text:
    (Third Circuit—Logan Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Day, Price and Norris,- J J.
    JOHN BLANEY v. THE STATE OF OHIO.
    irregularities, not of essence, in selecting a jury not available for challenging array—
    (1). Mere irregularities and defects, not of essence, in the preliminary proceedings of selecting, drawing and summoning a jury, either grand or petit, affords proper grounds of challenge to the whole array or to individual members, but are not available and supply no sufficient basis for a motion to quash an indictment, or for a plea in abatement; nor will an indictment be held invalid for any defect or imperfection which does not tend to the prejudice of a substantial right of the defendant.

      Burglary and larceny — Possession as evidence of guilt — j! ' UN
    (2). On the trial of defendant on a charge of burglary and larceny, at defendant’s request, the court instructed the jury in substance, that the fact of possession by defendant of the stolen property, soon after the burglary and larceny was committed, iq not of itself sufficient to warrant a conviction of defendant, but that' to warrant such conviction there must be some direct evidence, implicating defendant in the crime, in addition to the fact of possession. Held: 1. The instruction was inaccurate in the use of the words “direct; evidence”; “competent evidence” “would have been correct”. 2. While the instruction was inaccurate it was not prejudicial to the substantial rights of the defendant.

      Error to the Court of Common Pleas of Logan county.
   Day, J.

At the February Term, 1898, of the court of common ¡pleas, the plaintiff in error, John Blaney,was convicted and ¡sentenced, on a charge of burglar and larceny of a lot of hides and furs, and error is prosecuted in this court to reverse that judgment and for a retrial of the case, because of ■errors said to be apparent on the face of the record.

Exception was taken to the indictment, first by motion to ■quash, and then by plea in abatement,neither' of which was sustained. The court refused to charge as requested on the subject of property recently stolen, found in the possession ■of the accused, but charged the jury on that subject in phraseology differing from that of the request. Exception was noted to the refusal' to charge as requested, and to the ■charge as given. These several exceptions form the princi-. pal grounds of plaintiff’s claim of error.

The motion to quash and the plea in abatement are based, substantially, on the same facts, consisting of alleged defects and irregularities in the selecting, drawing, summoning and impanneling of the grand jury that found and presented the indictment against the accused, and the two propositions are considered and disposed of as one.

The defects, pointed out in the preliminary steps preceding the indictment on the motion to quash and the plea in abatement, are: That the prescribed number of grand jurors, one hundred and twenty-five being the legal number for Logan county, was not written by the clerk on separate slips of paper, as the law requires, and placed in the wheel, and that no names were drawn from the wheel. Two of the grand, jurors were not summoned ten days before the jury was organized. The record does not show that the indictment was presented to the court by the foreman of the grand jury. That there was no such person in existence as F. M. Draper, yet that such name constituted one of the number that was placed in the wheel, and also one that was drawn out of the wheel for this particular grand jury, That John Vanalstine was misnamed in the summons as John Valentine, and the nusnomer was corrected by the officer. The panel was filled from the bystanders, by direction of the court, and F, N. Draper was put upon the panel and constituted foreman of the jury. These defects, with possibly others named and pointed out, formed the basis of the motion to quash and the plea in abatement. They are all in a large sense technical,and are mete irregularities, such as are usually incident to all merely human proceedings. Misnomer, if it amounts to that, in the names of Draper and Vanalstine, seems to be the most serious, and the underlying cause of ail the censure. The criticism is not made, either directly or inferentially, that the persons constituting the grand jury were not proper persons in every way, and competent to act in that behalf, but only that there were technical defects and irregularities in the proceedings in which they were selected, summoned and im-panneled. None of these things are of essence, and it is believed, unless they are they cannot properly be made the basis of a motion to quash the indictment, or of a plea in abatement, but must, by express statutory provision, be availed of, if at all, by challenge before the jury is impaneled and sworn. Section 5175 R. S. is as follows:

“A challenge to the array may be made and the whole array set aside by the court, when the jury, grand or petit, was not selected, drawn or summoned, or when the officer who executed the venire did not proceed as prescribed by law. Bat-no challenge to the array shall be made or the whole array set aside by the court, by reason of the misnomer of a juror or jurors; but on challenge, a juror or jurors may be set aside by reason of a misnomer in his or their names; but such challenge shall only be made before the jury is impaneled and sworn, and no indictment shall be quashed or verdict set aside for any such irregularity or misnomer if the jurors who formed the same possessed the requisite qualifications to act as jurors.”

This section is a direct and express inhibition of law against finding any indictment invalid by reason of misnomer or mere defective or irregular proceedings in the selection, summoning and impaneling of jurors; and as if to emphasize the legislative disregard, if not contempt, of mere technical matters in the administration of criminal law, section 7215, Revised Statutes, supplementing sec. 5175, was enacted, providing:

“No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceeding be stayed, arrested, or in any manner affected, by omissions not of the essence of the offense. * * * * Nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

These two sections, both of which are held to be valid legislation, cover the case at bar, and effectually put out of consideration as prejudicial errors, the defects and irregularities pointed out and relied on in the motion to quash and the plea in abatement None of them appear to have been to the prejudice of any substantial right of the accused upon the merits.

On the subject of possession by the accused of recently stolen goods, soon after the burglary and larceny was committed, the defendant requested the court to charge as follows:

“In the absence of direct evidence that the defendant, John Blaney,committed the burglary and larceny complained of, something more than possession and control by him of the property alleged to have been stolen is necessary to warrant a conviction of the said John Blaney in this case”

The court declined to charge in terms as requested, but did charge the jury on that proposition as follows:

“If you find beyond a reasonable doubt that the burglary and larceny was committed and by means thereof these skins, or a portion of them, and other property of Miller was stolen therefrom, and shortly after such burglary and larceny a part of the property so taken was found in the possession of defendant who either failed to give an explanation as to how he obtained possession thereof,or gave a false explanation, then in such case, such possession of said property by defendant, may afford the presumption of the fact that defendant is not only guilty of larceny, but of burglary as well, and warrant the jury in so finding; but in case there is no direct evidence that the burglary and larceny was committed, then the mere possession by defendant of the property or a portion thereof would not of its self warrant the jury in finding the defendant guilty.”

Exception was taken and noted to the refusal of the court to instruct the jury as requested,and also to the instruction as given. It would be difficult to detect or define any difference, other than in phraseology snd form, between the statement of the rule of law obtaining in such case, as given by the court and as requested to be given. They are substantially the same, and are in the main part a restatement, in substance, of the rule as stated by the Supreme Court, in the 19 Ohio St. Our notion of them is that both are largely correct, but incorrect in one respect. The statement that mere possession of stolen property soon after the crime is committed, &c. in and of itself, is not sufficient to base a conviction upon,is correct; but the further statement that direct evidence implicating defendant in the commission of the crime is necessary, also, to be present, we regard as inaccurate and having a tendency to mislead. Other evidence than mere possession there must be, but it is not necessary that it be direct evidence; it may, as well, be of the class known in the books as circumstantial evidence; and the circumstances, if competent and of sufficient gravity and weight, in connection with such possession, would unquestionably warrant and'sustain"a”verdict of guilty. Competent evidence, therefore, and not dirct would better express the rule obtaining in such case. But this error, if it is one, was procured by the accused,is directly in his favor, and he cannot be heard to complain of it. He certainly was not prejudiced in any degree.

Kerncin & Cassidy, for Plaintiff.

S, H. West, Prosecuting Attorney, for the State.

Upon a careful consideration of the entire case we have not been able to discover any substantial or prejudicial irregularity, and, the judgment and sentence of the lower court is affirmed,with costs. The cause is remanded to the common pleas court for execution of sentence.


source: Caselaw Access Project

author: Parkbe, J. King, J.:

license: Public Domain

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    Mar. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    FRANCES A. FISHER v. THE LAKE SHORE AND MICHIGAN SOUTHERN RAILROAD COMPANY.

      Goods left in custody of common carrier to be crated before shipment — Liability—
    (1). Where a carter conveys goods designed for shipment, to the .freight depot of a railroad company and deposits them on the platform .of such depot, where such goods are customarily delivered to and received by such company for shipment, and notifies the proper shipping agent of such company of the presence of such goods on the platform, and that they are to be shipped to a certain station on such railroad after one of the articles has been properly crated, and that a person will come and crate such article during the day, and the agent of the company expresses his assent to what is said and proposed. Held, this amounts to the delivery of such goods to the railroad company and its acceptance of'the custody thereof as warehouseman.

      Same — Evidence of negligence—
    (2). The plaintiff upon the trial having introduced evidence tending to establish the facts above recited, and also tending to show that later on the same day such goods were removed by some person and means and to some place unknown to her, and that upon demand said company failed to restore said goods to her, the court, on motion of the defendant, ruled that the plaintiff had failed to make out a case, and directed the jury to return a verdict for the defendant, Held, error. While it devolved upon the plaintiff to show that the defendant had been guilty of negligence in that it had failed to exercise due care in the premises whereby the goods had been lost, the facts above recited furnished some evidence of such negligence, and the case should have been submitted to the jury.
    Error to the Court of Common Pleas of Huron County.
   Parkbe, J.

