author: •DUSTIN, J.

text:
    CORPORATIONS — LIMITATION OF ACTIONS — PLEADING,
    [Franklin (2nd) Circuit Court,
    September Term, 1907.].
    Wilson, Sullivan and Dustin, JJ.
    F. M. Marriott v. Columbus, Sandusky & Hocking Ry. Co.
    1. Judgment Assessing Statutory Liability against Stockholders to" PAsT Indebtedness of CORPORATION Proportioned as to Stock Owned by EJacs Severally.
    An averment in a petition in an action to assess statutory liability against stockholders of an insolvent corporation, that the defendants are stockholders and liable as such, though not specifying the shares held by each, permits, after the corporation’s indebtedness is first ascertained, thfe taking of 9 several judgment against all who are solvent and withiw the jurisdiction in such proportionate amount as the stock owned by easis is to the entire indebtedness together with costs.

      2. Appeal Does not Prejudice Stockholders Assessed for Stockholder’s Liability by Possibility of Additional Assessment being Necessary.
    While an appeal from a judgment assessing statutory liability against stockholders will not lie against such stockholders as have paid their assessments, the creditors are not estopped to appeal from the judgment as to those not paying, nor will the latter be prejudiced thereby in the event that an additional assessment be found necessary. Likewise it is without prejudice to stockholders not made parties until after the running of the statute of limitations unless it affirmatively appear that they were insolvent when the plea of the statutory bar was made.
    ,3. Payment of Counsel Fees to Plaintiff Does not Estop Appeal by Him.
    Prosecution, of an appeal by plaintiff to an order assessing statutory liability against stockholders of an insolvent corporation is not estopped by allowance and payment, out of the fund brought into court, of attorney fees to plaintiff’s counsel.
    .4. Statute of Limitations not Good as a Plea by Nonresident Defendants.
    The plea of the bar of the statute of limitations is not good as against a nonresident defendant absent from this state when a cause of action against him accrued. The statute does not commence to run until he comes into the state or enters his appearance by pleading in the action.
    [Syllabus approved by the court.]
    G. H. Stewart, for plaintiff.
    Henderson, Livesay & Burr, for defendant.
   •DUSTIN, J.

In an action to assess the statutory liability against the stockholders .of a corporation an averment in the petition that certain defendants are ¡stockholders and'liable as such is sufficient to warrant proof and judgment for any number of shares in the nam'e of each.

In such action the court is not authorized to render a judgment, •without regard to the amount of the indebtedness of the corporation, for an amount equal to the face value of the stock; but after first ascertaining the indebtedness must render a several judgment against all 'solvent stockholders within the jurisdiction in proportion to the stock owned by each for a sufficient amount to cover such indebtedness and costs.

The interlocutory order of July, 1905, was afterwards merged in the order of December, 1906, and the two together constituted the final order in thé case from which the plaintiff could not appeal as against such defendant stockholders as had theretofore paid to the receiver the full amount of the judgment against them, although not estopped to appeal from the judgment against the other defendants not paying. Nor shall such other defendants be prejudiced thereby, as any additional assessment must be made upon the same basis as if the stockholders thus released were still before the court, and the loss thus incurred borne by the creditors. A like rule will be applied to such stockholders as were not made parties until more than six years after the right of action accrued and were therefore released from all liability upon a plea of the statute of limitations, unless it affirmatively appears that at the time of such plea, they were insolvent.

The allowance by the court and receipt' by the attorneys for the plaintiff of a fee of $15,000 and certain expenses paid out of the fund brought into court through their efforts did not estop plaintiff from prosecuting an appeal.

The defendants, Leroy S. Lincoln, and William Huston, were residents of the state of Pennsylvania; and absent from this state when the right of action accrued against them. The period limited for the commencement of the action against them did not begin to run until they came into the state or entered their appearance by pleading in November, 1903. The defense interposed is not good as to these two defendants.

Upon a re-examination of the issues presented by the Pullman Company and George Bellows, we adhere to the former holding of this court that the Pullman Company is liable on 1353.34 shares and that George Bellows is liable as found by the master. We adhere also to our former conclusion as to the stock held by Pomeroy, trustee, and the Sessions’ estate.

The stock held by the, partnership, Stearns and Hoover and Charles-Parrott and associates, is released from assessment under the defense of the statute of limitations, and as to all other stock not herein referred to, we are in accord with the findings of the court of common pleas, except that the liability of assignors of stock must be governed by the rule stated in the’case of Poston v. Hull, 75 Ohio St. 502 [80 N. E. Rep. 11].

We are of opinion that, allowing for insolvency and nonresidence of stockholders, the assessment should be 50 per cent of the face value of all stock not exempt under the rule hereinbefore stated.

Wilson and Sullivan, JJL, concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    CONSTITUTIONAL LAW — JUSTICES OF THE PEACE.
    [Cuyahoga (8th) Circuit Court,
    May 5, 1908.]
    Winch, Henry and Marvin, JJ.
    State ex rel. J. E. Votava v. John Brown. State ex rel. William Davio v. R. T. Morrow.
    ¿L LEGISLATURE CANNOT CURTAIL CONSTITUTIONAL TERM OF JUSTICES OF THE PEACE after Their Election and Qualification.
    The term of office of justices of the peace elected in November, 1904, under act 97 O. L. 62' (Rev. Stat. 1442; Lan. 2881), changing the time of their election from April to November, being fixed at three years by the constitution, Art. 4, Sec. 9, cannot be curtailed by a further provision of law providing that justices’ terms shall begin on the first Monday in January following their election; but they are entitled to full three years from April, 1905, the time from which their terms began.

      2. -Officers Submitting to Election for Their Successors not Estopped from .Claiming Pull Constitutional Term.
    Justices of the peace whose term of office commenced in April, 1905, entitled to full three years under constitution, Art. 4, Sec. 9, by submitting themselves at the general election in November, 1907, for the term of four years beginning January, 1908, and having been defeated therefor, are not estopped from claiming their full terms.
    •,3. Terms of Justices of the Peace Beginning April, 1905, Extended to January, 1910. ■
    .Justices of the peace whose term of office does not expire until April, 1908, under act 98 O. L. 171 (Rev. Stat. 1442; Lan. 2881), fixing the terms of justices at four years commencing on the first Monday in January after .their election in November in odd numbered years, passed to conform to the constitutional amendment, adopted November 7, 1908, directing the legislature to fix their terms of office and extending their tenure until ¡successors are elected, hold their office until the conjunction of general , .election in an odd numbered year followed by a first day of January after April, 1908, to wit, January 1, 1910, and hence their successors cannot be elected until November, 1909.
    [Proof of this decision and syllabus has been submitted to Judge Henry ■and corrected.]
    QUO WARRANTO.
    H. F. Payer, for plaintiff.
    Blandin, Rice & Ginn, for.defendants.
   HENRY, J.

By virtue of their alleged election in November, 1907, the relators in these two cases respectively, claim the offices, as justices of the peace, hitherto held by the defendants, John Brown and Robert T. Morrow, who were elected in November, 1904, for the term of three years, and took office in April, 1905. At that time Art. 4, Sec. 9 of the eonstitution provided, with respect to justices of the peace, that “Their term of office shall be three years.” On November 7, 1905, while the defendants were in possession of their offices and actually serving, an amendment to the constitution was adopted, providing, in Art. 17, Sec. 1, that:

“Elections for state and county officers shall be held on the first Tuesday after the first Monday in November in the even numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.”

The same amendment further provides, in Art. 17, Sec. 2:

“The term of office of justices of the peace shall be such an even number of years not exceeding four years, as may be prescribed by the general assembly.”

The amendment further provides in Art. 17, Sec. 3:

“Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law.”

On April 14, 1906, 98 O. L. 171, the general assembly passed an act to amend Eev. Stat. 1442 (Lan. 2881), etc., and thereby provided that justices of the peace shall be chosen “for a term of four years, by the electors of each township, on the first Tuesday after the first Monday in November in the odd numbered years, and their terms of office shall commence on the first day of January next after their election.”

The defendants claim that the term of three years for which they were elected did not expire until April, 1908, so that the choice of their •successors at the election held in November, 1907, to take office on the first day of January, 1908, was premature; their contention being, that no regular and valid choice of their successors can be made until the general election in an odd numbered year shall be succeeded in the following year by a first day of January- subsequent to the regular expiration of their constitutional terms of three years. No such conjunction, they insist, has yet occurred, nor can it occur until November-January, 1909-10.

