author: Caldwell, J.

text:
    (Eighth Circuit, Cuyahoga Co., O., Circuit Court,
    Jan’y Term, 1897.)
    Before Caldwell, Hale and Marvin, JJ.
    JOHN BRITTON v. FRANK H. GRANGER.

      Action for malicious prosecution against police officer — Probable cause — Acquittal not proof of want of.

    The acquittal of plaintiff in an action for malicious prosecution is not proof of want of probable cause. There may be probable cause for the arrest although the party on the trial is acquitted. There may be facts known to the officer which it would be improper to introduce in evidence.

      Same — Evidence of-bad character of party arrested.

    The party causing the arrest may show the bad character of the arrested person.

      Same — Probable cause defined — Belief—Good faith.

    The question of probable cause is one of belief where the facts are such that a prudent person would believe in the guilt of the party arrested. The facts where they are disputed, are to be found by the jury, but whether they constitute probable cause is to be determined by the court. Good faith is not the equivalent of probable cause.

      /Same — Deliberate action, and arrest on view.

    Where the charges are made deliberately,a person is required to look into all the facts to some extent, and he can not act entirely upon rumors, but must investigate as to their truth ; but a police officer or party acting upon view cannot proceed to an examina tion of the facts, but must proceed without losing time by investigation.

      Probable cause — Evidence admissible to show — Common repute.

    Evidence of common repute in the neighborhood that the plaintiff was guilty of the particular offense for which he was prosecuted, may be rightfully received as one proof, though not a sufficient one in itself, of probable cause. Not only the facts which the defendant knew, but the information he had received, the circumstances under which he acted, and consultations with counsel learned in the law,are competent evidence upon the questions of probable cause and malice in fact.

      Legal advice before filing affidavit as defense in action for malicious prosecution.

    If an officer,before making the affidavit, takes the advice of an attorney at law, upon full and fair disclosure of the facts, and follows his advice in making an affidavit and prosecuting the person so charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.

      Same — Prosecution begins with filing the affidavit after arrest— Malicious arrest different cause of action from malicious prosecution.

    Where an officer finds one violating a law or ordinance, and arrests him, and thereafter files affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit, and not with the arrest. Malicious arrest is, in many cases, entirely a different and separate cause of action from that of malicious prosecution.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

Britton is a police officer,and arrested Granger in his own yard and without a warrant, the arrest being upon view. The facts, as established on the evidence below, are stated in a bill, and I will read them:

“Upon the trial there was evidence introduced tending to prove that on the 2nd day of May, 1894, the defendant was a police officer of the city fo Cleveland, and resided with his family on Willson Place in said city; that there was then in force in said city the section of the ordinance of said city numbered bbl, and copied in the answer herein; that on said day, and between 9 and 10 o’clock P. M., the defendant’s daughter, Mary, standing at the front gate of defendant’s premises, saw plaintiff pass by, and in fifteen or twenty minutes she saw him again approaching from the same direction, and apparently onbuttoning his pantaloons; that she became frightened and went into the house, and reported to her mother; thatjthe mother [then said to this defendant, who was then disrobed and about to go to bed: ‘that man we call the ‘sneak’ is in the yardfagain; he had his hand on the gate, coming in, when|Mary ran to the door;' that defendant thereupon hurriedly dressed himself and went out, found plaintiff in the yard, with pantaloons unbuttoned, when defendant seized and arrested plaintiff, and took him to the nearest police station,[where he was imprisoned until three o’clock of the same night, when he was released on bail; that when Mary Britton so ran into the house and reported to her mother, she went up stairs where she and her sister looked from a front window and saw plaintiff standing in the yard, with his pantaloons unbuttoned, and he was staring into the windows of the house.

Thereupon, in the course of the direct examination of defendant, his counsel asked him this question:

“Now, Mr. Britton, you may state .whether or not,immediately prior to this trouble you had with Granger you have spoken of, and for some time prior thereto, there had been, to your knowledge, any person’ or persons prowling about the houses in that community?’’

Which question was objected to, and the objection sustained; to which ruling the defendant, by his counsel, then and there excepted. And counsel for the defendant then and there stated that they expected the answer to said question toUe, that for some time prior thereto, persons had been prowling about at night, peering into windows, and sometimes accosting and insulting women and girls; that such persons were commonly called, in that community, “the sneak;’’ that general excitement and fear prevailed in the neighborhood on account thereof; that frequent mention of the matter had been made in the newspapers of the city; and that this defendant had repeatedly been importuned to apprehend the person or persons committing the acts aforesaid.

Granger was arrested, gave bail, afterwards an affidavit was filed, and he was put to trial and was acquitted; and he brings this action for an undue assault upon him by the officer, injuries he received in the arrest, and for false imprisonment and malicious prosecution; and the evidence offered on behalf of the defendant,or the tendency of it,is as I have read from the bill. And then this question was asked that I have read. This question involves the question whether it is proper to bringinto the case, on behalf Britton, the police officer, testimony of this rumor that existed in the neighborhood, or the fact that someone in the neighborhood had been prowling about and acting as this person had on this occasion,and that he has been insulting women and girls, and peering into the' houses, and that Britton knew this fact, and that he had been told that a person named “the sneak,’’ and so known in the community, was in the yard again, and that he had his hand on the gate, coming in, when Mary ran into the house, and that when the police officer went out to arrest him, as appeared here in evidence, that the man was there peering into the windows, and his pantaloons were unbuttoned in part. Now, this was offered to show the probable cause; that the officer, when he made the arrest, had probable cause for making it; and it was objected toon the ground that it was not proper to bring it into the case to establish probable cause, The proof, in the first place, devolves upon the plaintiff in the action upon malicious prosecution to establish the want of probable cause. It is a negative, and, being a negative, the proof is not required to be so positive and certain as it would if it was an affirmative, in order that the plaintiff may make out his case in regard to the question of probable cause, and is one of the things which he must prove. The acquittal is not sufficient to show want of probable cause, because the guilt or innocence of the accused is not the equivalent of the want of probable cause. The party may be guilty or may not be guilty; and while he may not be guilty, there may have been probable cause; yet guilt established in the courts does . not establish probable cause; and the very reason for it is that there may be things known to the officer which would be entirely improper to introduce in the evidence to show guilt. For instance, that a person tried for horse stealing, has stolen other horses; except to show guilty knowledge, it would not be proper to introduce that upon the trial; yet if that was known to the person who caused the arrest or made the arrest, it is, I think, entirely proper that it should be introduced in evidence. This is established by the courts at the present time.