Frances A. Fisber brought her action against the Lake Shore and Michigan Southern Railroad Company before a justice of the peace to recover an amount somewhat less than |100 on account of the loss of certain goods which she' had boxed up and designed to ship by the road of this company to Cleveland, Ohio, and which were lost. The case was tried before the justice, and the judgment of that court was appealed from. The case came on to be tried in the ■court of common pleas, and there, after the plaintiff had rested her case, the court, on motion of defendant, directed the jury to return a verdict, for the defendant, which was done. To this ruling and direction of the court the plaintiff excepted, and, on account of it, she prosecutes error here.

It appears that a day or two before the first day of May, 1896, the plaintiff had shipped certain household goods by the Lake Shore and Michigan Southern Railroad to Cleveland; that on or about the first day of May, 1896, she had some additional goods prepared for shipment to the same place, some of which were packed in a large store box, and some in a small box, and there was also a sewing machine and two rocking chairs. She employed a city expressman or carter — a Mr. Roscoe, — to take these goods to the freight office of the company to be shipped, and she directed him to not have them shipped until the sewing machine had been crated. It appears it was not properly crated so that it would be shipped by the railroad company.

Roscoe testifies that be conveyed these goods to the freight depot of the company in this city, and that he there unloaded them upon the platform. He testifies in part as follows:

“The boxes had cards nailed on them with the name of Frances A. Fisher written on them. These cards were on the upper side as I placed them on the platform.”

He also testifies that cards were tied upon the other articles — the chairs and sewing machine. He says:

“The place where I put these goods was the usual place for placing all such goods for shipment. I had been placing goods there almost daily for seven or eight years during the time I had been in the business at Norwalk. After placing the goods, I went into the dapot and then into the freight office of the company and sa-» Mr Wsrasr, the clerk in that office, whose duty it was to attend to the shipment, and I said to him, ‘I have just put on the platform the remainder of the goods of Miss Fisher that should have gone to Cleveland with her shipment of yesterday.’ Mr. Warner said, fall right’. I then told him that she, the plaintiff, did not want the goods shipped till 'the sewing machine should be crated; that Mr. Schaffer would be there to do it for her during the day.”

The goods having been taken to the freight depot of the company by one whose duty with respect thereto ended upon their being deposited there and putin charge of the railroad company, the carter having placed the goods upon the platform at the place where goods brought for shipment were customarily delivered to and received by the company, the agent of the company having been advised of the placing of the goods there for shipment, such shipment, as he was advised, to be made as soon as certain preparation of one of the árticles might be made, and the agent having, as we view the evidence, expressed his assent to such deposit of the goods and delay of shipment, this, in the opinion of a majority of the court,amounted to a delivery of these goods into the possession and custody of the railroad company arid the receiving of the goods by the railroad company as custodian thereof; not, however, in the capacity of common carrier, but in the capacity of warehouseman. The company having been advised that something remained to be done to the goods and with the goods by the shipper in order to prepare them for shipment, it would not, under such circumstances, be chargeable as common carrier.

It further appears that at about 5 P. M. of the same day Mr. Schaffer appeared at the depot to crate the machine,and that at the time he came there the box of goods on account of which this suit is prosecuted was not there; it had disappeared — 'Where or how does not appear from the record.

On the day following the plaintiff, who had the receipt for such part of the goods as had been actually shipped, appeared at the freight office of the defendant company in Cleveland and demanded her goods, including this box of goods which was not receipted for, Schaffer, who obtained the receipt for the goods from the Norwalk agent, having had no knowledge of the large box.

It appears that the company made some effort to find the goods but was unable to do so, and that it has not delivered the goods to plaintiff.

The company having received these goods, as we hold, as /warehouseman, it devolved upon the plaintiff, in order to maintain her case, to prove that the company was guilty, of negligence resulting in|the loss of the goods.

The petition as it was originally drafted and upon which the parties went to^trial undertook to charge the railroad company as common^carrier;' but after the evidence was in the petition was so amended as to charge the company as warehouseman.

The chief controversylfin the case arises upon the question whether there isfany evidence tending to show negligence upon the part of^the^railroadfcompany that would make it chargeable with the^loss of these goods as warehouseman. The court of common pleas being of the opinion that there was no evidence tending to show negligence, arrested the case from the jury.

On behalf o.f the defendant in error, our attention has been called to certain authorities which, it is contended, hold substantially that where goods ate lost under circumstances like these, where goods are not forthcoming on demand of the bailor and their loss is not accounted for, it is not sufficient for the plaintiff to show that, but that the plaintiff must'go farther and show affirmatively that the goods were lost through the negligence of the warehouseman.

From a reading of these cases we are of the opinion that they do not sustain this proposition. One case is found in 14th Allen, 448—the case of Sherman J. Cass v. Boston and Lowell Railroad Company. In that case the company had received and held as warehouseman a certain cask of sugar which was lost. . On the trial of the case, it was agreed that the liability of the defendant as common carrier had ceased at the time of the loss, and an action was brought against it as warehouseman.

When the plaintiff’s evidence was in the defendant asked the court to rule that the plaintiff had made out his case and that the defendant was entitled to a verdict. The evidence did not tend to show any negligence upon the part of the warehouseman in the care of the goods unless it was infer-able from the mere fact of the loss of the goods. The goods were lost, and the loss of them was unaccounted for, The case then stood before the jury substantially as the case at bar stood at the time it was arrested from the jury,

In the case in 14th Allen, the court refused to rule that the plaintiff had not made out a case.

The defendant then introduced evidence as to the care which they had used in the custody of the property, and after the evidence was all in the defendant asked the court to instruct the jury that the burden was upon the plaintiff to show that they had not exercised ordinary care; but the judge declined so to rule and instructed the jury that the burden of showing that the loss of the sugar had not been occasioned by any want of ordinary care and diligence on its part was on the defendant; that it was not bound to show the precise manner in which the loss occurred, and, if it was unable to do so, it might exonerate itself from the burden by showing that the loss did not happen from any neg-' ligence or want of proper care on its part.

Chapman,'J,, delivering the opinion of the court, takes up this first question as to the ruling of the trial judge upon the motion to take the^case from the jury, and this is his language upon .that:

“The court are all of the opinion that the refusal to order a verdict for the defendant at the trial was right. The plaintiff’s evidence showed that the defendants had received the property, and, on demand, failed to deliver or account for it. There was nothing in this evidence to show that they had any reason for not delivering it ■— or that any cause but their own , neglect or default prevented the performance of their contract. There was certainly a case to go to the jury.”

Then Judge Chapman takes up and discusses -the other question as to the correctness of the ruling of the trial judge upon the question of the burden of proof, and the majority of the court in that case were of the opinion that the trial court was right upon that^proposition, But Bigelow, Chief Justice, dissented.

The case of Willett and Another v. Rich and Another, reported in the 7, Northeastern, at page 776, overrules Cass v. R. R. Co. upon that second proposition, but does not, as we understand the case, touch upon t.he first proposition discussed and decided by the court there. The syllabus in this case reads:

“In an action of contract against a warehouseman to recover damages for injuries to goods intrusted to him, the burden of proof is upon the plaintiff to show that the goods were injured by the negligence of the defendant while they were in his custody; overruling Cass v. Boston & L. R. R. Co. 14 Allen, 448.”

In the opinion in this case, Morton, Chief Justice, uses language which indicates that his views are in harmony with the views of the court in Cass v. R. R. Co. upon that first proposition, i. e. as to whether or not a prima facie case had been made out by showing the delivery and receipt of the goods and the subsequent demand for the goods and the failure to deliver them.

This language is used on page 778:

“It may be that, where there is a refusal to deliver, the plaintiff may máke out a prima facie case upon proving this fact, because such refusal, if unexplained, is some evidence of the breach of the contract. But this does not shift the burden, originally on the plaintiff, to prove a breach of contract. The burden of proof still remains on the plaintiff.”

It seems to us that there has been some confusion in the discussion of this case as if it involved a consideration of a question of the burden of proof. We do not understand that such a question is here at the present moment. The real question is whether or not a prima facie case was made out that should have been submitted to the jury- — 'Whether there was any evidence tending to support all the material allegations of the petition, and therefore requiring that the case should be submitted to a jury.

In the case of the New York Life Insurance Company v. La Boiteaux, 4th Record, page 1, found in Bates Digest, 1st volume, p. 950, this is said:

“The burden of proof dees not shift as the weight of evidence alternates. The presence of presumptions and the necessity of counteracting them by proof pertains to the weight of evidence,and not to the burden of proof.”

We are of the opinion that the ruling of the court as to the burden of proof in Willett and Another v. Rich and Another, in the 7, Northeastern, supra, is correct, but that does not at all affect the ruling of the court in the first case upon the other proposition as to whether or not a case was made out that required that it should be submitted to a jury-

Our attention is also called to a case reported in the 2nd Southern Reporter,at page 255. It is the case of the Illinois Central Railroad Company v. Trounstine and Others. This also was cited in support of the position of counsel for defendant in error upon the question of the burden of proof.

The first proposition of the syllabus reads as follows:

“In an action against a railroad company for loss of baggage delivered to it for shipment, the court gave an instruction to the effect that, if the goods were delivered to the agent of defendant to be carried over its road to a certain point, whenever plaintiff’s salesman ordered them ,to be shipped, and they were burned before shipment, them it was incumbent on defendant to show that they were burned without any fault on its part. Held, that the instruction was erroneous, whether on the theory of a bailment for hire or a gratuitous bailment.”