The contention of the relators on the other hand is threefold. First: That the term of office of the defendants must be held to have begun not in April, 1905, when they actually took possession of the office, but rather in November, 1904, immediately following their election, since the statutes at that time prescribed no date for their taking the office to which they had been elected, and in the absence of such provision the term commenced at once. State v. Constable, 7 Ohio (pt. 1) 7. Bushnell v. Koon, 28 O. C. C. 367. An obvious difficulty, however, in the application of this rule arises from the fact that the predecessors of these defendants were elected for a constitutional term of three years, at a spring election in April, 1902, and their term could' not be curtailed by reason of the change in the time of election of justices of the peace from spring to fall. "We hold, therefore, that the defendants’ terms of office began not in November, 1904, but in April, 1905, and continued thereafter, under the provisions of Art. 4, See. 9 of the constitution, as it then existed, and under Art. 17, Sec. 3 of the constitution, as since amended, for the full term of three years 'for which they were elected, to wit, until April, 1908, and until their successors are elected and qualified, as provided by law.

The relator’s second contention is, that the defendants, by submitting their candidacy to succeed themselves at the general election in November, 1907, for the term of four years, beginning in 1908, and having been defeated at said election by the relators, are now estopped to assert that their terms do not expire as contemplated by said election. Throop, Pub. Off. Sec. 394, and eases there cited. But our own Supreme Court has approved the contrary rule in State v. Brady, 42 Ohio St. 504, wherein the third paragraph of the syllabus is as follows :

“A’s accepting the office in 1883 with the knowledge that the council each year elected a city clerk, and his soliciting a re-election in 1884 do not estop him from claiming the full term; and in April, 1884, while A rightfully insisted on holding the office for the full term, another person could not be duly .elected to such office.”

The relators contend in the third place that- the constitutional amendment already referred, to having for its object the separation of state and county elections from those at which municipal and township officers are elected, so that the former shall occur in the even numbered years and the latter in the odd numbered years, no necessity would arise for the readjustive extension of the terms of any offices, provided for in the amendment where such terms were to expire during the year succeeding the general election at which such offices might be filled; hence, the terms of these defendants expiring in an even numbered year, to wit, 1908, and the election of justices of the peace being fixed for odd numbered years, the amendment as applied to these conditions is self-executing, and the time for electing successors to the defendants would regularly occur in November, 1907. State v. Pattison, 73 Ohio St. 305 [76 N. E. Rep. 946]. This contention, however, overlooks the fact that the constitutional term of justices of the-peace had been three years, bnt under the amendment, the legislature-must provide that, it be made thenceforward either two or four years. The amendment was therefore not self-executing with respect to the terms of justices of the peace. Legislation was required to make it effective.

Until such legislation was provided, the incumbents of that office-at the time the constitutional amendment' was adopted, would continue for the full term for which they were elected, and until their successors should be elected and qualified, as provided by law. The terms of the defendants could not lawfully be abridged by statute so-as to expire January 1, 1908, instead of April, 1908. The general assembly by amendment to Rev. Stat. 1442 (Lan. 2881), already quoted, fixed the term of justices of the peace, pursuant to the constitutional amendment, at four years, to “commence on the first day of January next after their election.” It was without power, except in cases of vacancies, to provide that any such term of four years should begin before the expiration of the three year term of the previous incumbents of the office. The election of justices of the peace in November, 1907, purported to be for a term of .four years, beginning in 1908. No such term could begin in January, 1908, because the defendants were entitled to the possession of their office until April, 1908; neither could such a term of four years begin in April, 1908, because no statute provides for such -a term beginning at such a time in the year.

Prior to November, 1909, no election for justices of the peace in an odd numbered year, as required by the constitution, for a term beginning January 1, next succeeding such election, can be held for the choice of successors to these defendants, whose constitutional terms of three years did not expire until April, 1908, and who should, under the amendment to the constitution, continue in office until their sue- - cessors are elected and qualified.

We hold, therefore, that the election of justices of the peace to-succeed the defendants, held in November, 1907, was premature and void, and the petitions are dismissed.

Marvin and Winch, JJ., concur.


author: CRAINE, J. DONAHUE, J.,

text:
    ESTOPPEL — FORGERY—PLEADING.
    [Muskingum (5th) Circuit Court,
    April 16, 1908.]
    Taggart, Donahue and Craine, JJ.
    J. E. Woodruff v. A. D. Montgomery et al.
    '1. Duty and Opportunity to Speak Required to Work Estoppel by Silence to Deny Forged Signature to Note.
    Before a party can he estopped, by mere silence, to show that b'is name attached to a promissory note is a forgery, facts must be alleged, showing a duty and an opportunity to speak; that the party to be estopped' knew or had reason to believe that the owner of the note would rely on his silence and be injured thereby, and that the owner of the note, relying on said silence, was injured.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 364-374. — Ed.]
    '.2. Facts ‘Working Estoppel Must be Averred with Particularity and Precision.
    No intendments are made in favor of a plea of estoppel; but it is incumbent on the pleader to aver all facts essential to its existence, with particularity and precision.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 752-765. — Ed.]
    [Syllabus by the court.]
    Browning & King, for plaintiff:
    Cited and commented upon the following authorities: 11 Am. & Eng. Ene. Law (2 ed.) 421, 427; 16 Cyc. 75; Leather Mfg. Nat. Bank v. Morgan, 117 U. S. 96 [6 Sup. Ct. Rep. 657; 29 L. Ed. 811]; Conti-nential Nat. Bank v. Bank, 50 N. Y. 575; Knox County Bank v. Lloyd, 18 Ohio St. 353; Ewart, Estoppel 40; McKenzie v. British Linen Co. 6 App. Cas. 82; Morgan v. Railway, 96 U. S. 720 [24 L. Ed. 743].
    J. J. Adams, for defendants.
   CRAINE, J.

John E. Woodruff brought an action in the court of common pleas of Muskingum county against A. D. Montgomery to recover $2,000 with interest at 8 per cent from January 22, 1905, on a promissory note of which the following is a copy:

“$2.000.00.
January 22, 1900.
“One year after date we or either of us promise to pay to the order of John E. Woodruff two thousand dollars at eight per cent interest from. date. Value received.
“A. D. Montgomery,
“Arthur J. Sheppard.”

Arthur J. Sheppard was not made a party defendant and A. D. Montgomery filed a separate answer in which he alleges that he did not sign said note and that his name attached to said note was a forgery.

The plaintiff filed a second amended reply to this answer, in which he denies each and all the allegations of the answer and then as a second defense in his reply says:

“Further replying, says that for more than a year prior to the bringing of this action, the defendant, A. D. Montgomery, had knowledge that plaintiff held the note described in the petition herein and that his signature appeared as one of the makers thereof, and that said A. D. Montgomery, with full knowledge of the premises as aforesaid and intending to mislead and deceive the plaintiff in that regard, remained silent and failed to notify plaintiff of his claim that said •signature was a forgery until after the absconding of the defendant, Arthur J. Sheppard, as hereinafter set forth; that plaintiff, relying upon the conduct of the defendant, Montgomery, in that behalf, as •aforesaid and as to- the genuineness of said note and believing said •signature to be genuine, failed to take the necessar3r steps to collect .said note from the defendant herein until after the said absconding •of the said Sheppard, although said Sheppard was all the while, and prior to his said absconding the owner of certain property not exempt from execution out of which plaintiff could have satisfied his claim in w7hole or in part, of all of which facts said Montgomery had full knowledge; that on or about the — day of February, 1906, said Arthur J. Sheppard absconded for the purpose of defrauding his creditors and has ever since and is now without the jurisdiction of this court •and in parts unknown and is wholly insolvent. ’ ’

A demurrer was filed to the second ground of defense set forth in the reply, which demurrer was sustained by the court of common pleas and after a trial, resulting in a verdict for the defendant, plaintiff prosecuted error to this court, alleging that the court of common pleas erred in sustaining said demurrer. The sole question presented to us in this case, is as to the sufficiency of the reply in stating facts sufficient to create an estoppel.

The defendant, Montgomery, never having signed said note and • never having received any benefits, it was incumbent upon the plaintiff to allege a state of facts which would estop him from denying his liability on this note, notwithstanding the fact that he had never signed the same.

Paraphrasing the reply, the facts were substantially as follows, viz.: Woodruff held a note signed by Arthur J. Sheppard and purporting to have been signed by Montgomery, but as a matter of fact Montgomery’s name to tbe note was a forgery; that more than a year prior to the bringing of this action, Montgomery knew that plaintiff held this note and that he appeared on the face of the note as one of the makers; that with intent to mislead and deceive the plaintiff, he remained silent and did not notify Woodruff that his name was a forgery, until after Sheppard had absconded; that Woodruff, relying upon the conduct (silence) of Montgomery and believing Montgomery to be one of the makers of said note, failed to take steps to collect the note until after Sheppard had absconded; that Sheppard before his absconding had certain property out of which Woodruff could have satisfied this note in whole or in part and that Sheppard was now insolvent. The sole question in this case is, does the reply alleging this state of facts create an estoppel?

