pleas of. guilty and imposing excessive sentences, such 'judgment for contempt is erroneous, where such attorneys acted in gopd faith in filing said motions, and where the language of the motions and the manner of their presentation were not otherwise offensive.
    3. Bad Faith not'Presumed in the Absence oe Finding or Evidence.
    Where the sole ground alleged in a journal entry and bill of exceptions for a judgment and sentence of contempt, is that motions falsely charged the trial judge with improper or irregular conduct, and where the motions were not otherwise objectionable and were filed in due course of procedure, bad faith of the attorneys filing the same will not be presumed.

      4. Reviewing Court may Dismiss Contempt Proceedings and Disoharce Defendants, WHEN.
    Where a trial court, summarily and without written charges as a basis of its proceedings, adjudges guilty of contempt attorneys appearing before it, a court reviewing said proceedings and finding error therein and no ground for the judgment, may dismiss the proceedings and discharge the defendants from custody.
    [Syllabus by the court.]
    PROCEEDINGS in contempt.
    King & Tracy, Brown, Geddes, Schmettau Í& Williams, Smith & Beckwith, and Hamilton & Kirby, for plaintiffs in error.
    L. W. Wachenheimer, prosecuting attorney, Ralph Emery, assistant prosecuting attorney, C. A. Seiders and C. H. Masters, for defendant in error.
   WILDMAN, J.

In approaching the consideration of the important questions raised by the unfortunate controversy which has found its way to this court, we may perhaps clarify the atmosphere to some extent by the enunciation of a few general principles which we believe to be thoroughly grounded in justice and good sense and amply sustained' by judicial authority.

1. The trial court had judicial discretion after sentence and at the same term to revise and modify the penalties imposed on the original defendants convicted under the antitrust law. This rule is established beyond controversy by the ease of Lee v. State, 32 Ohio St. 113, as we read in the first paragraph of the syllabus:

“Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.”

The judge rendering the opinion says, on page 116:

“The refusal of the court to allow the defendant to withdraw his plea of guilty,*and again plead not guilty, rested in the sound discretion of the court.”

We need not fortify this position, for it was substantially conceded in argument by attorneys for the state that the court below had discretion to do these things. In view of these adjudications and concessions in argument, it is, in our judgment, at present unnecessary to consider the applicability of the statutory grounds for new trial after conviction.' The court recognized its discretionary power, with or without express statute, by revising and modifying the sentences after they were made and before the motions claimed to be contemptuous were filed.

' 2. / If the court had such discretionary power it could entertain and consider a motion invoking it.

3. Attorneys for the defendants below, recognizing such discretionary power in the court after the sentence, had a right to invoke the exercise of that power.

4. The natural, proper and regular way to invoke it was by motion addressed to the court.

5. Charges that are strictly or substantially true may involve the person making them in contempt if' they are not made in due course of procedure for legitimate and justifiable ends. Many of the cases cited to us are of this character, and therefore give us no aid here.

In elaboration of these principles as to the power of the court and the rights and duties of counsel, we are clearly of opinion that the latter had no right to file motions containing indecent, profane, insulting or contemptuous expressions; Hut that they had the right, and it was their duty as attorneys under the oaths which they had taken, to urge all matters of fact and law which in their honest judgment ought to weigh with the court- and induce the granting of the motions. If among those matters were honest claims, well or ill founded, that the statute under which the indictments were had was unconstitutional, that the pleas of guilty were improperly obtained, that the sentences were excessive, or, that the judge in the imposition of the sentences had been ■actuated by improper motives, counsel would have been recreant in their sworn duty as officers of the court if they had refrained from pre..senting those claims. The principle is not different from that governing the filing of affidavits that judges are prejudiced, or that upon the trial the judge has committed errors or irregularities. In every such instance it may be said that there is some imputation upon either the fairness-or intelligence of the judge. But the filing of the affidavit or motion is not, if offered in good faith, insulting or contemptuous. It is an appeal, rather, to the assumed desire of every just and upright .judge as 'promptly as possible to undo a wrong.

Any knowledge possessed by the judge as to the truth or falsity of the statements, or more, precisely, the correctness of the .claims of counsel, does not meet the question. It is not the knowledge of the judge, but the good- or bad faith of the attorneys, that is vital to the .question whether there-was, or was not, eontempt. It is the conduct of the attorneys that is under inquiry, and the spirit and intent with which they did the act are involved.