Upon the first reading of that it would seem that the court had instructed the jury that upon the facts recited appearing the burden of proof would shift; that it would then devolve upon the warehouseman to introduce some evidence exonerating itself from liability. But that is not what was in fact charged, The words that are italicized in this syllabus are, “without any fault”.

The fault with the charge was, as found by the supreme court, that it imposed too high a degree of care upon the-warehouseman, In the opinion, it is said:

“Under the facts assumed by this instruction, a higher degree of proof and care was imposed on appellant than is required'by law. Whether, under these facta, appellant would have been a gratuitous bailee, or a bailee for hire, it was not liable for any, even the slightest, fault or want of ■care, If a gratuitous bailee, it was liable only for gross negligence, and, if a bailee for hire, only for reasonable and ■ordinary care. ”

G. H. Walker, for Plaintiff.

C. P. & L. W Wickham, for Defendant. ,

Whereas, the instruction was to the effect that if it had been guilty of any 'want of care, even the slightest, it would be liable.

As the only criticism of this charge is with respect to the degree of care which the rule therein stated imposed upon the bailee, the decision by plain implication approves the proposition that under the circumstances recited it was incumbent on the bailee to show that such care was exercised as the nature of the bailment required of the bailor. But this goes farthér than we need go in this case.

A majority of this court are of the opinion that the.case referred to in 14 Allen is an authority which supports the contention of the plaintiff in error, that the rule there stated is reasonable and just, that the cause should have been submitted to the jury,and that the court erred in directing a verdict for the defendant. For that reason the judgment will be reversed.

King, J.:

I-cannot concur in the judgment reversing the court of common pleas, nor in so much of the opinion of a majority of the court as holds that this record discloses any evidence that ought to have been submittad to the jury showing a delivery of the box of goods in question and its acceptance by the railroad company.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith and Swing, JJ.
    M. T. HUTCHINSON v. CATHERINE A. McCARRON et al.

      Conveyance to guardian individually of land bought with wards’ money —Innocent holder of mortgage and notes for balance of purchase money superior to equitable lien of wards—

    Property was purchased by a guardian by oráer of court with the-money of his wards, but the deed was executed in the name of the guardian individually, who gave his individual notes and mortgage for the balance of the purchase money, the understanding being that the guardian would afterwards convey to the wards, of all of which the vendor had full knowledge. The-deed actually so made by the guardian to the wards, however, was never delivered to them, and afterwards the guardian conveyed the land to his wife who made an assignment for the benefit of her creditors, and the assignee commenced proceedings to-sell the land. The vendor of the land had before that assigned the mortgage aud notes to different innocent parties. Held, as. between such innocent assignees of the mortgage and notes, and the wards, that the lien of such assignees of the mortgage and, notes was superior to the equitable lien of the wards.
    Error to the Court of Common Pleas of Warren county.
   Smith, J.

We are of the opinion that the judgment of the court of common pleas was right, and should be affirmed.

The controversy arose over the distribution of the proceeds of a tract of land sold by Hutchinson, assignee of Mrs. MeCarron, to pay the liens thereon. It appears from the finding of facts that this real estate had been sold and conveyed by Levi Mills, as assignee for the benefit of creditors of Mrs. Hyatt, to James T. MeCarron for $5,500. Mr. MeCarron paid $1,500 in cash and gave notes for the residue secured by a mortgage on the real estate, which was duly recorded. . Afterwards he paid $500 on one of the notes, and subsequently to this payment, Mills transferred the notes, indorsing them without recourse to different per. sons, they paying full value therefor and taking them without any knowledge of an equity in the land or those notes of any other person than the mortgagee.

Before McCarron contracted to buy the land from Mills, he had been appointed as the legal guardian of Ruth, Henrietta and Frank McCarron by the probate court of Brown county, Ohio, and had been by that court authorized and empowered to use $2,000 of his wards' money in the purchase of real estate, the title to which was to be taken to said James T. McCarron as guardian, and Mills had been advised of those facts. McCarron wanted to buy this land as guardian, but Mills would not make such an arrangement, but told him he could buy it in his own name- — make the cash payment and execute the notes and mortgage for the deferred payments, and then convey the property to the children. This course was pursued, and McCarron executed the notes and mortgage and paid $2,000 of his wards’ money to Mills on .account of the purchase money, and Mills knew that the money was in McCarron’s hands as guardian of said minors. He, (McCarron) and his wife, subsequently executed a deed for the land to the children, but it was not delivered to them;. Afterwards McCarron conveyed the land to his wife, and she made an assignment of her property to Hutchinson for the benefit of her creditors. Hutchinson commenced proceedings for the sale of the real estate to pay the liens thereon, and the mortgagee and his assign*ees and the minors were made parties and set up their respective liens — the claim of the minors being that they had an equitable claim to the land by virtue of the facts stated, and that Mills knew this when he took his mortgage, and therefore it was superior to his claim on the mortgage, and to that of his assignees. It also appeared that when Mills assigned the notes to the purchasers, he did not at the same time or until some time afterwards indorse and transfer the mortgage itself to his assignees.

As against McCarron himself,unquestionably the minors, by virtue of the facts stated, had an equitable lien on the land which the court would enforce for the purchase money they paid on the land, and the same would be the case, we suppose, as to those persons who afterwards had acquired title to or on interest in the land from McCarron, with knowledge of the facts. But would they be entitled to such relief as against Mills or those to whom he assigned the notes and mortgage? We think not. Suppose the land had been conveyed to McCarron as guard-ian of these minors, and he had used |2,000 of their money in.making the cash payment and given his notes and mortgage for the deferred payments. Would not the mortgage lien be the first and best one on the property? The interest of the minors then would be subject to the mortgage lien for the purchase money — and we-think the same rule should apply here and any equitable lien of the minors be postponed to the legal lien of the mortgagee. The execution of the deed and the mortgage is one transaction. McCarron took the land subject to the legal lien of the mortgage, and the equitable lien of the minors was subject thereto,even as against Mills, and therefore as to his assignees to whom he transferred the notes, thereby transferring an interest in the mortgage. But a transfer of the mortgage itself was afterwards made.

Burr & Brandon, Attorneys for McCarron heirs.

F. M. Glevinger, Attorney for the Assignees of mort-* gage claims.

Judgment below affirmed.


author: King, J.

text:
    (Sixth Circuit—Huron Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    EDMUND L. SANDERS v. SARAH E. SHEPHERD.

      Contract with married woman — Liability—
    (1.) The statutes, sections 4996 and 6319, providing in effect that á married woman shall be sued as if unmarried, and that when so sued like proceedings shall be had and judgment rendered as if she were unmarried, afford the exclusive remedy for enfoice-menr of the contracts of married woman.

      Same — Equity now without jurisdiction to give specific lien on property of married woman—

    (2.) Courts of equity have no jurisdiction to decree a specific lien on particular property for an amount due on the contract of a married woman made by her since the enactment of those statutes.

      Same — Action at law—
    (3.) A suit on such a contract is, under those statutes, at law, and the relief is a personal judgment enforcible by an execution and levy.
    Error to the Court of Common Pleas of Huron County.
   King, J.

This is a proceeding in error brought for the purpose of reversing the judgment of the court of common pleas. One Levi Lee began an action against Hannah E. Ward in September, 1885, on two notes that were held against her, one dated September 1st, 1881, for, $100, and one of March 10, 1882, for $30.

He alleged, and his petition showed upon the face of it, that said Hannah E. Ward was surety on each of these notes, and was a married woman.

Such proceedings were had in that action that in November of 1885, the court rendered this decree:

“Now comes the plaintiff by his attorney,and the demurrer of the defendant to the plaintiff’s petition having been overruled and the defendant being in default for answer,the court find that the allegations of the petition are .confessed by her to be true, and that the defendant is indebted to the plaintiff in the sum of One Hundred and Sixty-four and Dollars. The court further find as allegd in the petition that said defendant was at the time of incurring said liability a married woman; that she was possessed of the property in the petition described as her own separate estate, and that she intended to and did charge the same with the payment of said indebtedness. It is therefore considered by the court that unless the said defendant shall within ten days from the entry hereof pay or cause to be paid to this plaintiff the said sum of 1164,13, together with interest thereon at the rate of eight per cent, and his costs herein expended, said premises shall be sold as upon execution and an order shall issue therefor to the sheriff of said County of Huron, and that said Sheriff bring the proceeds of said sale into court for its further order. ” .

That was the decree, as appears upon its face, declaring this amount that was due, a lien upon the specific estate of Hannah E. Ward, and ordering it sold to pay up the lien. It appears that after that, an order of sale was issued and returned immediately by order of the plaintiff’s attorney, and that on October 23, 1890, an execution was issued to the sheriff, and that was returned by order of the plaintiff’s attorney but not until a levy had' been made upon the real estate described in the petition, to-wit, lots 68 and 69, in the town plat of the village of North Fairfield, Huron county, Ohio.

The defendant in error, Sarah E. Shepherd, was defendant below, and the agreed statement of facts on which the case was submitted to the court below,shows that she is the owner by inheritance, of the decree or whatever there is of this judgment- — -the decree that was rendered in favor of Lee.

The plaintiff in error, Sanders, on November 2, 1888, took and.received a note of one Horace Ward, who assigned to him for that purpose, a note and mortage as collateral security for this note. The note assigned as collateral security was executed by H. E, and Volney Ward, and was dated March 3,1888. The note was for $110 secured by mortgage on these premises —- lots 68 and 69 on the town plat of the village of North Fairfield, executed by Hannah Ward.

