text:
    ATTACHMENT AND GARNISHMENT — JUDGMENTS.
    [Summit (8th) Circuit Court,
    October 2, 1903.]
    Hale, Marvin and Winch, JJ.
    William H. Iler v. Akron Fire Proof Construction Co.
    Attaching Creditor Entitled to Judgment for Costs Against Garnishee, When.
    In an action against a garnishee for failure to answer and pay over money to the judgment creditor, where it appears that the judgment against the debtor was satisfied after petition filed against the garnishee, it is error to assess costs against plaintiff without inquiry into the merits of his claim as it stood when he began his action against the garnishee.
    Error to court of common pleas of Summit county.
   WINCH, J.

On appeal from a justice court William H. Iler filed his petition in the common pleas court against The Akron Fire Proof Construction Company, alleging that he had recovered a judgment against one Edward Aungst, and in the same action had garnisheed the construction company ; that at the time the latter was served with process it was indebted to Aungst, but that it failed to appear and answer as garnishee, and, an order being issued on the garnishee to pay from the funds in its hands the amount of the judgment and costs against Aungst, it had refused to comply with the order, although it was indebted to Aungst at the time in said amount. The construction company answered, admitting that it had 'been garnisheed, but denying all else. As a second defense, it averred that all matters between plaintiff and said Aungst had been fully settled. Plaintiff replied, admitting that all matters had been settled between him and Aungst, but averring that said settlement was made after the commencement of the action in the common pleas court against the garnishee.

The record, while it does not disclose that any written motion for judgment on the pleadings was filed, contains the following:

“This cause came on to-be heard on the pleadings and the defendant’s motion for a judgment thereon. On consideration thereof the court finds that the reply is no valid answer to the defendant’s answer, and. said motion is granted. It is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against plaintiff for his costs herein.”

The case is in this court on petition in error to reverse said judgment for costs. It appearing from the reply that the cause of action against the defendant was settled after suit brought, the’ case comes within the decision of this court in the case of Standard Oil Co. v. Railway Co. 4 Circ. Dec. 670 (7 R. 442), and Sec. 5351 Rev. Stat. applies, and it becomes the duty of the court to apportion the costs between the parties as it may adjudge to be right and equitable. The matter of costs is a matter within the discretion of the court, and error-in the exercise of his discretion is rarely ground for reversal, but in this case it appears that by an inadvertence the matter of costs was never submitted to the trial judge in such manner as to enable him to apportion them as he might deem right and equitable. The only thing admitted by the pleadings was that the plaintiff’s claim against his judgment debtor had been satisfied. There still remained the issue between the parties' as to costs, depending upon whether the conduct of the garnishee had made this action necessary.

The court should have inquired whether it was true that at the time plaintiff filed his petition he had an unsatisfied judgment against Aungst; that the garnishee was then owing Aungst, and had refused to answer as garnishee or obey the order to pay the money due Aungst to his attaching creditor. These facts being found in favor of the plaintiff he would be entitled to a judgment for costs in his favor. This conclusion is not in conflict with the case of Friedlander v. Avondale, 4 Circ. Dec. 375 (8 R. 608), where it was held:

“If, after decree for plaintiff and appeal, the defendant satisfies the plaintiff’s claim, the appellate court will not try the case to determine who shall pay the costs, but will dismiss at defendant’s costs.”

It is true the two cases are analogous. This case was brought before a justice of the peace, appealed to the common pleas court and settlement-made while pending there. Friedlander v. Avondale, supra, was brought in the common pleas court, appealed to the circuit court and settlement made while pending in the latter court; but in Friedlander v. Avondale, supra, the justness of the original claim was admitted. That point is an issue in this case.

The judgment for costs is reversed, with instructions to the trial judge to determine the justness of the claim of plaintiff as it existed at the time he filed his petition, and to award the costs accordingly.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    PLEADINGS — ERROR.
    [Hamilton (1st) Circuit Court,
    November 29, 1902.]
    Swing, Giffen and Jelke, JJ.
    Herman Suer v. William Kalbfell.
    Error in not Arresting Case From Jury Cured by Evidence Offered by Defendant.
    Where the petition, in an action on a promissory note, is in the usual fqrm under the code, an answer admitting the signing thereof and denying the other allegations, puts in issue the questions of delivery and the title and possession of plaintiff, and upon failure to offer the note in evidence the case should be arrested from the jury on defendant’s motion. But where, after the motion has been overruled, the defendant offers the note in evidence and the questions put in issue are covered by evidence sufficient to sustain a verdict for plaintiff, and the error in overruling the motion does not appear to be prejudicial, the judgment will be affirmed.
    Error to the court of common pleas.
    Renner & Renner, for plaintiff in error.
    W. W. Symmes, contra.
   GIFFEN, J.

The petition filed in the common pleas court is in the usual form for an action under the code upon a promissory note. The answer is as follows :

“This defendant admits that he signed the note set out in the petition herein, but he denies that there is due to plaintiff from him the sum of two hundred dollars or any amount whatsoever, for the reason that said note was obtained from him, the defendant, under and by misrepresentations; and he denies each and every allegation in plaintiff’s petition contained, not herein specifically admitted to be true.”

The admission that the defendant signed the note is not also an admission that the same was delivered to plaintiff or that he is the owner and holder thereof. A denial of each and every other allegation in the petition put in issue plaintiff’s title to the note; and upon failure to offer the note in evidence the court erred in overruling defendant’s motion to arrest the case from the jury.

The note was afterwards however offered in evidence by the - defendant himself, and the questions of title to and consideration for the note were fully covered. by the evidence which is all brought before us in the bill of exceptions, and we think sustains the verdict.

It does not appear that the defendant was prejudiced by the error of the court in overruling the motion, and the judgment will be affirmed.


author: MARVIN, J.

text:
    STATUTE OF FRAUDS — CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1903.]
    Hale, Marvin and Winch, JJ.
    Catherine Gallagher v. Samuel E. Dettelba
    Money Paid on Verbal Contract for Conveyance of Real Estate Cannot be Recovered, When.
    Money paid by the vendee under a verbal contract for the sale of land, unenforceable under the statute of frauds, Sec. 4199 Rev. Stat., cannot be recovered as money paid without consideration where the vendor has purchased adjoining property to complete the tract to be conveyed as specified in the contract, has offered to. perform on his part and convey the property, and during more than five months was ready, able and willing to pel-form and had a warranty deed of the property properly executed and ready for delivery, although vendor after vendee had repeatedly refused to accept the deed and perform his part of the contract, conveyed the property to a third person.
    Error to the court of common pleas.
    James F. Walsh, for plaintiff in error.
    Carpenter, Young & Stocker, for defendant in error, make the following points:
    Where a contract is made for the sale of sheep at a stipulated price to be delivered at a certain time and place, fifty dollars to be paid in hand and the residue upon the deliveiy of the property, and the vendee after paying the fifty dollars without excuse refuses further compliance with the stipulations of the contract and the vendor, not being in default previously sells the sheep to other persons, after the time fixed for their delivery, such resale does not give the vendee the right to consider the contract as rescinded so as to enable him to recover back the sum paid by him on the contract. Ashbrook v. Hite, 9 Ohio St. 357, 358.
    It may be asserted with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfill all his stipulations, according to the .contract,,.has never been suffered to recover for what has been thus advanced or done.' ■ The defendant’s subsequent sale of the land does not alter the case. The plaintiffs had not only abandoned the possession, but expressly refused to proceed, and renounced the contract. To say that the subsequent sale of the lands gives •a right to the plaintiff to recover back the money paid on the contract, would, in effect, be saying that the defendant could never sell it without subjecting himself to an action by the plaintiffs. Ketchum v. Evertson, 13 Johns. 359; Hudson v. Swift, 20 Johns. 23; Green v. Green, 9 Cow. 46; Battle v. Bank, 5 Barb. 414; Utterbach v. Binns, 1 McLean 242 [28 Fed. Cas. 861],
    , By an agreement in writing, one Thomas Parnell agreed to purchase a certain freehold from Richard Barrell, for £3,000, and paid as a deposit immediately after the signing of the agreement, upon the contract, £300. It was stipulated that the purchase should be completed by June 24, 1874. The abstract of title and draft of conveyance were prepared. The purchaser delayed the completion of the purchase, and subsequently was adjudged a bankrupt. The trustee in bankruptcy disclaimed the contract, and required the repayment of £300. The court say “The trustee in this case has no legal or equitable right to recover the deposit. The money was paid to the vendor as a guarantee that the contract should be performed. The trustee refused to perform the contract, and then says, give me back the deposit. There is no ground for such a claim.” Barrell, Ex parte, 10 Ch. App. 512.
    Plaintiff must show a refusal by the other party to perform; or some act or neglect on his part which may be regarded as equivalent to a refusal. Unless excused from performance on his own part by the refusal of the other party to perform, or some conduct equivalent to a refusal, he must show that he has offered to perform his part of the agreement, or at least that he gave notice of his readiness to perform, or being so ready, requested performance by the other party. Failing to do this, he cannot charge the mere neglect of the other party to take any action as a refusal to perform, or as a breach of the agreement. Hapgood v. Shaw, 105 Mass. 276.
    To entitle a purchaser to recover back part of the consideration money paid on a contract for the purchase of land, he must show that he has tendered the residue of the purchase money and demanded a deed, so as to put the vendor in default. Hudson v. Swift, 20 Johns. 23; Green v. Green, 9 Cow. 46.