Again, as to character; if the person arrested is of bad character, the time was when all the courts said that his bad character could not be proven to show that there was probable cause; but at the present day the courts quite unanimously agree that the person who causes the arrest may show the character of the person, to show the likelihood that he committed the crime, because there is much more likelihood that a person of bad character committed the crime, than a person of good character, and this would be an influence brought upon the mind of the person who made the arrest, The rule is thoroughly established as to what constitutes probable cause; and the courts quite unanimously agree upon this, although there is a difference as to some minor questions. But the courts quite unanimouly agree that it is one of belief. If the person causing the arrest believes, that is regarded as essential in many courts; and yet some courts hold that it is not necessary that the prosecutor should actually believe, if he has reasonable 'ground for an ordinary prudent person to believe — one that would convince the mind of a person of ordinary prudence to believe in the guilt of the.party arrested — that is sufficient, whether the prosecutor actually believes it or not. But that is not the general rule. The general rule is, in substance, that it must be such circumstances and surrounding facts as will lead a person of ordinary prudence to believe in the guilt of the person arrested; and if the facts show that to be the case, then there is probable cause for the arrest. ■ The facts proved are found by the jury, where they are in dispute. As to whether these facts constitute probable cause, is a question for the court to determine. It is quite the general rule that the mere belief on the part of the person making the arrest is not sufficient; but it must be something that is of that reasonable certainty, that will convince the ordinary mind of the guilt of the person; and I suppose the ground upon which this testimony was rejected is that there has been a person acting the way this person had been acting in that community; and to connect those acts of some unknown person with this person, is a leap over a chasm which the courts will not permit. That is, it-becomes a guess — becomes a mere suspicion' — a mere surmise; and the facts are not so related logically to each other as to induce the ordinary mind to believe in the guilt. Horses have been stolen in. a community, and a certain person is seen in the attitude of doing a like act again, or he is seen where suspicion might arise, but there might be other facts that would clear all these things away, yet he is arrested. Now, the officer knowing these horses to have been stolen, should it have any influence on his mind in making the arrest? Is that a fact that should be admitted? The purpose of all courts in determining every case is, to get at all the facts that actually existed in the case, and all the facts that were known especially to the prosecutor or the person making the arrest at the time the arrest was made. What was in his mind to influence him, and some things that were in his mind might be too remote to be introduced, and yet sometimes sufficient to form a probable cause, a proper form of reasoning, such as persons of ordinarily prudent minds would be likely to form. A person who sits down and deliberately makes a charge against another, is required to look into all the facts that exist in his mind, to some extent. If he has heard rumors, he cannot act entirely upon these rumors, but must investigate as to their truth or falsity, If he is without certain facts, it is important that he should look to some extent; but if the police officer arrested upon view, or even upon a warrant — but still more so upon view, because that is the only circumstance that would warrant the discussion of these facts in the case — if the police officer arrested upon view,he cannot proceed in the examination of the facts that appeared in his mind at ths time he makes the arrest, but must proceed hastily, without investigation,or nine times out of ten he would lose the prisoner. That is a circumstance; and then many courts have discussed another feature of this — that even where facts are brought to the notice of the person who institutes the prosecution, that person is acting under more or less excitement, and should not be held rigidly to the rule that would govern people who sit down and deliberately think about the matter after it is all over, and who have no connection with the case whatever. In getting at this matter, we conclude that the facts undertaken to be shown here were of, such a character, that they were properly taken into consideration by the officer who made that arrest; that some person had been thus prowling around, some person had been acting as this person was then acting; and that being the case, we think that the testimony was improperly ruled out, and should have been admitted, and that it was error on the part of the court below.

One other error was assigned upon the said trial. There was evidence introduced tending to prove that, after the arrest, imprisonment, and discharge as aforesaid, and before making any formal legal charge against plaintiff, the defendant consulted with Judge Fiedler, a duly licensed practitioner of the law, and at that time Police Prosecutor of the city of Cleveland; that upon such consultation defendant made to Judge Fiedler a full and fair disclosure of all the facts known to him in the case; and that Judge Fiedler then and there, and upon the facts so disclosed, advised defendant that the plaintiff was guilty of disorderly conduct in violation of said section of the said ordinance, and advised the defendant to prosecute plaintiff for such offense; that Judge Fiedler then prepared for defendant the affidavit charging plaintiff as complained of in this amended petition; and that all that defendant thereafter did or caused to be done in the matter of the prosecution of said amended petition complained of, he did pursuant to the said advice of said Judge Fiedler. Thereupon this request was made' by the defendant below, the plaintiff in error here:

“Where an officer finds one violating a law or ordinance, and then and there arrests him, and thereafter files affidavit charging him with the offense he was found committing, the prosecution begins with the filing of the affidavit, and not with the arrest; and if such officer, before making the affidavit, takes the advice of an attorney at law, upon full and fair disclosure of the facts, and follows his advice in making an affidavit, and prosecuting the person so charged, the officer is entitled to the benefit of such consultation and advice, in determining whether he had reasonable or probable cause for the prosecution.
“Applying this rule to this case,if the evidence shows that after the arrest, but before making the affidavit, the defendant consulted Judge Fiedler, laid before him fully and fairly all the facts in his possession, and then followed his advice in filing the affidavit and prosecuting the case, such consultation and such counsel are circumstantial evidence that tend to show probable cause and want of malice, and you should so consider them. ' ’

The court refused to charge the jury as requested, and that was excepted to. And then the court said to the jury:

“Testimony has been offered tending to show that before filing the affidavit upon which this prosecution in the police court was conducted, the officer stated to the prosecuting attorney of the police court the circumstances and facts of which he had knowledge, and upon which this charge was to be made, if one was made, in the form of an affidavit or warrant. In other words, he claims to have laid before the prosecuting attorney all the facts regarding the transaction. And it is claimed that thereupon he was advised by counsel that the statements and facts so made known to the attorney were sufficient to justify the prosecution, and that the prosecuting officer advised it' — advised the carrying forward of the prosecution.
“In a word, this defendant claims to have acted upon the advice of counsel. Confessedly this advice was not sought until after the arrest was made. The arrest was made upon the 2nd of May. The affidavit offered in evidence was sworn to on the 9th day of May, 1894, some days after the arrest. The court holds that, under the circumstances, advice sought or advice of counsel given in pursuance of information given to counsel, cannot amount to complete justification of the defendant in this action. ”

That was not asked — that last proposition as to complete justification. It only asks that it may be taken into consideration in determining whether or not there was probable cause, and whether or not there was malice. The court continued:

“Let me state the general rule. If one has a complaint against another; if one seeks the arrest of another, and before causing the arrest of the other, he goes to an attorney at law, one duly admitted to practice law in Ohio, and lays-before him all the facts of which be has knowledge, conceals-nothing, states every fact of which he has knowledge bearing-upon the case, and upon that statement his counsel advises-him -that he has a good complaint, that he has just cause for making a complaint and reason for the arrest of the-party, that constitutes a complete defense to him against a subsequent charge of malicious prosecution. That is, if he has acted upon that information, is advised that the facts-justify the complaint, he is not liable in an action for malicious prosecution. To make such a defense available, however, it must appear that the party making the complaint concealed nothing, told everything of which he had knowledge, reported the facts truthfully,and in no way misled his adviser or caused him to make a statement based upon facts that were not true as he believed them to be true. Nowr, as-I say, it is claimed in this action that the defendant told the prosecuting attorney all the facts of which be had knowledge, and the prosecutor advised the filing of tie affidavit, or advised him that the facts justified the filing of the complaint. As I have already stated, this advice was sougbg^_ and given some days after the arrest of the plaintiff and hi j detention in the police station, some days after he gave bai1 for his subsequent appearance in court.
“The court is of the opinion, and so instructs the jury, that under the circumstances, even though he gave to the-officer all the facts of which he had knowledge, that cannot, in view of the time it was given to him, constitute a complete defense to this second cause of action; but that it is a-circumstance which the jury may consider as bearing upon the motive by which Britton was actuated, as tending to-show the absence of knowledge — -as tending to show bis-acting in good faith; and you may consider that testimony for whatever you regard it worth, as bearing upon the question whether or not he acted from honest and right motives-in so doing as he did.”

As to this tending to show he acted in good faith, good faith is not the equivalent of probable cause, nor is it so-treated by the authorities. “For whatever you regard itr worth, as bearing upon the question whether or not he acted from honest and right motives in doing as he did.” Now, that is not the equivalent of probable cause at all. “Whether or not he acted without malice, or acted in good faith, having only in mind the observance of the law, and the vindication of the law and the punishment of violators of the law. You may examine that testimony and consider it in your finding as tending to show absence of malice in his instituting this prosecution. ” The court confines it to showing the absence of malice in his instituting this prosecution,

The court then says, first, that Britton, going to the attorney, who happened at that time to be the prosecutor, that if he went after the arrest was made, but before the prosecution was commenced, it could be no ground whatever to show the want of malice, nor could it show probable cause; and in giving the rule, the general rule, the court has not in language wholly stated to the jury that it was, sufficient to show probable cause even if the advice had been given before the arrest, and everything revealed.

The whole question here probably turns upon the line that is undertaken to be drawn between that of the arrest and that of what is strictly called the prosecution. We have in the books “arrests,” “malicious arrests.” We have in the books “malicious prosecution.” We have in the books “false imprisonment;” and yet they are not alike. They are all different. Our state has required, as a condition precedent to any trial,and any legal trial whatever,that there be filed against the party an affidavit, and we think that that is the beginning of a prosecution in a case of this kind. Malicious arrest is, in ipany cases at least, entirely a different and separate cause of action from that of malicious prosecution; and we find several cases where they have been joined together, where the party has two separate and distinct causes of action; and while no court that we have seen has ruled distinctly upon that, yet it is so treated throughout the case by counsel and attorneys; and that too, under the common law, without any statute regulating the matter.

We think that the court erred in refusing to give this request. The first question that I have considered, and bearing upon this somewhat, also, has undergone a considerable discussion in the books. There was a time when such evidence as was ruled out of here would not have been admitted; but there is a case discussed by Judge Redfield,in Barron v. Mason, 31 Vermont, 201, in which evidence such as ruled out in this case was thoroughly considered and admitted as proper evidence; and while judge Redfield considered the general rule to be against it, yet he seemed to find enough in this case to hold the rule that the evidence was proper in that case. Since that, we find that a number of courts have ruled upon like testimony, and the rule laid down by Judge Redfield is the one that is now quite universally followed where the question arises.

I read from the case of Pullen v. Gflidden, in the 68 Maine, 559, which is only one of a number of cases which I have examined:

“Here, however, the precise question is whether evidence of common repute'in the neighborhood that the plaintiff was guilty of the particular offense for which he was prosecuted, was rightfully received.”

Then, referring to Judge Redfield’s decision, he said;

“Emphatically that such evidence ought to be regarded as one proof, though not a sufficient one in itself, of probable cause, We think he was right, Not only the facts which the defendant knew, but the information .he had received, in fine, the circumstances under which he acted, even his own consultations with counsel learned in the law, if he took the advice of such, are competent evidence upon these questions of probable cause and malice in fact.”

There is much more of it, but that is all that is necessary to read. I wish to say that the very question here, among many other things, is discussed by Judge Redfield in the rejection of this evidence; and that is one of the cases where he held contrary to the current of authorities at that time; that the evidence should have been admitted, and that it was proper evidence in a case of this kind; and that rule has been followed. And then I read this case also in regard to the fact that such evidence is competent evidence upon this question of probable cause and malice. Some courts hold that it is a complete defense; others hold that it is not. This is an authority that holds that it is competent evidence upon this question, and that is all of this request asked for by counsel. And we think it was improperly ruled out, and for these two errors the case is reversed and remanded for further proceedings.

Norton, Phillips, Eorcl & Oroiol, for Plaintiff in Error.

H. J. Ewing and A. H. Atwater, for Defendant in Error.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit Court
    Jan’y Term 1897.)
    Before Haynes, Scribner and King, JJ.
    WESLEY S. THURSTON, ADM’R., v. SARAH A. BISSEL, et al.

      Will construed — When devise of whole use and benefit during life with power to dispose of the property by will, will not give entire estate in fee.

    F. B., being unmarried, in his will deeded his farm and other property to his executor, in trust, the use. rents and profits of the farm to be given to his brother L. B. during his life, and at his death the farm to be deeded to the person whom he should appoint by will, and on his failure to so appoint, to be deeded to his heirs; the residue of the estate was deeded to the executor in trust, one-third of the use and income to be given to each of testator’s three brothers L. B., T. B. a.d S. B. On the death of S. B. his share was not to go to his children, but to the two other brothers equally, or their representatives, the will providing that no part of testator’s estate should under any contingency go to the children of S. B. On the death of the two brothers T. B. and -S. B., the use and benefit of the whole estate went to L. B., who dying childless, willed the same after the death of his wife to his heirs, whereby a share would go to the children of S. B. Held, that although thejuse’and benefit of this estate during life and the right to dispose of the same by will was given to L. B., yet the entire estate in fee did not vest in him, but in the executor, and the power of L. B. to dispose of the estate by will was subject to the limitation that no part of it should be given to the children of S. B.
    Appeal from the Court of Common Pleas of Lucas County.
   Haynes, J.