The question submitted to the court below was, which of these claims was the prior lien upon this property. The court below held that the decree rendered in 1885, being prior in date, was the prior lien upon these premises. It is contended here that that holding was incorrect, the argument being that the statutes of Ohio have, by their enactment, changed the method of procedure against married women, so that in order to sue her now upon a claim like this —■ upon a note or a contract for the payment of money, she must be sued as a feme sole, and such judgment rendered against her as though she were unmarried, or such proceedings had as though she were unmarried; that this legislation has effected a complete change from the former equitable proceeding which was or might be brought where a married woman was liable to have her separate estate charged with the payment of a claim in equity. The proposition, when submitted, was new to me, and I think it struck the court as different at least, from what we had supposed the law to be.

The statute in force when this indebtedness was incurred is found in the 76th volume of Ohio Laws, page 3. It was enacted in 1879, 76 Ohio Laws, p. 3, and provides that:

“Where a married woman is a party, her husband must be joined with her, except that where the action concerns her separate property, or is upon a written obligation, contract or agreement, signed by her, or is brought by her to set aside a deed or will, or is brought by her to collect a legacy; or, if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business, or is between her and her husband, she may sue or be sued alone. And in all cases where she may sue and be sued alone, the like proceedings shall be had, and the like judgment rendered and enforced in all respects as if she were an unmarried woman”.

That was repealed and re-enacted in 1884, and is found in volume 81, at page 65. I should say that in the mean time, there had been a revision of the statutes which divides that section into two sections, and the revision known as -1996 and 5319 was in force from 1880 to 1884, and at the commencement of this action, the statute read as follows, (section 4996):

“A married woman shall sue and be sued as if she were unmarried and her husband shall be joined with her only when the cause of action is in favor of or against both her and her husband. ” •

Section 5319 reads as follows:

“When a married woman sues or is sued, like proceedings shall be had and judgment rendered and enforced as if she were unmarried, and her property and estate shall be liable for the judgment against her, but she shall be entitled to the benefits of all exemptions to heads of families.”

Under that statute, the supreme court have rendered„some decisions. I can only briefly refer to them, and the first is in the 46th Ohio St. at page 183. The court say, on page 191, (speaking of the case before them):

“If no personal judgment could have been awarded against her and enforced by execution,it might have been proper to invoke the remedy in equity of specifically subjecting her separate property. But under the statutory provisions herein considered, authorizing a personal judgment against a married woman followed by execution where the action concerns her separate estate, an effective remedy is afforded, and a creditor should not, by adopting the form of chancery procedure where he has no specific lien, be permitted to hold her separate estate to any greater extent, or by a firmer grasp, than he could, under like conditions, hold the property of her husband or that of an unmarried woman.”

In the 47th, Ohio St. at page 423, is cited a case which was an action upon an agreement incorporated, or alleged to have been incorporated, in a deed. A husband purchased certain lands and gave a mortgage upon it for the purchase money,and while that mortgage was outstanding, he, through a trustee, conveyed this land to his wife. The mortgage was foreclosed and the-property sold, but did not sell for enough to pay the mortgage. By supplemental petition in the same action it was alleged that as part consideration for the conveyance to the wife, she did then and there assume the payment and discharge of the promissory note and money evidenced thereby which are set up in the original petition, and made the indebtedness evidenced thereby her own debt, and agreed to pay for and discharge the same.

It was contended that that did not constitute a cause of action against her. The court say:

“No particular form of words is required to constitute a good pleading. It is sufficient if the necessary facts are stated. In this case the allegations of the petition show that Mrs. Haines purchased and received a deed of the property described, and entered into possession of it. This showed that, under section 3108, the'land was her separate estate, and, with the further allegations that the indebtedness referred to was a part of the consideration for the conveyance which she agreed to pay, showed such circumstances as justified- the interference that she intended to charge her separate estate with its payment; otherwis'e, the transaction on her part was meaningless. No rule of good pleading was violated by omitting to aver, in direct language, that she intended to charge her separate estate. The supplemental petition made a case against her.’’

In the 50th, Ohio St., beginning on page 17, the court in rendering its opinion, say:

“It is contended in behalf of the plaintiff, that under the statutes in force in the year 1886, an action was maintainable in equity to charge the separate estate of Mrs. Stanage —a non-resident of this state— upon her alleged liability under the written agreement entered into between herself and the plaintiff; and that the court acquired jurisdiction through constructive service by publication.”

The case turned upon the question whether théy had a lien upon this real estate and could maintain an action in equity against it. At the bottom of page 425, the court say:

“If no personal judgment could be rendered against the wife, the obvious remedy of the plaintiff would be, an appeal to the court, in the exercise of its equity powers, to lay hold of the wife’s separate property, and apply it in payment of her equitable obligations. Although no specific lien was created on her separate property by the written contract; yet, there would be an equitable charge upon her estate, and a liability of it to be taken in payment by decree, as a man’s property may be taken on execution.”
“But by statutes — in force when the written agreement in question was entered into, and when the original action was commenced — a married woman may now sue and be sued at law as if she were an unmarried woman; and any judgment rendered against her may be enforced as if she were unmarried, and her property may be taken on execution to satisfy such judgment, to the same extent that the property of her husband might be taken in satisfaction of a judgment against him. ”

I need not follow that opinion, but it concludes that she ■could be sued only as a man might be sued and as an unmarried woman might be sued; that no jurisdiction over her property could be obtained by filing a suit in equity to charge this upon specific real estate; but she must be sued and personal service had upon her and a personal judgment rendered against her which would be enforced against her as against her husband or against an unmarried woman.

This seems to be the unbroken line of authority which conclusively determines the question; that since the passage of this remedial statute, it provided that when an action was such as concerned her separate estate, that she might sue or be sued alone; and that in every such case, like proceedings should" be had and a like judgment rendered as if she were unmairied, and upon the revision of the statute and a separation of that section into two, there has been no exception as to a cause of action that may be maintained against married women; in other words, she can be sued on ail those contracts she might rightfully make just exactly the same as if she were unmarried; that is the only way she can be sued, and thejonly way you can collect against her is to have a personal judgment for money, unless you have by contract a specific lien upon real or personal property; so that we are led to the conclusion —■ novel though it be to us — that the decree which was rendered in 1885, which sought to make this claim of Lee a charge upon this real estate, was to that extent of no effect. The petition in the case did not ask for personal judgment,and no personal judgment was rendered against her and no lien upon her estate was acquired by that decree, because the court did not have the power to decree one, and for that reason, this judgment must b# reversed. The decree of this court will be that the claim of Sanders, the plaintiff below, will be the first lien,and order of sale will issue accordingly.

J. B. McKnight, for Plaintiff.

Stewart & Bowley, for Defendant.


author: VOORHEES, J.

text:
    (Fifth Circuit—Licking Co., O., Circuit Court
    April Term, 1899.)
    Before Adams, Douglass and Voorhees, JJ.
    ROYAL INSURANCE COMPANY v. SAMANTHA WALRATH.

      Fire Insurance — Written contract — Verbal promise.

    (1.) A verbal promise by one of the parties at the making -of a written contract, if it was used to obtain the execution of the writing may be given in evidence.
    Same—
    (2.) Parol evidence is admissible to show what property was included in the contract of insurance; and what was said and done by the parties leading up to the making of the contract.
    Error to the Court of Common Pleas of Licking county.
   VOORHEES, J.

In view of the former holding of this court upon demurrer to the second amended petition, it is sufficiently acccurate for the present purpose, and for the exposition of the principles of law applicable to the case, to state the following facts:

The defendant in error, on and prior to July 1890, held a policy of fire insurance from the plaintiff in error, on her dwelling house and certain personal property located in Hanover township, this county. That prior to the expiration of the policy of insurance, the insurance company, by its agent, one J. B. Murphy, while in view of the real estate of the insured, solicited her to take out additional insurance on said property, she having made some improvement on the property. Said agent was well acquainted with the property, its location and kind, so insured in said old policy. Prior to the 21st day of July, 1890, the insured was the owner of ten tons of hay, which was then stored in a barn of one Dr- Bukey in said township, which barn was held by her by lease for a term of years.

On said day, and while said agent was soliciting her to take out such additional insurance on her property mentioned in the old policy, he also solicited her to take out some insurance upon said ten tons of hay in said barn, which was located as stated, and in view of said agent. He promised that the old policy should be canceled and a new policy issued, covering said additional insurance, and including said hay; that the unearned portion of the premium on the old policy, should be applied upon the premium upon the new policy, and she to have until September 15th, 1890, to pay the balance of the premium. The barn in which said hay was, was pointed out to the agent, and he was requested to go and see the hay. He said it was unnecessary, and declined to go. He was informed by plaintiff that the barn was owned by Dr. Bukey; that she had only a lease upon it. Said agent then informed the plaintiff that he would put said hay in said new policy, insuring it for the sum of fifty dollars, and agreed with her that he would at once make out the policy so as to include the hay, and would issue the policy as soon as be got back to bis office in the city of Newark; and that be would deposit it with tbe building association, under the same arrangement as existed with the old policy, on account of a mortgage held by the association.

The plaintiff never saw the policy until after the hay was destroyed by fire. Defendant company knew at the time it so solicited the plaintiff to insure this hay, and at the time it issued its said policy, that the plaintiff owned said ten ton of hay, and owned no other hay, nor was she in the possession of any other hay. Said agent went to his office and issued the policy, which is attached to the original petition, taking up the old policy, and applied the unearned premium thereon to the payment of the premium on the new policy, and delivered it over to the building association. Plaintiff performed the requirements and conditions of the policy on her part.

