text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    ARTHUR BECKETT et al v. JOHN REGAN.

      Debt represented by two notes, each for part of the amount, with accomodotion endorsers to each — New note for one of them without knowledge of endorser on the other note no discharge for him.

    R. sold to H. & B. certain personal property, and received therefor two notes of H. & B for the purchase-price — one for $1,000 and one for 8900 — the first of which was also indorsed by McF. for the accommodation of H. & B., and the second was indorsed by McF. and M. for the accommodation of said H. & B., and without other consideration. When the first note become due, R., without the knowledge or consent of M., the accommodation surety_on the other note, took a new note therefor from the original makers and indorser for the same amount due in six months from date, and surrendered the original note. The first note could have been collected at maturity, but when the note taken in lieu thereof became due, the makers and indorser were insolvent. Held, That this did not discharge M., the accommodation indorser of the $900 note, from liability to pay the same.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

Substantially the error assigned in this case is, that the court of common pleas erred in sustaining a demurrer' to an answer filed by Mrs. Mason, one of the defendants in the original action, and in rendering a judgment for the amount sued for, against her and her co-defendants.

The petition of John Regan was filed against Beckett & Healy, as partners under the firm name of The Central Transfer Co., Mary A. McFee & Catharine Mason. It averred that he was the owner and holder of a promissory note, (of which a copy was set out), dated April 15, 1891, made by the Central Transfer Co., and Beckett & Healy, calling for $900, payable to Regan two years after date, with 6 per cent, interest payable annually. It avers that Mary A. McFee and Catharine Mason, before the note was accepted by plaintiff, and as a condition upon which the note would be accepted by him, signed their respective names on the back thereof. That due notice was served upon them of the non-payment of the note, and demand made upon them for its payment. That the whole amount of said note with interest is due plaintiffs, and he asks a judgment against defendants for the full amount thereof.

The answer of Mrs. Mason, the demurrer to which was sustained, was in substance as follows: She admits that the note sued was made as stated, and avers that it was indorsed by Mrs. McFee and herself as accommodation sureties, and without any consideration. That at the same time and place the note sued upon was made by the Central Transfer Co., and by Beckett & Healy, that the same makers executed and delivered to Regan their note for the sum of $1,000, payable in one year after its date; that said note was indorsed by her said co-defendant, Mary McFee; that all of the parties to said two notes knew at the time of the making thereof, that both were made and given as part of the consideration price or purchase from said Regan of the business and property of the Central Transfer Co.; and that the said Regan knew and agreed that both saidnotes were so endorsed by said Mary A. McFee as to the $1,000 note, and by said Mary A. McFee and Catharine Mason as accommodation sureties of the note sued on, and that both endorsements on both notes, were in fact, and intended to be part of the same transaction as sureties for the Central Transfer Co. ,for the benefit and use of its creditor, John Regan, the seller as aforesaid. That notwithstanding all this,the said Regan extended the time for the payment to the Transfer Co., of the said $1,000 note when it became due, and instead of demanding payment and collecting said note when due, he extended the time of payment to the makers and indorsers thereof, to the defendants’ great detriment and injury if the action against her on this $900 note is maintained. That said extension of the time of payment of the $1,000 note was for a valuable consideration, and by the taking of a new note from the Transfer Company for $1,000 payable in six months from April 18,1892, payable to Regan and also indorsed by Mary A, McFee, and by surrendering up the original note which he avers could have been then collected from the parties thereto, but who have since become insolvent. Wherefore she prays to be discharged, etc.

Was the demurrer to this answer well taken? The simple question presented is, whether on the allegations of this answer, the contract as to the extension of the payment of the $1,000 note, operated, in whole or in part, to discharge the liability of Mrs. Mason as the surety upon the other note for $900.

We are of the opinion that it did not. So far as we can see, there was no such relation of Mrs. Mason to the makers or sureties on the $1,000 note, or to Regan, the payee, as gave to her any interest or concern therein, and it could make no legal difference to her whether the note was paid or not. In no event could she be called upon to pay any part of it; and if it was paid by a surety, that surety would not be entitled to look to her as a co-surety for contribution, nor in any event can we see that she would be entitled to look to'the surety or sureties on the $1,000 note for contribution in case she had been compelled-to pay the $900 note. Why then should it be a question of any interest to her, whether the surety on that $1,000 note was released or not?

There certainly are cases where the makers of distinct obligations have an intimate relation with each other, and where the makers or sureties on one of the obligations are interested in the disposition made of the other, or in the release or discharge of one or more of the principals or sureties on the other or others. Thus, if several persons become the sureties of a person chosen to fill an office or position, and agree and bind themselves by several obligations that such officer will faithfully perform the duties of his office, as if A. B. etc., bind themselves by a bond in the penal sum of $5,000, and D., E. and E. -bind themseves by another bond in the sum of $10,000; the condition of each bond being the same, in such case they are all co-sureties with each other, and occupy that relation to each other, with all of its privileges and liabilities, and if the makers of one of the bonds are compelled to answer for the default of their principal, they can compel contribution from the obligors on the other bond of a proportionate share of the amount paid. And it follows from this, that if the obligee of one of the bonds, should in any manner release the makers, or one of them, from liability thereon to him, this would certainly, to some-extent, at least, discharge the makers of the other bond. But this is on the ground that there is a common liability for the same specific default. This is the holding in a leading case on the subject reported in 2 B. & P. 270.

Or if one person, as in the case in 3 Bligh, 275 (House of Lords Reports), holds a specific claim against another, as in that case for £8,000, and he should arrange with his debtor, who had become a bankrupt, that as collateral security for such debt, he would take four notes of £2,000 each, said notes being made by different persons- — -he to collect dividends on the original claim from the bankrupt’s estate, here the makers of the four collateral notes are co-sureties with each other. In such case the holder of the collateral notes can not release any maker of one of them, or change his status by a new contract, without at once affecting the makers of the other notes, and they will be discharged in whole or in part as the case may be. But the reason for this is that all of them are interested in the payment of the same original debt, and they are co-sureties for the payment of the same to the extent that they have bound themselves by those several obligations. If any sum had been collected from the bankrupt, the principal debtor, or his estate, it is clear that it enures to the benefit of the makers of the collateral notes in proportion to the amounts for which they have bound themselves. And if the makers of one of the collateral notes had paid more than the makers of the others, or more than their proportion, the right to have contribution •would exist.

But it seems to us that those cases are wholly and essentially different from that before the court, which is one where one or more persons or principals are owing a certain amount to another, and to satisfy the claim the debtors give to their creditor two notes signed by themselves, each for a different amount and with different sureties. It may be that the debt for which the two notes were given was for the purchase price of a farm or of a stock of goods, but in our judgment this does not make in such case, the giving of the two notes “one and the same transaction” in the sense in which that language is used in the books, so as to make the sureties on the one, in any way liable to the surety on the other, as a co-surety or otherwise. And this is so, even if the sureties on the two notes knew what they were given for, and they are executed at the same time. We think that the claim that they are co-sureties in such case is wholly opposed to the common understanding of lawyers and business men, and the adoption of such a rule would be open to grave objections. We see no adjudged case among the many cited by the counsel for plaintiff in error which supports such a claim. The case in 73 Va 121, relied upon by counsel for plaintiff in error, we think states the law correctly in the third paragraph of the syllabus thus: ‘"Co-sureties' — 'Who are — Those bound for the same thing, though by different instruments at different times and without one another’s knowledge, are co-sureties — Not so, where the obligations are for wholly distinct things, though arisen from the same principal indebtedness. ” Here the sureties were not bound for the same thing, but for wholly distinct things, which however arose from the same principal indebtedness.

Wm. (?. Williams, for plaintiff in error.

Wm. H. Jones, for defendant in error.

These being our views, the judgment of the common pleas will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    JOANNA M. CONNER v. The CITY of CINCINNATI.

      Sewer assessment — Limitation of assessments for improvements to 25 per cent of value applies — Benefit to property.

    1. The limitation of sec. 2271, Rev. Stat., that in cities of the first grade of the first class, “the tax or assessment especially levied or assessed upon any lot or land for any improvement, shall not, except as provided in sec. 2272, exceed 25 per centum of the value of such lot or land after the improvement is made,” applies to sewer assessments.
    2. Such assessment can not be further reduced by showing that the sewer is in reality of no benefit to the property in question.
    Appeal from the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiff brings this action to enjoin so much of the assessment made by the city for a sewer on certain lots owned by her, situate on Martin street, as exceeds twenty-five per cent of the value of such lots after the improvement was completed. It is conceded that the plaintiff is the owner of thirteen lots fronting on Martin street, on which the sewer was located, each lot having a frontage of twenty-five feet on such street, and that the value of each of said lots does not exceed $1 per front foot, and that the assessment made thereon by the city was $2 per front foot, At the trial of the case the counsel for the plaintiff claimed that the sewer was of no benefit whatever to any of said lots, and that the assessment was a virtual confiscation of plaintiff’s land, and that the whole assessment should be enjoined.