The petition in this case was filed in the court of common pleas for the purpose of obtaining a construction of certain clauses of the will of Frederick Bissell, deceased. Such proceedings were had that a judgment was rendered in the case, and an appeal was taken to .this court.

It appears from the statement of facts agreed upon in the case, and from the pleadings, that Frederick Bissell died in this city in the year 1870. Ho was unmarried, and never had been married. He left a will wherein he, among other things, deeded a certain farm to the executor of his will, Edward Bissell, in trust to be held by him, and the use, rents and incomes of the farm were to be given to his brother, Leverett Bissel, during the lifetime of the latter. In regard to the remainder, he provided that upon the death of Leverett the estate should be deeded by the administrator, or conveyed, to such person as Leverett might by his will appoint, and if Leverett made no will, the estate was to go to certain heirs of Leverett, the same as if Leverett had owned the property. Leverett Bissell was married,but had no children. Frederick Bissell, when he died, left three brothers — Leverett, Thecdore and Sidney. By one clause of his will, Frederick provided that the residue of his estate, other than the-farm to which I have alluded, should be held by Edward Bissell as executor in trust, to go, one-third to Theodore Bissell, and one-third to Leverett. In the event of the death of Sidney, either before or after the death of the testator, Sidney’s one-third was to be divided equally between Leverett and Theodore or their legal representatives. In the event of the death of either Theodore or Leverett, either before or after the death of the testator, one-half of the one-third was to go to the surviving brother other than Sidney, and the other half to the legal representatives of the deceased brother. The heirs of Leverett, of course, he having no children, would be his brothers and sisters or their legal representatives; but at the close of the sixth paragraph he puts in this clause, which is general and sweeping. This was interlined, as it appears by the original will, after the will had been drawn, but in the hand of the person who wrote the original will, to-wit, the executor, and undoubtedly was written at the time the will was made, before it was signed:

“It being expressly understood, however, that no part of my estate is, under any contingency, to go to any child or children of my brother Sidney Bissell.”

Leverett Bissell, before he died, made a will in which he appointed and directed that his interest in this farm in controversy should go to his wife during her life, and after her death should go to his heirs, the same as if he held it at the time of his death. Apparently, if he gave it to all his heirs, he would give it to ihe children of Sidney Bissell as well as to the children or heirs of any other of the brothers. The controversy that arises here is, whether, under this clause of the will, it was competent for Leverett Bissell to appoint that any of the children of Sidney Bissell should have thé property.

Counsel have, with learning and ability, cited authorities which they claim support the position which they take, that by the terms of the will,Leverett Bissell took the full title to the property; in other words, that he had the same power of disposition of this property that he would if he had owned it in fee; that giving to him the income, rents and profits was equivalent to giving him the whole of the title, and the absolute power of disposition. We are unable to agree with learned counsel with regard to this matter, We have examined the authorities to which he has cited us. It is well known and well understood that in regard to the construction of wills, the first thing to be considered is the will of the testator; and if the will of the testator, when examined in the light of the whole will, shows clearly and conclusively what his wish and desire is, these will be carried out and respected by the courts, unless there is some provisions of the law absolutely prohibiting his doing what he attempts to do.

Unquestionably, on the fact of these papers, he willed that Leverett Bissell should have the úse of that property during his life, and that, by the frequent determination of the Supreme Court of this state, would give to him the life estate. The question that has arisen is, whether, where there are cfauses in the will with regard to the remainder that are repugnant, either should be rejected; as, for instance, where the use, rent and income is given to a person during life, and power of disposition of the property, and then upon the deaih of the life tenant that all that is left shall go in a certain direction; it being said that the courts cannot give the absolute power of disposition to a party and at the same time retain, as by a string, the disposition of that property after the death of the devisee, There is a discussion of that question in the case of Baxter v. Bowyer, 19 Ohio St., 490. And that case is discussed in Johnson v. Johnson, 51 Ohio St. In the case in 19 Ohio St., the will read:

“I give and devise all my property to my beloved wife, both real and personal, of every description, with full power to collect, by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her, to sell at public or private sale, on such terms as she may think best, or use in any manner as she may deem proper, any or all of the property, real and personal, and deeds to purchasers to execute, acknowledge, and deliver in fee simple. ’’

Then he provides that after the death of his wife, and the expenses of his last sickness and demise,- and the expenses of tombstones, etc., shall have been paid, the balance shall go to the Boards of Foreign and Domestic Missions of the Presbyterian Church. The court held in this case, as in the case of Johnson v. Johnson, that the wife took only a life estate, and life support, with power of sale for the benefit of the estate, and whatever was left upon her death, was to be governed by the terms of the will.

In discussing the question, Judge Welch says, on page 499:

“Most of the authorities cited by counsel, where an apparently contrary doctrine has been held, are distinguishable from the present case by a single peculiarity. Inmost of them the subject-matter of the limitation over was, not the remainder of the estate, but such- part of the estate as the first devisee or legatee chose to leave. Thus in the leading case of Att’y Gen. v. Hall, Fitzgibbon, 314, the subject of the limitation over was, ‘so much as he should be possessed of at his death.’ In Ide v. Ide, 5 Mass., 500, it was ‘the estate he shall leave.’ In Jackson v. Bull, 10 J. R., it was, ‘the property he died possessed of.’ In Jackson v. Robbins, 16 J. R., 537, it was ‘such estate as should remain unsold, undevised or unbequeathed.’ These and the like cases are clearly distinguishable from the present one,’’

We think, clearly by the terms of this will, the title remained in Edward Bissell as executor, the power of disposition being in Leverett, and the intention of the testator was that Leverett should simply have the use of it during his life, the whole of the proprety remaining should either pass to the party he nominated, or in case he did not nominate, then to such persons as would be his heirs at that time,according to the terms of the will. We hold that if we give force and effect to this will, we must hold that the disposition of the property to the child of Sidney Bissell will be in violation of the will, and should be held void. In other words, we hold that the limitation in regard to the execution of this power is a limitation which bound Leverett, and which prevented him from directing that this property should be given in any manner to any child of Sidney Bissell. It is a limitation upon his power and upon his authority.

W. S. Thurston, in pro. per.

W. H. Tucker, for Amelia M. Loop.

Fred B. Woods, for balance of Defendants.