      Either party being ai liberty to perform the contract, and it not being the policy of the statute to discourage the performance of such contracts, it is generally held that there can be no recovery against a defendant not in default for benefits received. Thus it is held that money paid in performance in whole or in part of an oral contract for the purchase of land, cannot be recovered if the vendor is willing to convey the property on the performance of the conditions by the plaintiff. Keener, Quasi Contracts 232; Thomas v. Brown, 1 Q. B. D. 714; Collier v. Coates, 17 Barb. 471; Philbrook v. Belknap, (> Vt. 383; Abbott v. Inskip, 29 Ohio St. 59.
    An oral contract for the sale of lands is not utterly void by the statute of frauds; and therefore a party, who advances money on such contract, cannot recover it back, if the other party is able and willing to fulfill the contract on his part. Coughlin v. Knowles, 48 Mass. (7 Mete.) 57.
   MARVIN, J.

This is a proceeding in error to reverse a judgment of the court of common pleas of this county. "Hie plaintiff here was the plaintiff below.

The facts are these: On October 23, 1897, the plaintiff agreed with the defendant to purchase from him a certain lot of land in this city, a part of which was not at the time owned by the defendant, but he agreed that he would purchase this additional property, to wit, three feet front on Euclid avenue adjoining the lot which he then did own,-and that the plaintiff should have the property from the defendant for $2,475. This agreement was not reduced to writing, but was wholly a verbal agreement. The plaintiff paid to the defendant, at the time the agreement was made, the sum of $300. The defendant, immediately after the agreement was made, purchased the additional three feet of ground, and notified the plaintiff that he had so purchased and that he was ready and willing- to convey the property to her upon her paying the additional amount to be paid. The defendant continued to be the owner of .the land until April 6, 1898, when he conveyed it to another party, for the same consideration. The deed by which he conveyed to another party, and which is in evidence, expresses the consideration for which he did convey it as $3,000. The only evidence in the case is the deed made by the defendant to the third party and the answer which the defendant made, the first answer in this case. That answer was withdrawn and another substituted, but the plaintiff introduced that answer and rested upon it. It follows that unless the facts contained in this answer entitle the plaintiff to recover, she is not entitled to recover. Suit is brought by the plaintiff to recover the $300, which she paid at the date of the agreement. This answer which, as has already been said, was introduced in evidence by plaintiff, after setting-out that the defendant purchased the additional three feet of land, so that he became the owner of all he agreed to sell, says:

“Immediately thereafter defendant did purchase said three feet additional and' so notified plaintiff of said purchase and of his readiness to convey said forty-five feet of land” (that being all he had agreed to convey, and included the three feet) “to plaintiff according to the terms of said agreement, but plaintiff notwithstanding said notice utterly disregarded the same; within a few days thereafter defendant again notified said plaintiff personally that he had procured said property and was ready to make conveyance and complete the transaction, when plaintiff again refused and neglected to receive or accept said conveyance or to perform her part of said agreement and in like manner again on the twenty-ninth day of November and on the fourteenth day of December, 1897, defendant notified plaintiff of his readiness to convey said premises and urged plaintiff to accept said conveyance and comply with her agreement, but plaintiff still refused to give the matter any attention whatsoever.
“Then on the twentieth day of December defendant again notified said plaintiff in writing of his readiness and willingness to perform his agreement and make conveyance of said property and that unless she complied with her agreement by the twenty-seventh day of December, 1897, defendant would claim said $300 as forfeited by reason of plaintiff’s failure to perform, but plaintiff continued as before to utterly ignore such notice as well as the performance of her agreement.
“Defendant says he continued to own and hold said premises in fee simple free from any encumbrance whatsoever, and with a good and sufficient warranty deed duly executed and ready for delivery to plaintiff, until the sixth day of April,-1898, when he sold the same to said Sterling Parks at and for the sum of $2,475 and no more.”

Under this state of facts the plaintiff claims to be entitled to recover the $300. -

It is urged that the plaintiff is entitled to recover because the agreement could not be enforced, and, therefore, the payment was made without consideration. There was this consideration, however, that the defendant had agreed to convey, and if he carried out that agreement it would be a sufficient consideration. No effort was made by plaintiff to have defendant carry out that agreement. She had no notice from him that he would claim the protection of Sec. 4199 Rev. Stat., but she refused on her part to accept any deed, to carry out the agreement. It is true that at the time this suit was brought he had put it beyond his power to carry out the agreement, but many times before that she on her part had refused to carry out her agreement.

The case of Campbell v. Gittings, 19 Ohio 347, is in point here. It is true, that' in that case there was no failure to comply with the statute of frauds, in the agreement, but the party seeking to recover the money back in that case insisted that without tender on plaintiff’s part to complete the contract he was entitled to recover because the other party had not tendered the conveyance. The court held that was not a good defense.

In Browne, Statute of Frauds Sec. 122, we find-this:

“The right in the vendee of land by verbal contract, to recover what money or other consideration he has paid, is clearly confined to those cases where the vendor has refused or become unable to parry out the contract, the plaintiff himself having faithfully performed or offered to perform on his part. This rule is sometimes said to rest upon the ground that the vendor, when sued in such an action, merely defends upon the verbal contract, and that this is not prohibited by the statute. As a general proposition, however, we shall hereafter see that a verbal contract within the statute cannot be enforced in any way, directly or indirectly, whether by action or in defense. And it does not seem necessary to impeach that proposition, in order to sustain the rule in question. In such cases of suit by the vendee to recover the consideration paid, it has been suggested that the contract is substantially executed on the part of the vendor, he being able and willing to perform everything which in conscience he was bound to perform, and the vendee never having put him in default by a demand for title. But another and better view, taken in a well-considered decision of the supreme court of New York, is that the right of the vendee in any case to recover what he has paid stands upon the ground that the vendor has received and holds it without consideration, so that a promise to pay it will be implied; but that if the vendor is able and willing to perform on his part, no such want or failure of consideration can be -shown, and such promise is not implied.”

The case spoken of as “the well-considered decision of the supreme court of New York” is the case of Abbott v. Draper, 4 Denio 51, The last clause of the syllabus reads:

“But independently of these objections, -the suit could not be sustained without proof of a breach of the contract by the defendant; for although it was void by the statute of frauds it was not illegal; and the plaintiff could not recall what he had advanced so long as the defendant was willing to perform the agreement on his part.”

An examination of the case shows a course' of reasoning that commended itself to us.in support of that proposition. To the same effect is Beach, Contracts Sec. 533, and cases there cited. Durham Land & Improvement Co. v. Guthrie, 116 N. C. 381 [21 S. E. Rep. 952]; Green v. Railway Co. 77 N. C. 95; Foust v. Shoffner, Phil. Eq. (N. C.) 242.

In the last-named case, a very considerable payment had been made by the vendee in cordwood for a tract of land which by verbal agreement he was to purchase from the vendor, and the vendor expressed a willingness to perform, and the vendee, failing to perform after twelve months, the vendor sold the property to another, put it out of his power to convey. The court held that the payment could not be recovered back.

In this case, the payment was made on October, 23, 1897, and from that time forward until April.6, 1898, the defendant was ready, able and willing to perform, and had the deed ready. It is true, he did not tender the deed to plaintiff, but the plaintiff refused to accept any deed from him.