On the 11th of September, 1890, said hay was totally destroyed by fire, of which defendant had due and proper notice. That by said policy, defendant did insure the plaintiff’s said hay for $50.00. That she was the owner at the time of the insurance, and continued to be the owner up to the destruction of the hay by fire. After said hay was burned, on the 12th of September, 1890, and after defendant knew it was so destroyed, plaintiff paid the balance of the premium on the new policy, and defendant has ever since retained the same. The value of the hay was averred to be $70.00. The defendant company refused to pay the $50.00, or any part of it, for which plaintiff asks judgment.

The company by answer took issue with the plaintiff on these facts, and the cause was tried at the January term, 1899, of the common pleas court to a jury, resulting in a verdict in favor of the plaintiff below for the sum of $74.98, upon which verdict a judgment was rendered at said term.

Error is prosecuted to this court. A number of grounds are set forth as reasons why the judgment of the court below should be reversed.

Many of the questions raised by the petition in error are settled as a result of the holding of this court in overruling the demurrer of the defendant below to the second amended petition; and it will not be necessary to further consider them. If the holding of this court in overruling the demurrer was correct, there is no error in the record in the particulars complained of in these several grounds of error.

Walrath v. Royal Insurance Company, 16 C. C. R., 413.

The only question now to be considered is, whether the verdict of the jury and judgment of the court below are sus. tained by sufficient evidence, or were contrary to law.

In other words: Does the amended petition state a cause jf action against the defendant below? Second: Were the material facts of the petition established by legal evidence? If so, the judgment of the court below should be affirmed.

That the petition sets forth a cause of action, was settled by this court when it overruled the demurrer of the defendant to the petition; and a majority of the court see no sufficient reason for changing that holding.

The next question is: Were the facts set forth in the petition established by the evidence, so that the verdict of the jury is not against the weight of the evidence?

The rule of law in this state is, that a verdict or finding of a court will not be reversed on the weight of evidence unless so clearly unsupported by it as to show misapprehension or mistake, or bias, .or willful disregard of duty on the part of the jury. Of course, this presupposes that the evidence upon which the verdict rests was competent and legal evidence. And this leads to the real question of contention in this case, viz: Was t competent for the plaintiff below to prove, by parol evidence, the facts ' set forth in her amended petition?

The cause of action of the plaintiff is founded upon a written contract,an insurance policy. Notwithstanding this, it does not follow that testimony as to what was said and done by the parties, leading up to the making of the contract, is inadmissible for the purpose of showing what the real contract of the parties was; and this may be done without first invoking the equity power of the court to reform the contract.

We are not unmindful that, among the purely artificial rules of evidence, one is, to forbid parties to a solemn contract reduced to writing, to alter, vary, limit, enlarge or contradict what they have thus made certain, by the recollection of witnesses, in attempting- to show what the parties said before or at the time of the signing of the contract. This wise policy or rule of evidence, we are not inclined to doubt. But after a careful examination of the evidence in this case, we have deemed it our duty to consider that other rule of law, which gives the court and jury the right to take into consideration as legal evidence the parol statements made contemporaneously with the execution of the contract, so that the contract may be read and construed in the light of the circumstances appearing in evidence at the time of its execution; and that the jury may so construe it under the direction of the court.

Therefore, in the case at bar, parol evidence was admis sible to show what property was included in the contract of insurance. From the evidence in this case, there can be no doubt but that the hay in the Biikey barn, which was held by lease by the plaintiff, was to be included and covered by the policy; and either by design or inadvertence of the agent of the company, it was not definitely expressed in the contract. Who should suffer by this act or omission of the agent?

The plaintiff was free from fault, and the neglect of the company’s agent should not be visited upon her when disaster has come, which she, by the insurance policy, was trying to guard against; and the case comes within the rule of modern decisions which hold, that when a writing is produced, either as evidence, or as the foundation of an action, and it does not express the agreement of the parties, the party who caused it to be in an imperfect condition should be estopped from using it, or relying on its contents as expressing the unalterable agreement of the parties; and that parol testimony is competent to show the real transaction, so that the writing or contract as written cannot be used to the injury of the party whose agreement the writing does not express.

In the case of Powelson Coal Company v. McShain, 75 Pa. St, 238-245, the court say:

“It is certainly permissible to give evidence of a verbal promise made by one of the parties, at the time of the making of a written contract, where such promise was used as an inducement to obtain the execution thereof: Campbell v. McClenachen, 7 S. & R., 171. This rule is put upon the ground that the attempt afterwards to take advantage of the omission from the contract, of such promise, is a fraud upon the party who was induced to execute it upon such promise, and hence he will be permitted to show the truth of the matter: Clark v. Partridge, 2 Barr, 13; Renshaw v. Gans, 7 Barr, 117; Dutton v. Tilden, 1 Harris, 49”.

In the case of Maril v. Connecticut Fire Insurance Company, 95 Ga., 604, s. c., 51 Am. St. Rep., 107, the court states the rule thus:

“ While parol evidence is not admissible to vary the terms of a contract in writing, it is admissible for the purpose of applying the terms of the writing to the subject matter, and removing any ambiguity arising from such application; Stoops v. Smith, 100 Mass. 63. It is admissible to explain an ambiguity, whether latent or patent. Shore v. Miller, 80 Ga., 93; s. c. 12 Am. St. Rep., 239.”

In Gould v. Boston Excelsior Company, 91 Maine, 214; s. c. 64 Am. St. Rep., 224, the court say:

“It is well understood that parol evidence is admissible to explain a writing, to make its terms definite, to fill out an incomplete contract, to show the circumstances under which it was made, and to prove a collateral, contemporaneous, •or subsequent agreement not inconsistent with the written agreement. Harris v. Murphy, 119 North Carolina, s. c. 56 Am. St. Rep., 660-661 and note; Durkin v. Cobleigh, 156 Mass., 108, s. c. 32 Am. St. Rep., 436, and note.”

Follett & Follett, for Plaintiff in Error.

8. M, Hunter, for Defendant in Error.

In the case of John B. Ferguson v. Thomas L. Rafferty reported in Lawyers Reports Annotated, Book 6 p. 33, the supreme court of Pennsylvania held:

“That parol evidence is admissible to establish a contemporaneous oral agreement which induced the execution of a written contract, though it may vary, change or reform the instrument.”

To the same effect is the case of G. W. Walker v. W. B. France, reported in 2 Central Reports, 781.

The principles of these cases have been recognized by the supreme court of this state in the case of Springer Brothers v. George W. Henry et al., decided December 20th, 1898, reported in 40 Bull., 412, wherein the court reversed the circuit court and affirmed the common.pleas without report, the circuit court holding that the common pleas erred in admitting testimony as to what was said and done by the parties leading up to the making of the contract.

If the testimony was competent in this case, showing what really occurred in regard to the hay in the Bukey barn, between the plaintiff and .the defendant’s agent, there is evidence to support the finding of the jury.

And, in the opinion of a majority of the court, this evidence was competent; and the verdict of the jury is supported by legal evidence, and is not contrary to law.

And this disposes of all the questions raised by the petition in error, not determined by the. former homing of this court on demurrer.

The judgment of the common pleas is affirmed.

Adams, J., dissenting.


author: SWING, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.
    Before Smith, Swing and Giffen, JJ.
    WILLIAM M. AMPT, a taxpayer, on behalf of the city of Cincinnati, v. THE CITY OF CINCINNATI and AUGUST HERRMANN et at., trustees and commissioners of the waterworks of Cincinnati.

      Commissioners to build the new waterworks for the city of Cincin-uati — Contracts by — Plans and specifications — What sufficient—
    The act of the legislature of Ohio, 92 0. L. 608, providing for the appointment of commissioners to build the new waterworks for the city of Cincinnati, provides that “said .commissioners shall, before entering into any contract, cause plans and specifications, detailed drawings and forms of bids to be prepared, and careful estimates of cost to be made; and when adopted by them, they may, in their discretion, cause the plans and drawings to be multiplied and printed, by photographing, lithographing or other suitable process, and. the specifications and forms of bids, contracts and bonds to be prepared, and have the same printed for distribution among the bidders.” Held, that the drawings and specifications need not go to the minutest detail in which every part of the machinery was to be drawn and specified; but it is sufficient to give specific and minute specifications as to what the machinery was to accomplish, the exact kind of material to be used,’ the manner in which all the work should be done, and the exact nature and kind of all the parts which were given, how all such machinery should be constructed, such as'valves, riveting, bolts, etc.

      Same — Delegating powers to engineer—
    (2.) The action of the commissioners in delegating certain of their powers to the chief engineer to determine as to certain matters, is not such a delegation of power in the sense that it is a taking away from the commissioners the power vested in them. The duties the chief engineer performs are done as the agent and employe of the trustees. He uses his technical knowledge as their agent, and he is entirely subject to the control of the trustees, and what is done is by their authority, and is under their control, and his exercise of this power is their exercise of it.

      Same — Provisions for alternative bidding and for changes—
    (3.) There can be no objection to the provision in the contract as to alternative bidding, nor to the provisions therein by which alterations and modifications in the contract are provided for. In practice such changes have always been found necessary, and in the nature of things must be.