This court has heretofore, in the case of Hunt v. State, 27 O. C. C. 16, 34, expressed its views as to the current of authority on this precise matter, in the following words:

“The authorities give many illustrations of what are and what .are not acts of eontempt, and-'they are not in entire harmony, but so far •as we have been able to examine, where one is pursuing in an orderly and •decent way and in good faith, what he supposes to be his right in a •court of justice, he is not guilty of eontempt though he falls into error and violates the rules of court and even statutes (not penal), without number; but to constitute contempt in such case, there must be something in the manner of doing the thing, or something in the circumstances under which it is done, that must be disrespectful to the court, or a hindrance to the administration of the affairs of the court, and the act must be done wilfully and for an illegitimate or improper purpose.’’

The affirmation of this decision by the Supreme Court; (State v. Hunt, 72 Ohio St. 643) without report, may perhaps be, deemed, at least a tacit approval of this view.

The Supreme Court of the United States, in Watts, In re, 190 U. S. 1 [23 Sup. Ct. Rep. 718; 47 L. Ed. 933], adds the weight of its high authority:

“The preservation of the independence of the bar is vital to the due administration of justice, and its members cannot be imprisoned ■ for contempt for error in judgment when advising in good faith and in the honest belief that their advice is well founded.”

Coming to the question of whether counsel acted in good or bad faith in the matter under inquiry, we may properly again refer to the opinion heretofore expressed in Hunt v. State, supra, page 38:

“It is a quasi criminal proceeding. The presumptions are all in favor of the persons charged with the offense, i. e., in favor of innocence.' It is not a ease of the character where a court reviewing the conviction is to assume, in the absence of evidence to the contrary,-that the action of the tribunal below was correct and lawful. It is a case where the guilt of the person convicted must appear affirmatively in the record.”

In the ease of Springer v. Avondale, 35 Ohio St. 620, the Supreme Court held that a judgment based on finding of fact is erroneous, unless the facts found are sufficient in law to warrant the judgments.

Referring to the record before us, there is a very clear and positive statement of the grounds on which the trial court adjudged the attorneys guilty of contempt; but there is no statement or finding in the journal entries or bills of exceptions, (1) That the attorneys knew or had reason to believe that the claims made in the motions were unfounded; or, (2) That they acted in bad faith in filing and presenting them. Without such findings or a recital of some evidence to show such facts, the guilt of the plaintiffs in error is not apparent.

Counsel for the state, while conceding that the motions as to some of the claims embodied were altogether legitimate and proper, argue that they became contemptuous because of the embodying of charges that the judge permitted improper influences or purposes to enter into the measuring and fixing of the penalties on the defendants. We are not at present concerned with the actual motives of the judge. It is sufficient to justify the incorporation of these matters in the motions, if the attorneys framing the motions believed them to be proper grounds for orders vacating the sentences. They were entirely pertinent to the application for such orders.

It is urged that certain of the matter set forth in the motions respecting the motives and purposes of the judge in imposing the sentences, viz., to compel the convicted ice dealers to1 return to their customers all that they may have exacted in excess of what the judge-deemed a fair price for the ice sold; to compel them to reduce their prices to a scale that the judge might deem fair and reasonable, and like purposes, is clearly contemptuous because it imputes to the judge corrupt and sinister motives and designs.

Fairness to the judge as well as to the attorneys requires an application to these cases of the usual rule that the language shall not be subjected to a strained construction in order to make it contemptuous, but that, on the other hand, if it is fairly open to a construction that makes it inoffensive or less offensive, it should receive that construction.

While we hold that the conviction cannot stand because of the absence of finding or evidence of bad faith, and therefore need not enter into any task of construction to justify our judgment, still we deem it proper to .remark that it seems to us that a judge might attempt to attain to the full measure of justice on behalf of all concerned or affected by compelling a restitution by an offender of the illegitimate profits of his wrongdoing, and a cessation of such wrongdoing, and that such attempt might be prompted by most praiseworthy motives, and need not involve any wrong intent, even if it should turn out that the judge erred in that he overstepped his authority in the premises. We do not discover, either in the substance or form of what is set forth in the motions in this regard anything to justify the claim that the judge was charged with corrupt or sinister designs in thus attempting to accomplish the' ends of justice for all concerned. True the motions charged that the judge acted upon insufficient data, and without lawful warrant, but that does not necessarily imply more than that he erred or blundered. Whether this phase of his action is fairly open to this criticism cannot be determined until all the facts of the transaction are properly brought before us and carefully scrutinized and tested by the law. What we desire to express upon this point now is simply that it is not fair to any of the persons concerned to extract the harshest tone and the bitterest flavor possible from these charges.