We therefore bold as the true construction of this .will that the administrator, in paying over these moneys or disposing of them, should not in any manner recognize the alleged rights of the daughter of Sidney Bissell. We think the costs in the court below should be paid by the administrator, but inasmuch as the daughter of Sidney Bissell is the appellee in this case, and the decision of this court is the same as that of the court of common pleas, the costs in this court should be paid by her.


author: Smith, J,

text:
    (First Circuit — Butler Co., O., Circuit Court
    October Term, 1896.)
    Before Swing and Smith, JJ.
    WILLIAM D. OUSLEY v. ROBERT B. WITHERON, et al.

      Motion for New Trial for newly discovered evidence — Counter affidavits proper.

    Where affidavits are filed to sustain a motion for new trial on the ground of newly discovered evidence, the filing of counter affidavits is proper under Sec. 5308, R. S.

      Contest of will — Apparent injustice to family — Burden of proof— Ohio Statute.

    While the fact that the evidence in the case tends to show that the will the validity of which is attacked, is unreasonable in its provisions and inconsistent with the duties of the testator to his family withoi.it any good reason therefor appearing, would be a matter properly to be considered by the jury in connection with the other evidence in the case, as tending to throw light upon the question whether the testator was of sound and disposing mind and unrestrained, yet under the Ohio statute, providing that the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will where offered by those upholding, it will not have the effect of throwing the burden upon those upholding the will of explaining such apparent injustice, but it is incumbent on the contesting party to prove that the will is the offspring of mental defect, perversion or undue influence.
   Smith, J,

1st. The trial court did not err in allowing affidavits to be filed on behalf of the defendants below, in answer to those filed by plaintiff in support of his motion for a new trial, based on the ground of newly discovered evidence. This is especially provided for by Sec. 5308, Rev. Stat.

2nd. At the trial of the case, after the general charge of the court to the jury, and to which no exceptions were taken, the plaintiff asked the court to give two several special charges to the jury. The requests were refused, and proper exceptions were taken.- — -The first charge so asked and refused was as follows:

“If the jury find that the will of Samuel P. Witheron is unreasonable in its provisions, and inconsistent with the duties of the testator with reference to his property and family, this of itself will impose upon those claiming under the will the necessity of -giving some reasonable explanation of the unnatural character of the will, or at least, of showing that its character is not the offspring of mental defect, obliquity or perversion.”

It may be conceded, we suppose, that the evidence offered in this case tended to show that the will of the testator, the validity of which was attacked in the case, was unreasonable in its provisions, and inconsistent with the duties of the testator to his family and property, in this, that while he gave a considerable amount of property to his three children and heirs at law, he gave nothing to this grandson, the only son of a deceased daughter* and, it may be, without what would seem to people generally, a good reason therefor. This was a matter perfectly proper to be considered by the jury, in connection with the other evidence offered in the case, as tending to throw light upon the question whether at the time of the execution of the will the testator was of sound and disposing mind and memory, and acted freely and voluntarily, and was not under any restraint; for these were the questions of controversy in the case; and on these issues such evidence might be entitled to great weight. But under the provisions of our statute, which provides that on the trial of such issues, the order of the probate shall be prima facie evidence of the due attestation, execution and validity of the will, where offered by those upholding it, we are of the opinion that the court in this case could not properly say to the jury, as requested, that if they found as stated, “that this of itself will impose upon those claiming under the will, the necessity of giving some reasonable explanation of the unnatural character of the will, or at least of showing that its character is not the offspring of mental defect, obliquity or perversion.” If the jury was to understand from this statement, as they might well do, that if thcse-claiming under this will had not done this, that the verdict should be against the will, it would be manifestly wrong. But in any event, the charge as.asked imposed a burden upon those claiming under the-will, which the law did not impose upon them. They had made a prima facie case by the introduction of the will and order of probate, and it was incumbent on the plaintiff himself, before he was entitled to a verdict, to show that the will was, “the offspring of mental defect, obliquity or perversion” if it was claimed by him to be invalid for this cause.

The burden imposed by the law to show this could not be shifted from him and the defendants be bound to prove that this was not the case.

The second charge asked for and refused was- this:

Thos. MilUkin, for Plaintiff in Error.

A. IF. Hume and Edgar A. Belden, for Defendant in Error.

“If the jury find that John L, Witheron, who was benefited by the will, made as it is, had a controlling agency in inducing Samuel P. Witheron not to give Wm. D. Ousley an equal share with the other heirs, this must be regarded as a very suspicious circumstance, and one requiring the fullest explanation.”

But, while refusing to give the charge in the language asked, the court said to the jury concerning it:

“The court, however, will say, that circumstance, like any other circumstance which shows an unequal distribution of this property, or any unusual influence exerted, are such -circumstances as the jury may take into consideration in making up their minds as to whether or not there was any unsoundness of mind, or any undue influence.”

We are of the opinion that the charge, as asked for, ought not to have been given. The jury might have found that John L, Witheron, who was benefited by the will as it stood, had a controlling agency in inducing his father not to give the plaintiff an equal share with the other heirs, as for instance by convincing him fairly that he was not entitled to such a share, for the reason, for instance, that his, the plaintiff’s, mother had received á full share in her lifetime, or that he was rich and did not need it, while the others were poor. If those were the facts, (of which we know nothing), it would not be a very suspicious circumstance, “and requiring the fullest explanation,” whatever this may mean. The charge as asked for was altogether too indefinite,' and on its face asked rather for a statement of fact from the court, than one of law. And in our opinion the trial judge, in his statement on this point, stated strongly enough how the matter should be considered and weighed by the jury.

The judgment will be affirmed.


text:
    (Sixth Circuit — Lucas County, O., Circuit Court
    Jan’y Term, 1897.)
    Before Haynes Scribner and King, JJ.
    HENRY STRONG, JOSIAH D. COOK, AND GEORGE E. POMEROY v. THEODORE SCHMIDT.

      Lease — Oral agreement made at or before execution of the written lease but not carried into same, not admissible in evidence.

    An oral agreement alleged to have been made at the time or before a written lease was executed, to the effect that at the end of the year a rebate of SS50 from the amount of the rent stipulated in the lease should be allowed by the lessors, to the lessee, but as to which agreement the written lease is silent, can not be admitted in evidence in a suit for the amount of the rent stipulated in the lease. Besides such an oral agreement would be within the statute of frauds, and not binding.

      Lease by the year — Tenant holding over, liable for another year's rent.