      Appeal from the Court of Common Pleas of Hamilton county.
   SWING, J.

This is an action in this court on appeal. It is an action by a taxpayer on behalf of the city of Cincinnati against the city and said August Herrman and others, trustees and commissioners of waterworks of said city, and is brought to enjoin the performance of a contract heretofore entered into between said trustees for said city and The Lane & Bodley Company, whereby said company had contracted to furnish to said city certain waterworks pumping engines, boilers, etc., an electric crane and an elevator in connection with the building of new waterworks by said trustees for said city.

This action is brought by Mr. Ampt in good faith and in a friendly spirit with a view to having ver^ important questions involving large amounts finally determined.

The petition and the amendment to the same contain nineteen pages of typewritten matter, and the answer contains eighty-nine pages of printed matter. No attempt will be made on this occasion to set forth at length the statements in either. It would occupy too much time, and besides a proper understanding of the real objections to the contract can be arrived at without it,

The claim of the plaintiff is thus summarized by him in his petition:

“Plaintiff says that by reason of the failure of the commissioners of the waterworks to provide for and adopt plans and drawings for said engines and electric crane before entering into said contract and by reason of failing to provide complete, full and exact specifications therefor,said contract is'void as an entirety. Further, that for the additional engine and the electric crane it is void because neither of said items of work was named in the advertisement calling for sealed proposals.”

There is no question of bad faith raised. No bidder is complaining that the contract awarded is not to the low: est and best bidder; that the advertisement for bids was not properly made so as to give to bidders the best opportunity to frame their bids thereon and at the same time obtain for the city the most favorable bids for the best work to be furnished. In fact, in every way it is conceded that the contract is most favorable to the city. In the first place, the contract was given to-a home concern, and while this fact could make no difference in awarding the contract, as the lowest bidder only could be considered, still everyone must feel that it was fortunate for the city that the work was to be done here. It furnishes employment'for men who must help pay for it, and in that way contributes to the happiness and welfare of the city, and at the same time the taxpayer is protected.

Then again it was asserted and not denied at the hearing of the case,that if this contract is set aside and another one made, the latter will probably exceed the former by at least twenty per cent in'cost.

The course pursued by the trustees in this matter was not determined upon until after the trustees had communicated with-all the builders of such work in the United States and got their idea as to the proper way to formulate an advertisement for bids. They also asked for and received advice from the Chamber of Commerce, the Business Men’s Club, and all other public bodies of said city^which would likely be interested .in the matter. The opinion expressed by all tnese was the same. It coincided with the views of the trustees and their engineers, and it resulted in the trustees adopting the course pursued.'^The great pains displayed by the trustees in endeavoring to arrive at a correct conclusion as to this important matter certainly entitled them to commendation. The difficulty that confronted them arose when they attempted to construe the statute with reference to the subject matter of the pumps and engines. This provision of the statute is found in 92 Ohio Laws,608, and is as follows:

“Said commissioners shall, before entering into any contract, cause plans and specifications, detailed drawings and forms of bids to be prepared, and careful estimate of cost to be made; and when adopted by them, they may, in their discretion, cause the plans and drawings to be multiplied and printed,by photographing, lithographing or other suitable process, and the specifications and forms of bids,, contracts and bonds to be prepared, and have the same printed for distribution among the bidders.’’

To what extent were detailed drawings and specifications to go? Must it be the minutest detail in which every part of the machinery was to be drawn and specified, or was it sufficient to give specific and minute specifications as to what the machinery was to accomplish, the exact kincls of material to be used, the manner in which all the work should be done, and the exact nature and kind of ail the parts which were given, how all such machinery should be .constructed, such as valves, riveting, bolts, etc. ? The specifications of this class cover sixteen pages of printed matter, and as far as it goes it is as specific as it could well be. The detailed drawings and specifications, however, did not go to the extent of showing in detail every part and proportion of the work. What is called the “working plans” of this machinery will cover more than a thousand pages.

The question is: Did the law require that the specifications and drawings should go to this extent? Possibly to give the law a literal interpretation would require the detailed drawings and specifications to include each and every part of the machinery, and in doing this the trustees might have omitted to require that the machinery should perform certain work, as they did do; for by this contract each of the pumps must have a capacity to pump thirty million gallons of water every twenty-four hours, and must stand the test of one hundred and eighty million gallons of water in six consecutive days; and furthermore must perform the work required of it for one year to the satisfaction of the trustees; and during that time all alterations and repairs aré to be borne by the builders.

Certainly what the trustees wanted to get for the city was engines and pumps that would pump a certain quantity of water in a given time. It was wholly immaterial to them where each nut, bolt, valve and piece of material was to be located. All such details were non-essentials. It is to be borne in mind that these engines and pumps were to be made to do a certain work. In one sense, they were not inanimate like a house or building, but they had a great work to perform, and it must be done in the most economical" and approved way. ■ What the trustees did was to leave out the non-essentials in their specifications and drawings, but all the essentials of the result desired, as to the capacity of the pumps to perform the work required, and the manner of the workmanship, and the materials to be used in their construction,are most specifically looked after and detailed.

In construing statutes it is a well known and valuable rule of the law that a thing may be within the law and yet not within the letter of the law, and a thing may be within the letter of the law and still not within the law; and so it seems to us in this case that it is within the letter of the law that these specifications and detailed drawings mentioned in the statute should give every detail of every part of this great and complex machinery, but we do not believe it is within the meaning of the law that they should do so.

The first object of the law was to afford to the people who were to pay the cost of this work the assurance that it should be done for the least amount of money, and these provisions were placed there to bring about this result. Of course, the law is founded upon the theory that the people are to get work which is the best possible to be had. Bearing these two fundamental ideas in mind we apply them to the subject matter.

The machinery required for this work is only capable of being built by ten firms in the United States. Of these eight were bidders on this work. The difficulty that presented itself at once to the trustees in making exact drawings and specifications of every part, was this: Machinery of this magnitude has as yet not reached that state of perfection, and probably never will, where all builders build to any certain and fixed plan as to details. In this respect each builder has his own detailed plans, and no two are alike, and their tools and patterns are made to produce their own work after their own plans; therefore, if the detailed plans of this complicated work was to be given in all of its parts, the trustees were either compelled to adopt the plans of one of the concerns which' had produced such work, or else get up a plan of the same kind of their own. It will be seen at once that the object of the law would be defeated if the board were to adopt the detailed plans of any one of the firms, for this would virtually destroy all bidding by firms other than the one whose plan was adopted, and place the trustees at the mercy of that firm. The price to the city would in all probability be much^reater than it should be. This would destroy competition in bidding, the very thing the law was intended to bring about, and this must not be except from necessity.

But a still greater difficulty met the trustees in getting up a detailed plan of their own. The evidence showed that at the present time there is only one such pump in operation in the United States although numerous such pumps have been built, but only to prove costly failures. And no city is able to furnish a better example of this than the city of Cincinnati with its celebrated Shields pump, which has cost the city thousands upon thousands of dollars, and is now perfectly worthless, its only value being as old junk.

In the first place, the work and time required to produce these plans is very great, the testimony of the chief engineer being to the effect that it would require a year and a half to do it. And in the next place, no firm could construct such machinery so well or so cheaply as it could machinery of its own pattern and design. And then lastly, which is the most important of all, it would when constructed be more or less experimental, and might not perform the work required of it.

To pursue either plan it was apparent would certainly defeat the intent and purpose of the law and impose a great expense upon the city, the only excuse for which would be an attempt to adhere to the letter of the law. To do this we think would be sticking in the bark. It would be sacrificing the purpose and essence of the law. No one is complaining that the trustees have not acted with the greatest care and wisdom in the matter, or that the rights of the people have not been most carefully guarded, or that the very best results possible have not been obtained. The only claim that can be justly made is that the letter of the law has not been followed, and the answer is that it should not be followed, and that the real purpose of the law would be defeated by adhering to it.

The other questions raised in the case we consider as of a minor importance, and shall only notice a few of them briefly.

The objection that the fourth engine and the crane were not in terms mentioned in the advertisement we do not regard as-fatal to the contract. They were carefully mentioned in the specifications, and there can be no question but what all bidders were fully informed as to the work desired, and no bidder is complaining. It would be idle speculation to say what might have been the result if these matters had been set forth at length in the advertisement. As already said, eight of the ten builders of such work in the United States were bidders, and all these bid with a view to such specifications, and must have been fully informed as to the same.

W. M. Ampt, for Plaintiff.

Ellis 6r, Einkead, Corporation Counsel.

Wade H.Ellis, J.B. Frenkle, Thos.McDovgall, contra.

As to the further question that the trustees delegated certain of their powers to the chief engineer to determine as to certain matters, we do not consider that there was such a delegation of power in the sense that it is a taking away from the trustees the power vested in them. The duties the chief engineer performs are done as the agent and the employe of the trustees. He uses his technical knowledge as their agent, and he is entirely subject to the control of the trustees, and what is done is by their authority, and is under their control, and his exercise of this power is their exercise of it.

We see no objection to the alternative bidding, nor do we see any objections to the provisions in the contract that alterations and modifications in the contract are provided for. In practice such changes it has been found have always been necessary,and in the nature of things must be. This provision is for the protection and benefit of the city. Changes are constantly made in such work. The chief engineer testified that in the last twenty-five years changes had been made-in the construction of such work to the extent that engines and pumps of the same class do three times the work that was formerly done by them. It is not at all likely that we have reached perfection now. In all likelihood improvements will be made in the future as in the past, and it was with a view to obtain for the city the advantages of such improvements that such provisions were inserted in the contract, and we can certainly see no objection that can be properly urged by the city why it should not be thus protected. If it could be in reason urged that it might injure the city, the case would be entirely different.