The judgment of the court of common pleas is affirmed.


text:
    PRINCIPAL AND AGENT — CHARGE TO JURY.
    [Hamilton (1st) Circuit Court,
    July, 1903.]
    Swing, Marvin and Mooney, JJ.
    (Judge Marvin of the Eighth and Judge Mooney of the Third Circuits sitting in place of Judges Giffen and Jelke.
    United States Board & Paper Co. v. Wallace F. Browne et al.
    1. Refusal to Give Proper Instructions Before Argument Reversible Error.
    Under Sec. 519Ü Rev. Stat. it is the duty of the court, and not a matter of discretion, to give to the jury after conclusion of the eviderice and before argument of counsel, such proper written instructions on matters of law applicable to the case as may be presented and requested by either party, and a refusal to give such instructions until after argument is reversible error.
    2. Agent May not Enter Into Contract Antagonistic to Principal’s .Interests.
    Where one acting as the director of a corporation votes for a contract with a copartnership of which he is a member, this of itself is not a ground for rescission, but if, in the carrying out of such contract, his efforts are for the interests of his partnership as against the interests of the corporation, the rule requiring good faith to his principal on the part of the agent, will be rigidly enforced.
    3. Charge Requiring Unerring Judgment and Ignoring Question of Ratification Erroneous.
    In an action for damages for breach of contract, brought by an agent against his principal, it is not error to refuse to give a charge that overlooks the question as to whether the principal, by acquiescence, shall not be‘deemed to have ratified the contract, and which instruction also requires not only absolute good faith on the part of the defendant in the execution of the contract, but the exercise of unerring judgment as well. *

    4. Principal May Rescind Contract With Agent, When.
    A contract constituting a copartnership selling agent of a corporation,, which was entered info on behalf of the latter by members of its board of directoes' who were interested in the profits on the contract that would accrue to the copartnership from the corporation, may be rescinded by the latter if unfair to it, and it is error to refuse to charge the jury, that, under these circumstances, the corporation had the right, at its option, to discharge such agent.
    5. Agent not Entitled to Commission on Sales Under Contract, When.
    Where a selling agency is employed by a corporation for a definite period at a fixed commission on all sales made, it is improper for such agency to charge and retain commissions on purchases made for its own use, although a member of the agency is a stockholder of the corporation and, as such, is entitled to purchase its goods at a, discount.
    6. Agent not Entitled to Discount Intended for Purchaser.
    A contract by which selling agents are authorized ,to make sales at a certain discount for cash, does not authorize such agents to retain the discount of a sale made by them to a purchaser who did not secure the benefit of the discount.
    7. Measure op Damages Does not Include Unauthorized Commissions and Discounts.
    In instructing the jury'as to the measure of damages for breach of a contract of employment to sell goods on a commission and at a discount, it is error to include in such damages the amount of commissions and discounts on purchases made by the agents for their own use, and the discounts saved on sales made by them to others.
    Erroe to court of common pleas.
    F. M. Gorman and Edward J. Dempsey, for plaintiff in error. ■
    Pogue & Pogue and C. Bentley Matthews, for defendants in error.
   MARVIN, J.

The parties here are the reverse of what they were in the court of common pleas; they will, however, be spoken of in this opinion as they stood in the original action.

The original plaintiffs were Wallace F. Browne and Wm. A. Stuart, doing business as a copartnership under the firm name of Browne & Stuart.

Before the last trial in the court of common pleas, the plaintiff, Wallace F. Browne, died and H. C. Yeiser, as administrator of the estate, was made a party in his stead.

The defendant is a corporation organized under the laws of the state of Indiana. The first trial of the case was to the court, a jury having been waived, and resulted in a judgment for the defendant. This judgment was reversed by this court and the case remanded to the court of common pleas. The case was then tried in that court to a jury, resulting in a verdict and judgment for the plaintiffs.

By proper proceedings this last judgment is here for review. A bill of exceptions showing the proceedings upon the trial, including all the evidence, is filed here.

The issues upon the last trial differed, somewhat from the issues as they were in the first trial, such difference resulting from an amended answer filed in the case and a reply filed thereto.

The plaintiffs claim that the defendant was a manufacturer of straw board for use in making' paper boxes; that on December 19, 1896, de-. fendant entered into a contract with plaintiffs, by which plaintiffs were to act as the selling agents of the defendant for one year from that date, and the defendant agreed to pay plaintiffs for services, as such agents, a commission of seven per cent, on the sale of all goods sold by them. Plaintiffs undertook the performance of the contract on their part, and acted as such selling agents up to April 26, 1897, when they were discharged from such employment; plaintiffs say they have been ready, able and willing to perform all the conditions of said contract to be performed by them, but they have been prevented from doing anything thereunder since April 26, 1897, and práy for damages.

The defendant says that whatever contract was made with the plaintiffs was the adoption of a resolution by its board of directors, on December 19, 1896, which was in these words:

"Be it Resolved, That we employ Browne & Stuart as selling agents for the company for one year, at a commission of seven per cent., all sales being subject to the usual cash discount of three per cent., that is, in ten days from the date of shipment, and all payments to be made in cash.”

At the time of the adoption of this resolution the plaintiff, Wallace F. Browne, was one of the board of directors of the defendant; the other members being Charles W. Bell, H. C. Yeiser, Jackson PI. Duncan and Henry M. Wrigley. The said Charles W. Bell was an employe of the plaintiffs, Browne & Stuart.

It is alleged on the part of the defendant that Browne & Stuart, Yeiser and Bell conspired together to have said resolution adopted for the purpose of giving to said Browne & Stuart the contract to act as selling agents of the defendant for a compensation much greater than should have been paid to them, and that but for the votes of said Browne, Bell and Yeiser, said resolution would not, and could not have been adopted; that they, the three last-named, all voted for it; that said Browne was president of the defendant company, and that said Yeiser was an intimate, confidential friend of both said Browne and Stuart; that said Bell made a contract with said Browne & Stuart, whereby he was to act for and with them 'in the sale of the product of the factory of said defendant, and to receive for his services one-half of the profits of the sale of said product provided for in said resolution to be paid to said Browne & Stuart; that the stockholders of said defendant company were ignorant of the terms of the resolution hereinbefore quoted, and of the fact that an)'- such contract had been made with said Browne & Stuart.

The answer further avers that said Browne & Stuart and Bell were promoters of said defendant company, and brought about its organization, and that it was supposed by the other directors that this contract was in part made as payment for their services in bringing about the organization of said corporation.

It is further averred that said Bell was the managing agent of the defendant company, and that said Browne & Stuart were to pay him in full for his services as such managing director out of the profits which they should make under said resolution; that the corporation was organized by the stockholders for the reason that most of them were consumers of straw board such as was to be manufactured by the defendant, and that the price at which such straw board was sold in the market was much higher than it could be produced for, and the design and purpose was to organize the défendant and produce the straw board and furnish it to the stockholders at a reasonable price- — much less than the market price which they were required to pay for said board.

By-law No. 8 of the defendant company reads:

“The stockholders of the company shall have the privilege of buying in any one year the product of the mill of this company in the proportion that the amount of the stock owned by them bears to the capital stock of the company, and the price to stockholders only shall not exceed $22.51 per ton for plain, steam-dried straw board, free on board, at the mill, and the price on all other products of the mill shall be on the same relative basis as determined by the board of directors, and the board of directors are hereby empowered and directed to have said deliveries made as soon as possible, preference being given to all orders of stockholders over those who are not stockholders.”

. The product of the mill was not greatly in excess of the amount which the several stockholders needed in their business.

There was no meeting of the board of directors after the date of the passage of the resolution employing Browne & Stuart as selling agents, until April 26, 1897, at which a resolution was adopted discharging said Browne & Stuart from their agency.

The course pursued by Browne & Stuart in the selling of the pro-ducís of the mill was to have all the goods billed to them; then they billed to the several stockholders the goods which they purchased under by-law No. 8 and charged the commission of seven per cent, on all these sales, and also credited to themselves three per cent, as for cash payment of the goods.

The claim of the defendant is that the contract was a burdensome one upon it, unfair in its terms, and brought about by the unfair action of the plaintiffs and Bell.

The defendant claims further that the course pursued by the plaintiffs in disposing of the goods and charging up both the seven per cent, commission and the three per cent, discount on goods taken by stockholders of the corporation, was taking an unfair advantage of the defendant, and that the action taken by the defendant in removing them was taken as early as it could be after the facts had become known to the stockholders and a board of directors could be secured which was fair and unprejudiced.

The plaintiffs reply to the answer, pleading a ratification of the contract by their being permitted to go on for the period of four months without interference by the defendant; and also denying all unfairness in the terms of the contract and in the manner of its procurement and its execution.

When this case was in this court before, it was held (Browne v. Board & Paper Co. 11 Circ. Dec. 102 (20 R. 351), that the mere fact that the contract was made with Browne & Stuart while Browne was one of the directors of the defendant company, was not, in itself, sufficient to avoid the contract.

It was further said by the court at that time that there seemed to be nothing unfair in the contract itself.

The court, in 'its opinion, called attention to the fact that the other issues sought to be made in the case, to wit, the improper manner in which Browne & Stuart had sought to carry out the contract, charging commission and discounts for sales made to stockholders of the company, and the question of ratification, were not made by the pleadings.

These questions are made in the present case.

Among other complaints made by the defendant is that the court refused to give in charge to the jury before the argument of the case, certain propositions furnished to the court by the defendant in writing, with a request that they be charged before argument.