In Viele v. Judson, 82 N. Y. 32, 40, a part of the syllabus reads as follows:

“To sustain an estoppel because of omission to speak, there must be both the specific opportunity and the apparent duty to speak; the party maintaining silence must have known that some one was relying thereon and was either acting or about to act as he would not have done had the truth been told.”

In Wiser v. Lawler, 189 U. S. 260 [23 Sup. Ct. Rep. 624; 47 L. Ed. 802], a part of the syllabus reads as follows:

“To constitute an estoppel by silence, there must not only be an opportunity but an obligation to speak and the purchase must have been in reliance upon the conduct of the party sought to be estopped. ’ ’

In Thompson v. Simpson, 128 N. Y. 270 [28 N. E. Rep. 627], a part of the syllabus is as follows:

“The mere fact that another may act to his prejudice, if the state of things is not disclosed, does not render silence culpable, or sufficient to estop the true owner; he owes no duty of active diligence to protect the other party from injury. There must be a standing by and encouragement or acquiescence by the true owner in acts inconsistent with his right, knowing that the other party, acting under a false impression, is about to do what will result in his injury.”

The above seem to be the settled principles which control the doctrine of estoppel by silence.

Another well-established principle of law is, that a party attempting to estop another by his acts or conduct, must allege with certainty all the facts necessary to create an estoppel. In Troyar v. Dyar, 102 Ind. 396 [1 N. E. Rep. 728], a part of the syllabus is as follows:

“No intendments are made in favor of a plea of estoppel, but it is incumbent upon the party pleading it to aver all the facts essential to its existence.” To the same effect is Weyer v. Sager, 12 Circ. Dec. 193 (21 R. 710).

According to onr idea, the above is the law of estoppel and as to the manner in which it must be plead. Now does the reply meet these requirements? The reply alleges that Montgomery knew that Wood-ruff had this note and that his name was a forgery. How he acquired that knowledge is not disclosed, neither is there any allegation in the reply that Woodruff knew that Montgomery knew anything about this note. It is true that the reply alleges that Woodruff relied upon the •conduct of Montgomery. But. the query is, what, was the conduct of Montgomery? His conduct was mere silence. Montgomery- did nothing or said nothing which would induce Woodruff to believe this signature was genuine. If Woodruff had shown this note to Montgomery and Montgomery, after having seen the note, had walked away without disclosing the forgery and Woodruff were injured by relying upon the genuineness of the signature, a different question would arise than the one before us. The fact that Montgomery remained silent with the intent to deceive Woodruff, can be of little importance from the fact that it nowhere appears that Woodruff even knew that Montgomery had the information that the note was in Woodruff’s possession or that it was a forgery.

As was said in Viele v. Judson and Wiser v. Lawler, supra, there must have been an opportunity for Montgomery to notify Woodruff that this note was, a forgery and the reply should in some way have alleged that such opportunity existed. For all that appears in the reply Montgomery may never have had the opportunity of notifying Woodruff of the forgery even if the facts were such as imposed a duty upon him to do so. For all that appears Woodruff may have been in a foreign land until after the absconding of Sheppard.

There is no allegation in the reply that Montgomery knew that Woodruff was withholding the collection of this note on the strength of anything that he had done or was doing, nor is there any allegation that Montgomery knew that Woodruff knew that Montgomery knew anything about this note.

A case which the plaintiff places great reliance upon as sustaining his position, is found in Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96 [6 Sup. Ct. Rep. 657; 29 L. Ed. 811], in which the facts are set forth in the syllabus as follows:

“When a bank depositor sends his pass book to the bank to be written np, it is bis duty upon its return, either in person or by duly authorized agent, to examine the account and vouchers returned within a reasonable time and give to the bank timely notice of any objections thereto. If he fails so to do, he may be estopped from questioning the conclusiveness of the account.”

In this case a certain forged check had been charged to the plaintiff by the bank and the plaintiff brought an action against the bank for the amount due him, claiming in substance that the cheek was a. forgery. The bank, by way of estoppel, claimed that the plaintiff knew of this forged cheek or by the exercise of care, could have known of it and remained silent and that the bank would be damaged if plaintiff' w'ere allowed to show the forgery. In that case the bank being ignorant of the forgery until after it had been disclosed by the plaintiff, the bank’s right to pursue the forgerer had been suspended. In such a case as that the forgerer might escape and might dispose of all of' his property before the bank knew of the forgery. In the case at bar,, however, there was no suspended right to sue as there was in Leather Mfrs. Nat. Bank v. Morgan, supra. In the case at bar, Sheppard was. one of the makers of the note and there was nothing that Montgomery did which for a moment suspended the right of Woodruff to proceed against Montgomery on this note, nor was there any act which tended to induce Woodruff not to proceed against Sheppard. We think the principle involved in Leather Mfrs. Nat. Bank v. Morgan and the one-in this case are entirely different.

Plaintiff has also cited to us Ewart on Estoppel as supporting his contention. There is no doubt but that'the text found in Ewart does; support the contention of plaintiff, but if Mr. Ewart undertakes to> say that mere silence, irrespective of the facts under which the silence-was maintained, creates an estoppel, we are unwilling to accept his; theory of the law.

We do not think the facts set forth in the reply in this case, are sufficient to hold a man liable on a note which he never signed, and we affirm the judgment of the court of common pleas.

Taggart, J., concurs.

DONAHUE, J.,

dissenting:

I agree with my associates as to the proposition of law announced' in the syllabus of this opinion, but disagree with them as to the construction of the reply filed by plaintiff. I am of the opinion that the allegations of this reply meet the requirements of the law of estoppeL as herein announced.


author: TAGGART, J.

text:
    APPEALS — RECEIVERS.
    [Knox (5th) Circuit Court,
    October 12, 1906.]
    Taggart and Donahue, JJ.
    (McCarty, X, not sitting.)
    H. F. Williams v. C. N. Wyant.
    Appointment op Receiver Held not to Determine Ultimate Rights from which-, Appeal will Lie.
    An order of the common pleas court appointing a receiver is not one determining ultimate rights, and is not such a final order as will give a court jurisdiction on appeal, even though regularly made and all the-forms of law observed in perfecting the appeal.
    [For other cases in point, see 7 Cyc. Dig., “Receivers,” §§ 112-128. — Ed.]
    [Syllabus by the court.]
    Herrlinger & Southworth and F. V. Owen, for plaintiff.
    Waight & Moore, for defendant.
   TAGGART, J.

This ease was submitted on a motion to dismiss the appeal. The* ground of the motion is that the order of the court of common pleas-appointing the receiver, and the order appealed from herein is not such an order as can be reviewed by appeal in the circuit court, and because this court has no jurisdiction on appeal. It is contended on behalf of the plaintiff that an appeal will not lie from an order appointing a receiver in an action pending in the court of common pleas, where no other or different order is made in the case; that an -order appointing a receiver ■ alone is not such a final order as will give the court jurisdiction by appeal even though regularly made, and all the forms of law are observed in perfecting that appeal. An examination of the statutes governing appeals and proceedings in error is therefore necessary, for while a party may be entitled to prosecute error from a final order affecting-a substantial right of a party made in the case, yet an appeal may not. be sustained even though error would lie. Revised Statutes 5226 (Lan. 8735), or so much thereof as is necessary for an understanding of this matter, is as follows:

“In addition to the cases and matters specifically provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court.”

Revised Statutes 6709 (Lan. 10300) -.

“A judgment rendered, or final order made by any court of com--mon pleas, or a judge thereof, may be reversed, vacated or modified by the circuit court.”

Revised Statutes 6707 (Lan. 10297) :

“An order affecting a substantial right in an action, when such ■order in effect determines the action and prevents a judgment, and ■an order affecting a substantial right made in a special proceeding, * * * is a final order which may be vacated, modified, or reversed, •as provided in this title.”