    Where a tenant under a lease by the year stays over a second year,and at the expiration of the second year holds over and actually pays for several months of .the third year the monthly installments of rent as stipulated in the lease, he will be held as holding by the year, and if he leaves the premises before that year expires, will be liable for the rent for the balance of the year, although such lessee notified the lessors on the expiration of the second year that he would not take for another year, but only from month to month, the lessors refusing to accept such proposition.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

An action, entitled as above, was brought first in a justice’s court, and then taken to the common pleas by appeal, to recover for four months’ rent of certain premises in this city (Toledo). The case in the common pleas was tried to the court without the intervention of a jury, and judgment was rendered against the plaintiffs below, who thereupon filed their petition herein to reverse the judgment of the court of common pleas, which is the case now before us.

The record shows this state of facts: Schmidt leased of the plaintiffs in error certain premises, on Superior street in this city, for a period of time, at a certain price, the same payable in monthly installments, and the original, lease was for one year, and perhaps renewable at the end of a year; but, be that as it may, at the end of the second year the controversy commences. It is claimed on behalf of Schmidt that when the original lease was made, there was an oral understanding that there was to be deducted from the whole year’s rent (which was $600),$50,leaving him to pay actually $550; and, secondly, he claims that at the expiration of the second year he notified the parties that he would not lease another year, by the year, but would lease by the month.

Testimony is given tending to show that a new lease being presented to him, he refused to sign it. The lessors thereupon notified him that they should hold him for the full year, They did not accept his proposition, or recognize his right to make any such a proposition. However, he remained upon the premises, paying his rent, for about four months, or perhaps more, and then left the premises; and this suit is brought for the amount claimed to be due for the remainder of the year. It is claimed on behalf of the defendant in error that this original contract was a valid contract, whereby it was agreed that there should be a rebate of fifty dollars a year. Secondly, that the arrangement that was made at the expiration of the year mentioned, was such as that the- court will enforce it — that it was a valid arrangement; and he claims further, that if he held over, he held over by sufferance, and not for a year, either at law or in fact.

Without going through this testimony, or discussing it at any length, we are satisfied of this: that when the contract was drawn, whatever may have been said at the time, there was nothing in the contract, no other arrangement, than that the lessee was to pay $600 a year, being $50 per month. By the settled rule of law, the whole contract at that time was merged into the written contract. There was no agreement that there should be another contract, nor was any such other contract recognized in the lease. The court therefore erred in admitting testimony to show that there should be a rebate of $50 a year by virtue of some oral arrangement made prior to the execution of the written lease.

Clayton W■ Everett, for Plaintiffs in Error.

Pillied & Tyler, for Defendant in Error.

Secondly, we are of the opinion that the party, when it came to the expiration of the second year, held over under and according to the terms of the lease, not as a tenant by will, but as a tenant from year to year; and that he paid the rent for some months,and recognized the tenancy' — although he was claiming at the time, perhaps, that he should have it only from month to month.

We are clear that under the decisions of the Supreme Court of this state, no, arrangement or agreement made between the parties in the way claimed by defendant in error would be valid or binding, and that the court could not rightfully take such alleged arrangement into consideration, the same not being in writing, and being clearly within the statute of frauds.

There was some contention that there was a surrender of these premises. We are of the opinion that there may be an oral surrender of premises, but there must be a delivering up of the premises. Nothing of that kind occurred here, but the party held on, and the evidence is clear that he was told that he would he held according to the terms of the original lease, for a year.

We are therefore of the opinion that the court of common pleas erred in dismissing the petition of the plaintiffs below, and^that it should have rendered judgment for the plaintiffs below, and the judgment of the court of common pleas will be reversed and the cause remanded for a new trial, and for further proceedings according to law.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Swing, Swing and Cox, JJ.
    HENRY W. KING et al. v. J. E. HOPKINS et al.

      Bargain and Sale — Representation by purchaser, untrue in fact, but believed by him to be true — Right of seller to rescind sale and repTevy the goods.

    1. One of the questions argued in this case, viz., whether, when a person purchasing goods from another, makes representations as to material facts, upon which representations the seller relied and acted,, and upon which he was authorized to rely, but which representations were in fact untrue, although the person making them, in goo! faith believed them to be "true, the seller is authorized to rescind the contract (no payments having been made thereon), and take the property by replevin proceedings as he might do in case of actual fraud,though discussed, is not decided in this case, for the reason that the same was not properly raised by the charge and asked for and refusd, and because the two judges who heard the case, differed on this point and further, because the decision of the question is not necessary in this case.
    2 The evidence in the case shows that at the time of the contract of sale, material representations were made by the purchaser which were untrue, and that in view of all the facts in the case he could not have believed them to be true, and that they therefore were really fraudulent. The verdict therefore was against the weight of the evidence, and the motion for' a new trial should have been granted.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The principal question discussed by counsel in this case was, whether the trial court erred in the instructions, general and special, given to the jury, or in refusing to give certain special charges asked for by the plaintiffs in error, who were the plaintiffs below. A bill of exceptions was allowed by the court on the overruling of a motion for a new trial filed by the plaintiffs, based on the rulings of the court as to the rejection of evidence offered by the plaintiffs, and on the ground that the verdict rendered was against the weight of the evidence, which bill contained all of the evidence received, the charges given and refused, and the exceptions taken to the rulings of the court at the trial.

® The action was one brought by the plaintiffs against Hopkins and Mr. Slattery,the latter of whom was the assignee of Hopkins, for the benefit of bis creditors,. It was an action of replevin, and sought to recover the possession of a large amount of clothing which the petition alleged was the property of the plaintiffs, and that they were entitled to the immediate possession of the same, and that Mr. Slattery wrongfully kept them out of the possession thereof. All of these averments were denied by the answer of the defendants. The papers show that certain of the propeity described in the petition, and in the affidavit in replevin, was taken by the officer under the writ which was issued, and that, on the execution of the undertaking provided for by the statute, the same had been delivered to the plaintiffs.

On the trial of the case the evidence showed substantially this state of facts, or at least tended to'show it: That on or about the 7th day of September, 1892, Hopkins, then a resident of Cincinnati, and engaged there in selling goods on the installment plan, applied to plaintiffs, wholesale merchants, doing business in Chicago, to purchase goods from them to be sold at his place of business in Cincinnati, and as he wished to buy on credit, plaintiffs had a conversation with him in regard to his property, indebtedness, etc., in order to determine whether they would extend credit to him. At that time Hopkins represented to plaintiffs “that he had a stock of goods worth $18,000, and that he always had more accounts on his books than sufficient to meet his outstanding indebtedness.”

He did not state the amount of his indebtedness, or in what shape it was, or whether any of it was evidenced by judgment notes. No inquiry as to this was made by plaintiffs.