The first question for consideration is, whether the limitation of section 2271, that in cities of the first grade, of the first class “the tax or assessment especially levied or assessed upon any lot or land for any improvement shall not, except as provided in sec. 2272, exceed twenty-five per centum of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid out of its’general revenue,” applies to sewer assessments. We see no reason why this ought not to be the case. There is no good ground why it should be allowed to exceed twenty-five per cent of the value of the property after the improvement is made, in the one case and not in the other. Nor do we think that the statute requires us to hold that the provisions of Section 2271 do not apply to assessments for the construction of sewers. In the Revised Statutes as they now stand, title XII is that which governs and relates- to Municipal Corporations. Chapter I of that title is that which provides as to “assessments,” and of further provisions as to making improvements by municipal corporations; and under sub-divisions of said chapter, are provisions as to assessments in general, damages, side-walks and water courses and sewers and assessments therefor. In this first sub-division, under the head of “Assessments in general,” occur Sections 2270 and 2271, the first of which limits the amount of the assessemnt, for any improvement,to 25 per cent of the value of the property as assessed for taxation, in municipal corporations other than those provided for in 2271; and said section 2271, as before stated, limits the assessment for any improvement, (except in the cases therein excepted, which do not apply in this case) to 25 per cent of the value of the lot or land assessed, after the improvement is made, and section 2237, provides that the proceedings with respect to improvements, “shall be strictly construed in favor of the owner of the property assessed or injured as to the limitations on assessment of private property and compensation for damages sustained;’ ’ in other respects they are to be liberally construed. And as these are general rules established by the statute itself, and in "the discharge of the duty expressly imposed upon the general assembly by section 6 of article 13, of the constitution, to restrict the power of municipal corporations as to taxation and assessment, so as to prevent the abuse of such power, it should be held that this limitation does apply, as the statute says it shall, to any improvement, unless by other clear provisions it is declared that it shall not apply to a certain kind of improvements.

The provisions as to the sewers and assessments therefor, are contained in sub-divisions of this same chapter, commencing with section 2366, and it points out the proceedings to be had under it. Section 2379 provides for the assessment of the costs of the construction of main sewers upon the abutting property, by the feet front, or according to the valuation of the same on the tax list, or according to benefits as the council may determine, and in other following sections there are limitations on the power, for instance as to lots or lands already provided with, or not needing local drainage; and in section 2384, that in no case shall the property, be assessed ■ more than $2, per foot front on the property assessed, and this, whether it is assessed by the front foot, or according to its valuation on the tax list, or in proportion to benefits. There is no statement anywhere in the statute that the rule that the assessment made shall not exceed 25 per centum of the value of the property as improved, does not apply to cases of this kind, and we are of the opinion that the limitation in this respect as well as the other specific limitations pointed out in the statute, apply to assessments for sewers.

Marsh & Ritchie for the appellant.

Corporation Counsel, contra.

This being so, the’ assessment in this case must be reduced to 25 cents per front foot on plaintiff’s lots. When this is done the plaintiff must be content. She can not. further reduce it, by showing or attempting to show that in reality the sewer is of no benefit to the lots in question. In contemplation of law it is of benefit to the property. Absolute justice can not be done in such cases by any system of assessment, and there are necessarily great inequalities in the assessments made for almost any improvement. And we understand it to be held by the Supreme Court in 10 Ohio St. 160, that the fact that the lots are not benefited will not render the assessment invalid.

The argument that in this case the assessment amounts to the confiscation of the property is not tenable, now that the assessment is reduced to 25 per cent of the value of the property, which the law has adjudged to be the amount for which abutting property may be assessed for public improvements of this kind.


author: Caldwell, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.
    Before Caldwell, Hale and Margin, JJ.
    WILLIAM GIMBERT v. H. A. HEINSATH, JENNIE MADDEN AND WILLIAM C. MADDEN.

      Contract — Law of the place forms part of it.

    1. The law of the land where a contract is made enters into the contract and forms a part of the same; and the scope and eflect of the contract is determined by the law; and the parties to a contract are governed in their rights, duties and liabilities under the same by the law, and by their own choice they make the provisions of the law that thus enter into their contract obligatory upon themselves.

      Same — Power of Legislature.

      % “The power of the legislature to attach binding incidents and obligations to certain contracts, is limited to .cases wherein the statute which attacheb the obligation at the same time gives or leaves -to the party, upon whom it is laid, adequate means of protection 'against the consequences of it.”

      Mechanic’s Lien Law of 1894 constitutional.

    • 3. The Mechanic’s Lien Law, 91 O. L. 135, creates no obligations against the owner of property on which improvements are made with his consent, nor liens upon the same that can prove unjust to him, except by his own fault and neglect, and said law is constitutional.

      Mechanic can not be deprived of right to lien.

      Í. The owner of property and his contractor cannot, by stipulations in their contract, for the erection of a house by the contractor on the owner’s land, deprive those, who perform the labor upon the house or furnish materials for the same, of a lien on the property without their assent to such stipulations of the contract
   Caldwell, J.

The plaintiffs in error filed a petition in the court of common pleas, setting up in substance that the defendant, Jennie Madden, entered into a written contract with the defendant, H. A. Heinsath, some time prior to the 21st day of June, 1895, whereby the said Heinsath agreed to furnish all materials and labor necessary for the complete construction of a two-story frame house for her upon a parcel of land (fully described), in Cleveland, Ohio; said Jennie Madden agreed to pay therefore the sum of $2897.50 as the work progressed, the entire sum to be paid within sixty days from the date of the completion of said house. That said Heinsath fully performed said contract upon his part, and fully completed the house on July 1, 1895. That between June 1,1895, and June 21, 1895, the plaintiff furnished certain material and performed certain labor necessary for putting a slate roof upon the same, as required by said contract, under a verbal contract with said Heinsath for the agreed sum of $131., said sum being the reasonable value of the work and material required to be performed and furnished in doing said work. Plaintiff says he completed said work on the 21st day of June, 1895, and the same was fully accepted by said Heinsath and by said Jennie Madden; that said sum of $131.00 is due and unpaid, and the defendants refuse to pay the same. On the 11th day of July, 1895, the plaintiff duly filed with the Recorder of Cuyahoga county, Ohio, under the statutes providing for obtaining a mechanic’s lien, an affidavit containing an itemized account of the amount and value of said material and labor, with all credits and offsets endorsed thereon, with a copy of the contract under which said work was done and said material furnished, and a description of the premises. The petition avers the record of the lien, and claims a lien, and asks for a foreclosure of the same. The answer of Jennie Madden admits the contract under which the house was built for her, and avers that said contract, among other things, provided that the said Heinsath should and he did thereby waive any and all right of placing a lien upon said premises for labor performed or material furnished for said building, and provided that no lien or liens should be placed thereon for labor performed or materials furnished therefor by himself or others under him, and contests the right of the plaintiff to any lien on said premises. It is conceded that the contract between said Jennie Madden and the plaintiff was after and some time after April 13, 1894. The plaintiff demurred to the said answer on the ground that it did not state a defense. The demurrer was overruled, and judgment was rendered in favor of Jennie Madden. It is claimed by defendant in error that the overruling of the demurrer was right, because the answer states a good defense; and if it does not, it was good as to the petition, because it states no cause of action good in law. There are two questions in the case:

1. The constitutionality of the amendment of the Mechanic’s Lien Law as found in 911,0. L. 135.

2, Can the owner and contractor by contract deprive the material man of a lien on the premises for which he has furnished material under a contract with the contractors?

Sec. 3184 in the Act, 91 O. L. 135; is:

‘A person who performs labor, or furnishes machinery or materiarfor constructing, altering or repairing a boat, vessel or other water-craft, or for erecting, altering, repairing or removing a house, mill, manufactory, or any furnace or f-urnace material therein, or other building, appurtenance, fixture, bridge or other structure, or for the digging, drilling, plumbing, boring, operating, completing or repairing of any gas-well, oil-well or any other well, or performs labor of any kind whatsoever, in altering, repairing or constructing any oil-derrick, oil-tank, oil or gas pipe-line, or furnishes tile for the drainage of any lot or land by virtue of a contract with, or at the instance of the owner thereof or his agent, trustee, contractor or subcontractor, shall have a lien to secure the payment of the same upon such boat, vessel or other water-craft, or upon such house, mill, manufactory or other building or appurtenance, fixture, bridge or other structure, or upon such gas-well, oil-well or any other well, or upon such oil derrick, oil-tank, oil or gas pipe-line and upon the material and machinery so furnished, and upon the interest, leasehold or otherwise, of the owner in the lot or land on which the same may stand, or to which it may be removed. ’ ’

And sec. 3185a reads:

“In all cases where labor, material or machinery referred to in sections 3184 and 3185, shall be furnished by any person other than the original contractor, with such ownér or his agent or trustee, the lien shall not exceed the actual value of the labor, material or machinery so furnished, and the aggregate amount of liens for which the property may be held shall not, in the absence of fraud or collusion between the owner and original contractor, exceed the amount of the price agreed upon between the owner and original contractor for the performing of such labor and the furnishing of such material and machinery. Provided, if it shall be made to appear that the owner and contractor, for the purpose of defrauding said subcontractors, material men or laborers, fixed an unreasonably low price in the original- contract for any work or material for which a lien is given under section thirty-one hundred and eighty-four, the court shall ascertain the difference between such fraudulent contract price and a fair and reasonable price therefor, and such subcontractors, material men and laborers shall have a lien to the amount of such fair and reasonable price so ascertained.”