It will be observed that the definition of a final order under Rev. Stat. 5226 (Lan. 8735) is different from a final order as defined by Rev. Stat. 6707 and 6709 (Lan. 10297, 10300). The latter by express provision of the statute being enlarged over the provisions of Rev. Stat. 5226 (Lan. 8735). That this is the case, we beg to call attention to the ease of Eaton & H. Ry. v. Varnum, 10 Ohio St. 622, the syllabus of which is as follows:

“An order appointing a receiver to receive the revenues, etc., of .a railroad, and bring the same into court, subject to its order, etc., and without any application of the funds except to certain costs accrued, is not a final order from which an appeal can be taken to the district ■court. ”, •

We now call attention to the case of Cincinnati, S. & C. Ry. v. Sloan, 31 Ohio St. 1:

“Proceedings in relation to the appointment and removal of receivers are special proceedings, under section 512 of the code; and an order affecting a substantial right made in such proceeding, is a final ■order within the meaning of said section.”

And the court, on page 9, says:

“The claim of counsel for defendant in error, that no order is final within the meaning of section 572 of the code, and reviewable on error, that is not appealable from the court of common pleas to the •district court, is without foundation. Hence the case cited of Eaton & H. Ry. v. Varnum, 10 Ohio St. 622, is not relevant to the question under consideration. That case merely decides that an order appointing .a receiver is not a final order from which an appeal can be taken to the district court.”

And on page 10:

“If the order,” in speaking about a final order which may be vacated, modified, or reversed, ‘ ‘ affects a substantial right, and is made in a special proceeding, it is final within the meaning of the section, and may be reviewed for errors of law appearing on the record.”

But this, as we take it, is to review by a proceeding in error, and this is the question the court was discussing as *s seen by page 8, where they proceed to say that the question before the court is whether the order so made is reviewable or not on error.

Again, the right to appeal is governed by express statute, and unless the statute expressly authorizes the appeal it will not lie. See Atwood v. Whipple, 48 Ohio St. 308 [28 N. E. Rep. 674]; Browne v. Wallace, 66 Ohio St. 57 [63 N. E. Rep. 588].

Our' courts in defining a final order have used this language:

“It is said that if it be admitted that an order is not appealable unless it is in its nature final, still the decision in question is such a final order, as it determines and disposes of the whole merits of a ■branch of the ease which is separate and distinct from the other parts of the case.”

And that is the definition given of a final order in Teaff v. Hewitt, 1 Ohio St. 511, 520 [59 Am. Dec. 634], In the case of Jay v. Squire, 5 Dec. 318 (7 N. P. 345), it is decided:

“The action of a court or judge in granting a receivership does not determine the ultimate rights of the parties, or even affect them, ■except so far as it preserves and retains control of the property to answer to the rights of the parties as they may be finally determined.”

Our attention is called to the authority of Alderson, Receivers ;See. 90, but we think that this authority does not change the principle "that underlies this matter, or is decisive of this motion.

The motion is sustained and the appeal is dismissed, but as this holding of the court is to the effect that this court did not obtain jurisdiction in this matter by this appeal, no judgment for costs is rendered. Exceptions noted.

Donahue, J., concurs,


author: PER CURIAM.

text:
    CORPORATIONS — RECEIVERS.
    [Hamilton (1st) Circuit Court,
    November 9, 1907.]
    Swing, Giffen and Smith, JJ.
    Fred C. Rapp v. Cincinnati Plastic Relief Co. et al.
    .1, Past Due Indebtedness Essential to Appointment of Receiver.
    A petition by a .stockholder and creditor of a corporation alleging that a note upon which he is an indorser becomes due on the day of filing the petition does not allege a past due indebtedness within the meaning of Rev. Stat. 5845 (Lan. 9384), nor state a ground for appointment of a receiver.

      2. Error in Appointment op Receiver Cured by Corporate Ratification.
    Ratification by the board of directors of a corporation of the unauthorized1 act of its president consenting to the appointment of a receiver under a petition not asking for equitable relief nor stating any sufficient ground therefor, renders the error of the court in naming the receiver voidable only.
    [Syllabus approved by the court.]
    W. B. Stier, for plaintiff in error.
    A. E. Painter, for defendants in error.
   PER CURIAM.

The object and prayer of the petition in this case, which was filed by a stockholder and creditor of the company, is not for the appointment of a receiver in aid of some equitable relief, but for the purpose of investing an officer of the court with all the ordinary duties and powers of the board of directors. The only allegation of the petition that indicates a different purpose is the following:

“The plaintiff' further says that he is a stockholder in said company and that he has indorsed one note of $1,000 to the bank, which is included in the $9,000 aforesaid, and which is due and payable May 20, 1907, and that unless a receiver is appointed to preserve the equity in the real estate, the good will and business of said concern, he will suffer irreparable injury.”

The petition was signed and sworn to on May 20, 1907, and it, does not appear from the above allegation nor elsewhere in the petition that the note was past due and unpaid. Hence Rev. Stat. 5845 (Lan. 9384) does not apply.

The president of the corporation, as such officer, consented to the appointment of a receiver, and although this act was unauthorized it was subsequently ratified and approved by the board of directors, which ratification related back and gave validity to the original act of the president. 21 Am. & Eng. Enc. Law (2 ed.) 853.

The court may have erred in the original appointment of a receiver, but it had jurisdiction of the subject-matter and of the person, and hence its action was voidable only.

It does not appear from the evidence that the receiver had such interest in the action as would prevent his appointment.

The judgment will be affirmed.


author: WILDMAN, J.

text:
    DAMAGES — TELEGRAPHS AND TELEPHONES.
    [Lucas (6th) Circuit Court,
    October 26, 1907.]
    Haynes, Parker and Wildman, JJ.
    Lafayette S. Sullivan et al. v. Western Union Telegraph Co.
    1. NONDELIVERY OF TELEGRAM-BURDEN ON TELEGRAPH COMPANY TO REBUT PRESUMPTION of Negligence.
    Where, in an action against a telegraph company for the nondelivery of a telegram entrusted to it for transmission and delivery, such nondelivery is shown, the burden is on the company to remove the presumption of negligence thereby raised. Western Union Tel. Go. v. Griswold, 37 Ohio' St. 301 [41 Am. Rep; 500], followed.
    2. Nominal Damages for Negligence of Telegraph Company in Failing to Deliver Telegram.
    A telegraph company negligently failing to deliver a telegram entrusted to it for transmission and delivery, is liable for nominal damages. In a. case where such failure is shown, it is error to arrest the case from the' jury and direct a verdict for the defendant company. First Nat. Banlc v. Telegraph Go. 30 Ohio St. 555, 568 [27 Am. Rep. 485], followed.
    3. Proof to Warrant Compensatory Damages for Failure to Deliver Telegram.
    A telegraph company receiving a telegram for transmission and delivery is bound to take notice of such facts as are brought to its attention by the telegram in connection with all known circumstances. For unexcused. • failure to deliver such telegram, the company is liable for such damages-“as naturally flow from a breach of contract, or such as may fairly be-supposed to have been within the contemplation of the parties at the time' the contract was made.”
    [Syllabus by the court.]
    Error to Lucas common pleas court.
    Seney & Thurstin, for plaintiffs in error.
    Smith & Beckwith, for defendant in error;
   WILDMAN, J.

The plaintiffs in' error here brought suit in the court of common pleas against the Western Union Telegraph Company, for damages to the amount of $600, claimed to have been sustained by them in consequence of the nondelivery of a telegram. The facts disclosed by the pleadings and evidence, so far as a statement is essential to an understanding of our views, are as follows: Lafayette Sullivan and his co-complainants, on December 2, 1905, were the owners of a steamer called the David W. Rust, then lying, unloaded, in the port of Buffalo in the state of New- York. Sullivan was the managing owner of said vessel, and, on the day named, at 9:45 p. m., gave to the defendant, at its Toledo office, the following message, to be by it delivered to the addressee:

“To Capt. Wm. J. Leaver, Stmr. D. W. Rust. Com. Minnesota Dock, Buffalo, N. York. Will wire you in the morning about coal. Collect. L. S. Sullivan.”

This message was received at the defendant’s Buffalo office at 11:10 p. m., Buffalo time, which was equivalent to 10:10 p. m. Toledo time, the time changing at Buffalo from central to eastern standard' time. The message was never delivered. It is alleged in the petition, and although •denied in the answer, the averment is supported by evidence, that at the time of sending this message, negotiations were in progress, between Sullivan and Mr. S. C. Schenck, of Toledo, for the charter of the boat to carry a load of coal from Buffalo to Toledo to be delivered at one of the docks in the city of Toledo. Mr. Sullivan testified, as disclosed by ■•the bill of exceptions, that at the time this telegram was sent to Captain ‘Leaver an arrangement for the transfer of a cargo of coal had been -completed except as to the insurance of the cargo, by him — Sullivan. It is clainjed by the plaintiffs that the purpose of sending this message to Captain Leaver was to detain the boat at the Minnesota dock in Buffalo until further directions could be given in the morning concerning ¡said cargo. On Sunday morning, December 3, Sullivan wired the cap.tain as follows:

“To Capt. Wm. J. Leaver, Stmr. David W. Rust, Buffalo, N. York. :Schenck has wired Russell ‘Load Rust for Toledo.’ Have arranged ■with Schenck about insurance. Be careful coming up. I insure cargo. .Have key your room. Wire when leave. Collect. L. S. Sullivan. ’ ’

Schenck was agent of the coal company in Toledo and Russell was the agent of the same company in Buffalo. 'Schenck did wire Russell, <©n the same day, the 3rd:

. “To D. E. Russell, Buffalo, N. Y. Sullivan agrees to carry insur.ance on cargo Steamer Rust; confirming same in writing to-day. Can you load her nut or egg for Wabash dock? S. C. Schenck.”