The plaintiffs, relying uponjthose representations, sold to Hopkins, on the 12th and 23rd of September, goods to the amount of $1,180.50, which were at once shipped to him at Cincinnati, and by the agreement of parties, Hopkins was to pay for them in four months from November 15, 1892. No money was paidlherefor byjdefendant then or afterwards, and no notes or securities taken. ■' The evidence further tended to show that at the time these representations were made, Hopkins had valid judgment nptes outstanding against him to the amount of about $11,000.00, held by two firms, in addition to other amounts which he owed to other persons. That, being pressed for payment on those notes, he made an assignment to Mr. Slattery, November 16, 1892, after the recovery of judgments on the judgment notes. That at that time Hopkins’ liabilities were about $26,000.00. That $6,400.00 was realized by the assignee from the stock and fixtures, but nothing was realized from the accounts. That the stock and fixtures were appraised at $7,540.00, and the accounts at $1,582.50; that this appraisement of the goods was at about 50 cents on the dollar, and was a fair appraisement. As we gather from the evidence, the nominal value of the accounts at the time of the assignment was about $5,000.00, and the value of the stock of goods held at the time the representations were made, was considerably less than it was at the time of the assignment, and it is probable, too, that it was so as to the value and amount of the accounts, or at least about Sept. 1st. There was evidence, too, tending to show that the defendant, when he made these representations, believed them to be true,and had ground so to believe.

Leaving out of view for the present the question as to the-representation that his stock of goods was then worth $18.000.00, what is the meaning of the representation, “that he always had more accounts on his books than sufficient to. meet his outstanding indebtedness?” It seems to us that it was a representation that he had good accounts to an amount greater than his indebtedness at that time, and always. If this be so, it seems clear from the evidence that such representation was not true. At . all events, there was evidence which strongly tended to show that it was not. Conceding, - then, that Hopkins believed it to be true, and had reasonable ground for the belief, would this operate to deprive plaintiffs of. the right to rescind the contract, of sale and regain the poBséssion of the property by replevin or otherwise? There is no question but that, if such representations had been falsely and fraudulently made,the plaintiffs, while the goods were in the possession of the vendee, or his assignee for the benefit of his creditors, acting promptly on the discovery of the fraud, and restoring the purchaser as far as possible to his original position, might declare the contract rescinded, and by replevin rightfully resume the possession of their property thus fraudulently taken from them. 31 Ohio St., 162; 49 Ohio St., 296.

But it also seems to be the clear law of this state, that in an-action brought by one person against another to recover damages resulting from false representations made in a contract, the plaintiff is not entitled to recover, even if it is shown that material representations were made by the defendant which were untrue, if they were in good faith believed by him to be true, and the facts in the case justified the belief. 26 Ohio St., 428; 28 Ohio St., 20. But so far as we are aware, there has been no direct adjucation by the Supreme Court of this state on the question whether, where there has been a representation as to a material matter, relied and acted upon by the other party, and which he was authorized to rely upon, and which was untrue, but which the person making it believed to be true, and the facts justified the belief,the person to whom the representation was made was authorized to rescind the contract and take the property by replevin proceedings, as he might do in a case of actual fraud.

The case which apparently comes nearer deciding the question than any to which our attention has been called, is that of Parmlee v. Adolph, 28 Ohio St., 10. In the last clause of the syllabus of that case it is said:

“To constitute representations fraudulent so as to be a- ground for the rescission of a contract, they must -be both false and fraudulent.®*If they are made with an honest belief at the time of their truth, they are not fraudulent but if made recklessly and without any knowledge or information on the subject calculated to induce such belief, and they are untrue, they are fraudulent.”

It would seem that there was nothing in the case as disclosed therein that would justify the broad language of‘the court in the first part of the syllabus quoted. The question in the case on this point seemed to have arisen on the fourth request made to the trial judge, to give a special charge to the effect, that if. the defendant “made the representations above set forth, and honestly believed them tobe true, then he would not be guilty of fraud or recklessness unless some thing more appeared. ” This charge the court refused to give, and the Supreme Court held that there was no error in this action, on the ground that it was not a competent statement of the law, and would probably have misled the jury, They say in the opinion:

“This request is based upon the idea that where a party simply believes in the truth of a representation made by him, upon which another parts with his property or his rights, he will not be guilty of fraud or gross negligence. This doctrine appears to be sound where the credit of the party recommended is involved, and nothing more. Such recommendations are generally understood to be nothing more than the opinion of those who give them, resting upon common reputation, and the apparent circumstances of the individual recommended, and not upon any examination of his affairs. And it is well known that men who are apparently in good circumstances and credit, turn out to be really insolvent. In such cases a recommendation of that kind should not be presumed fraudulent because it happens not to be true, But the rule is otherwise where the false representation induces the contract between the parties, and enters into it. It is otherwise where the party making the false representations is bound to know the truth of his representations — then mere belief in their truth will not excuse. One is responsible for his belief in a case where a prudent person might know the truth of the facts upon which his supposed belief is founded. * *' *
“Where a party, from the nature of the transaction and his relation to the parties, and the facts are such that he is chargeable with a knowledge of the truth of the representation he makes, if they are false he can not escape liability by saying he believed them to be true. It Was his duty to know whether'they were true, and his belief will not excuse him from liability to the person injured thereby, unless the facts will reasonably justify a prudent man in such belief.”

It would seem, too, that the doctrine of this syllabus is somewhat varied by that announced in the case of Mulvey v. King, 39 Ohio St., 491. The syllabus of that case is this: * ‘ '

‘‘Where a person, by means of false representations of facts materially affecting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may, in an action brought by the vendor for the purchtsa price, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when he made them, and had good reason for so believing.”

And in the opinion by Judge Upson, speaking for the Court, it is said:

‘‘It may be considered as well settled in this state, by the cases above cited, that an action for damages, .caused by misrepresentation, cannot be maintained without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person, claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles can not be applied. It is, then, only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract; that it was false; that the other party had a right to rely upon it, and that he was so induced by it to make the contract, in order to entitle him to relief, either by the rescission of the contract, or by recoupment in a suit brought to enforce it.” •

In the case at bar it would seem that as the defendant, the assignee for-the benefit of creditors, and who stood in the shoes of Hopkins, was by way of defense, asserting a contract of sale between the plaintiffs and his assignor,by which, as he claimed, the goods became the property of Hopkins, there is ground to believe that in this case the plaintiffs were at liberty to show that such contract was invalid, and should not, in effect, be enforced, by proving that false representation's had been made to them to induce them to enter into this contract on which they were authorized to rely, and did rely, and which induced them to make the contract, and that these representations were untrue, even if the purchaser believed them to be true, and had reasonable ground for his •belief. 'Unless there is some technical rule to the contrary, it would appear that the doctrine and reasoning of the court in the case cited from 39 Ohio St., would apply to this kind of a case as well as to the one before that court. It is clear, from the cases decided by our own Supreme^Court, that a court of equity would not enforce such a contract in an action for specific performance, and in an action at law to recover on"such a contract, would allow the defendant to recoup his damages suffered by reason of such a contract, thougtfthe representations were innocently made, as by mistake. And it is difficult for me to see, why, under our liberal practice, the same result should not be arrived at by allowing the person to whom such representations were made, to rescind the contract and replevy the goods, where nothing had been paid on them, and no notes therefor had been given, as was the fact in this case. And in my judgment such seems' to be the weight of the recent authorities.