It is claimed that in so far as this act undertakes to give to anyone who has furnished material to the contractors under a contract with him, a lien upon the premises is unconstitutional, because if the owner pays the contractor in full the contract price before the building is erected or during its erection, or any part of the contract price, still laborers who have worked upon the building and material men who have furnished materials for the same may charge the property with liens to the extent of the contract price, or even more if the contractor undertook the work for less than its true value. It is claimed that the material man under the statute can subject the owner’s property to a lien for materials not called for under the contract between the owner and his contractor if the same are ordered for the building, and used in the same, by the contractor. That these provisions of the statute deprive the owner of the right to own, possess, enjoy and contract in regard to his property as guaranteed to him by the highest law of the state. The law of the land where a contract is made, enters into the contract and forms a part of the same, and the scope and effect of the contract is determined by the law; and where, as in this case, a contract is entered into after the passage of a law on the subject-matter of the contract, that law enters into the contract and becomes olbigatory upon the parties thereto. This rule has been repeatedly recognized by the Supreme Court of Ohio. In Smith v. Parsons, 1 Ohio, 236, the court say: “The legislature has a right, by law, to regulate contracts, to determine their effect, and point out the mode of their discharge. These laws are applied to all subsequent engagements, and fix the rights of the parties at the very instant the contract is closed. So that the contract in its inception, receives an impress from the law, and the effect of the law being co-extensive with the contract, can never be said to alter* or. impair it. It continues what it was at its commencement, and it is more correct to say that the law has in part made the contract, than it has changed it.” “Parties are as much bound by a provision contained in a law, as if that provision had been inserted in, and formed part of the contract.”

In Weil v. The State, 46 Ohio St. 450, it is said: “The obligation of a contract is the duty which the law, at the time of making it, imposes upon the parties.” Also: “The statute, when applied to contracts made after its adoption, does not divest the owner of his property without his consent. * * * After the enactment of the statute prescribing the effect of tne contract specified in it, and fixing the rights of parties thereto, the defendant was at liberty to enter into such a contract, or not; and having entered into it, the provision of the statute prescribing his rights, duties and liabilities under it, become obligatory upon him of his own choice. ”

This being the law, it next becomes important to see how far constitutionally laws may be imposed into contracts. It would seem to be a reasonable rule that this may be done to any extent in a class of contracts where the rights of those not parties to the contract are affected by it, so long as the parties to the same are not deprived of lawful means of protecting their rights and property. That the provisions of the law in such cases may be inconvenient is no cause why it may not be applied to contracts. It is only when the laws put into contracts of this nature, terms, conditions and limitations which take from a party all means of protecting his. rights and property, that they become unconstitutional. This rule is well stated in Mallary v. La Crosse Abbattoir Company, 80 Wis. 170: “The power of the legislature to attach binding incidents and obligations to certain contracts is limited to cases wherein The statute which attaches the obligation at the same time gives to the party upon whom i is laid, adequate means of protection against the consequences of it. ”

It only remains to determine, by the premises thus far established, the nature of the provisions of this law, and how far they take from the owner every reasonable means of protecting and saving to himself his rights and property, The intent of the law is clear. Its imposition oí duties upon the owner is manifest. How can he save himself from loss of his rights and property under it? Whoever contributes labor or materials toward the erection of a house upon land, contributes to the owner of the land by way of a fixture which, as fast as contributed, adds to and merges into the fee of the owner. While the owner is being thus enriched by the labor and materials of others, which becomes his as fast as furnished, it is eminently just that those enriching him should have some security. The statute undertakes, upon the consent of the owner that the improvement be made upon his land, to secure by lien those'who aid in the improvement. This is equitable, remedial, and hence the statute should be liberally construed. Liberal toward the end it was intended to accomplish. It may be that hardships will occasionally result to land owners from the application of this law, but this objection can be raised to many other laws; that hardships would result to others without such law, is equally clear. Without this law, the loss would often fall on those whose labor and materials have enhanced the value of the property. Under the law the latter can enforce payment for the reasonable value of their labor and materials in the building to the contract price of the same. The owner can recover from the contractor, or he may take a bond to indemnify himself. He puts the contractor in charge, holds him out as worthy of credit. Under such circumstances the legislature has thought that if either must lose, it should be the owner. He selects the contractor, gets the benefit of the improvement. The purpose of the statute seems to be to protect those whose labor or material has enhanced the value of the property against the fraud, injustice and misfortunes of a middle-man at whose instance the same were furnished. It cannot be successfully claimed that a law is unwise, unjust or unconstitutional, which prevents an owner from getting the labor and material of others through a contractor without their getting pay for the same. The owner has ample means of protecting himself. He need not employ an intermediate. If he does, he can protect himself by taking an indemnity bond, or by paying the subcontractors, laborers and material men himself. Several avenues of escaping loss are left open to the owner, and hence, if he loses, it is his own want of precaution. The owner knows, when he makes his contract, the provisions of the law that enter into the contract and form a part of it. He knows that the contractor cannot do all the work himself. He knows the materials will be furnished by others. He knows the rights of those performing the labor and furnishing materials to a lien. He obtains the benefit of the labor and material. He knows the statute does no more than to subject his property to liens for debts which he has directly or indirectly authorized.

Where the owner knows all these things, and knows that there is a wise and remedial purpose in the statute, he cannot lawfully claim the same is unconstitutional, because it works to him nothing more serious than inconvenience, unless he has failed to protect himself as he may do by law. It is urged that the owner may, under the statute, be corripelled to pay for materials he never contracted for. Whether this could be so or not, it is enough here to say that if he does, it is his own fault. If he stands by and keeps silent while his contract is being violated, he should not be permitted to speak when by doing so hé may injure those not responsible for the injury done him. We hold the statute to be constitutional. In this we are sustained by numerous authorities. 3 So. Da. 361; 2 So. Da. 577; 80 Wis. 170; 16 R. I. 698; 9 Mont. 113; 97 Mo. 47; 81 Cal. 170; 90 Tenn. 466; 17 Neb. 631; 24 Neb. 113; 8 Va. 821; 85 Me. 357; 162 Mass; 593; 14 Nev. 24; 45 Ind. 96.

To these might be added other cases and other states. The only states holding such a law unconstitutional are Pennsylvania and Michigan.

2. Is the provision of the contract between the owner and contractor that there shall be no liens placed on the premises by the contractor or anyone under him, binding upon laborers and material men ?

The basis of the claim, that this provision of the contract prevents the plaintiff from having a lien in this case, is, that the statute gives the lien where there is a contract between the owner and the contractor, and this contract being the foundation upon which the lien of the subcontractor is based, the subcontractor, laborer and material men are bound by. all the terms of the contract. The statute provides the lien to all persons who perform labor or furnish material by virtue of a contract with the owner or at the instance of the owner thereof, or his agent, trustee, contractor or subcontractor. The statute seems to give importance to the contract only as giving consent of the owner that the improvement be made on his land.

The statute gives to laborers and material men a direct lien, not through any rights the contractor may have, but direct upon the consent of the owner to the improvement on his land, and the performing of labor or the furnishing of materials. This right is by virtue of the statute,, and the statute puts this right into every building contract the owner makes, and into very consent he gives for the erection of a structure for him on his land. If then, the law makes these rights a part of the contract, as much as though written therein, what rights have the owner and contractor to strike them out and write the very opposite in without the assent of the laborer and material men? This cannot be done wthout their assent. This being a positive statutory right,it cannot be taken from those who were intended to be benefited by it without their assent being clearly shown. To take-from them this right by implication, would be construing a remedial statute intended for their benefit, most strongly against them. This cannot be done without violating an elementary rule of construction. Norton v. Clark, 85 Me. 357; 2 Jones’ Liens, sec. 1304; 11 Allen, 152; 56 Mo. 487; 54 Md. 71.

Dickey, Carr & Goff, for plaintiff in error.

Kline & Tolies, for defendant in error.

We hold that the petition states a good cause of action, and the answer of Jennie Madden states no defense to the same.

The court of common pleas erred in overruling the demurrer to the answer of Jennie Madden and rendering judgment in her favor. The judgment is reversed, and the case is remanded to the court of common pleas for .further proceedings.


author: King, J.

text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Feb. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    AUGUSTA DICK et al. v. THE CITY OF TOLEDO, et al.

      Street Improvement — Mode of Assessment once adopted — Property of city must bear its share of assessment.

    1. A municipal corporation having provided in a general ordinance for the creation of an improvement, that the cost of the same should be assessed upon the abutting property according to the feet front, cannot, after the construction of the improvement, change the method of [assessment and'provide by another ordinance for its assessment upon abutting property according to the benefits.
    2. In the construction [of street;[improvements, the property of the city, whether public grounds or street intersections, should bear its share of the expense of the improvement.
   King, J.

This is an action brought to enjoin the collection of an assessment made on certain property for the improvement of, and for damages incurred to property owners on, Oliver street, between certain streets named in the petition.

The principal ground on which the injunction is sought to be maintained^is,[that the ordinance which was passed by the common council of the city of Toledo providing for the improvement, also provided that damages might be assessed to the property owners for all claims thereby, after the improvement was completed, and that the costs and expenses foi making the improvement, as well as the damages that might be thereafter awarded, and all incidental costs, should be levied upon the property abutting according to the foot front, And thereafter the city went on and made the improvement — graded the street, and put in the pavement— and assessed the costs of the improvement upon the property owners according to the foot front, and then proceeded to have a jury impaneled to assess the damages on certain claims fled by abutting owners; and when that proceeding was ended, they proceeded by a subsequent ordinance to assess the amount [so found due on account of damages on the abutting property according to benefit.