Section 5190 Rev. Stat., Subdiv. 5, provides:

“When the evidence' is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

Under this provision of the law it is, undoubtedly, the right of a party to have given to the jury, before argument such written propositions as he may request, provided such propositions properly state the law applicable to the case. It is. not a matter of discretion with the court to withhold the giving of such propositions until after the case is argued, and, if propositions wer$ requested in this case which should have been given before argument, the refusal to give such propositions was error , for which the case should be reversed.

, The defendant submitted, in writing, eight propositions to the court; each was refused, and the proper exceptions taken to such refusal.

The 'first of these propositions was to the effect that if Browne was a director of the defendant company, and, at the same time,- a member of the firm of Browne & Stuart at the time the contract was made, such facts alone would warrant the company in rescinding the contract. The holding of the court in this case -when it was here before was sufficient to authorize the court to refuse to give this instruction.

The second proposition was that if Browne, Bell and Yeiser were interested directly or indirectly in this contract, and were members of the board of directors at the time the resolution was adopted, and voted for it, such facts would warrant the company in rescinding the contract. For the same reason that the court was justified in refusing the first proposition, it was justified in refusing this.

The third proposition requested was in these words:

“If vou find from the evidence, that the plaintiffs, Browne & Stuart, while acting as selling agents for the defendant company under the resolution of employment of December 19, 1896, so conducted the selling agenqy as to make a profit for themselves which might and should have gone to the defendant company, I charge you that such conduct on their -part would constitute a good reason for their discharge by the defendant company.”

This proposition should have been given; there was evidence in the case justifying it; there was evidence from which the jury might well have found that the manner in which this selling agency was conducted by Browne & Stuart was not for the best interests of the company.

Surely, if the contract entered into with Browne & Stuart, authorized them to deduct a commission of seven per cent, and a discount of three per cent, on such product of the mill as was taken by stockholders of the company under by-law No. 8, it was a most extraordinary contract for the company to have made, and, though this court said when the case was here before, that the mere fact that directors of the company were interested for the parties with whom the company made the contract, was not in itself sufficient to warrant the rescinding of such contract, still a contract made by directors of a corporation with themselves as individuals, or with copartnerships in which they are interested, should be scrutinized with care. The temptation is very strong for one to look after his own interests, rather than the interests of his cestui que trusts where such interests conflict.

Surely, where one acting as the director of a corporation, votes for a contract with a copartnership of which he is a member, if in the carrying out of such contract, his efforts are for the interests of his partnership as against the interests of the corporation, the rule requiring good faith to his principal^ on the part of an employe, should be rigidly enforced.

“A man cannot serve two masters.” And, if in the serving of the one, “he” (to use the language of the request) “so conducted the business as to make a profit for himself which might and should have gone to the defendant company,” he has endeavored to serve the wrong master, and the other may discharge him.

The fourth proposition requested is in these words:

“If you find from the evidence, that the plaintiffs, Browne & Stuart, while acting as selling agents for the defendant company, violated any duty which they owed to the defendant company as agents, or failed to sell the product of the defendant company to the best advantage for the defendant company so as to realize the best profits to the company, or if they, or either of them, interfered with the management of the defendant company’s business without authority from the board of directors, or if they failed in any other respect to perform their entire duty toward the defendant company, I charge you that such conduct would constitute, a justification for their discharge and the defendant company was warranted in dispensing with their services, and the plaintiffs cannot recover in this action.”

This proposition, if given, would have required the jury to overlook all questions of ratification, and also to have justified the defendant in discharging the plaintiffs for the slightest failure to perform their whole duty for the defendant.

We think the court was justified in refusing this proposition. It differs from the third in that it requires not only absolute good faith on the part of the plaintiffs, but the exercise of unerring judgment, and, as already said, would entirely do away with all questions of ratification. The refusal to give this request would not justify a reversal.

The sixth proposition reads:

“If you find from the evidence that the plaintiffs, Browne & Stuart, charged the defendant company with commissions upon goods which they,. the plaintiffs, purchased from the defendant company, even though the plaintiffs were entitled as stockholders to purchase a part of the product of the defendant company’s mill, the commissions which they charged, and took, upon any portion of the product of defendant’s mill, to which they might be entitled, was an improper charge and a wrongful act upon the part of the plaintiffs, and such conduct upon their part would justify their discharge by the defendant company.”

This proposition should have been given. If this is not the ia-w properly applicable to this case, then we have the extraordinary proposition that this company made a contract with Browne & Stuart by which they should not only have a commission on all the goods which they directly or indirectly sold to anybody else, but also that they might have a commission on goods which they themselves took by virtue of by-law No. 8. It seems incredible that such construction should be given to the contract. We think it clearly could not. have been intended by the company, and would be such an injustice as would justify the company in discharging the plaintiffs.

The seventh proposition was properly refused. A fair construction of the resolution of December 19, 1896, is that the mill was to be operated for a year and-the plaintiffs were to sell the product for that time. .

The eighth proposition reads:

“If you find from the evidence that the contract of agency between the plaintiffs and the defendant company, entered into on the nineteenth day of December, 1896, was, in any wise, unfair or unjust to the defendant company, then I charge you that by reason of that fact and the further facts, if you should so find, that Browne and Bell were directors of the defendant company and participated in the making of the contract with the defendant company while acting as such directors and were also interested in the profits of the contract which they were making for themselves with the company, the defendant company had the right, at its option, to discharge the plaintiffs, Browne and Stuart, and terminate the agency.”

It is possible that we would not feel justified in reversing the judgment in this case because of the failure to give this proposition, although in the main, we believe that it properly states the law. It is possible, however, that it might have misled the jury upon the matter of ratification. Except for this, we see no reason why the proposition should not have been given, for though, as already stated, the mere fact that directors of the corporation were interested on the other side of the contract would not alone justify a rescission of the contract, yet when by the votes of directors Of the corporation, who are interested on the other side of the contract, ,a contract unfair to the corporation is made — when such facts become known, the corporation is justified in rescinding such contract.'

Complaint was further made of what was said by the court in its charge to the jury. Among other things, the court said, as appears on page 347 of the bill of exceptions:

“It is very clear that some one was to have the benefit of three per cent, for cash payments on the sales, that is, for ten days, meaning thereby that if it was spot cash at the time of the transaction, or cash within ten days after the transaction, for such a transaction some one was entitled to three per cent, in addition to the seven per cent, that the agents were to receive as their commission for the sale of the product of the mill.”

We think this was calculated to mislead the jury. The purchaser of the goods was entitled to a discount of three per cent, for cash paid within ten days of the sale; nobody else was entitled to it. This three per cent, was not to be paid to the selling agents, but was to be allowed the purchaser. If the purchaser failed to get this, it would not be lawful for the agent because he had made a sale for his principal whereby he saved that t'hree per cent, to appropriate it to himself; his principal would be entitled to that.

In its instructions to the jury as to the measure of damages to which the plaintiffs would be entitled if they were entitled to recover in the case, the court directed the jury that in estimating such damages they should allow seven per cent, on the entire product of the mill from the time the plaintiffs were discharged, up to the end of the year for which they were originally employed; and, in addition thereto, said to them that if the plaintiffs paid cash, and it might be assumed that they would, they were entitled to an additional three per cent, as discounts on the sale, deducting therefrom whatever expense the plaintiffs would be put to in the performance of their work as sales agents.

We think this was erroneous. It is upon the same, theory as has already been commented upon, that the agents who made the sales were to have the three per cent, discount, and further, upon the theory that they were to have both commissions and discounts on so much of the product of the mill as they themselves took under by-law No. 8. What has already been said in the case express our views upon this subject.