It is said that the purposes of the judge were not susceptible of proof, and that therefore it was an impertinence to assert the claims in that regard. Whether or not, in support of the assertions, evidence would have been competent, is a question which we need not stop to consider. A question of law as to such competency might properly be made 'by the motions, if made in good faith and in phraseology not offensive in any other way than as any legal charge of error, irregularity or misconduct may offend. If evidence could be properly offered in support of those claims the kind of evidence so admissible would perhaps not essentially differ from that with which courts and lawyers are familiar in like eases. Intent is to be determined from words and conduct or other circumstances throwing light on mental action.

We should not lose sight of the fact that in the whole inquiry are involved primarily and in the most important degree the rights of prisoners on whose behalf motions are presented.

, . If attorneys are punishable for preparing and filing such motions on the ground that such conduct is contempt per se, it follows that their clients, wilfully participating therein, are likewise punishable for preferring such petitions to a court either.personally or through the agency of attorneys; that to thus invoke the aid of. the court in behalf of their liberties they still further imperil their liberty; that their petitions may be brushed aside without ceremony and they ^punished summarily ,by fine or imprisonment, or both, for having presumed to sue for what they may have conceived to De justice and their rights.

The contention of counsel for the state logically resolves itself into this: that no matter how flagrant and corrupt may be the action asserted to have been committed by a judge, not only is the litigant against whom the wrong is alleged to have been perpetrated without remedy, (for the road to the higher courts is not open to him unless he first give the trial judge an opportunity to undo his own wrong), but in his appeal for such justice he is, in the words of the last of the Eoman people’s tribunes, “answered by the lash.”

Whether the contempt alleged here to have been committed is of a kind described in Rev. Stat. 5639 (Lan. 9171), to be proceeded against without written charges or hearing «and punished summarily (as was'done in this case) or of a kind described in Rev. Stat. 5640 (Lan. 9172), as “Misbehavior of an officer of the court in the performance of his official.duties, or in his official transactions,” requiring written charges and hearing, as provided in Rev. Stat. 5641 (Lan. 9173), we deem it unnecessary to inquire. But finding that the convictions are not sustained by evidence or findings that the defendants acted in bad faith, and are therefore contrary to law; and that there are no charges formulated or written as a basis of the prosecutions, so that nothing would be pending to be remanded upon reversal, we, therefore, reverse the judgments, dismiss the proceedings and order that the defendants be discharged.

In the foregoing reasonings and conclusions we have endeavored to intimate no views not essential to the inquiry in the contempt proceeding; and our opinion and judgment must not be construed as any reflection upon the motives or conduct of the judge below, or intimation of irregularity, or error, further than as herein expressed.

Haynes and Parker, JJ., concur.


author: MARVIN, J.

text:
    EVIDENCE — PROOF OF ATTESTED INSTRUMENTS.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Anna Brunner et al. v. Edward S. Ison et al.
    Evidence — Wishing not Admitted unless Execution be Proved.
    A paper writing, executed some forty years previously, will not be admitted as evidence where the parties whose signatures purport to be appended thereto are dead, unless proof of the execution thereof be offered, or unless it be shown from whose custody the writing came and such other facts as establish a presumption of its authenticity
    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas court.
    E. Sowers, for plaintiffs in error.
    Brewer, Cook &, McGowan, Squire, Sanders & Dempsey, J. A. Tenner and E. K. Wilcox, for defendants in error.
   MARVIN, J.