There are perhaps some other questions urged, but that one is a sufficient objection to this assessment, and that the assessment as it was made should be enjoined. But in that connection I think that the city should be allowed to re-as^ sess the amount of those damages to the extent that it legally can upon adjoining property in accordance with the original ordinance and by the frontage. Our view of the property liable to pay is that the city is bound to pay the cost of the street intersections. As theyjundertook to assess this amount according to benefits on] all [the property abutting the entire length of the street, in one gross sum' apportioned amongst the abutting property owners, they should take out of that the amount of the street [intersections, and then assess the balance according to the foot front. ~'

There is in this street a space that was originally'jdedicated as a market space. It is claimed by the city that jthis has never been accepted; but an ordinance of the city was introduced in evidence in which they recognized it, and that, in our judgment, is sufficient to amount to an acceptance, and that this property is properly dedicated and accepted as a market space. Along the boundaries of that market space the city improved this street on both sides, and at a greater width than they improved it at other points on the street. They should pay one-half of the cost of making this improvement or of these damages along the property abutting on the market space, and the balance should be assessed according to the terms of the original ordinance.

While it is possible that this court has jurisdiction to determine that matter, we shall decline to do it, unless the parties themselves see fit to agree upon the form of an entry that shall make a proper assessment in accordance with this assessment, and if they do that, .we will enter it np accordingly. Otherwise the decree will make this injunction perpetual against the collection of the assessment, but without prejudice to the rights of the city to proceed before the council and re-assess it in accordance with these views.

8. Brophy, for plaintiff.

O. F. Watts, for City.


author: King, J. Scribner, J.,

text:
    (Sixth Circuit—Lucas Co., O., Cricuit Court
    Feb. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    ISADORE E. DANIELS v. THE LION DRY GOODS CO.

      Lease — Amount of rent subject to re-appra,isment every five years if demanded within the year — Effect of re- appraisment at higher rate on rent paid in advance.

    A lease of real property for the term of thirty years provided for the payment' of an annual rent quarterly in advance, and also provided that the rental might be changed at the end of each period of five years by re-appraisement of the property, to be called for by either party at any time within one year after the expiration of said period of five years, and that such re-appraisement should determine the basis of the rent for the succeeding period of five years. At the expiration of one of the five year periods and within the year stipulated in the lease, the parties proceeded under the terms of the lease to re-appraise the property by which re-appraisement the annual rental was increased for the succeeding period of five years. At the time of such re-appraisement the rental for the current year had been paid by the tenant promptly on the first of each quarter and accepted by the landlord. In an action brought for the difference of the rent for that year, held that the action could be maintained; that under the lease the landlord was entitled to recover the difference of rental as fixed by the re-appraisement, although the amount as fixed and paid for the previous period of five years had been paid for that year.
    Error to the Court of Common Pleas of Lucas County, Ohio.
   King, J.

This is a proceeding to reverse the judgment of the Court of Common Pleas. The action was brought by the plaintiff in error in the court below to recover a certain sum of money — $560—from the defendant, which was claimed to be due as balance of rental of certain property situated here in Toledo, from the 1st day of • April, 1893, to the 1st day of April, 1894, and judgment was rendered for the defend- ■ ant. The claim for that rent arose in this way: In 1868 the owner of that property, but not the plaintiff, made a lease of it to another, who is not the defendant here, from the 1st day of April, 1868, to the 1st day of April, 1893, and some time during its continuance it was agreed that the lease should be extended ten years, which would be until the year 1903. The lease contained a provision that either party might, at the end of each of the five year periods of the lease, call for a re-appraisement of the property. The rental called for in the original lease was $1,960, and it was agreed in the lease that after the expiration of five years either party might call for a re-appraisement, and so at the end of each five year period during the continuance of the lease; and if the re-appraisement of the property showed a valuation thereof which, at 7 per cent, should exceed $1,960, .then the same should be the rental for the succeeding period of five years, which should be paid in the same manner as the original rental was to be paid, which was quarterly in advance. The parties and their successors in interest and title continued on under the lease, with it in full force, and I think no re-appraisement was called for until 1883, when one was had, and established the value of the property so that 7 per cent upon it made the sum of $2,240 as rental. That so continued during that period of five years, and in 1888 there was another appraisement, which did not change the valuation, so that the rental continued at $2,240 for that period of five years, which, under the terms of the lease, expired on the 1st day of April, 1893, when another period of five years began. From the 1st day of April, 1893, to the 1st day of April, 1894, the rental was paid according to the terms of the lease on the fisrt day of each quarter, or about that time. For instance, on the 1st day of April, 1893, there was paid one-quarter of the sum of $2,240, and on the 1st day of July a second quarter’s rent was paid. In March, 1894, there was a demand made by the plaintiff for a re-appraisement of the property, and the re-appraisement was had, and it fixed the valuation of the property at $40,000, and 7 per cent of. that sum would make $2,800, which would make each quarter’s rent somewhat larger than the previous quarter, and it would make it for a year $560 greater than it had been during the previous period of five years. This appraisement not .being made until March, or the 1st of April, 1894, the first year of the period of five had elapsed, and the rent had been paid promptly according to the terms of the lease, and of course upon, the basis of $2,240. After the appraisement of the property was made, there was no dispute between the parties that the rental was $2,800 a year, and it has since been paid on that basis. But the plaintiff claims that she was entitled to recover for the difference — -$560—for the year during which the tenant had paid $2,240, he having paid that while the original lease was in force, and before any appraisement was actually made. The lease on that subject is as follows:

“At the end of each and every five years during said term, there shall be, if either of the parties so desire, an appraisement of the then cash value of said demised premises by three disinterested freeholders resident of the city of Toledo, one of whom shall be selected by the party of the first part, one by the parties of the second part, and the other by the two so selected, and if seven per cent upon the amount of such appraised value shall exceed the sum of ■$1,960, the rent to be paid for the succeeding five years shall be a sum equal to 7 per cent upon such appraised value, but in no event shall the annual rent be less than said sum of $1,960. If either of said parties shall elect to have such appraisement made, he or they shall within one year after the expiration of any term of five years give notice to the other party in writing that he has or they have made such selection, and at the same time notify the other party of the person selected by him or them to make such appraisement, and thereupon such other party shall within ten days after receiving such notice select the person to act as appraiser upon his or their selection, and the two so selected shall thereupon proceed to select the third appraiser and make their appraisal of such premises, which shall be returned to the parties under their hands in writing within ten days thereafter. If neither of the parties shall within one year after the expiration of any five years of the term give notice of his or their selection to have said appraisement, the rent for the succeeding five years shall continue the same as that of the five years next preceding.”

It is claimed] by the defendant that the acquiescence of the parties "Jin the lease as it existed for the five years from April 1st, 1888,^to April 1st; 1893, and the payment of the rent by the one]and its acceptance by the other for the year following, which would be the first year of the next succeeding period]of]five,'amounted ]upon the part of the plaintiff to a waiver]of] the ^right^to demand additional rent, and upon the partjof jboth]to an acquiesence in the conditions as they then existed;]]so]that the payment of rent by the one and its acceptance] by the "other, without any other agreement or arrangement, would ] prevent the bringing of an action to recover Trent for and during the period for which the rent had beenfpaid under the terms of the lease as it then, and]for]the]preceding five years, had existed.

That is thexclaim. IAhall]not]elaborate it, nor the claim that is based upon it; but, in the opinion of a majority of the court, that claim can hardly be sustained under the terms of this lease.

So far as|the quesfion]of]waiver is concerned, I need only say that neither party could waive that which he had a right to insist upon during a period of a year. This lease gave to either of these parties the right to demand aNeappraisement at any period during the year, and the' right to have that re-appraisement was as good upon the last day of the year as it was upon the first; and to wait until the latter end of this period was by no.means a waiver, since either party might avail himself of the conditions of the lease and call for a re-appraisement. It is said that that was not reciprocal. So far as the first appraisement is concerned, it was not, because the conditions of the lease provided that the rental could not be reduced below $1,960; but at the date of the appraisement in question it might have been reduced below the existing rate, since the existing rental was $2,240, and either party, might have well demanded a re-appraisement at any time. I cannot say that either waived the right to do so by waiting until the end of the year, or to nearly the close of the year. The plaintiff waited until some time [in March, and then proceeded to give the notice required by the lease, and in and upon the terms indicated in the lease. . It was acted upon by the tenant, who at once appointed the appraiser required by it, and the two selected the third. The appraisement was had, and it was returned under their hands to the parties, and thereafter was abided by.

The condition of the written contract is that that appraisement so made should be the rental of this property for the period of five years next succeeding the preceding period. If that language is to have or to be given any effect, that period of five years commenced when the preceding period ended; and to say that one year of that period is dropped out because neither of the parties availed themselves of their right to a re-appraisement until at or near the close of the time within which, by the contract they are given the express right to demand it, is, in my judgment, overturning the express provisions of the written contract, and without any other contract in its place. For it is conceded that neither of these parties did any other thing in this matter than simply to await the time as it passed by^ — the one to pay rent according to the existing rate as established by the contract, and the other to receive it. Beyond that they did nothing. That does not seem to us to be a waiver of the right to pursue the terms of the written contract and demand a re-appraisement, and demand it any time within the time named in the contract. If they did, the contract says such an appraisement shall be the basis of the rental of the property for the period of five years, and could not thereafter be changed, under this lease, until that five years had elapsed, and then there can be another appraisement. That being so, we see no objection to the bringing of this action by the plaintiff.

Nor do I think, personally, that had there been a reduction of the rent by this appraisement, there would be any valid objection -to an action by the lessee for the excess paid on this rent, as for money had and received. It is true he would have paid it. according to the then existing terms of th$ contract; but there was a condition impliedly affecting that payment, and which might render it inoperative as a full payment and liquidation between the parties, and that was, that neither party should within that year demand a re-appraisement, and that such re-appraisement would not change the amount of the rent for the year. That was the implied condition connected with the payment of that rent during that year. For these reasons we think this judgment shoud be reversed.