In any proper view of the case, we think it clear that the damages allowed were excessive, and excessive because the jury must have computed something more than seven per cent, on the entire product of the mill in order to reach the verdict which they did. This they should not have done. For these errors the judgment of the court of common pleas is reversed, and the case remanded for further proceedings.


author: WINCH, J.

text:
    LANDLORD AND TENANT — TAXES.
    [Cuyahoga (8th) Circuit Court,
    December 7, 1903.]
    Hale, Marvin and Winch, JJ.
    Oscar J. Campbell et al. v. Mary Luck et al.
    1. Costs of Repairs Cannot be Recovered as a Counterclaim.
    There is no implied warranty on the part of the landlord, where there is no fraud or concealment, that the premises are fit or suitable for the purpose for which they are leased, nor is there an implied covenant on his part to put or keep them in repair; and where, during the term, a fire occurs near the premises and water from lire engines present at the time washes away a part thereof, rendering the same inaccessible and useless to the tenant unless restored to their previous condition and are not surrendered and abandoned by the tenant, but arc thereafter restored and repaired by him after a demand upon and refusal by the landlord to cancel the lease, restore the premises or make the repairs, the tenant is not, in such case, relieved from payment of the rent, and the cost of such restoration and repair cannot be recovered from the landlord in the absence of an agreement on his part to repair, nor can such costs be set up as a counterclaim in an action against the tenant for the rent.
    2. Action to Recover Taxes from Lessee not Prematurely Brought, When.
    Where the lessee is bound, under the terms oi his lease, to pay to the lessor all the taxes and assessments levied and assessed against the demised premises during the term, but fails or neglects to do so, and the lessor pays the whole amount due for an entire year at the semiannual taxpaying day in December instead of paying one-half thereof then and the remainder at the semiannual taxpaying day in the following June, which he has the option of doing under Sec. 1091 Rev. St at., the whole amount of taxes thereby became due from the lessee to the lessor under the lease at the time of such payment, and an a'ction therefor commenced by the lessor after such payment and before the taxpaying day of the following June, is not prematurely brought.
    Eeror to the court of common pleas.
    W. C. Ong and O. J. Campbell, for plaintiff:
    Impossibility of performance is good excuse for failure to perform.' 7 Am. & Eng. Enc. Law (2 ed.) 147; The Eliza, 2 Ware 318 [8 Fed. Cas. 459], See Butterfield v. Byron, 153 Mass. 517 [27 N. E. Rep. 667; 12 L. R. A. 571] ; Taylor v. Coldwell, 3 Best & Sm. 826; Lord v. Wheeler, 67 Mass. (1 Gray) 282; Gilbert & Barker Mfg. Co. v. Butler, 146 Mass. 82 [15 N. E. Rep. 76] ; Eliot Nat. Bank v. Beal, 141 Mass. 566 [6 N. E. Rep. .742] ; Parsons, Contracts (8 ed.) 672; Chitty, Contracts (11 Am. ed ) 1076; Walker v. Tucker, 70 Ill. 527; Board of Education v. Townsend, 8 Circ. Dec. 732 (15 R. 674) ; Bailey v. Brown, 6 Circ. Dec. 440 (9 R. 455); Clark v. Busse, 82 Ill. 515; Garretty v. Brazill, 34 Iowa 100; Cook v. McCabe, 53 Wis. 250 [10 N. W. Rep. 507].
    Beavis & Johnson, for defendant:

      Costs of repairs made by tenant not a proper counterclaim in an action for rent, when no obligation upon landlord to repair. Section 5069 Rev. Stat.; Edgerton. v. Page, 20 N. Y. 281; Pomeroy's Code Remedies Secs. 750, 606; Gay v. Davey, 47 Ohio St. 396 [25 N. E. Rep. 425], and the recent case of Shinkle Co. v. Birney, 68 Ohio St. 328.
   WINCH, J.

The action in the court below was brought by Mary Luck and others as lessors to recover from Hiram M. Brown as lessee and Oscar J. Campbell as his surety for rent and taxes claimed to be due under a written lease.

A joint answer was filed by the lessee and his surety setting up two defenses:

The first defense was that as to the claim for taxes the action was prematurely brought, being commenced on May 28, 1902, . the last half of the-taxes for 1901 not being due until June 20, 1902.

The second defense is in the nature of a counterclaim, it being alleged that during the term of the lease a fire occurred on the premises7 and water from the city fire engines present at the time washed away part of the demised premises, leaving a gorge about sixty feet wide and thirty feet deep across the front thereof, rendering the same inaccessible and useless to the lessee; that thereupon the lessee notified his landlord and demanded a cancellation of the lease which was refused; that he then demanded that the landlord cause said gorge to be filled up and the lot put in a tenantable condition, which was likewise refused; that finally the tenant filled the gorge himself, and paid the cost thereof, for which amount judgment is asked against the landlord.

A demurrer to both of these defenses was sustained by the common pleas court, and defendants not desiring to plead further the court took the account and rendered judgment in favor of plaintiffs, to all of which defendants below excepted and filed their petition in error, bringing before this court for review the sole question of the sufficiency of the defenses in the answer.

We think the triai court was right in sustaining the demurrer to-both defenses.

1. The lease provided that the lessee should pay all taxes and assessments levied or assessed upon the demised premises during the term of the lease, “all payable at 816 Scranton avenue, Cleveland, Ohio,” the' office of the lessors. It was not provided that the lessee should pay the taxes to the county treasurer.

The petition alleges that th.e lessors paid all the taxes' for 1901 on February 11, 1902.

These taxes were charged on the duplicate and were payable under Sec. 1091 Rev. Stat., which reads:

“Each person charged with taxes on a tax duplicate, in the hands of a county .treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the ‘twentieth day of December, and the remaining half thereof on or before the twentieth day of June next ensuing.” . _ >

The lessor therefore had the option of paying all the taxes for 1901, at the December collection; he did not elect to wait until the following June for the payment of the last half; having so elected to pay all the taxes for the year at one time and having so paid them, under the terms of the lease-the entire amount of said taxes for the full year was due him from the lessee.

%. Plaintiffs in error claim that the demised premises having been practically destroyed by the gorge, they are either relieved from the payment of rent, or entitled to maintain their counterclaim - under the rule laid down in 7 Am. & Eng. Enc. Law (2 ed.)-147:

“Executory agreements ordinarily are made on the implied condition that the performance of the agreement shall not be rendered impossible by the intervention of some accidental and uncontrollable superior agency.”

This rule does not apply to the case of an executed, lease of lands or tenements in the absence of express covenants to that effect.

In the first place the tenant did not surrender .the demised premises ; again the contract was not executory, but wholly executed so far as the lessor is concerned, and the damage to the premises occurred during .the term; finally, there was no intervention of an accidental or uncontrollable superior agency, nor were the premises destroyed — they were only impaired as to access.

It is well settled that in the absence of express covenants or conditions in a leasé, where there is no fraud or concealment, there is no implied warranty on the part of the lessor that the leased premises are fit or suitable for the purpose for which they are rented, and no implied covenant to put or keep them in repair. Linn v. Ross, 10 Ohio 412 ; Shindelbeck v. Moon, 32 Ohio St. 264; Hilliard v. Gas Coal Co., 41 Ohio St. 662; Shinkle v. Birney, 68 Ohio St. 328.

The case of Linn v. Ross, supra, involved the destruction of a leased building by fire and subsequently the legislature passed the following act:

“The lessee of any building which, without any fault or neglect on his part, is destroyed.or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee shall thereupon surrender possession of the premises so leased.” Section 4113 Rev. Stat.

But it was held, in the case of Gay v. Davey, 41 Ohio St. 396 [25 N. E. Rep. 425], that a surrender of the lease is necessary to obtain the benefit of this section, and in Avery v. House, 1 Circ. Dec. 468 (2 R. 246), that it applies only to the building and so much of the premises as are necessary to its enjoyment. It is not claimed that the statute applies in this case, but it is cited to indicate the only exception to the general rule above set forth.

From the general rule it follows that, in the absence of*any agreement on the part- of the landlord to repair, a tenant cannot recover from the landlord the cost of repairs made by him. 18 Am. & Eng. Enc. Law (2 ed.)"216.

In the case of Mumford v. Brown, 6 Cow. 475, Savage, C. J., says:

“It was not in the power óf a tenant to make repairs at the expense ef his landlord, unless there be a special agreement between them authorizing him to do this. The tenant takes the premises for better and fpr worse, and cannot involve his landlord in expense for repairs, without' his consent.”

In the case of Ward v. Fagin, 101 Mo. 669 [14 S. W. Rep. 738 ; 10 L. R. A. 147], it was held that any injury to the leased premises, and through them to the tenant, caused by the negligent act of third persons, cannot create or cast on the landlord a liability which, prior to such act, did not exist.

The case of Polack v. Pioche, 35 Cal. 416, is interesting, the facts in the case being similar to the facts in this case.

Judgment affirmed.


text:
    'bills of exceptions.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1903.]
    Hale, Marvin and Winch, JJ.
    Fritz Wolf v. Cleveland City Ry. Co.
    Bill of Exceptions Must Contain' all the Evidence to Have Action of Trial Court in Directing Verdict Reviewed.
    Where the bill of exceptions .does not contain all the evidence offered upon the trial, it will not be considered by a reviewing court for the purpose of passing upon the action of the trial court in withdrawing the case from the consideration of the jury and directing a verdict for the defendant.
    Error to the court of common pleas.
    Hermann Preusser, for plaintiff.
    Squire, Sanders & Dempsey, for defendant:
    Bill of exceptions must contain all the evidence. Wadsworth v. Cleveland Elec. Ry. Co. unreported; affirmed, Electric Ry. Co. v. Wads-worth, 66 Ohio St. 651, unreported [65 N. E. Rep. 1128]; Coil v. Willis, 18 Ohio 28, 30.
    Contributory negligence. Siek v. Street Ry. Co. 9 Circ. Dec. 51 (16 R. 393); Cleveland, P. & E. Ry. Co. v. Nixon, 12 Circ. Dec. 79 (21 R. 736); affirmed, Nixon v. Railway Co. 68 Ohio St.. 651.
   WINCH, J.