The second telegram from Sullivan to Captain Leaver and the tel<egram from Schenck to Russell were sent in ignorance of the fact, which then existed, that the boat had left the city of Buffalo at 3:15 o ’clock •on the morning of December 3, the captain of the boat, as I have already •stated, not having received the first telegram attempting to inform him that he would be wired in the morning about coal.

At the close of the plaintiff’s case, upon motion of the defendant, the trial judge arrested the case from the jury and directed a verdict in favor of the defendant.

We have discovered no substantial errors in the admission or rejection of evidence to the prejudice of the plaintiffs, and our attention has been directed to the vital claim of error arising upon the action of the court in arresting the case from the jury and directing a verdict. It is said to us in argument, and it sufficiently appears, that the court based its action upon substantially two grounds: First, the failure of the plaintiff to establish the alleged negligence of the defendant; and, second, that the damages claimed were not such as could be recovered upon any basis of the circumstances alleged and proven.

As to the first of these claims, we think the court was very clearly in error. Whether or not the evidence sufficiently disclosed negligence in the defendant company to warrant' a verdict, we are not called upo» to .decide. There was, clearly, evidence tending to show negligence, am<I our Supreme Court has established a rule that even in the absence of all evidence upon the subject, the defendant, so far as this question is concerned, must fail. In the ease of Western Union Tel. Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500], it is held:

“Where, in an action against the company for damages resulting: from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden, of proof is on the company to show that the mistake was not attributable to its fault or negligence.”

Counsel for defendant in error seek to draw a distinction between' the facts in the case cited and those in the case at bar. In that case the-alleged negligence was in the failure to transmit the message accurately. In the present case the facts disclose that the message was not trams--mitted to the person to whom it was addressed at all, and it seems to us; that if the principle decided in Western Union Tel. Co. v. Griswold, is correct, a fortiori the burden must rest upon the defendant company to» explain the total nondelivery of the dispatch entrusted to it.

In 2 Thompson, Negligence (1880 ed.) page 843, I find this lame-guage:

“In the leading case in Iowa, in which the rule is laid down, if’ was held that' it operated to cast upon the sender of the message the burden of proving negligence or other fault in the company. It was.' there held that the mere proof of a mistake in an unrepeated message,, without other evidence that the company has been guilty of negligence; will not render it liable. But this conclusion by no means follows frea®1 the rule. It is contrary to the weight of authority, and destitute off support in legal analogy. If A, for a consideration, undertakes to do a-certain thing for B, and fails to do it, B’s case is ordinarily made-out,, by showing the undertaking, the consideration, and the failure. If is; a case for the application of the rule, res ipsa loquitur. The failure of A to fulfill his contract speaks for itself, and makes out a prima fade case for B, and the burden is upon A to show a legal excuse for Ms-failure, if he can. Moreover, this rule is one of necessity; for it is seldom or never possible for the sender of a dispatch to show negligence in the company beyond the mere fact that it failed to deliver the message as written. If its failure was not due to negligence, the means of showing that fact is exclusively within its own possession, and, from the nature of the case, the plaintiff will seldom be able to produce evi-dence in rebuttal.”

This reasoning is just as applicable to the case of nondelivery of a message as to the inaccurate transmission of one.

Eeferring again to Western Union Tel. Co. v. Griswold, supra, page 313, we find this language:

“We are also of the opinion that the failure to transmit and deliver the message in thé form or language in which it was received, is prima facie negligence, for which the company is liable; and that to exonerate itself from the liability thus presumptively arising, it must show' that the mistake was not attributable to its fault or negligence. This rule not only rests upon sound reason but is well sustained by well-.considered cases.”

And this statement is followed by the citation of numerous cases. We are, then, satisfied that the court erred in this regard, and the question as to whether or not the defendant company committed negligence, is, for the purposes of our present inquiry, disposed of.

Was the court correct in its other view upon which it sustained the motion ? Are the damages claimed here remote or of such character-that the plaintiff is not entitled to recover, although they were caused by the defendant’s negligence? We have found much confusion and •conflict in the adjudications of the - different states upon the question ■of the extent to which a telegraph compány is required to be enlightened íby the wording of a telegram, or other circumstances, as to the character of the business involved. The current of authority seems to hold that a company is not liable for the nondelivery or incorrect transmission of a cipher message which is unintelligible to it. It has been held by the courts that, with regard to messages involving no pecuniary business, as, for instance, messages informing one of the approaching death of a near relative, or some matter of such concern, where its nonreceipt might be attended with great mental pain merely, no recovery can be had for damages. Our own Supreme Court has so held, but with regard to telegrams based upon business involving moneyed interests, the authorities are by no means uniform — us I have said, they are confusing and in conflict. We have had no decisive adjudication in this state .disposing of the controversy in this respect.

In the case of First Nat. Bank v. Telegraph Co. 30 Ohio St. 555 [27 Am. Rep. 485], onr Supreme Court held, however:

“In ease of a breach of contract, actual damages not being proved, nominal damages may be recovered.”

And that conclusion of the court, as expressed in the syllabus, was made the ground of reversal of the judgment of the lower court which had not awarded such nominal damages. I read from page 568:

“The plaintiff ashed the court to charge that, if the nondelivery of the message was by reason of defendant’s negligence, plaintiff was •entitled to nominal damages, if there were no actual damage. This was refused, and the court did charge that there was no right of action, unless injury was shown. This was error, for which the judgment must be reversed.”

Probably the Supreme Court deemed the matter of sufficient importance to justify a reversal in view of the fact that it might affect the question of costs, or, possibly for some other reason, as establishing the legal rights of the parties and as affecting their future conduct in other cases. Had the view entertained by the trial judge in the present case been correct — that the plaintiff’s case must fail because no negligence was shown — the court would have been justified in directing a verdict for the defendant. It is onlyhvhere negligence appears or is presumed that even nominal damages are recoverable. But we have already indicated that the judge was in error upon this first proposition, and it necessarily follows that he was likewise in error in directing a verdict for the defendant. Under this decision of the Supreme Court, if there was unrebutted evidence tending to show or raising a presumption of negligence, the case should have been submitted to the jury with an instruction that if no actual damage resulted, the jury should award a verdict for nominal damages. For this reason, then, the judgment must be reversed; and as a new trial will be necessary in the court below, it is proper that we should advise the court of our views as to the more important question bearing upon the right of the plaintiff to compensatory damages under the circumstances disclosed.

The adjudications in the different states and in England nearly all seem to lead back to the case of Hadley v. Baxendale, 9 Exch. 341 [26 Eng. L. & Eq. 398]. Our own Supreme Court, in line with the numerous other courts of the country, sought to derive instruction from this leading ease, and in First Nat. Bank v. Telegraph Co. supra, substantially adopted the rule enunciated in the English case referred to. In the syllabus, our Supreme Court say:

“In ease of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties, at the time the contract was made. ’ ’

In one of the reports which we have examined, the court of another state has changed this conjunction “or” to the conjunction “and.” But we have in Ohio the adoption of an alternative rule, and if the damages claimed can fairly be brought within either of these two classes: such as naturally flow from a breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties at the time the contract was made, then such damages are recoverable. On page 565 of First Nat. Bank v. Telegraph Co. supra, Judge Wright, who announces the opinion, after quoting a statement of the rule made by Judge Earl, in Leonard v. Telegraph Co. 41 N. Y. 544 [1 Am. Rep. 446], offers a more precise statement of his own views,, in the following-language :

“A more precise statement of the rule is, that a party is liable for all the direct damages which both parties would have contemplated as. flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.”

This may or may not be the principle which was favored by the entire court, but it is at least safe for us to rely upon the language embodied iu the syllabus. We have arrived at the conclusion, from an examination of the authorities, and without much effort to reconcile them — because it is impossible to do that — looking at what seemed to us the just principles that should govern cases of this character, that the defendant company is bound to take notice of such facts as are brought to its attention by the telegram or other circumstances within its knowledge.