All the oral testimony was ruled out, and there is no testimony in”the case except the receipts. There is no dispute as to the facts. 'So this'Jcase is really before us on the pleadings. We are therefore of the opinion that this court should renderjthe judgment which the Court of Common Pleas ought to have rendered in the case. We will therefore render a judgment for the plaintiff for the amount claimed, with interest.

Scribner, J.,

dissenting.

I am unable to concur with the judgment!just pronounced in the proceeding.

The tenant occupied the premises in question uhder a written agreement entered into between the parties, by which it was distinctly provided what should be the respective rights of the parites, the landlord and the tenant. The premises to be occupied were fixed by the terms of the written agreement between them, the amount of the rent to be paid was fixed and determined, and the time when payment should be made was fixed and determined. There was a full, perfect and complete agreement between these parties, by which their respective rights and liabilities were ascertaind, fixed and determind. Under those stipulations these premises were occupied by the tenant, and the rent as it became due was paid and accepted down to the last quarter’s rent for the current year, ending either in March or April, 1894. Had the landlady during that period insisted upon the payment of the rent stipulated, there was no earthly means of resisting the claim as made by her. It was an absolute impossibility for the tenant to escape the payment of the amount agreed upon. Had the tenant objected to payment, it was in the power and it was the right of the landlady to enforce payment by proceedings at law, and judgment and execution would necessarily have followed.

It is true there existed between these parties a written agreement by the terms of which this landlady might have insisted upon a re-appraisement of these premises, and thereby ascertained, fixed and determined whether or not she was entitled to an increased amount of rent; and had she assorted this right upon her part, and demanded the appraisement stipulated for, before she had required or accepted payment of rent as then stipulated for according to the terms of the agreement, there could be no question about her right to insist upon the appraisement, and upon payment according to the terms reached and fixed by the appraisement. But I fail to see that this lady, or any other person under similar circumstances, could lie by, demand, enforce, and receive payment according to the terms of this lease during the period.of an entire year ending in March, 1894, and having received the rent — having availed herself of the stipulation as it then existed, afterwards, upon a new appraisement fixing an amount increasing her rent, bring a suit to recover for the increased amount. I think it is contrary to practice to attempt to enforce a claim of that kind. It seems to me that good faith towards the tenant 'would have required a different course of conduct under these circumstances.

Had this landlady notified the tenant before receiving payment of the rent that she, under the terms of this agreement for a re-appraisement, insisted upon a re-appraisement, of course it would have been her right to do that; but, in my judgment, if she proposed to avail herself of that stipulation during the current year, she was bound to insist upon it, she was bound to assert it before she demanded or received the rent as fixed, according to the stipulation, As I have said, upon payment of rent being demanded by her, the tenant could not then question her claim for rent; it was absolutely impossible. So that really, as the case stood, it was a case of “Heads, I win; tails, you lose,” in the matter of fixing the amount of the rent. Hence it is, in my judgment, that the conclusion reached by the Court of Common Pleas passing upon this case was right, and the judgment pronounced by that court should not be disturbed.

Kinney & Neioton, for plaintiff in error.

G~. H. Beckwith, for defendant in error.

Here the entire year’s rent has been received as stipulated between the parties. Non constat, this paintiff might never insist upon the right to have a re-appraisement of these premises. She makes application through her agent, perhaps, for the rent . The tenant has no way of availing himself of any defense, and he pays it. , Then afterwards she comes in and says she wants more rent. And upon what ground does she want more rent? Why, upon the ground that after she had received the tenant’s rent according to the stipulation between them, after she had accepted it, Ihen she had coucluded that she would have a re-appraisement and make a further demand for rent. And technically, I cannot see how she can enforce, under these circumstances, a stipulation of this kind. She receives all the rent that is due at the time it is paid and at the time it may be demanded, and the amount is increased by a reappraisement, as is claimed. Then what? Why, she resorts to what is equivalent to an action to recover a further installment of rent, and determined upon after the tenant had paid the stipulated amount agreed upon. I don’t think it is reasonable or consonant with the rules of law to enforce a liability of that kind. I do not question the right of the landlord as to subsequent accretions of rent to insist upon the full amount under the new valuation, but what I object to is, that while the year is going forward, and the rent is paid according to the contract as it exists, according to the only terms that could be insisted upon at that time by either party, if afterwards there is an increased valuation put upon the property so as to increase the rent, that the amount of rent claimed or recovered should be limited to that which had accrued after the landlord had demanded the re-appraisement and had the new rental fixed.

For these reasons in brief, I think that the judgment of the court of Common Pleas should be affirmed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    THE CAMPBELL PRINTING PRESS & MANUFACTURING CO. v. THE BELLMAN BROS. COMPANY, et al.

      Money advanced by bank on condition that it should be protected by chattel mortgage in case of assignment for benefit of creditors.— An agreement by a bank and a business corporation that it would advance them money to a certain amount to enable them to carry on their business, provided that such firm at any time that the bank should deem it necessary for its protection, should execute to it a mortgage upon the personal property of such firm, and such mortgage was eventually executed to the bank, is not a preference of such bank in fraud of the other creditors of the firm, and such mortgage will be held valid. _
    2. Private corporation — De facto Director, when to be recognized.— ' A mortgage was made by the directors of a corporation of its personal property, one of the directors acting in the transaction having ceased to own any stock in the corporation. Held, that he will be recognized as a de facto director, and the transaction held valid.

      Same — Director ceasing to own stock — Where a director of a private corporation ceases to own stock therein, and the question is made, he will not be permitted to act as such director.
   Haynes, J.

This is an action brought in the Court of Common Pleas and appealed to this court; wherein the plaintiffs filed [a petition for the purpose of having certain transactions of The Bellman Bros. Company declared to be a preference in fraud of creditors. The action is brought under Sec. 6343 or 6344 of the statutes.

The principal question in the case arises between the Holcomb National Bank and the receiver of the company in regard to the distribution of the -funds; the bank claiming that by virtue of certain arrangements that were made by it with the Bellman Bros. Company it is entitled to a preference to a certain amount upon the funds in the hands of the receiver. We have read the evidence in the case, and have given the subject very earnest and very careful attention, because the question is one of difficulty, and I think one of doubt, and we are not wholy agreed in regard to the matter. However, we have finally agreed upon a judgment that I shall now proceed to announce.

We find from the testimony that the Bellman Bros, had been carrying on the printing business here for some time, and had become so much involved that the First National Bank, which had been carrying them for some time, declined to do so any longer, and they were obliged to seek for new means of raising money. They went to one of the offiers of the Holcomb National Bank, and made application to him, or through him to the bank, to assist them, claiming that while they were somewhat involved, they were still solvent and a going concern, and would be able to work their way through. The officer brought them to the president of the bank, and they had a general conversation. These officers very promptly said to the Bellmans that they did not want to take up a concern of that kind and pay off the debts to a bank that had been carrying them, and which had refused to carry them any longer, unless they could be made safe and secure for whatever advances they might make. It was finally arranged between the officers of the bank and the officers of the Bellman Bros. Company that the bank should advance them $2,000 — and I think subsequently $1,000 more — to enable them to carry on their business, and that the Bellman Bros., at any time that the bank should deem it necessary for the protection of the bank, should execute to it a mortgage upon the personal property of the Bellman Bros. Company for the purpose of securing the bank. Under this arrangement the advances were made, in the aggregate, perhaps to the amount of $3,000. And there was also in addition to that certain overdrafts that were permitted by the bank in favor of the Bellman Bros. Company to the amounhof three or four hundred dollars.

It is very strongly urged on behalf of the Campbell Printing Press Company that an agreement of JHiis kind should not be enforced; that the tendency of an agreement of that kind is to operate in fraud of the rights of other creditors, to induce them to make sales and grant credit to the defendant1 which they otherwise would not have done, if they had known that there was a mortgage upon the property, or one that might be upon the property. We are inclined to the opinion, after a very careful investigationTof the matter, that an agreement of that kind will be upheld and aided by a court of equity, and we therefore hold in regard to the moneys that were advanced under that agreement, to the amount of about $3,000, that the bank should be entitled to a lien. The amount of the overdrafts will not be included in that arrangement, to the amount of two or three hundred dollars.

It is claimed that the mortgage that was executed, when it was executed, was not executed in such a manner as to bind the company, in that the Bellman Bros. Company did not, at the time that the mortgage^was made, have a meeting of a quorum of the directors which authorized the execution of the mortgage. The matter has been very fully discussed by counsel, and various suggestions and arguments have been made in reference to it. We have examined the statutes and authorities cited by counsel, and we are inclined to the' opinion that a de facto director should be recognized, although we think it true that where a person ceases to own stock, and the question is made, he would not be permitted to act as a~director.

Here the parties, when the money was agreed to be advanced, as they had a right to do, made an agreement to give security. They attempted to secure it. A mortgage was made and possession of the property was taken under that mortgage. No one dissented. We think under that mortgage and under that possession, the bank had an equity which should be protected by this Court, and in drawing the decree, therefore, priority may be given to the bank as we have indicated. We think the balance, if there is any, should go to the receiver for the creditors, the costs to be paid out of the fund in the hands of the receiver, before the distribution of the balance.