On the trial of this case in the court below, at the close of plaintiff’s evidence, the court directed a verdict for the defendant.

Motion for new trial was made and overruled and a certain bill of exceptions was prepared purporting to contain in narrative form the substance of the testimony of the witnesses. The trial judge refused to certify that the bill contained all the evidence produced at the trial, and it is now urged by defendant in error, which was defendant below, that because we do not have before, us all the evidence produced at the trial of the case we sbquld not consider the bill of exceptions for the purpose of reviewing the action of the trial judge in directing a verdict.

This court has several times ruled upon the identical proposition here submitted and has uniformly held that it cannot consider the bill of exceptions for the purpose of passing upon the action of the court of common pleas in withdrawing a case from the consideration of the jury and directing a verdict for the defendant, where the bill of exceptions does not contain all the evidence offered upon the trial. Such was the ruling of this court in the case of Wadsworth v. Railway Co. unreported, and we see no reason for departing from it.

There being no errors complained of except the direction of a verdict by the court, the judgment is affirmed.


author: SUMMERS, J.

text:
    MANDAMUS — MUNICIPAL CORPORATIONS — OFFICER AND OFFICES-POLICE — STATUTES.
    [Montgomery (2nd) Circuit Court,
    January 2, 1904.]
    Sullivan, Summers and Wilson, JJ.
    State, ex rel. Snyder, v. Hall et al. (Board of Public Safety).
    1. SectiÓN 167 of Municipal Code not an Exercise of Appointing Power.
    Tlie'last clause of Sec. 167 of the new municipal code (Sec. 1536-703 Rev. Stat.) providing that “No officer, * * * sergeant, patrolman, * * * or other employe serving in the police * * * department of any city of the state at the time this act goes into effect shall he removed * * *' . except in accordance with the provisions of this act,” is not an exercise of the appointing power inhibited by Sec. 27, Art. 2 of the constitution, notwithstanding4 the hoard of public safety is limited in making appointments to such department from those who are already officers or employes in the old department. Such officers and employes are not appointed to the old department in the first instance by legislative enactment, and are appointed to the new department by the board of public safety..
    2. Police Department Specifically Provided for by New Code.
    Section 213 of the new municipal code (Sec. 1536-912 Rev. Stat.) providing that “all officers elected by the people or appointed hy any authority * *' * and all employes * * * or officers in any municipal corporation, * * * shall remain in their respective offices or employments * * * until their successors are chosen or appointed and qualified, or until removed by the proper authority in accordance with the provisions” of the code, is a general section, which will control generally where no specific or special provision, is- otherwise made, and has no application to officers or employes of the police department, or the manner of appointing, removing and terms of such officers and employes, which are specially provided foi" in See. 148 ei seq. (See. '1536-684 Rey. Stat. et seq.)

    S. New Police Department Must be Made up From Members of Old Department.
    The legislative intent, in enacting Sec. 146 ei seq. of the new municipal code (See. 1536-682 Rev. Stat. et seq.) creating the board of public safety in cities and providing for the reorganization of the police department by such board, was that after the municipal council has, by proper ordinance under See. 149 (Sec. 1536-685 Rev. Stat.) provided for the police department and determined the number of officers and employes or places therefor, the board of public safety should then classify the places and fill them hy appointees to be chosen from among those who were members of the old department at the time the new code went into effect, to wit, May 1, 1903, and not that every member in the old department was entitled to and should be retained as a member of the reorganized department under the new form of government. Hence, the municipal council having hy ordinance, provided for a new police department and designated the number of officers and employes or places therefor, including that of chief of police, it was then incumbent upon, and proper for, the board to fill such offices and positions from the officers and members of the old department,whether they were de jure or de facto officers or members, and their action in appointing as chief of police the same person holding such office in the old department, and without an examination under Sec. 159 (Sec. 1536-695 Rev. Stat.), was a proper exercise of their power.
    4. Members of Old Department not Required to Take Examination.
    Section 159 et seq. (Sec. 1536-695 Rev. Stat.), requiring every applicant for appointment to the new police department to submit to an examination by the board of public safety, has no application to those who were in office or members of the old department at the time the new municipal code went into effect.
    5. Future Vacancies in new Department, how Filled.
    Appointments to vacancies in the police department after the reorganization under the new municipal code must be made by the mayor under and in accordance with Sec. 166 (Sec1.'1536-702 Rev. Stat.), which provides that when a vacancy occurs the mayor shall give notice thereof to the board of public safety, whereupon said board shall certify to the mayor the names and addresses of the three candidates standing' highest upon the register, for the class or grade, to which said position belongs, and the mayor shall then fill the vacancy by appointing one of the persons so certified.
    6. Office of Chief is a Public Office and Incumbent a Public Officer.
    The office of chief of police created by Sec. 148 et seq. of the new municipal code (Sec. 1536,-684 Rfev. Stat.), is a “public office,” and the person appointed by the board of public safety to fill the office is a “public officer.”
    7. Change in Judicial Decisions Should Have Prospective Operation on Contracts.
    When a statute has been settled by judicial construction, such construction becomes a part of subsequent contracts made under and with reference thereto, and a change of such construction should be given a prospective, and not a retroactive, operation so far as such change would affect existing contracts or contract rights, the same as would be given a repealing or amendatory statute.
    8. Whether Mandamus a Proper Remedy to Compel Board of Public Safety to Certify Names to Mayor, Quaere.
    Whether mandamus will lie to compel the board of public safety to certify to the mayor, under Sec. 166 (Sec. 1536-702 Rev. Stat.) of the new municipal code, the names of persons eligible to appointment in the classified service, for the purpose of selecting and appointing therefrom a chief of police where such board has previous thereto, in the reorganization of the police department, appointed to such office the chief of police in office at the time the code went into effect, quaere.

   SUMMERS, J.

This is a proceeding in mandamus. The petition is as follows:

“Charles Snyder, relator herein, states that he is the legally elected, qualified and acting mayor of the city of Dayton, Montgomery county, Ohio, in which capacity he brings this suit in the name of the state. Defendants, Charles S. Hall and Edward Gc Durst, were duly appointed directors of public safety on the — day of Ma)', A. D. 1903, the city council of said city having fixed the number of directors for said city at two by ordinance duly enacted, and said defendants have entered upon their office as such directors, and now constitute an organized and acting board of public safety in said city, in which capacity they are made defendants. Said city contains over 80,000 inhabitants.
“Prior to the enactment providing for the organization of cities and villages, passed October 22, 1902, the police force of the city of Dayton was organized and operated under the act of March 8, 1887, providing for the establishment of a nonpartisan police in the cities of the state of the second grade of the second class, and the subsequent amendments thereto. The city of Dayton was then, under the existing classification of cities, a city of the second grade, second class, and remained in such class as the only city of that class and grade until the passage of the law of October 22, 1902, which repealed all laws providing for the organization of such cities, including the law of March 8, 1881', and all the amendments thereto. By an amendment to’said law of March 8, 1887, passed March 17, 1892', to provide for the more efficient government of cities of the second grade, second class, four police directors were put in control of the department of police, instead of four police commissioners, in whom this control was put by the law of 1887. Such police directors were-appointed by the tax commission provided for such cities by the act of March 17, 1892, and the office of police commissioner was abolished.
“The law of March 8, 1887, created an office called superintendent of police, who was to be appointed by said board of police commissioners, as provided therein, and later by the board of police directors, as provided by the amendment of March 17, 1892. In both laws there was provision for the appointment, in a similar manner, of a captain of police, with other subordinates in the department.
“Under the provisions of the law of March 8, 1887, as amended, the board of police directors of the city appointed John C. Whitaker superintendent of police on the twenty-first day of February, A. D. 1901, for the term of one year. At the expiration of said year, about February 26, 1902, the said board reappointed said Whitaker to the same position, the term not being designated, but left indefinite. Under such appointment the said Whitaker was duly qualified and entered into said office and upon the performance of the duties and obligations annexed thereto, and continuously acted as such superintendent of police until the law of October 22, 1902, above referred to, took effect, when the said office was abolished, and all the laws providing for the government of cities of the second grade, second class, were repealed or superseded, including all the laws above referred to, except said law of October 22, 1902.
“After said law of October 22, 1902, went into effect, the city council of the city of Dayton, Ohio, to wit, on the-day of May, 1903, duly passed an ordinance, for the organization of a police force of the city of Dayton, in accordance with its provisions. In such ordinance there was provision -for a chief of police at a salary of $2,500 a year, the previous salary of the superintendent of police having been the sum of ,$2,500 a year; and provision for one captain of police at a salary of $1,200 a year, and other subordinates, such as detectives, surgeons, patrolmen, etc. There was no provision in said ordinance, or any other ordinance, making the chief of police the successor in any way of the superintendent of police, nor vesting in him any of the powers of said superintendent, nor submitting him to any of his obligations, nor in any way defining the duties of such chief of police; and while the duties devolved upon the chief of police, under the general provisions of the law of October 22, 1902, were and are, to some extent, similar to those .imposed upon the superintendent of police by the former statute referred to, yet the powers and duties were not the same, and the offices were different offices as an inspection of the statutes will show.
“Notwithstanding all of the above facts, the said Whitaker, after the law of October 22, 1902, went into effect, entered into and upon the office of chief of police, performing its duties, and assuming its obligations, and' he has continuously acted as such chief, in said office up to the present time, with the exception of a brief period during which he did not so act, claiming to be such chief. He was not appointed to said position by the mayor of the city, the relator herein, nor by any authority in the city of Dayton. The said Whitaker has taken no steps to bring himself within the classified service of said department of public safety, and has submitted to no examination.
“The relator avers, upon the advice of his counsel, that the law in force at the date of the appointment of Whitaker, as stated, was unconstitutional and void; that said police directors were not, in law, officers of the city of Dayton; that the law creating the office of superintendent of police was not a valid law and did not establish'such office, and that in right there was no such office or officer as superintendent of police at any time during his acting as such alleged officer.
“The relator avers further that on December 14, 1903, upon the advice of his counsel, he declared the said office of chief of police to be vacant, and immediately sent a_ formal notification of the fact of vacancy to the defendants as members of the board of public safety, requesting them to. forward and submit to him the names of three persons qualified to receive and accept the appointment as such chief of police under the laws of the state, and the regulations of the board pursuant thereto. The said board held its regular meeting on the evening of December 14, 1903, to which was duly presented the request of the relator as mayor. At such meeting, it refused to recognize the existence of such vacancy, or to forward and. submit any names to your relator from which to choose a chief of police; and such board will continue to refuse to subit any names out of which the relator, as mayor, may make a proper appointment, unless ordered by the court so to do, on the ground that no vacancy exists.
“Relator avers that it is a duty enjoined by law upon the defendants, as the board of public safety, to present to him the names of three, persons from the classified service from which he shall select a chief of police; and In the ordinary course of law he has no adequate remedy against them for such refusal.
“Wherefore, the relator prays that the defendants, Charles S. Hall and Edward G. Durst, as directors of public safety, and members of the board of public safety, be compelled to transmit and submit to him, as mayor of the city of Dayton, Ohio, the names of three persons in the classified service of said city, qualified to be chosen as chief of police; that an alternative writ of mandamus may first issue to them requiring them to show cause, by a day to be named therein, why they do not transmit and submit to him the names of three persons qualified to receive and accept-Said appointment as chief of police; and on the final hearing that a per-femptory writ be issued to 'compel the defendants, as such board, to submitted transmit the names of such persons. And he prays for such other :>r further relief as the nature of the case may require.”

Upon motion for allowance of an alternative writ, it was suggested that the allowance and issuing of an alternative writ be waived, and that was done.

The answer is quite lengthy, and I do not think -it necessary to read it verbatim. I have read the petition, because it is a sucqinct statement of the legislation that is necessarily under consideration in this case.

The answer admits many of the statements of fact set out in the petition, and then denies each and every other allegation, and then sets up at some length acts -of the mayor in recognizing Whitaker as the chief of police, and then comes this averment:

“Defendants further say that said board of public safety within thirty days after the organization of such board, did classify all offices and places of appointment and employment in the department of public safety in said city, in conformity with the ordinance of the council of said city, determining the number of persons to be employed therein, and did immediately thereafter furnish to the mayor, the relator herein, a list of all said places of appointment and employment in any way connected with said department within the classified service, together with the names of the incumbents, their compensation, and the nature of their duties; that said John C. Whitaker was named in such classification as chief of police and his salary as such chief of police was fixed at $2,500 a year, and he was to perform all the duties incumbent upon him as chief of police of said city; and said John C. AVhitaker has ever since been addressed and designated, and recognized and empowered to act as such chief of police of said city in all official communications by said relator as such mayor, and by said board of public safety, and has performed the duties of said office under the direction of said relator as such mayor, and said board of public safety.
“Defendants further answering say that said relator as' such mayor has a full, complete and adequate remedy at law.
“Defendants further allege that as there was no vacancy nor any prospect of a vacancy in the office-' of chief of police, no examination has been held of the applicants for said office, and that no register of candidates for the office of chief of police exists, from which names could be certified, even if there were a vacancy in said office; and defendants further allege that they have had under consideration the rules governing the ¡police department but that they have not all yet been completed or formulated, and that thus far no rule or rules have been made providing for the promotion of members of the police force from the classified service of the department of public safety of said city.
“Wherefore, defendants ask to be dismissed with their costs.”

To this answer a general demurrer was interposed and the case is submitted upon the general demurrer to this answer.

The principal contentions upon the part of counsel for the relator are that all laws relating to cities of the second grade of the second class, including that referred to, that is, the act of 1887 (84 O. L. 52), relating to the organization of the police department in the city of Dayton, under which Whitaker was appointed superintendent of police, are unconstitutional, and that an unconstitutional law is void. “An unconstitutional act« is not a law; it confers no rights; it imposes no duties; it affords no protection ; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby Co. 118 U. S. 425, 442 [6 Sup. Ct. Rep. 1121].

Thai: the law being unconstitutional, there never was any such office as superintendent of police, and that, inasmuch as there must be a de jure office in order that there may be a de facto officer, Whitaker was not even a de facto officer at the time when the new code went into effect, and that therefore he was not entited by virtue of that act to the office of chief of police; first because he was not in office when the code took effect, and second, there being no such office, the code did not merely continue an office already ift existence, or continue him in an office which was airead})- in existence, but. that it repealed the former law and created a new office, and attached new duties thereto, and that 96 O. L. 75, Sec. 167, insofar as it provides that persons in office or employment shall remain in, is unconstitutional in that it attempts to exercise the power of appointment, contrary to the express provision of Sec. 27, Art. 2 of the constitution. That the classification of, municipal corporations,-under which Dayton was a city of the second grade of the second class, is unconstitutional, is said to be put beyond question by two cases, State v. Beacom, 66 Ohio St. 491 [64 N. E. Rep. 427], and State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424].

We do not think the Supreme Court has anywhere held that there can be no constitutional classification of cities by the legislature, nol-is it certain that the act of March 8, 1887 (84 O. L. 52), providing for a police force in cities of the second grade of the second class would be held unconstitutional. Similar acts, too numerous to mention, have been sustained. We need refer only to the case of Seifert v. Weidner, 55 Ohio St. 646 [48 N. E.. Rep. 1117], affirming Seifert v. Weidner, 5 Circ. Dec. 506 (12 R. 1), and to the cases there referred to.

But assuming that it would be so held, we are not willing even to conjecture as to the extent of the mischief that would follow if all that has been done under such legislation must be declared illegal. If this legislation is to be held void from the beginning, then the acts of all who acted under it, were illegal; for there being no de jure office, they were not even de facto officers.

So far as contract rights are involved, the rule that should govern is, in our judgment, laid down in Douglass v. Pike Co. 101 U. S. 677 [25 L. Ed. 968]. Reading from page 687, Mr. Chief Justice Waite says:

“The true rule is to give a change .of judicial construction, in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive. After a statute has been settled by a judicial construction, the construction becomes, so far as contract ■rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in .its effect on contracts as an amendment of the law by means of a legislative enactment.”

See also Shoemaker v. Cincinnati, 68 Ohio St. 603.

How far that rule may be extended we do not undertake to determine.

The sections of the new municipal code, 96 O. L. 20, necessary to be considered are so numerous that I do not know, in the absence of a memorandum, and time to prepare one, that I can refer to them in the order in which they should be noticed to make plain the conclusion we have reached, but referring to the code, I refer to it by section and number.

Section 146 provides that:

“In every city there shall be a department of public safety, which shall be administered by two or four directors, as council shall, by resolution or ordinance, determine.”

Section 147 provides that:

“All powers and duties connected with and incident to the appointment, regulation and government of the police and fire departments of the city, together with the control of the fire alarm telegraph and telephone systems shall be vested in the mayor and the board of public safety as hereinafter provided.”

Section 149 provides:

“The police department of each city shall'be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, de-' tectives, patrolmen, and other police court officers, station house keepers, drivers, and substitutes as shall have been provided by ordinance or resolution of council.”

Section 148 provides that:

“The chief of police shall be the executive head of the department, under the direction of the mayor; provided, that the chief shall have exclusive control of the stationing and transfer of all patrolmen and other officers and employes in the department, under such general rules and regulations as may be prescribed by the board of public safety.”