The petition filed in the court of common pleas alleges that on October 25, 1864, John Leopold was a widower, the father of four children, and Fredericka Kreunberger was a widow, the mother of four children; that these two parties, expecting to become husband ■and wife, entered into a written contract on said day in relation to certain real estate in Cuyahoga county, Ohio, then owned by the said Leopold. This writing is designated in the petition as a deed of trust. By this writing certain provision was made for the said two parties and for the children of each then living, and for any children who might be born to them in the marriage which was to take place between them. The said John and Fredericka are both dead. The plaintiffs are children and descendants of children of said John. Two of the defendants are also children of said John, who refused to join as plaintiffs and are, therefore, made defendants. The other defendants are in possession and claim to own certain real estate described in the petition, which is a part of that contracted about in the writing already mentioned. The plaintiffs aver that they and the defendants, Amelia Berchtold and Fredericka Mathews, are the owners and entitled to-the possession of said real estate, .and that the other defendants unlawfully keep them out of the possession thereof. The prayer of the petition is for an order of the court decreeing the possession to the plaintiffs and said Amelia Berchtolder and Fredericka Mathews, and that the other defendants may be required to account for rents and profits of said premises while the same have been in their possession.

The defendant, Foote, answers, alleging that he is in possession of said premises and is the owner of the same in fee; that the defendant, Ison, at one time was in possession with him and jointly with him owned said premises. He admits that the premises were formerly owned by said John Leopold, and avers that he is the owner thereof by virtue of the conveyance thereof by said John Leopold and through certain mesne conveyances to himself.

The plaintiffs reply, averring that the conveyance made by John Leopold, upon which the defendant relies, conveyed only an estate for and during the life of the said John Leopold, because of the limitations put upon his title by virtue of the contract or deed of trust of October 25, 1864, hereinbefore mentioned.

Whatever title or right the plaintiffs have in these premises depends upon said instrument. They claim under it. That is, the writing of October 25, 1864.

A bill of exceptions containing the proceedings on the trial in the court of common pleas is filed here, and it is claimed there is error manifest in this record.

From this bill, it appears that the plaintiffs proved the marriage of said John Leopold and Fredericka Kruenberger; that each had four' children at the time of the marriage, as stated in the petition; that no children were born of said marriage; that both are dead, and that the plaintiffs are descended from said John, as stated in the petition; and then the plaintiffs offered a certain paper writing, a copy of which is attached to, and made a part, of, of the bill. To the admission of this writing, the defendants objected, and such objection was sustained. Exception to this ruling was taken by the plaintiffs. No further evidence was offered, and the court thereupon gave judgment for the defendant, Foote.

It is this ruling upon the introduction of the writing that is complained of. The briefs and the oral argument of counsel on each side deal chiefly with the construction to be given and the legal effect of the writing offered, and show extensive research by all of them upon some very interesting questions, only one of which, as we view the case, need be considered by the court

The instrument offered bears date, October 25, 1864, and has attached to it, where signatures would properly appear upon a contract, the names, “J. Leopold, F. Kreunberger, Heinr Reussman.” On the left hand at the end of the writing where the names of witnesses would properiy appear and under tbe words “In presence of” appear tbe mames, “G. F. Roll, E. Hessenmueller. ” Tbe provisions of tbe writing offered are sueb as tbe petition sets out are contained in tbe writing or deed of trust entered into between Jobn Leopold and Fredericka Ereunberger, October 25, 1864.

Tbe execution of sucb a writing is denied by tbe answer.

No evidence was offered tending to show that tbe writing was ever signed by these parties whose names appear at tbe foot of it. Surely, it is not sufficient, to entitle a writing to be admitted in evidence, that ■a certain name appears upon it where the name of one whose writing it purports to be, would properly appear. As well might one offer in evidence a writing in tbe form of a promissory note with a name at the end of it, as against sucb man without showing who signed tbe note, or a letter with tbe name of John Doe at the end of it, as tbe letter of John Doe without showing that it was bis genuine signature. There is no question, so far as tbe matter now under consideration is •concerned, as to whether tbe instrument offered is one authorized by law to be recorded and therefore provable by the record, because no record was offered. All that was offered was this writing.

Revised Statutes 6577 (Lan. 10159) provides that in actions before a justice of the peace, it shall not be necessary to prove the execution of a written instrument, unless the party to be charged shall make and file with the justice of the peace an affidavit that such instrument was not-made, etc. The reason for this is' obvious. The .cause is to be tried without verified pleadings, and the party relying on the writing should not be put to the expense of proving its execution unless the party sought to be charged under it is willing to deny its execution under oath. Such is not the ease here. The defendant, by his answer, in this ease, has denied under oath the execution of the instrument on which the plaintiff relied, and the statute itself shows the policy of the law except for the statute, to require proof of the execution of the instrument before it can be admitted.