E. H. Rhoades, for plaintiff.

Geo. H. Beclaoith, for defendant Holcomb National Bank,


text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Caldwell, fílale and Marvin, JJ.
    A. B. MARSHALL AND H. B. VAN CLEVE v. F. H. AMES.
    Contract— Alteration— Consideration necessary — Building contract, work to be tolsatisfaction of contraetee — Damages.
    1. There must be a new consideration^ support a modification or an alteration of a previous contract.
    2. The doctrine that if a person substantially performs a building contract, he may recover the contract price subject to recoupment for damages as to the particulars in which the contract has not been literally performed, has no application to a contract which provides that the contract shall be done to the satisfaction of the owner or a third person.
    3. In case of such contract, the'person who contracts to do the work cannot recover if the other"party to the contract or the third person is, in good faith, dissatisfied with the performance of the contract, even though the court or jury might think they ought to have been satisfied.
    4. This is so, even though, from the nature of the contract, the contractee is obliged to keep the thing upon which the work has been performed, and, hence, to retain some benefit from the labor which the contractor has performed.
    5. If such a contract is not performed according to its terms, the contractee may recover such damages as be may have suffered by the non-performance of the contract.
    Error to ibe Court of Common Pleas of Cuyahoga County.

      Plaintiffs in error, A. B. Marshall and H. B. Van Oleve, were the owners of a vacant lot upon which they desired to place a house. A house having been offered to them, they, in conjunction with defendant in error, F, H. Ames, a house mover, examined the house in question. Ames assured them that he could move the house to their lot and then place it upon foundations without injury. Belying upon this, they bought the house and made the contract with Ames, which is set out at length in the opinion of the court. The house was moved by Ames, and placed upon the foundations, but not in the time limited in the contract, nor without injury, nor to the satisfaction of either of the plaintiffs in error, or their architect. Of the nine hundred and ninety-seven ($997.50) dollars and fifty cents to be paid Ames for doing the work, plaintiffs in error paid, as the work progressed, three hundred and seventeen ($317.00) dollars. Insisting that the contract had not been performed, they refused to pay him any further sum. Thereupon he brought suit against them, ignoring the written contract, and averring merely a contract to move the house for $997.50, and that, after the original contract had been made, upon examination of the house, he found that it would be more difficult and expensive to move than he had thought, and, thereupon, notified plantiffs in error that he would not carry out the contract unless it was modified, and that, thereupon, they agreed to so modify the contract that he should only be bound to use due care and diligence in moving the house, but should not be responsible for the cracking of the walls of the house incident to moving the same under the circumstances. Defendants answered, setting up the written contract, and denying satisfaction either of Van Oleve or of the architect, and denying the alleged modification, also counterclaimed for damages. On the trial, the court sustained the objection to any evidence as to modification of the contract, as it found that there was no consideration alleged for • the modification. The counterclaim for damages above what would be necessary to satisfy any claim of the plaintiff was withdrawn. The court charged the jury “the plaintiff can-j not recover on his part upon this contract, unless he has sub-l stantially complied with the terms and conditions of this contract. Before he can maintain an action for damages, he must have substantially complied with the contract, and if he has failed to do this; if he has failed to substantially comply with the terms of this contract, as provided in the contract, in any respect, then your verdict should be for the defendants. But, if he has substantially complied with the contract, and his failure to comply is only an incidental matter, which does not materially affect the subject-matter of the contract, to-wit: the house, which can be remedied, and which can be estimated in damages, if there has been injury to the defendants, which may be estimated in damages, why, I think, then the plaintiff would be entitled to recover the amount, less whatever damages the defendants may have sustained by reason of such failure on the part of plaintiff to comply with this contract. It must be to the satisfaction ¡ of either Mr. Van Cleve, representing the defendants, or I the architects representing them. That satisfaction, or dis- j satisfaction on their part, must be in good faith, predicated j on some substantial failure of plaintiff to perform his con- j tract. In my judgment, the effect and subject-matter of this Í contract makes the rule, perhaps, somewhat different, where, the possession of property can be easily changed. This-house, in fact, belongs all the time to defendants. Theyj have possession of it. If the plaintiff has substanitally complied with the terms of the contract, I think he has aj right to recover, less any damages which the defendants’! ha?e suffered by reason of his failure to comply, as I have/ said,,in some of the particulars, which do not go to sub-i stantially affect the subject matter of this contract.” J

    To this charge of the Court plaintiffs in error excepted and assigned this charge as error. The jury returned a verdict for plainitff of five hundred and twenty-five ($525.-00) dollars, and for defendants, on their counter claim, two hundred and eighty ($280.00) dollars, finding, therefore, for the plaintiff as assessing his’^damages at two hundred and forty-five ($245.00) dollars.

      White, Johnson, McCaslin & Cannon, for plaintiffs in error,
    made the following points and cited the following authorities:
    Williams v. Chicago S. F. & C. R. Co., 112 Mo, 463, 489; 138 U. S. 192-3; Roy v. Botteler, 40 Mo. App. 213, 222; Wright v. Meyer, (Tex. App.) 25 N. W. 1122, 1123; R. R. v. March 114 U. S, 549, 552-3; Hudson v, McCartney, 33 Wis. 331, 332, 346; Michaelis v. Wolf, 136 111., 68, 71; Michael v. Cavanaugh, 38 la. 282, 292; Ross v. McArthur, 85 la. 203, 206; Edwards v Louisa Co., (S. C. Ia.) 36 N. W. 656; Wendt v. VogeIT8Tl7ls. 462, 465.
    If work is to be done to thé satisfaction of third persons, workmen must prove satisfaction or excuse therefor.
    Martin v. Leggett, 4 E. D. Smith, 225; Phelan v. Mayor, etc., 24 J. & Sp., 523; Beecher v. Schuback, 4 Miss. 54, 56; Hudson v. McCartney, 33 Wis. 331, 342-5; Bank'v. Mayor, 63 N. Y. 336, 339; Wood v. Chicago S. F. R. Co., 39 Fed. R. 52, 53; Lewis v. Chicago R, R., 49 Fed. R. 708, 709; Ogden v. ü. S., 60 Fed. R. 725; Hanly v. Walker, 79 Mich. 607, 614-15, 618; Chapman v. Kansas, 114 Mo. 542, 549; Guthat v. Dow, 95 Mich. 527; Wendt v. Vogel, 87 Wis. 462, 467.
    If architect is dissatisfied, workmen cannot recover, unless there is fraud.
    McKenzie v. Conlan, 55 N. J. L. 564, 566; Byrne v. Sisters of Charity, 45 N. J. L. 213, 216-19; Chism v. Schepper, 51 N. I. L. 1, 17; Sanders v. Hutchinson, 26 111. App. 633, 638; Bournique v Arnold,33 III, App. 303; Barney v. Giles, 120 111. 154, 160; Railway Co. v. Bradbury, 42 Minn. 222, 227; Langdon v. Northfiled, 42 Minn-464, 466; Williams v. Chicago S. F. & C. R. Co., 112; Mo. 463, 493, 494-5; Herrick v. Belknap Est1, 27 Vt.. 673, 680; Hot Springs Railway Co. v. Maher, 48 Ark-522, 528; Kuhlberg v. U. S, 97 U. S. 398.
    Mistake must show bad faith.
    R. R. Co. v. March, 114 ü. S. 549, 551; Kirtland v. Moore, 40 N. J. Eq. 106, 114; St. Joseph Iron Co. v. Halverson, 48 Mo. App. 383, 392.
    Rule of substantial compliance don’t apply where work is 46 be done to the satisfaction of the architect.
    Hanley v. Walker, 79 Mich. 607, 618-19; Martus v„ Houck, 39 Mich. 431, 434-6.
    What is substantial compliance?
    Elliott v. Caldwell, 43 Minn. 357, 359-60; Halpin v: Maney, 33 Mo. App. 388, 393-4;Martus v. Houck, 39 Mich., 431, 434-436; Hanley v. Walker, 79 Mich. 607, 616-17.
    When property on which work is done is not portable, the taking possession don’t entitle workmen to value of work •done.
    Hartupee v. City of Pittsburgh, 97 Pa. St. 107, 118; Bogarth v. Dudley, 44 N. J. L. 304, 312; Elliott v. Oald. well, 43 Mo. 357, 359-60; Hanley v. Walker, 79 Mich- 607..
   Caldwell, J.

F. H. Ames entered .into a contract with Marshall and* Van Cleve, to move for them a house, the house being situated on Wilson avenue, and they were to move it up Hawthorne avenue, and locate it on Hawthorne avenue..

The following was the contract made between them:

“I hereby 'agree to move for A. B. Marshall and H. B„ Van Cleve, the frame house on Wilson avenue recently ■ occupied fov Edward Hotchkiss, through Wilson avenue to Hawthorne, and down Hawthorne to the lot adjoining r.the residence of H. B. Van Cleve, setting same upon the foundation satisfactory to the architects, Lehman & Smith, for the sum of nine hundred ninety-seven and 50-100 (1997.50) dollars.
“I further agree to put the house down on its foundation in as good condition as it is now, taking all risks of moving connected therewith, with the exception of the two outside chimneys, which shall be moved with the utmost care, but at the risk of A. B. Marshall and H. B. Van Cleve. It is further agreed by me that the building shall be off of its present location and in Wilson avenue not later than May 10, 1892, and the whole job done to the full satisfaction of the aforesaid A, B. Marshall and H. B. Van Cleve, the job to be paid for in cash when completed, but the money to he advanced as required for help in proportion as the work progresses; the work to be commenced Thursday, April 21, and pushed forward without interruption aside from what may be necessary from the weather, to completion.
“F. H. AMES.5’

The controversy in this case, and the question on which the case comes to us on error, is the manner in which the judge below disposes of these two conditions of the contract, that it is to be on the foundation in a manner satisfactory to the architects of the contractee; next, that the 'building when completed on the foundation and ready for occupancy, shall be to the satisfaction of Van Cleve and 'Marshall.