In 2 Thompson, Negligence (1880 ed.) page 828, is an extended and instructive chapter on the liability of telegraph- companies for negligence, in which he collates numerous authorities and offers his own judgment as to what should be the correct rule: On page 849, after referring to the leading case of Hadley v. Baxendale, supra, and some other authorities, which were manifestly examined by our Supreme Court in First Nat. Bank v. Telegraph Co. supra, he uses this language, quoting Chief Justice Earl in Leonard v. Telegraph Co. supra, to which our own Supreme Court refer:

“It is not required that the parties must have contemplated’ the actual damages which are to be allowed; but the damages must be such as the parties may fairly be supposed to have contemplated when they made the contract. Parties entering into contracts usually contemplate that they will be performed, and not that they will be violated. They very rarely actually contemplate any damages which would flow from any breach, and very frequently have not sufficient information to know what such damages would be. As both parties are usually equally bound to know and be informed of the facts pertaining to the-execution or breach of a contract which they have entered into, I think-a more precise statement of this rule is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into-it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.”, ,

It will be noticed that this is the same phraseology used by Judge-Wright in First Nat. Bank v. Telegraph Co. supra, and which he undoubtedly borrowed from Judge Earl in Leonard v. Telegraph Co. Mr. Thompson continues:

“In actions ex delicto, the damages to be recovered must be the-natural and proximate consequences of the act complained of, unless, there be circumstances of aggravation, when exemplary damages will be awarded. By these rules, then, the liability of the owners of telegraphs, in actions against them, must be measured. The statement of the adjudicated eases will indicate the manner in which the courts, have applied them.”

It is hard to derive from the wording of the dispatch in the ease-at bar much information beyond the facts that the person to whom it was sent was the captain apparently in charge of the steamer named “The Rust;” that it was at the time supposed to be at the Minnesota, dock, in the city of Buffalo and that this dispatch would be followed, by another in the morning, and that both had some relation to coal. We are of the opinion, however, that the telegraph company could not blind its eyes to such other circumstances as may be assumed to have been within its knowledge concerning the character of the port; concerning the ordinary work of a steamer at that port and the course of traffic and such other circumstances as might naturally lie within the-purview of a telegraph company like the Western Union, engaged in the transaction of business which would naturally attract its attention, to such matters as these.

It is claimed by counsel for defendant in error that the principle of First Nat. Bank v. Telegraph Co. supra, should apply in another-respect to the case at bar and prevent the plaintiff’s recovery, to wit, that this plaintiff will not be permitted to recover for the negligences of another where that negligence would not have caused the damage -except for the intervention of some independent cause. We think, however, that the ease at bar is to be distinguished from the one cited, and that in the conditions before us the evidence tends to disclose that the plaintiff did directly sustain the damage asserted, whereas in the case cited, it does not appear that any damage was so sustained. The matter is one for a jury, guided by proper instructions from the' court; •and both in this connection and in support of our view as to knowledge •of the defendant of the business character of the telegram, I wish to ■ quote some language from a case decided by the Illinois supreme court. Postal Telegraph Cable Co. v. Lathrop, 7 L. R. A. 474 [131 Ill. 575; 23 N. E. Rep. 583; 19 Am. St. Rep. 55], I read the second and third paragraphs of the syllabus:

“The question whether or not telegraph dispatches are sufficient to inform the operator of their meaning, and of the possible risk of loss by mistake, is not tó be determined solely by the dispatches themselves, but all the facts and circumstances, including previous messages sent by the operator for the same parties, may be considered.
“Where enough appears in a telegraph message to show that it relates to a commercial business transaction, it is sufficient to charge the company with damages resulting from its negligent transmission, .although the operator may not be able to understand its meaning as to quantity, quality, price, etc., as the sender and the party to whom it is sent understand it.”

On page 476, in the opinion of the judge, I find this language:

“Therefore, in determining whether or not the messages were sufficient to inform the operator of their meaning, and of the possible risk of loss to appellees by a mistake in transmitting them, the jury -should have been left free to consider all the facts and circumstances proved in the case 'bearing on that question, whereas the instruction limits the inquiry to that which appears in the dispatches themselves, .and to such facts as may have been disclosed by the plaintiff to the ■ defendant or its agent at the time they were sent. * * *
“On the question as to how far mere indefiniteness in the-language -of a message will defeat a recovery for consequential damages against a telegraph company, the decisions cannot be said to be harmonious. Counsel for appellant contends that the better line of authorities sustains the rule announced in this instruction, viz., that the operator who •transmits a message must be able to understand its meaning as to quantity, quality, price, etc., as the sender and the party to whom it is sent themselves understood it; otherwise it is said he cannot reasonably be supposed to have contemplated damages as the probable consequence of a failure to correctly transmit it. "While some of the cases cited go to that extent, especially where the message is in cipher, another line of decisions, and we think founded on the better reasons, hold that where enough appears in the message to show that it relates to a commercial business transaction between th^ correspondents it is sufficient to charge the company with damages resulting from its negli-. gent transmission.”

And on page 477:

“It certainly cannot be contended that the agent must be informed of all the facts and circumstances pertaining to a transaction referred to in a telegram, which are known by the parties themselves, to make his company liable for more than nominal damages. If it should be so held, the telegraph would cease to be of practical utility to the commercial world.
“It is not easy to state a case in which it can be said the parties contemplated, at the time of contracting, all the damages which will probably result from a failure to perform the contract. We think the reasonable rule, and one well sustained by authority, is that where a message as written, read in the light of well known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written, within a reasonable time, 'unless such negligence is in some way excused.”

Our adjudications in Ohio are so meagre upon these precise points, that it is interesting to examine as one of the pioneer cases a case tried before Judge Starkweather in the court of common pleas in 1853, Bowen v. Telegraph Co. 1 Dec. Re. 574 (10 W. L. J. 415; 1 Am. Law Reg. 685), in which he enunciates as follows substantially the doctrine which I have just quoted

“But if it (the telegram) was sufficiently plain to be understood by Bowen & McNamee, the plaintiffs in this case, the merchants to whom it was addressed, though not intelligible to others, that it was appreciable, and if changed to the injury of the plaintiffs, such a change was a proper subject of damages.”

We are not quite disposed to say that it was the duty of the court below to find as a matter of law that this telegram sufficiently apprised the company of its own importance and the danger of financial loss which might arise from nondelivery, but we are of the view that the ease should fall within the general class of those which involve-mixed questions of law and fact, and that it was one to be submitted to a jury for its consideration under proper instructions from the court. We do not desire to go further than this at present, and for the purpose of this inquiry it is enough to say that we have concluded that the-judgment should be reversed and the cause remanded for another trial. Such will be the judgment.

Haynes and Parker, JJ., concur.


author: SMITH, J.

text:
    NEGLIGENCE — RAILROADS.
    [Hamilton (1st) Circuit Court,
    June 29, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati, L. & N. Ry. et al. v. Anthony J. Bokenkotter, Admr.
    Station Agent Guilty of Conteibutoby Negligence in Cbossing a Railway Tback without Looking.
    A station agent familiar with, the location of railway tracks who attempts to cross without looking for an approaching train, which might have been seen two thousand feet away, and is struck by it, is guilty of contributory negligence.
    Error to Hamilton common pleas.
    W. W. Ramsey, for plaintiffs in error.
    E. M. Ballard, for defendant in error.
   SMITH, J.

There is error in the record of the trial below in that the court overruled the motions of the plaintiffs in error at the close of the testimony offered by the defendant in error to direct the jury to return a verdict, in their behalf.

The testimony clearly shows the deceased to have been guilty of contributory negligence. He was employed as station agent at Hopkins avenue station. He crossed the south-bound track to the north-bound track, and in attempting to return did not look to see or pay any attention as to whether a train was approaching; and yet the track was straight for two thousand feet in the direction from which the train approached, and it could have been easily discerned.

Judgment reversed.