The petition of the plaintiff will be dismissed.

(Affirmed by supreme court, without report, May 16, 1899.)


author: Pkioe, C. J.

text:
    (Third Circuit—Hardin Co., O., Circuit Court
    Feb. Term, 1899.)
    Before Price, Norris and Day, JJ.
    THE SOUTH KENTON UNION SUNDAY SCHOOL ASSOCIATION v. THOMAS ESPY et al.

      Religious association — Trustees without power to dispose of property without consent of association—

    .(1). Trustees of a religious society or association, organized under the provisions of sec. 3241, of Revised Statutes of Ohio, without consent and authority from the members of such society or association, and without authority from court first obtained for that purpose, have no power to sell or give away the real property cf the society or association.

      Same — Act of legislature unconstitutional—

    (2). The act entitled “an act to authorize the trustees of the South Kenton Sunday School Association of Kenton, Hardin county, Ohio, to convey by deed the real estate now held by them as such trustees to the Epworth M. E. Church of South Kenton,” and passed March 17, 1898,(93 O. L., p. 462), is unconstitutional and void, and the deed made by said trustees in pursuance thereof, is likewise void.
   Pkioe, C. J.

Sometime in the year 1879, a number of well meaning men and women of South Kenton, met and organized a ■Union Sunday School, which was to be non-sectarian in ■character and teachings, in which would be gathered children of that part of the village from all classes and families, 'whether connected with any church or not. Members and friends of the different churches took part in this organization and became teachers and officers of the Sunday School, and devoted a part of each sabbath in giving the youth of that vicinity moral and religious training, and exerted their influence on that day, and at opportune occasions during the week, to encourage and build up this non-denominational institution. There, men and women of different creeds and doctrinal faith, and some of no creed, assembled on a common platform for the purpose of promoting the broad •principles of Christianity and the moral and spiritual welfare of the children. At th6 beginning, and for some time, they met in very humble quarters — a part of a tile factory, but the cause met with public approval, and by small sums collected on the sabbath day, and by donations from friends of the enterprise, the school was furnished with necessary books, an organ and other supplies, and it prospered, having an attendance of seventy-five to one hundred during the years following the organization, and better room was rented for a time, from the board of education.

In the year 1887, it was found that the interest» and continued prosperity of the school required more room and better facilities; and after considerable discussion among the members, teachers and officers of the school, it was decided to purchase a lot and erect a building to be occupied by this Union Sunday School.

Thomas Espy, one of the defendants, and who had been a supporter and attendant of the school, owned a lot which was a suitable location, and the purchase price was agreed upon, but the character of title to be conveyed and in whom it should be vested, became a subject of concern, and it was •decided by those managing the school, on advise of Espy and others, to incorporate it, and on application of a sufficient number for that purpose, a charter was obtained for “The South Kenton Union Sunday School Association”, in the year 1887,

Seven trustees of this corporation were elected — some of whom are defendants, and Espy conveyed the lot to the corporation above named. A building was erected, and both lot and building were paid for in money raised — some by subscription — some by entertainments given by the Sunday School. The donations and subscriptions were solicited and made in support of the plan upon which it was first organized —that it was to be non-sectarian; and when completed the building was so dedicated on Christmas 1887, when ministers of the various churches of the town took part in the services of dedication.

The school continued to meet with success and encountered no adversity until the year 1898, A year or more prior to this date, there was organized in South Kenton, the Epworth M. E. Church, with Rev. Stockstill defendant, as pastor, and having no building or place of worship, the church obtained permission of the Sunday School to hold religious services in its building, which it did on sabbath evenings, for about a year or perhaps more. During this period, it appears, that this church won over to its purposes five of the trustees of the Union Sunday School Association, including Thomas Espy, defendant, and two or three of them became trustees of the Epworth M. E, Church, and at its solicitation, these five trustees of the Sunday School Association, concluded to give and convey its lot and building to the church, as well as all contents of the building. They applied to no court for authority to make the transfer, but procured from the legislature of Ohio, the passage of a special act, authorizing the Trustees of the Sunday School Association to execute and deliver to the church, a conveyance of the above named property,

They executed and delivered the conveyance signed by five of the trustees, the other two refusing to sign it. Two of the five were at the same time Trustees of Epworth M. E, Church.

In pursuance of this transfer, the defendants, Trustees of the church and its pastor, begin to take down part of the foundation of the building and were removing the building to another position on the lot, with the intent to erect a new additional church building on the remainder of the lot.

At this stage of the proceedings,' on. July 14, 1898, the plaintiff brought this action to restrain defendants from removing the building and its foundations, and from otherwise interfering with plaintiff’s use and quiet enjoyment of the same; and also asked $800 damages for the wrongs and trespasses already committed.

The lower court allowed a temporary injunction and on final hearing made the injunction perpetual and .awarded $150 damages.

From this decree, defendants have appealed, and we have heard the case on the merits, and find the facts as above stated, In our judgment, the finding and decree of the lower court were right, and fully justified by the .facts. Any other decision as to the property involved, would have been a gross violation of the rights of the plaintiff and a sanction of the rankest injustice.

Saying nothing of the effect of a deed, where two of the trustees appear in the deed in the dual capacity of trustees of the Sunday school association, and also trustees of the church grantee, (leaving but three, a minority of the board of seven trustees who were not so situated, signing the deed —■) we must regard the whole transaction as illegal and void. Form no point of view can it be upheld.

We have observed the history of this Sunday school movement and its purposes and organization, and why and how it became in corporated and acquired this property.

What or who became incorporated under the charter of 1887? Surely not the trustees afterwards elected. It was the “South Kenton Union Sunday School Association” — ■ the men, women and children composing that association. These persons compose the corporation or association, as provided by section 3241, Revised Statutes, which in part reads: “* * * provided, that when the incorporators of a corporation, now or hereafter formed, are or shall be members of a church,religious, secjret or benevolent society, and have signed or shall sign articles for the purpose of enabling such church, religious, secret or benevolent society to become incorporated, any person, who is or shall become a member of such church, religious, secret or benevolent society, in good standing, shall by virtue of such membership be a member of such corporation, and entitled to vote at all meetings of such corporation, for the election of officers or other purpose, anything in the preceding section to the contrary notwithstanding. ”

To comply with the law, certain persons applied for a charter, and executed a certificate stating the name and purposes of the incorporation, and in accordance thrirewith, a charter was obtained and its name appears in its first line:

“The South Kenton Sunday School association”; and the purpose of the organization is stated to be “the worship of God in the Sunday school, and the advancement of the cause of Christianity.”

There is no difficulty in coupling this charter with the labors, self-denial, hopes and wishes of the persons, .who had, during preceding years, furnished an occasion for its issue.

Then, we see, that the property in controversy ' did not belong to the trustees, but to the association, and they had no power or authority to transfer it . except it is derived from the real owner and according to the methods prescribed by law. No such consent or authority was ever given and no legal steps were taken to obtain them. But the defendants claim authority under an act passed by the general assembly of Ohio, March 17th, 1898; (93 Ohio Laws, 462).

“Section 1. Be it enacted by the general assembly of the state of Ohio, that the trustees of the South Kenton Sunday School Association of the city of Kenton, county of Hardin and state of Ohio, be, and they are hereby authorized and empowered to sell for such nominal or other consideration as may be deemed just and proper by them, and convey by deed to Epworth Methodist Church of Kenton, Ohio, the real estate now held by them as such trustees, together with all the rights arid privileges therein,viz: The east one-third part of inlots- 32, 33 and 34 in Thomas Espy’s addition to said city of Kenton, Ohio, together with the buildings thereon, and all the furniture in said building belonging to said association ”

Section 2. This act shall take effect and be in force from and after its passage.”

This is the very generous law and a conveyance made in pursuance thereof, under which the defendants would hold and control this property.

Happily, it is beldom we find such unwarranted and unconscionable legislation. It would wring from the rightful owner, against its will, all it owns, for a consideration not fixed or dictated by it, or for no consideration, as to the trustees might seem best.

To merely say that the law is unconstitutional, is treating it with more consideration than it deserves, because it lacks every element of justice and fair play, and makes a rule that two parties are not necessary to a contract, and that the owner has nothing to do or say while it is being divested of its property.

The Epworth M. B. Church does not possess the right of eminent domain, and if it did, it could not appropriate the property of the plaintiff without first making compensation. What the constitution forbids, the legislature may not do, and it has no more power to give away the property of a citizen, than it has to authorize its appropriation without compensation. In this instance, it was undertaken to cloth men who did not own the property, with the authority to give it away, and under its terms and provisions, the defendants attempted to strip the Sunday school association of every vestige of its property both real and personal,

But all this is of no avail, and it is our duty, not wholly unmixed with pleasure, to declare the special act quoted and the deed made thereunder, void and of no effect to transfer title.

Another ground of defense made in the answer is, that the defendants do not intend to deny the plaintiff of the use of the building, but on the contrary, they propose to construct a better and more commodious building in connection with the one about to be removed, to which members of the plaintiff association will have cordial and free access; and evidence has been introduced to that effect.