The plaintiff below, the mover, when he declared upon this contract in his petition, declared upon it as modified, that is, upon a modified contract, and the first error here complained of is that the petition did not set forth the consideration for the making of the modified contract, and that the court overruled a demurrer to the petition, andphat that it was error. Granting that to be true, the Court refused any testimony on the modified contract, because the pleading did not set forth any consideration for the making of it; that there was no new consideration or valuable'j’consideration for the making of the modified contract, and the Court therefore at the trial ruled correctly, as we think. The Court in charging the jury took this view of the contract, that before the mover could have an action for damages he must prove that he at least substantially complied with the contract, and if he has failed to do this, if he has failed to substantially comply with the terms of this contract, “then your verdict should be for the defendant.” I might here say that the pleadings of the plaintiff below proceeded as though this had been an ordinary contract; as though there had been no agreement to do the work to the satisfaction of Van Cleve or of the architect, and the Court followed the same line, and the whole matter was presented as though the owner was to accept when the contract was substantially complied with, and not the question whether Van Cleve and the architect were satisfied or not; but that if Ames had substantially complied with the contract, and his failure to comply was only incidental, it was an error which does not affect the contract, but only a loss which could be estimated in damages. Any injury to the defendant which may be estimated, I think, he would be entitled to recover for the loss, and whatever damages there may be by reason of the plaintiff’s not complying with the contract. Then the Court defines this word “satisfaction. ” “It must be to the satisfaction of Mr Van Cleve, or it must be to the satisfaction of the architects representing him. That satisfaction or this satisfaction must be in good faith predicated on some substantial failure of the plaintiff to perform his contract.” It is claimed that it was error that the Court there said that notwithstanding this contract was to be performed to the satisfaction of the parties, as it had been agreed between themselves as to the consideration, and I have gone over that point, as well as the other points of the contract, that nevertheless if the party had substantially performed that contract, notwithstanding the fact that Van Cleve might be dissatisfied, and dissatisfied because plaintiff in error had not fully performed it; notwithstanding that, yet the mover might recover. The Judge in his charge makes a distinction between the case, where this Court decided a few years ago, in Wilber v. Bingham, 3 Circuit Court Reports 459, which was this, that in this city a party took a contract for putting in a furnace, which furnace should be and should work to the satisfaction of the party who was to receive it. The party said the furnace did not work to his satisfaction, and suit was brought to recover the contract price of the furnace, and it was undertaken to be maintained before this Court that if he had substantially complied with the contract then the party must take the furnace, whether he was satisfied or not; but this Court held otherwise, and held that if he was dissatisfied and had good cause to be dissatisfied,and acted in good faith in his dissatisfaction, then the contract could not be considered fulfilled. Now, the Judge distinguishes between that case and a case where a man had a house to move, in that the house could not very well be taken back and that there could not be a change of possession, and that hence there necessarily is a change, as here claimed, of the rule of law; that there should be a difference, and therefore that the rule should not be that there should be a compliance with the contract to the satisfaction of the party, but that there should be a substantial compliance with what was to be done in the contract. Now, our own Supreme Court has spoken on this in the 42 Ohio St., 41, Barrett v. Hart. A chattel mortgage contained .the following: “If the said party of the second part, shall at any time deem himself in danger of losing said debt, or any part thereof, by delaying the collection thereof until the expiration of the time about limited for the payment thereof * * * said party of the second part is hereby authorized to take possession of said goods * * * at any time, whenever found, either before or after the expiration of the time aforesaid. ”

White, Johnson, MeCaslin, & Cannon¡íox plaintiffs in error.

Arnold Green and. M. H. Nason, for defendants in error.

The question there arose as to whether the party acted in good faith; whether that was sufficient,’or must have reasonable cause to believe that he will lose said debt, and a num - ber of cases were cited from different states, some of which held that there must also be good cause as well as good faith. Our Supreme Oourt says that it is not the rule in Ohio. The mortgagee should act in good faith, and his mind should be controlled by the facts arising under the making of it, in regard to the condition of the property mortgaged. So far as this case determines the law, it is ex-\ actly as the Circuit Oourt determined it in the Third Circuit Court Reports; that is, that the party is to be satisfied, and if he acts in good faith, then he is justified in his conclusion, and if he is acting in good faith and is dissatisfied, then he complies with the rule that governs in this case, and if the parties have so contracted, that is the contract, and to hold otherwise is to change the contract.

We think the Oourt erred in his charge, and the party is entitled to have the case reversed and remanded for a new trial.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    THE TOLEDO & OHIO CENTRAL RAILWAY CO. v. OSCAR L. WALES.

      Engine throwing sparks and setting fire — Evidence—Prima facie evidence under act of April 26 1894— What not proper evidence is rebuttal.

    1. Under section 2 of the act of April 26, 1891 (91 O. L. 187), the term “prima facie evidence” defined.
    2. A party may rest his case when he has made out a prima facie case under the terms of this statute.
    3. He cannot, however, withhold evidence confirmatory of such prima facie case and offer it in rebuttal, when it does tend to disprove and answer the evidence given by the defense.

      Error to the Court of Common Pleas of Lucas County.
   King, J.

This case has been heard on a petition in error. The petition in error asks a reversal of the judgment of the Court of Common Pleas on the grounds (1) that the Court erred in admitting evidence offered by the said Wales; (2) erred in ruling out evidence offered by the defendant Railway Company; (3) the Court erred in its charge to the jury; (4) that the verdict is not supported by the evidence, and is against the law.

The action was brought in the court below by Oscar L. Wales against the Railway Company, and he alleged that on the 3d day of December, 1892, the defendant Railway Company was the owner of a railroad known as The Toledo and Ohio Central Railway Company, with tracks, locomotives, cars, etc., and on that day run adjacent to, or joining his premises, and on that day his barn and other property was burned, and that the fire which destroyed it was set by sparks which came from an engine owned and operated by the defendant company; and that the defendant was negligent in omitting to use a proper spark arrester, or device to guard against sparks and fires; or that if it did use them, it was negligent in not keeping’them in proper repair; and that on account of its negligence, the fire ensued, and plaintiff’s property was destroyed. We have examined this record carefully. We d.o not find that the verdict in the case is not supported' by sufficient evidence. We do not find that there is any error taken advantage of by plaintiff in error by proper exceptions to the charge of the Court. We do not find there was any error committed by the Court in the admission of testimony, offered by the plaintiff below, or in ruling out testimony offered by the defendant below, except as I shall particularly call attention to it.

In the trial of this case the plaintiff called his witnesses and offered evidence tending to show that the defendant railway company was the owner of the locomotive known as engine No. 27, and that it operated it on the day in question upon tracks adjoining the premises of the plaintiff on the westward, and it offered evidence tending to show that the defendant company was in possession of those tracks to the extent, at least, that it did switching Upon them, and perhaps he offered evidence tending to show that the defendant was the owner of them.

I should say at this point it is urgeud that the proof fails to show that the defendant railway company was the owner of these tracks. We do not think that was essential to the right of the plaintiff, to recover against the defendant company. If the proof shows it was the owner and operated the 'engine that caused the fire, if the engine was operated by its servants, and it comes within the legal definition of negligently operated, or out of repair by reason of negligence, that would be sufficient to establish tlm liability of the defendant, even though the ownership of the tracks was in some other railway company. But there was some evidence tending to show that these tracks were owned by the Toledo and Ohio Central Railway Company. The plaintiff offered evidence tending to prove that the fire which caused the loss which the plaintiff sustained, came from one of the locomotives of the defendant; he offered evidence tending to show the amount of the loss, and at this point rested his case.

And thereupon the defendant offered some evidence tending to show, first that the locomotive in question was not at the place named about the time of the fire, and had not been there within such length of time as it is claimed the fire could have been set, and it offered evidence tending to show that the locomotive in question was in a proper state of repair, and had a proper spark arrester ih good condition, and that it did not set the fire; and having shown these facts the defendant rested.

And thereupon the plaintiff called, among others, a witness by the name of Whitmill, and asked this question, after he had testified that he lived near there, and had seen the engine in question, and knew it:

Q. — “You may state what was at that time the tendency of this engine with reference to throwing sparks, as compared with other switching engines?” There was an objection to this, and an exception. Some remarks of counsel ensued. Finally the witness answered:

“Well, she had a general reputation of throwing sparks worse than any other engine that had been out there.”

A little further along he is asked this question: “What did you observe with reference to that engine as to throwing sparks?” To this is an objection and an exception.

Answer: “Why, because I had put out fire from her that she has set twice where I would from any other engine-once. I have put out fire from that engine a great many times, and I have always dreaded the sight of her when she come out there.”

The plaintiff then called James W. Wickenden, who was-the plaintiff’s tenant, and resided on his premises. He was-asked, “You may state if you have observed engine 27 with reference to its tendency to throw sparks?” That was objected and excepted to. The answer is, “I havé noticed her with that tendency.” “What is that tendency, as you have gathered from your observation?” That is objected to and an exception taken. A. — -“The tendency is when she has been coming along that railroad track or any place, especially when she is started up, in drawing heavy loads, the tendency would be to throw sparks.”