Swing and Giffen, JJ., concur.


text:
    MONOPOLIES — CRIMINAL LAW.
    [Lucas (6th) Circuit Court,
    March 28, 1908.]
    Parker, Wildman and Kinkade, JJ.
    Edward E. Arnsman et. al. v. State.
    1. Failure to File Motion to Quash Waives Duplicity and Indeeiniteness.
    A motion to quash is the proper procedure to point out the defects of duplicity and indefiniteness in an indictment, and failure to file such motion and entering a general plea to the indictment, is a waiver of those defects.
    2. Indictment Charging Unlawful .Combination Punishable by Fine and Imprisonment.
    An indictment which charges that accused and numerous other named defendants on a day named and continuously between that (date and the day indictment is found were members of an unlawful trust and / combination formed for the purpose of carrying out restraint in trade and commerce, increasing the price and preventing competition in the sale of lumber, and knowingly acted with and in pursuance of, and aided and assisted in carrying out the purposes of such unlawful trust and combination; binding themselves not to sell or dispose of any lumber for use in a designated locality below the common standard of figures, and agreeing to pool, combine and unite their interests in such lumber trade, states a violation of Sec. 1 of act 93 O. L. 143 (Lan. Rev. Stat. 7586; B. 4427-1), commonly called the Valentine anti-trust law which is punishable by fine and imprisonment under Sec. 4 (Lan. Rev. Stat. 7589; B. 4427-4) thereof, and not Sec. 10 (Han. Rev. Stat. 7595; B. 4427-10).
    :3. On Remand for Resentence Court May Fine or Imprison or Both.
    A workhouse sentence having been illegally imposed for violation of the Valentine anti-trust law, will be set aside on review and the case remanded to the trial court for resentence, which may be by fine or imprisonment or both in the discretion of the court as on original hearing.
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    Barton Smith, for plaintiffs in error.
    L. W. Wachenheimer, prosecuting attorney, for defendant in error.
   WILDMAN, J.

This ease has been twice orally argued before this court, once prior to the death of Judge Haynes, and again since Judge Kinkade succeeded to the vacancy. The ease is one which has involved so many parties in interest, and has been deemed so important as involving some constructions- of the statutes known as the Valentine anti-trust law, that we have given it our most careful consideration.

The indictment was drawn under Lan. Rev. Stat. 7586 (B. 4427-1) et seq., and charges the defendants with a trust said to affect the price of lumber. Numerous defendants in the court below, without attacking tbe indictment by motions or demurrer, entered pleas of guilty,, and were thereupon sentenced by the trial judge to imprisonment in the workhouse of the county for a period of six months, the minimum term of imprisonment prescribed by the statute, where imprisonment, is, a part of the sentence.

In this proceeding in error, the indictment is attacked upon several grounds, but mainly that it is fatally defective in not alleging-facts constituting an offense against the laws of the state. Some consideration has been given to the question whether the indictment charges numerous offenses in one count and is thereby obnoxious; to the charge of duplicity. This matter may perhaps be disposed of by reference to the case of Jones v. State, 7 Circ. Dec. 716 (14 R. 363), decided by the circuit court of Clinton county, Judges Cox, Smith and Swing, in 1897. The fifth paragraph of the syllabus indicates; the point applicable to the indictment before us. I read:

“A demurrer to an indictment for blackmail’is a waiver of such an objection as that 'it charged different, distinct and repugnant crimes,, and was bad for duplicity. Such irregularity can only be reached by motion to quash.”

In Hughes v. State, not reported, decided by this court in Erie county, we had an indictment similar in form, charging an offense as committed upon a certain day and during an entire period to a later day; and in that case we held that the indictment was not bad for duplicity. There is no particular discussion of that question in the opinion, but as nearly as my memory serves me, we arrived at the conclusion that the indictment charged at least one offense, and that really there was no purpose-on the part of the grand jury to charge any more than that. The case was treated as charging but one offense by the trial court in that case; and I might say that the accusation in the case at bar has been so treated. There has been, in other words, no assertion of the right, under a provision of the Valentine law, to treat every day’s violation of the act as an independent offense. The whole of the indictment, so-far as it alleged the time of the commission of the offense, beyond the assertion of one particular time, might be treated as surplusage- and the indictment in this regard still be deemed sufficient.

There is no question under the decisions of this state, however,, that different offenses, misdemeanors of the same class or character,, may be joined in one indictment. The question is not whether they may or may not be so joined; but whether they may be blended in one count. Without going farther than to recognize the doctrine asserted in. Jones v State supra, we are content to rest our decision, so far as the question of duplicity is concerned, upon that case. We believe-that the position of the circuit court of Clinton county that duplicity was waived by failure to file a motion to quash was well taken.

The same thing may be said as to any criticism. that the indictment does not definitely apprise the defendant of the offense of which he is accused. This, of course, does not touch the question, whether the indictment is or is not fatally defective in omitting to charge a crime; it relates only to indefiniteness. Not only the statutory law, but the constitution requires that defendants must be charged so definitely as to be apprised of the precise nature of the offense that they are claimed to have committed against the law of the state. The statute provides means by which, if the indictment is not sufficiently precise, the accused may assert their right and obtain the protection of the court; and the same statute provides that failure to file a motion to quash will waive all matters which might be objected to by such motion. A motion to quash is peculiarly adapted to point out the defects in an indictment, which make it merely indefinite. That is the object of the motion, and if a party does not see fit to avail himself of such procedure, the statute perrpits the courts to infer that he did not care to do it, — that the indictment had sufficiently apprised him of the charge which he was to meet.

In State v. Gage, 72 Ohio St. 210 [73 N. E. Rep. 1078], decided by the Supreme Court, the indictment alleged the infraction of the law during a continuous period from one day to another, as in Hughes v. State, supra, and the case at bar. No attack was made upon the indictment by any motion to quash. A demurrer was filed and overruled. What would have been the effect of a motion to quash is not indicated.

It is urged upon us that from the language of the indictment it does not definitely appear whether the pleader is attempting to charge' an infraction of Lan. Rev. Stat. 7595 (B. 4427-10) or some other section of the Valentine law; or, to state the position of counsel a little-more precisely, it is contended, without conceding that the indictment, charges any offense under the law, that if it does charge such, it charges, only an infraction of Lan. Rev. Stat. 7595 (B. 4427-10), which defines, offenses punishable by fine only.

It is also said, in substance, that the indictment ought not to be-so drawn as that the court may, at its option, impose a penalty under either section of the statute, Lan. Rev. Stat. 7595 (B. 4427-10) or Lan. Rev. Stat. 7589 (B. 4427-4), which provides a penalty of fine or imprisonment, or both.

These contentions have induced a careful examination of this indictment, in connection with the statute, that we might arrive at the real intent' of the pleader as to which 'section should govern the procedure. Omitting matters not material, — the indictment, in substance, charges that Arnsman and numerous other named defendants,- on October 8, 1906, and continuously between said date and the day of the finding of the indictment, at the county of Lucas, were members of, .and each of them was a member of, and unlawfully and knowingly acted with, and in pursuance of, and aided and assisted in carrying out the purpose of an unlawful trust and combination of capital, skill and .acts, formed for the purpose of carrying out restraint in trade and commerce in increasing the price of, and preventing competition in, the sale of lumber, a commodity and article of commerce intended for sale, use and consumption in' the state of Ohio of all binds of timber, sawed or split for usé, including beams, joists, planks, boards, shingles, lath and all articles of every kind manufactured from timber and for the purpose of fixing and maintaining uniform and graded figures for the sale of lumber in the city of Toledo in said county, that the prices thereof might be increased, and for the purpose of making, executing and carrying out certain contracts and agreements by which they might keep the price of lumber at fixed and. graded figures -and establish the same as the prices of lumber in said city, so as to preclude a free and unrestricted competition among the members of said trust and combination in the sale of lumber and by which they bound themselves not to sell or dispose of any lumber for use in said city below the common standard of figures and agreed to pool, combine and unite their interests in the sale of lumber in said city that the prices thereof might be increased,

Section 10 of the Valentine act (Lan. Rev. Stat. 7595; B. 4427-10) defines specific violations of the statute and imposes a penalty therefor. Let us examine this section for a moment. It is as follows:

“It shall not be lawful for any person, partnership,, association •or corporation, or any agent thereof, to issue or to own trust 'certificates, or for, any person, partnership, association or corporation, agent, officer or employe, or the directors or stockholders of any corporation, to enter into any combination, contract or agreement with any person or persons, corporation or corporations, or with any stockholder or director thereof, the purpose and effect of which combination, contract •or agreement, shall be to place the management or control of such combination or combinations, or the manufactured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or ■output of any such article, and any person, partnership, association ■or corporation that shall enter into any such combination, contract or agreement for the use aforesaid shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than $50, nor more than- $1,000. ’ ’

As we construe this section, it prohibits any person, partnership, association or corporation, from issuing or owning trust certificates. 'That is the first prohibition of this section; and the second is that it ■shall be unlawful for the directors or stockholders of any corporation to enter into a combination, the purpose of which is to place the management and control of its affairs or manufactured product in the hands •of any trustee or trustees, with the intents and purposes subsequently .-stated in the section.