S. T. Armstrong, Grow & Durbin, for Plaintiff.

F. C. Daugherty, and Geo. E. Crane, for Defendants.

The proposition is complacent in its nature, but it is no defense to this action. It scarcely arises to the importance of an apology for the defendants to say, they will establish the “open door’’, where all may enter and be made welcome.

Admission there will be admission to a denominational church and Sabbath school, where the tenets and articles of its faith and practice will be taught, and its forms of worship and discipline followed, and where the voice of the plaintiff will never be heard.

Another point made by defendants is, that the plaintiff was not authorized to bring this action, and that no one has been authorized to sue for it.

This claim grows out of the fact, that five trustees refused to have the suit brought, and after it had been commenced, signed a document asking its dismissal.

It may be said in answer to this, that a corporation does not cease at once because some or all of its trustees abandon their trust, It survives for many purposes, and in this case it has some trustees and other loyal friends who would preserve its existence.

Indeed, suing in this instance is the very elixir of life to the plaintiff, or it would lose its property and finally perish.

We find for the plaintiff and perpetually enjoin the defendants form using, removing or otherwise interfering with any of the property described in the petition, and we award to plaintiff $150 damages, defendants to pay all costs.

Decree accordingly.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co, O., Circuit Court
    Jan. Term, 1893.)
    Before Haynes, Scribner and King, JJ.
    E. M. TILLINGHAST et al. v. JOHN F. CRAIG.

      Life insurance — Rebate in premium agreed to by sub-agent appointed by agent of Co. — Violation of statute—

    (1.) T. Bros., being agents of a Life Insurance Company, employed H. as sub-agent. H. arranged with O. to take a policy of insurance from the company, and as an inducement for him to do so agreed to make a rebate on the amount of the premium (giv-his note for the premium less rebate). It was afterwards arranged that C. should give a check dated in future in place of the note. The check was not paid, and was sued upon in the action below.

      Held, (1) That T. Bros, were responsible for the acts of H. in the transaction; (2) That the transaction was in violation of the provisions of the act of the general assembly, found in 86 Ohio Laws, 220, and that the note and check were void in the hands of Tillinghast Bros.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

In this case the Tillinghasts brought suit against Craig to reverse the judgment of the court of common pleas in an action wherein the plaintiffs in error were plaintiffs below, and the defendant in error was defendant below. The suit was brought on a check given by the defendant Craig to Tillinghast Brothers on the Union Savings Bank of Toledo, Ohio. The defendant, admitting the giving of the check, sets up two defenses. He says in short that the check was given in payment of a policy of insurance that it was proposed to procure for him in a certain insurance company for which the Tillinghast Brothers were agents, and was dated in advance under an agreement that if they procured him a policy of insurance and delivered the same to him, and he approved and accepted the same, the check was then to be paid — in short, to procure a policy of insurance subject to his acceptance and approval. When that was done they were to have the money. And be avers that they never did: procure such policy of insurance, and that he directed that the check should not be paid, and the saméis void in plaintiff’s hands, and that it is without consideration also. He-says for a second defense that at the same time he made an arrangement with regard to the policy of insurance that it was made under an arrangement with the agent that a portion of the premiums on said policy, the premium amounting to $270.00, should be rebated, in consideration that ho would take the insurance, and that there was rebated from that sum the sum of 174.00, leaving the amount $200.00 that he was to pay for the first year’s premium upon the policy, instead of $270.00, which was the regular amount which should have been paid. And he says that by reason of these allegations said rebate contract was illegal and contrary to the laws of the state of Ohio,as contained in volume 86, O. L., 220; that he himself did not know at the time that it was illegal, and that for that reason the check was not good in the hands of the plaintiffs.

It appears in substance that this insurance was solicited by a man of the name of Moses R. Howard, who had an agreement with the Tillinghast Brothers to operate for them and they for the society- — tillinghast Brothers being the agents at this point. It appears further that under the agreement that was made between Howard ar.d the Til-linghasts he was to have a certain rate or proportion of the premium for the first year, so this commission would amount,on $270.00, to quite a large sum of money — 25 per cent, perhaps. It further appears that at the time that this arrangement was made between Craig and Howard with regard to this insurance it was proposed by Howard that the sum of $74.00 should be rebated upon the amount of the premium. Howard says that instead of it being given as a rebate, it was given to Craig on an agreement that he should procure insurance upon the lives of other people, and that this sum was to be applied on a sum that was to be allowed by Howard to him for obtaining such insurance, and if there was anything additional to that amount which would be coming to him upon the sum that was to be allowed to him, Howard should pay same in cash. That is denied by Craig. This was a question that was submitted to the jury, and was found in favor of Craig. .

Howard sent and got the insurance that was agreed upon as he claimed, but it proved.to be a bond, as it is called, in the nature of an endowment policy.

Craig says this was not satisfactory to him, was not what he agreed for at the time, There was quite an amount of correspondence and some more agreements and arrangements and conversations in regard to the matter. That policy or bond was sent back, and it is said that another policy was issued and placed in the hands of Tillinghast Brothers, but they never tendered it to Craig, but allowed it to remain there subject to his order,

At the time of applying for the insurance Craig gave his note for $274.00, and upon that note was endorsed the sum of $74.00, endorsing it down to $200. That was for the amount of the first year’s premium upon the policy. During these negotiations that were going on in regard to the policy which was to be delivered, that note became due, and Til-linghast was here and had some conversation about it, and an arrangement- was entered into, as was claimed by Craig, whereby he gave this check in question upon that note, but with the understanding and agreement, it being dated in the future, that before it became due the policy should be obtained and delivered to him according to the original agreement, to his full satisfaction and acceptance, and he avers that that was never done, and that upon the check becoming due he stopped payment upon it.

It is contended here very earnestly by the ■ plaintiffs in this case that Moses B. Howard in this matter was not the agent of plaintiffs or of the society in such a sense as would make the society responsible,or the Tillinghasts responsible for anything that he might have done contrary to law in regard to the rebate that has been spoken of. It is claimed further by them that there is evidence to show that the Tillinghast Brothers were in fact purchasers of this note before due for a full and valuable consideration, who took it free from any defenses of the kind that are set up hers, and that therefore the check was valid in their hands, and not subject to any defense.

° We have read the testimony all-through, and have given it a very careful discussion. We are of the opinion that Howard was, under the decisions of the supreme court of the state of Ohio, in fact the agent of Tillinghast Brothers in such a sense as would make them responsible for the agreement in regard to this rebate, and for the consequences that might flow from it, and that the transaction is contrary to the public policy of the state of Ohio. We are satisfied also under the arrangement that was made between these parties that Tillinghast Brothers were not and could not be under the arrangement the bona fide purchasers of that paper; that the paper was taken under such an arrangement that the taking of it was' the taking for the Tillinghasts: they were entitled to the paper, but at the same time Howard became an endorser upon the paper, to a certain extent — 'perhaps guarantor of the- payment of the same.

As against the authorities which were cited by plaintiffs in error upon the question of agency, we call attention to the case Life Insurance Company v. Sherman, et al., Executors, etc., 30 Ohio St., 647. We think that case [very clearly lays down the law as it exists in the state of Ohio, and is perhaps directly opposed to some of the decisions that were cited by plaintiffs in error, but is of course the law binding upon this court, and we think it[sustains the propositions that Tillinghast Brothers were responsible for the acts of Howard in procuring this insurance.

The section of the statutes referred to on page 220,of volume 86, O. L., provides in substance that:

“Such company or agent shall not pay, or allow or offer to pay, or allow, as inducement to insurance any rebate of premium payable on the policy, or any special favor or advantage in the dividends or other benefit to accrue thereon, any valuable consideration or inducement whatever not specified in the policy contract of insurance. Every corporation, or officer or agent thereof, who shall willfully violate any of the provisions of this act, shall be fined in any sum not exceeding $500, to be recovered by action in the name of the state, and on collection paid into the county treasury for the benefit of the common school fund.”

It will be observed that the statute does not declare that the policy itself shall be void. But in this case we are dealing with an action that is brought by the agent of the society upon a note given, or what is equivalent thereto, a check for the note, for the prem um of the first year upon the policy, upon which there had been allowed, as the jury found, a rebate of $74.00 contrary to this statute.

The statute clearly indicates what the policy of the state of Ohio is in regard to this matter; and it seems to be clear that this note and check badjreen given under an arrangement contrary to the public policy of the state of Ohio, as the jury have found, and we think, under these circumstances, that the note and the policy under it became void in the hands of the Tillinghasts,and that the jury might well have so found. I may as well say in this connection that upon the facts of the case the jury were fully warranted in finding for the defendant.

Exceptions'were taken to the charge of the court as given, and also to its giving of certain charges that were requested by the defendant. I think it is unnecessary to read this charge or to read these various requests; it is sufficient to say that they are in line with the decision of the supreme court of the state which we have already cited, and in line with the view that this court takes of the statute which has already been referred to, and that the court in giving these requests stated the law substantially correctly.

C. F Watts, for Plaintiffs in Error.

J. N. Huntsberger, for Defendant in Error.

Exceptions were taken to the action of the court in ruling out certain questions to a witness, being the deposition of Moses R. Howard. We have examined those. We think the court did not err in its action in regard to those questions. They are not of sufficient importance to justify going over them and discussing them at length, but sufficient to say we have no doubt of the correctness of the action of the court in striking them out.

The judgment of the court will be affirmed.