The plaintiff then called Henry Shatto. He testified that, he knew something about that engine, has seen if, and that on one occasion he had examined it. He was asked, “Did you examine the engine and the spark arrester in the engine?” That is objected to and exception taken. “Yes, sir, I have during the time that the engine was in a little trouble up at the ‘R7 office, Yondota street. They disconnected the tender from the engine, and brought her down to the house. I was firing the passenger on the T. & O. 0. Then I had ocasion to go in there every day, and I examined the front end. Q. — “When was that?” A. — “That was about three years ago, and I was there, and there were holes in that netting of that spark arrester that would allow sparks to go through large enough to setffire toanything.” Q. — “Howlarge were those holes?” That is objected to and exceptions taken. A. — “Oh, they were perhaps an inch.” There is a little more of that same testimony that I need not read that is objected and excepted to.

Now we have examined the question raised with reference to the admission of that testimony pretty carefully in this case, and also in connection with the case of Wickenden, which was argued at the same time. We think that the admission of that testimony was error on the part of the Court. The course which this trial took in the court below was based principally upon a statute which was passed April 28th, 1894, 91 Ohio Laws, page 187, the second section of which reads as follows:

“That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine, while upon or passing along any railroad in this state, the fact that such fire was so communicated, shall be taken as prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury by fire, be in the use and occupation of such railroad, either as owners, lessees or mortgagees, and also those who shall at such time have the care and management of such engine; and it shall not, in any case, be considered as negligence on the part of the owner or occupant of the property injured, that he has used the same in the manner, or permitted the same to be used or remained had no railroad passed through or near the property so injured, except In cases of injury to personal property, which shall be at the time upon the property occupied by such railroad.”

Now, under that statute it was claimed by the plaintiff below that he was justified in offering such facts as the statute has prescribed to make a prima facie case, and that on rebuttal of the defendant’s case, he might offer such additional facts and evidence as would be, in effect, confirmatory óf his principal case. In other words, confirmatory of the prima facie case, which the statute establishes. There is no doubt but the legislature have a perfect right to pass such a statute as this, prescribing a rule of evidence in the trial of such cases; and the effect of that statute, as hvejbelieve, is to provide that a person may, relying^upon this statute offer in evidence such testimony as he has]tending to prove the facts set forth in the statute, the fire^the loss of his property, and the fact that the fire was set by sparks, coming from an engine belonging to the defendant. And he may rest upon a prima facie case, those facts being in this particular action a prima facie case. He might do that in any action just as well. But he will be met, in our judgment, by the rule of law, which does not permitjhim to hold back a part of his evidence, which would be confirmatory of his prima facie case, and use it on rebuttal, unless thát confirmatory evidence, which would be competent, either with or without this statute, in chief, shouldjjbe also actually rebutting evidence. Now, evidence in order to be rebutting evidence must be evidence that answers, does away with, or disputes the evidence given by the ¡opposite party. As defined by Bouvier, “It is that evidence which is given by a party in a case to explain, repel, counteract or disprove facts given in evidence by the other side. The term ‘rebutting evidence’ is particularly applied ®to that evidence given by the plaintiff to explain or repel the^’evi- ■ dence given by the defendant.” Citing Best’s Evidence 785. Rebutting evidence is evidence adduced to rebut a presumption of fact or of law; that is, to avoid its effect, and any evidence adduced to destroy the effect of prior evidence, ■whether by explanation or direct denial. And Anderson’s Law Dictionary is to the same effect as that.

Now this evidence, we do not think tended to explain, repel or disprove any facts offered by the railroad company by way of defense. Its evidence needed to show the engine was in a proper state of repair at the time of the fire, and their evidence, in order to be competent, must be addressed to that point of time, or as near it as it is possible for them to arrive, and it may also show further that its servants in the operation of this engine at the time when it is claimed the fire was set, were not guilty of negligence causing the fire.

Now, this evidence offered in rebuttal by the plaintiff does not tend to explain or counteract the effect of that evidence. It is offered to show, and does show that the engine had a reputation for scattering fire and sparks, or that its reputation in that regard was bad, and that a year previous to the fire a witness, who examined its spark arrester, found holes in it that “would scatter fire enough to set anything fire-able,” as he expresses it, and in one answer he says the holes were at least an inch square.

Now not saying anything about the remoteness of that testimony, if it were not too remote, it would certainly be competent for the plaintiff to offer it in chief; it would all be competent in chief to confirm the prima facie case which the statute establishes. And in our judgment the statute has not changed the burden of proof at all, but it establishes certain facts constituting a prima facie case. Now that kind of a prima facie case is like any other prima facie case. You may rest when you have made out a prima facie case if you want to. But if you have facts confirmatory of the prima facie case, you- will no^ be allowed to hold them back and use them on the plea that they are in rebuttal; Unless they do, in fact, rebut that which the defendant was bound to show, and did show.

Doyle, Scott and Lewis, Attorneys for Plaintiff in Error; W. H. Tucker and E. E. Davis, Attorneys for Defendant in Error.

Now we think these facts did not rebut. They do not alter, explain or counteract the effect of anything which the defendant put in evidence. But it undoubtedly would have been, with perhaps some change in the phraseology of the question, proper in chief.

It is proper to say that the question relating to the reputation of this engine to throw sparks was not competent. Nothing further need be said about that evidence, but we rest our decision upon the ground that it was not proper rebutting evidence, and for that reason alone, the verdict and judgment in this case will be reversed.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    THE TOLEDO & OHIO CENTRAL RAILWAY COMPANY v. JAMES W. WICKENDEN.

      Locomotive setting fire — Proper spark arrester — Exception of months of December, January and February — Duty of B. B. Co.

    The statute passed in 1885, requiring a railroad company to place on its locomotives “some device or contrivance that will most effectually guard against the emission of fire and sparks, ” and excepting them from such requirement during the months of December, January and February, does not relieve such companies from the ordinary legal duty to observe proper care to avoid injuring the property of others by Are.
   King, J.

Error to the Court of Common Pleas of Lucas County.

Submitted with this case was the T. & O. C. Ry. Co. v. Wales, which I have just decided. Wickenden was. a tenant on Wales’ farm,and lost some property at the same fire. It is claimed that the verdict and judgment is wrong, and for the same reasons I have already stated. I will say briefly that we do not find in this case that the verdict is not sustained by the evidence. We do not find there is any error in the charge of the Court, which was excepted to by the plaintiff in error. We do not find that there was any error in the admission of testimony by either party, and shall affirm the judgment. But this should be said about it. In connection with this case and the other, a statute was referred to the Court, and there was considerable discussion on this statute of 1885 that:

“Every railroad company operating a railroad, or any portion of a' railroad, wholly or partly within the state of Ohio, shall place, or cause to be placed, on every locomotive engine used in operating such railroads, or constructing or repairing the same, some device or contrivance that will most effectually guard against the emission of fire and sparks which would otherwise be thrown out by such engines. And such railroad companies shall keep such device or contrivance in good repair." Provided that such railroad companies shall not be required to use such devices during the months of December, January and February.’’

Now this fire occurred in December. It has been urged to us in both the cases that the Court submitted this case to the jury upon the theory that this statute had some controlling influence. But we do not find that this statute is referred to in either case. Then it is argued that the statute having provided a rule of conduct on the part of the railroad company, which it should exercise as to nine months in the year, that an exception as tojthat in the other three was granted. As I take it, the argument claimed the company was not bound to use any protection in the other three excepted months. But we think this statute created an obligation stronger than the common law required, a particular kind of care by jffiis company during the nine months that are mentioned, yet it excepted it from the exercise of that particular kind of care in three months of the year. But it did not except them from the exercise of that care and diligence which such companies are always held to in law, in so using their property, and with such care as not to injure and destroy that of their neighbors. We think these cases were properly submitted to the jury upon that theory.

Now in this case, practically the same evidence was admitted by way of rebuttal offered on the part of the plaintiff. But the difference is, no objection was made, no exception taken, to the offer of that evidence, and so for that reason the plaintiff in error has not availed itself of that particular objection.*

But, not objecting to it, the defendant proposed tojreply to it; at least, that seemed to have been his notion. He offered a little evidence, and possibly evidence which would, have a tendency to reply, within the definition I gave in the other case, would have been competent. But the evidence which the defendant proposed to offer, we think did. not tend to rebut the evidence which the pllaintiff had given in his rebuttal. The defendant proposed to show, and he called a witness and asked him a question, and stated that he proposed to show by the witness, that shortly prior to the time of the fire, there had been a change made in the spark arrester in that engine by putting in a device such as was formerly described by him, and which was used at the-time the fire occurred, which was much more efficient for the purpose of arresting the sparks than this one that was in prior to that date.

That is all he offered to show by that witness. Then counsel said he had another witness he could show the sam© thing by, and that was all. Now that would have been competent for the defendant to have offered in its defense, and as said in the Wales case, in relation to the plaintiff’s testimony, he could not hold back a part of his evidence, confirmatory of his principal case, and then seek to put it in by way of pretended rebuttal. That particular evidence, that the defendant had put in a new spark arrester, did not tend to rebut any evidence which the plaintiff offered in his-rebuttal. It was a new and independent fact. It was, in fact, evidence which would have been competent evidence to have given in making out the main defense, to-wit, that shortly before this fire they had put in a spark arrester, and it was in good conditiop, and kept in the same condition until the time of the fire. That would have been a complete defense if the testimony were believed by the’ ÍurJ- .

Doyle, Scott & Leiois, for plaintiff in error.

W. H. Tucker, and E. E. Davis, for defendant in error.

That is the only point made in this case as to the admission of testimony. It is the only exception there is alleged that could be considered erroneous. And that is not erroneous, because the fact which they sought to prove is not. rebuttal.

So the judgment in this case will be affirmed.