1 Greenleaf, Evidence Sec. 55, states the rule in these words: “In general all private writings produced in evidence must be proved to be genuine,” and then follows a discussion of how such proof should be made. Here, no attempt whatever was made to show that the writing was genuine

In Garrett v. Hanshue, 53 Ohio St. 482 [42 N. E. Rep. 256; 35 L. R. A. 321], it is held that the old rule requiring the writing to be proved by the subscribing witnesses is not in force but that the proof must be made by some competent person before the writing can be admitted in evidence.

It is suggested that this might have been properly admitted as art ancient document. There is nothing before us to indicate that it should be so treated. True, it bears date forty years earlier than the time at which it was offered, but we know nothing of its appearance or the custody in which it has been or from which it was taken.

The rule as to the admission of ancient instruments is thus stated in Abbott, Trial Evidence 708:

“An ancient deed or will, or other instrument of title, may be admitted in evidence without direct proof of execution, when ■ shown to have come from proper custody, and appearing to be of the age of at least thirty years * # * if such account of it be given as may reasonably be expected under all the circumstances of the case, and as affords a presumption that it is genuine.”

None of these requisites were shown here. It is urged that the reason given by the court shows that- the exclusion was upon other-grounds than those stated in this opinion. If that were true, it would not justify a reversal, if there existed any lawful ground for such exclusion. The reason stated, however, in the bill of exceptions is entirely consistent with what has been said.. The language of the bilL is:

“And the court thereupon sustained the objection and refused to admit said paper writing in evidence and excluded the same on the ground that the same did not tend to show a legal title in the plaintiffs to the land in question.”

Surely, if as we have reasoned, under the law, it did not of itself tend to show anything except that it was a written paper, the ground stated by the court was entirely proper.

As the plaintiffs could not succeed without establishing the contract set out in the petition, and as there was no evidence tending to show such contract, the judgment for the defendant necessarily followed, and the. same is affirmed. •

Winch and Henry, JJ„ concur.


text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    February 26, 1906.]
    Marvin, Winch and Henry, JJ.
    William M. Raynolds et al. v. Cleveland (City) et al.
    '1. City Council may not Cure Defective Street Railway Franchise by Subsequent Ordinance.
    A city council, having granted a street railway franchise to a bidder after publication of a notice legally insufficient, may not, by a subsequent curative ordinance, declare the notice as published sufficient and legalize the franchise so awarded.
    2. Ordinance Establishing Street Railway may Provide that Continuous-Passage in Same General Direction, Including Transfer to any Intersecting or Connecting Line, Owned by the Same Company, shall be Given for one Fare.
    A city council may, by ordinance, provide that a street railway franchise to be awarded by competitive bidding shall have, as one of its conditions, that the successful bidder shall give for each fare collected one continuous ride in the same general direction and shall provide a transfer ticket to such of its lines, at any point of intersection or connection therewith, as may be necessary to enable the passenger to continue to his destination.
    3. Municipal Corporation may be Estopped by its own Acts to Deny Sufficiency of Notice by Publication of Street Railway Bidding.
    A municipal corporation may be estopped by its own acts from denying the validity or existence of facts which are not inherently ultra vires. Thus, where a street railway franchise has been granted to a bidder by a city council, in the ordinance granting which franchise the council states that due notice has been published for three consecutive weeks as required by law, this bidder may not be enjoined by the city or its relators from exercising its rights under such franchise, on the ground that due legal notice was in fact not published, provided such bidder acting in good faith has expended large sums in reliance upon such statement.
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    Wilcox, Collister, Hadden & Parks, for plaintiffs.
    Blandin, Rice & Ginn, for defendants.
   MARVIN, J.

It would not be a profitable use of time to go into a full statement of the facts of this case. They are known to counsel in the case, and indeed to the public generally, having received much attention in the newspapers of the- city.