Section 152 provides that:

“The chief of the police and the chief of the fire department shall have exclusive right to suspend any of the deputies, officers or employes in his respective department, and under his management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given him by the proper authority, or for any other reasonable and just cause.”

I think we may assume that the office created by this act is a public office and the chief of police a public officer. That would seem to follow from State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404],

Now, we have found that the code provides for a police department, for its control by the board of public safety; that it specifies what the force shall consist of and what the duties of the chief are. The next question that would arise is, how is this police force to be constituted or appointed ? it will be noticed that it says it shall be composed of the chief of police and such captains and lieutenants, etc., and patrolmen and other officers as shall have been provided by ordinance or resolution of council.

It appears from the. facts admitted in the pleadings that the .council of the city of Dayton, since the adoption of this code, has by ordinance, provided for these officers and employes. Now, how are they to be appointed ?

Section 153 provides:

“The directors of public safety shall classify the service in the police and fire departments in conformity with the ordinance of council determining the number of persons to be employed therein, and shall make all rules for the regulation and discipline of such departments and for the qualification and examination of all appointees thereunder, except as otherwise provided in this act.”

Section 158 provides that:

“The board of public safety shall within thirty days after the organization, of such board, classify all offices and places of appointment and employment in each city in the department of public safety, with reference to the examinations hereinafter provided for. The offices, employment and places so classified by the said board-of public safety shall constitute the classified service of the department of said city and no appointments to such places shall he made except under and according to the rules hereinafter mentioned.
“Immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices, employment and places in any way connected with such department within said classified service, with the names of the incumbents, their compensation and the nature of their duties: and said board shall from time to time promptly furnish to the said mayor in writing at his request all other information desired by him for the proper fulfillment' of his duties.”

Section 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause of removal of any person shall be forthwith stated in writing b)r the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.
' “No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this act.”

It will be noticed that the petition avers that the council passed an ordinance creating the department and specifying of what it shall be composed. The answer admits that the ordinance was passed, then avers -that within thirty days after the appointment the board of public safety, the members of that board did classify the offices as provided by Sec. 158, and that immediately upon the classification of said department, they furnished the mayor with a list of all the offices and places of appointment and employment in any way connected with the department, as provided for by ordinance, with the names of the incumbents, their compensation and the nature of their duties, their salaries, and that Whitaker was named as chief of police, and his salary was stated, and that he entered upon the discharge of the duties of the office, and has ever since continued to perform the duties of that office.

The contention of counsel for the relator is that this provision, that is, the latter clause of Sec. 1G7, which I read, and which reads that, “No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this act,” was an appointment of the old members of the police force to positions in these new offices or places created by the. code, and that the legislature, under Sec. 27, Art. 2 of the constitution, being prohibited from exercising appointing power, it necessarily follows that this provision of the code is unconstitutional and void, and that therefore Whitaker is not entitled to claim that he is an incumbent of or in the office of chief of police.

After considering all the provisions of the code that relate to the creation of the police and fire departments, giving them the best construction of which we are capable, the conclusion which we have reached is, that what was intended by the code was not that under this clause, that I have just read, every member of the police force or every member of the fire department in office when the code went into effect, was entitled to remain a member of the police or fire department created by the ordinance, but that the intention of the legislature was that the council should, by ordinance, provide a police and fire department and determine the number of employes or places that there should be to fill (that number might be considerably less than the number that were in existence under the old law), and that when council had determined the number of places, then the board of public safety was to classify those places and to fill those places by naming the persons who were then members of the old police and fire departments, who should fill the places in the new department created by the ordinance, and that that was in effect what they did when they complied with this provision of Sec. 158:

“Immediately upon the classification of such department, such board shall furnish to the mayor a list of all offices,. employment and places in any way connected with such department within said classified service, with the names of the incumbents, their compensation and the nature of their duties.”

The effect of that was to vest in the board of public safety the power to appoint the chief of police and the officers and employes of the police department from those who were members of the police department at the time the code went into effect. If there were 150 patrolmen under the old law, and but 100 places for patrolmen created by the ordinance passed by the council, the board of public safety would designate 100 out of the 150 old patrolmen, and they would be the patrolmen under this new code, and under the ordinance providing for the police department. In other words, the effect of this was, as I said before, to vest in the board of public safety the power to make these appointments from the old force.

Now, as to the provision for appointments in the future in case of vacancies in the force, how are the offices to be filled? The list is to be made up of persons who have taken the examination, and in cases of vacancies, tSie mayor notifies the board of public safety and they are required to certify three names to him, and from the names so certified, he is to make the appointment. But, it is clear that this provision as to examination does not apply to the men who were in office at the time the new code went into effect.

Reference is also made to Sec. 313 :

‘‘All officers elected by the people or appointed by any authority, and all employes under any boards or officers in any municipal corporation, and all officers or employes in any educational, charitable, benevolent, penal or reformatory institution in any such corporation, now serving as such, shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified or until removed by the proper authority in accordance with the provisions of this act.” i

It is contended, I believe, that under this provision, Whitaker’s term of office would have expired and there would be a vacancy. We do not think that section controls. The special sections to which I have already called attention are the ones that control in the police department. This is a general section, which is to control generally where no specific or special provision is otherwise made, and has no application here.

The question then arises whether or not this is the exercise of the power of appointment by the general assembly. The view we take is that clearly this legislation is not appointive. These men were not in by virtue of the provisions of the law, but the board of public safety was to designate who was to fill these places, and the question then would be whether or not this provision of the constitution was violated by the legislature limiting the selection to those who were already officers or patrolmen or "employes of the police department in existence when the code went into effect; and it might be claimed that there being but one superintendent of police, one chief executive officer of the department, that the legislature gave the board no discretion, no chance of selection, but required them to appoint Whitaker, and might as well have named Whitaker. This contention, however, we think is disposed of by Gleason v. Cleveland, 49 Ohio St. 431 [31 N. E. Rep. 802], where the general assembly directed the governor to appoint eleven persons to act as a commission for the erection of a monument, I believe, in Cleveland. There were only twelve persons out of whom he was to select the eleven. The contention was there made that that was the exercise of the appointing power by the general assembly, that it was obnoxious to this same constitutional provision. But the court, in the opinion, page 437, say:

“The objection that the persons composing the commission created for the erection of the monument, are officers, virtually appointed by the legislature, and that the act is therefore unconstitutional, is, we think, untenable. If they are officers, within the meaning of the constitution, the direction for their appointment by the governor from ‘the present monumental committee of the Cuyahoga county Soldiers’ and Sailors’ Union,’ is impersonal, and does not require the appointment of specific persons; whoever at the time the appointment is made, compose that committee, may be appointed by the governor, whether they were such members at the passage of the act or not.”

It does not follow that Whitaker would necessarily be the appointee. If Whitaker had died prior to the taking effect of the code and his successor had been appointed, then it would have been his successor who would have been the chief, or. whoever was in office at that time. Counsel criticise the case, and we are not disposed to take exception to their criticism. It is said that it is not in point, for the reason that this case is based on the ground that these persons were not officers. But, it is apparent from what I have read, that that cannot be so. The decision is upon the assumption that they were officers.

I refer to the case of State v. Perrysburg, 14 Ohio St. 472, reading from page 482. I do not know that it has any bearing, but it is interesting in view of the fact that there the action 'of the general assembly in undertaking to create or classify municipal corporations under the provisions of the constitution when it came into effect, was under consideration, and the court says', or the judge delivering the opinion, Judge Brink-erhoff, I believe:

“The corporate life of . the village of Perrysburg was a continuation of the life of the town of Perrysburg. It was a continuation; not an an-nihilatioii and a recreation. Even the official designations of the officers respectively of incorporated villages organized under the general act, were the same as under the special acts organizing them as ‘towns;’ they were still a mayor, recorder, and trustees, which, together, constituted a council. (Section 47.) And the officers in office, at the time of the taking effect of the general act, were, under its provisions, continued in office until the first Monday of April following, and until their successors should be elected and qualified.”

The old laws relating to municipal corporations were repealed. The law went into effect on May 15, 1852, I believe, and by force of this act of the general assembly, all the old city officers were continued in their places until the following April, nearly a year. That is attempted +o be done under the provisions of the aqt under consideration here.

At the time the application was made for leave to file a petition or for the allowance of an alternative writ, the court intimated a doubt as to the right to proceed in mandamus. That question we have not examined, for the reason that, upon examination of the whole case, we are clearly of the opinion that the effect of the legislation is as I have indicated; that is, to vest in the board of public safety in the first instance, the power to make the appointments from the existing police force, or from the persons in office at the time of the passage of the code; and whether they were de jure officers or de facto officers we think is wholly immaterial. It was in the power of the general assembly to provide for their appointment in the way it was done and for these reasons the demurrer to the answer will be overruled.