Bigelow'on Fraud,rpage 77, makes this statement of law in relation to this subject:

“Judicial rescission may fbe of Ttwo^kindsUone a substitute for ‘rescission in pais’where the latter would be equally effectual as rescission; the otherwhere it is necessary to resort to the courts, not for the purpose of recovering the property merely, but to obtain rescission itself. The former case occurs where the defrauded party in a sale or the like has received nothing of value from the wrong-doer, and instead of making demand out of court for his property, by way of rescission, proceeds at once to sue for it, as by trover or replevin, which he may do.”

And he cites quite a number of cases in support of the proposition. And again on page 411, a part where he is discussing the rights of the parties under the head of “Innocent Misrepresentation”, the same view is taken, and he quotes the decision in the case of Stevens v. Austin,' 1st Metcalf, 557, to the effect that rescission of a sale' of personalty for misrepresentation by the purchaser, revests the title in the vendor ipso facto. And the vendor, if he has nothing to return,-may thereupon sue in replevin or trover without a prior demand. ” See, also, the discussion of the question in Anson on Contracts, and Wald’s Pollock on Contracts.

While the law on this point is not clear, I incline to the opinion that on the state of facts suggested, viz., an innocent but really untrue representation by the purchaser, such rescission may be made in an action of this kind and the goods be properly reclaimed. Judge Swing doubts whether under the law as it stands, this can be done, but in the view we take of the case, this division of opinion- on a rather abstract question,is not important here,for the reason here-' .inafter stated.

The question under discussion was raised, or attempted to be raised,in this way: The plaintiffs asked the court to give to the jury special charge No. 1, as follows:

“If you find that at the time Hopkins purchased these goods from the plaintiffs, he represented to the plaintiffs that his stock in trade was worth $18,000.00, and that his out-standings equalled his liabilities, and the plaintiffs relied upon this statement, and if you find that this statement was substantially untrue, then the plaintiffs were entitled to rescind the contract and recover the goods irrespective of the question whether Hopkins believed the statement to be true or not, and irrespective of whether he had reason to believe it to be true or not. The only question is whether it was substantially true in fact.”

We incline to the opinion that this charge so requested did not fairly raise the question which has been discussed. It does not take into the account the question whether the plaintiffs parted with their goods, and were induced to do so on account of these representations — only that they relied upon them. Something more than this was necessary. They might have relied upon them, and yet have been induced to sell the goods, or part with the possession of them for other and different considerations. And it is perhaps objectionable on the ground that it practically tells the jury that if they find such representation to be substantially untrue, that plaintiffs, as a matter of law, were entitled to rescind the contract and recover the goods. This might depend upon the question whether the plaintiffs had been prompt in their action on the discovery of the fraud, and if any restoration was necessary, whether it had been made, which were questions of fact to be found by the jury under appropriate instructions from ihe court, as to which the charge requested is silent.

But whatever may be the law on this particular point, we are of the opinion that substantial justice has not been done in this csae, and that on the evidence introduced, the verdict should have been in favor of the plaintiffs below. We think it quite apparent, from the testimony of Hopkins himself, that at the time of making these representations he did not have a stock of goods worth $18,000.00, and that he had not always, nor at that time, accounts on his books more than sufficient to meet his outstanding indebtedess. And furthermore,that he could not have believed that these statements were true, in view of all the circumstances of the case; or to say the least of it, they were made recklessly and without any information on the subject “calculated to induce such belief;” and as they were untrue, they are fraudulent. According to his own statement, just previous to September 1, he had a stock of goods of the value of something near $10,000.00, and after the large purchases made by him after that-time,including those purchased from plaintiffs and others shortly before the assignment to Mr. Stahlberg, it probably did not amount to mor,e than $14,000 or $15,000, for it was only appraised, including the fixtures, at $7,540.00, or at 50 cents on the dollar, and many of these goods were of old styles and of little value. But if it be conceded that his representation as to his stock of goods being worth $18,000 was well founded, it seems clear from his own statements and the undisputed statements of other witnesses, that at the time of those representations, or for some time before, he did not have on his books accounts more than sufficient to meet his liabilities. As has been stated, during the summer before,these accounts at no time amounted to $10,000. His indebtedness during that summer on the judgment notes held by two persons alone, was between $11,000 and $12,000 and he was largely indebted to others as we gather from his rather unsatisfactory testimony. His whole indebtedness at his assignment,November 16, 1892, was $26,000' — '$13,000 to others than those holding the judgment notes. And although he did considerable business after he purchased new goods from the plaintiff and others, in September and October, and up to the assignment in the middle of November, selling in his usual way, on the installment plan, his book accounts at his assignment in November, as we understand, at their face value only amounted to $3,182.50, and which we think were practically worthless, for at the time of the trial on April —, 1894, nearly two years after the assignment,nothing whatever had been collected thereon. Indeed, Hopkins himself testifies that he could not tell how much of his accounts were good, bad or indifferent. That it depends a great deal upon circumstances as to whose accounts in installment houses are good, bad or indifferent. He said that he thought that if he had remained in business,a large proportion of them could have been collected (how large a proportion he did not say), but that he did not suppose that any installment house in Cincinnati would have given ten cents on the dollar for them in case of an assignment; that they are generally poor people who thus buy, and that they take advantages. 'It appears from the evidence of the appraisers that on many of these accounts nothing had been paid for years, but that all of them entered into the appraisement made. We are satisfied that they were ’substantially worthless.

W. G. Herron, for Plaintiff in Error.

Wilby & Wald, for Defendant in Error.

If those statements and conclusions are correct, the case is brought clearly within the doctrine of the cases referred to, and the representations were false and fraudulent as to these accounts,and the plaintiffs had the right to rescind the contract by taking the goods, as they did.

We see no other error in the proceedings, and on this ground the judgment will be reversed, and the cause remanded for a new trial.