The first matter to be considered is a motion, made by the plaintiff, to strike from the amended answer so much as sets up the facts in regard to the amendment- of the ordinance of September 9, 19Q3, designated ordinaneé No. 42846, the date of said amendment being January 11, 1904; the same being approved by the mayor on January 12, 1904. This amendment sets out the real fact as to what was done in the matter of publishing notice before bids were received for the construction of a street railroad on Dennison avenue, and then declares that the publication of the ordinance establishing the route, for two consecutive weeks, and the several newspaper items published in regard to the matter was a sufficient compliance with the requirements of Sec. 2 of the establishing ordinance requiring notice for bids to be published for three consecutive weeks, and that these publications sufficiently apprised the public of the time when bids would be received, and then proceeds again to grant the franchise for the construction of an electric railroad on Dennison avenue to Albert E. Green, upon his acceptance in writing of the terms of the grant within ten days after the passage of the amendment, and that he did so accept within the time specified.

This suit was begun on January 11, 1904, the very day on which this amending ordinance was passed, and the day before it was signed, and so, of course, before it could be published and take effect. We do not understand that any defects which existed in the defendant’s franchise would be remedied by the passage of this amendment. If the defendants cannot stand upon the facts as they existed at the time the suit was brought, they cannot stand upon the facts supplemented by this so-called curative amendment, and the motion to strike the same from the amended answer is sustained.

Upon the merits of the case we are in accord with what was said in the court below upon several of the propositions, and could not hope more clearly to express or give more cogent reasons for the conclusions reached than are found in that opinion. We refer in this to the matter of the western terminus of the proposed route, requiring a deposit of $10,000 .by the successful bidder with provision for its forfeiture, and the necessity for the publication of the notice, provided for in Sec. 2 of the establishing ordinance. We do not concur in what is said in that opinion, as to the provisions of Sec. 8 of the establishing ordinance, which reads:

“Section 8. The fare for which the bidder proposes to carry passengers shall entitle the passenger to one continuous ride in the same general direction, and each passenger shall be entitled to one transfer ticket for passage on another line, if any, owned by the successful bidder hereunder, his heirs, successors or assigns, at all points of intersection or connection with such other routes, if such transfer be necessary to enable him to continue to his destination.”

This requirement seems to us to be one which the council had a right to make and, if it be true that a company already operating a road with lines intersecting those of the proposed new line would be at a disadvantage in bidding, which may be matter of considerable doubt, ¡still we see no reason why the requirement was not perfectly reasonable. It might well be supposed by the council that whoever should be the ■successful bidder would be.likely in the near future to construct other lines in the city and but for this provision an additional fare might be then required. If such a provision were not required, a company already operating in any city would have greatly the advantage over any other bidder. It was for the council to say what would be required of the successful bidder. It was its duty to make such provisions as, in its judgment, would conduce most to the good of the public. It exercised that judgment. There is no suggestion that it was not done ip ;good faith, nor are we convinced that there was even a mistake in such judgment. We would not allow an injunction on account of this provision. Unless, however, the plaintiff is estopped from maintaining his ¡action by some act of the city, we would enjoin for the failure to give the notice required by See. 2 of the establishing ordinance. We are in accord with much that was said in the lower court on this question. In addition to what is there said, we call attention to the case of Dixon Co. v. Field, 111 U. S. 83 [4 Sup. Ct. Rep. 315; 28 L. Ed. 360], in which case it is said in the syllabus:

“A recital in a municipal bond, of facts which the corporate officers ■had authority by law to determine and to certify, estops the corporation from denying those facts; but a recital there of facts which the ■corporate officers had no authority to determine,' or a recital of matters of law does not estop the corporation.”

In this case it is held that when the proper tribunal has made a finding as to the facts necessary to authorize the issue of bonds by a •county and has-certified to the existence of such facts, the county as against an innocent purchaser of the bonds, is estopped to deny that the facts are as found and certified.

In the opinion delivered by Judge Spear in Ensel v. Levy, 46 Ohio St. 255, 259 [19 N. E. Rep. 597], he quotes with approval this language from the opinion in Beardsley v. Foot, 14 Ohio St. 414, 416 [84 Am. Dec. 405]:

“ ‘We think an estoppel may arise from admissions and declarations made without any fraudulent purpose. The circumstances may be such, that good conscience and honest dealing may require a party to bear the consequences of his own. negligent mistake, instead of throwing the resulting loss upon another whom he has misled. ’ In this case Foot bad purchased land upon'winch Beardsley had a lien. Before doing so he applied to the latter — -whom he found attending an agricultural fair — for the purpose of ascertaining whether he held any claim or lien upon the land, informing him that he (Foot) expected to purchase if he could get a good title. Beardsley, in reply, gave a positive assurance that he had none, and Foot, relying on this assurance, purchased and paid for the land. An examination of the county records would have disclosed the lien. Beardsley was held estopped to set up his lien as against Foot’s title. The syllabus is: ‘Admissions in pais, though made in good faith, may yet be made under such circumstances as to operate by way of estoppel, and preclude the party from afterward gainsaying them.’ ”

On page 260, Judge Spear says:

“From the foregoing, it is fair to assume, that where one, by his acts or declarations, made deliberately and with knowledge, induces another to believe certain facts to exist, and that other rightfully acts on the belief so induced, and is misled thereby, the former is estopped afterwards to set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled.”

The syllabus reads:

“An estoppel in pais arises where one is prejudiced by the wilful act or declaration of another upon whose conduct the former has rightfully acted. Hence, where the owner of goods sells to one on credit, and knowingly delivers to him a receipt drawn in such form, and given under such circumstances as to cause an innocent purchaser, buying from the vendee, rightfully to believe that the goods will be delivered upon compliance by said purchaser with certain conditions in the receipt contained, and he parts with his money in good faith upon the belief thus created, such purchaser has the right to avail himself of the terms of the contract and the vendor is estopped afterward to set up a lien for purchase money and insist upon its payment as a further condition to delivery of the goods.”

In the case of the City of Mt. Vernon et al. v. The State of Ohio ex rel. Berry, 71 Ohio St. 428 [73 N. E. Rep. 515], the first clause of the syllabus reads:

“Where a municipal'corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibitum, and the facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped. ’ ’

From these cases and others we conclude that municipal corporations may be estopped by their own acts, as well as natural persons, under certain states of fact. They may not do those things which are ultra vires and thereby be estopped from denying the validity of the things so done, but they may be estopped from denying the existence of facts which, by the action of their proper officers they have declared' to exist, which facts are necessary to authorize them to do some other thing when they have thereby misled another to his prejudice.

In the case under consideration, the council was authorized by law to grant a franchise for the construction and operation of a street railroad on Dennison avenue, provided it pursued the mode pointed out by law for that purpose. The granting of the franchise was not ultra vires. By its own ordinance, it provided in effect that such franchise would not be granted until notice for bids had been published for three consecutive weeks. Having so provided, it was as much bound to make the advertisement as though the statute of the state had in terms required it. Before the franchise could be lawfully granted, it was necessary that such publication be made. It was the duty of the city to ascertain whether this publication had been made. Clearly, this duty of the city was to be performed by its council. That body must know, before it grants the franchise, that the publication has been made. By its ordinance granting the franchise it declared in these words:

“Whereas, Peter Witt, city clerk of said city, in pursuance of the direction in said ordinance contained, did give public notice, by due publication thereof, in accordance with law, in two newspapers of opposite politics, and in a German newspaper, all of general circulation in said city, for three consecutive weeks next preceding the eighteenth day of July, 1903, advising the public that sealed proposals would be received not later than 12 o’clock noon of the eighteenth day of July, 1903, at office of the city clerk in the city hall, for the grant of the right to construct and operate, for a period of twenty years, said street railroad, over said streets in said ordinance and advertisement described.”

Here, then, was the statement solemnly made by the proper authority, to the grantee of the franchise, and to the public, that this prerequisite had been complied with. It was the duty of the council to have knowledge on the subject. It declared by this ordinance that it had such knowledge, and that the publication had been made. The grantee had a right to rely on this declaration, he being without knowledge on the subject. No search of the records of the council could have furnished him any information that the statement was not true. The Forest City Railway Company, which is the owner of all the rights which the grantee took, acted upon this information and in good faith expended something like $30,000 in execution of the work undertaken under the grant by the grantee. This sum, or the greater part of it, will be lost to the company if the injunction is allowed. Nothing is shown that will be lost to the city if it is denied. The proper authorities of the city have declared that the public will be benefited by the construction and operation of a street railway along the proposed route. No one has bid for it but the grantee of this franchise. No other bidder is suggested as probable except a corporation which notified the city in writing that it would not bid. We come, therefore, to the conclusion that the petition should be dismissed, and judgment is rendered accordingly.

Winch and Henry, JJ., concur.