We do not construe this section as making it unlawful for any person to enter into a combination to prevent, restrain or diminish the manufacture or output of any article. The two things which are prohibited by the section are the acts connected with trust certificates and acts connected with the trustee, and the section does not reach further than that. It does not attempt to prohibit the entering into a combination for the general unlawful ‘purposes which are specified in Lan. Rev. Stat. 7586 (B. 4427-1), the purposes" which are explicitly stated in this indictment as those of the alleged combination or trust, of which it is said these defendants were members. We think, then, that the indictment was not drawn under Sec. 10. The question remains whether the indictment is good under Lan. Rev. Stat. 7589 (B. 4427-4), which provides:

“Any violation of either or all of-the provisions of this act shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, •or aid or advise in its commission, or who shall as principal, manager, director, agent, servant, or employer, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes, or orders thereunder or in pursuance thereof, shall be punished by a fine of not less than fifty ($50) dollars nor more than five thousand ($5,000) dollars, or be imprisoned not less than six months nor more than one year, ■or by both such fine and imprisonment. Each day’s violation of this provision shall constitute a separate offense.”

Also the following section, Lan. Rev. Stat. 7590 (B. 4427-5), which makes the special provision relied upon by the prosecuting attorney in ¡support of his claim of the sufficiency of this indictment — it provides:

"In-any indictment for any offense named in this act, it'is sufficient to state the purpose or effects of the trust or combination. And that the accused is a member of, acted with or in pursuance of it, or aided or assisted in carrying out its purposes, without giving its name or description, or how, when and where it was created.”

So many phases of this question have been presented to us, not only in oral argument, but in the voluminous briefs, that it will be impossible for me in the time which I have - allotted to myself for the rendering of this opinion, to review all of the contentions of counsel. We have been much impressed1 with the plausibility of many of the arguments presented, and if this were an entirely original question in this state, we might be largely influenced by some of the decisions from the courts of other states. But we do not deem it an open question in Ohio., We think that State v. Gage, supra, which determined some other questions in regard to the Valentine law, in effect, determined the question of the sufficiency of an indictment so analogous to the one before us as to make itt decisive of the case which we are considering. As already stated, State v. Gage, supra, was submitted to the court upon a demurrer to the indictment, and that demurrer was overruled. The defendant entered a plea of guilty and' afterwards moved in arrest of judgment upon the same grounds stated in the demurrer. We are not prepared to say, at least I am not, that any rights were lost to the defendants in the case at bar by failing to demur to this indictment; but we may safely say that defendants can make no larger claims after the non-filing of a demurrer, and after the entry of a plea of guilty, than they could have asserted upon the filing of a demurrer. In other words, they can make no larger claims of right, in the case at bar, than were available on demurrer before the‘trial court and in the Supreme Court in State v. Gage, assuming that the indictments were upon the same footing as to sufficiency. On page 211 of State v. Gage, we find a substantial statement of the form of the indictment as follows:

"The indictment charged ‘that Perley W. Gage, of said county, on the first day of November, in the year of our Lord, one thousand nine hundred and tyo, with force and arms, in said county of Delaware, and state of Ohio, and until this sixth day of January in the year of our Lord, one thousand nine hundred and three, said Perley W. Gage, late of the said county of Delaware, was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of, the Delaware Coal Exchange.’ ”

The word' "active” as here inserted is a term not used in the section of the statute defining what shall be a sufficient charge, and so1 far as the sufficiency of this clause is concerned, we do not deem the' allegation that the person was “an active member” as being of more weight than that he was “a member,” because either allegation is a compliance with the terms of the statute in this regard, and in State v. Gage, supra, there is no more statement of fact in the indictment as to how he acted than in the ease at bar. The name of the alleged com" bination is not contained in ,the present indictment, and it is conceded that no name need be given; the statute so says. I read further:

“ ‘The Delaware Coal Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, contrary to the form of the statute.’ ”

The indictment in State v. Gage, supra, is much more meager than in the ease at bar in some respects. Still it does include the statement that the membership was in an association “of persons” organized for certain purposes. The language of the indictment before us is, that “they were members of and each was a member of and unlawfully and knowingly acted with and in pursuance of an unlawful trust and com--bination of capital, skill and acts.” It does n-ot state that it was an association “of persons;” and it is true enough, as counsel in sub-' stance urge, that there may be a combination of skill and capital or labor and capital, where there are not two or more persons involved. In other words, an individual may combine his skill and his money, putting them* both into some employment, and there is no violation of law, no breach1 of public policy in that. The law contemplates a conspiracy, a com--bination of two or more persons, corporations or partnerships, and it 'does not contemplate as a criminal act the combination of all the faculties, all the resources, of an individual for the carrying out of any lawful purpose.

But the indictment in the ease at bar alleges that this entity — this' thing, whatever we call it, of which these defendants were members,, was an “unlawful trust and combination” and in this word “trust”'1 we have involved so much, after the definition of a trust in the act-itself, as to take away the force of very much of the argument that has been made. In the original enactment, which is not at this, moment before me, the act is entitled, if I remember aright, “An act to define trusts, etc.” In the present compilations- of the Revised Statutes,, the-title of the act is omitted; but Sec. 1 of.the act (Lan. Rev. Stat. 7586; B. 4427-1), gives the definition, “ A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them for either, or .all, of the following purposes:” It cannot be a “trust,” within the .definition of the statute, unless it be a combination of the 'sort which .the statute describes. It cannot be a combination of faculties or resources in the mind or hands of one person to accomplish some purpose, confined to his own breast. It must be a combination of two or more persons, partnerships, corporations or association of persons, and .when the pleader here says that these persons were members of “an ^unlawful trust,” he has stated all of those things; he has stated, in .effect, that they were members of a combination of two or more of these several kinds of things mentioned in the statute, persons, firms, .corporations or associations; and he has said also that it was a combina-ción of “capital, skill and acts,” using the conjunctive conjunction; 'he says it was formed for all of these purposes mentioned in Sec. 1 of -,the act.

Returning to State v. Gage, supra, we think that the overruling of the demurrer by the court below, and the affirmance of the sentence rendered upon the plea of guilty, because the Supreme Court did .affirm the judgment of the court of common pleas, reversing the cir.cuit court, which had set aside the judgment of conviction, is a néc-.essary recognition of the sufficiency of the indictment in that case. The 'indictment in State v. Gage, did not go so far as to allege that the Delaware Coal Exchange was an unlawful association or a trust. It attempted to allege specifically that it was an association of persons formed for what was claimed to be an unlawful purpose under this law. Here the pleader has adopted the other form, and instead of saying that it was an unlawful association of persons, he says that it was an unlawful trust. He has averments here from which there is no escape, that there was an association of persons or corporations, it matters not which, unless the indictment for indefiniteness was obnoxious to a motion to quash, had one been filed.

The result of this inquiry under the views entertained by our court, must manifestly be the overruling of the contention of the defendants that the indictment is fatally defective. There was suffi-fcient here to apprise the defendants that they were accused of a crime, and that crime the violation of the Valentine law.

The contention of the defendants that the court could not lawfully imprison, because, if the defendants were guilty of anything under the indictments, it conld only be an infraction of Sec. 10 of the act,we do not sustain; nor, on the other hand, do we sustain a contention made by the prosecuting attorney, if we understand him aright, that the court below, having once concluded that imprisonment must be imposed, there can now be no departure from that kind of penalty upon reversal. The sentence was imprisonment in the workhouse instead of in the jail, and it is agreed by counsel that because the sentence to the workhouse was not authorized, as has been held by the-Supreme Court in the ice trust case recently disposed of, this case must go back to the court of common pleas.

The ease, as stated, must be remanded. Following the decision of the Supreme Court, we hold that the sentence was erroneous in that-it prescribed imprisonment in the workhouse at labor as a part of the sentence. Under the statute as construed by the Supreme Court no-such an imprisonment can be imposed. The sentence of the court below, then, being erroneous, is to be set aside; and when the casé-is remanded it goes back to the court for the court to take it up at the-point which had been reached when the sentence was imposed.

Another contention which was made on oral argument upon the first hearing before us by one of the counsel for the defendants was-that the sentence which had been imposed by the court below was unconstitutional in that it was cruel and unusual. This question is not- > now before us, in view of the disposition which is made of the casein setting aside the sentence. It is enough for us to say that the court below has the same powers and the same rights as it had upon the-first hearing after the plea of guilty and before sentence. It has full discretion to fine or imprison, or both, under Sec. 4 of the Valentine act.

Parker and Kinkade, JJ., concur.