text:
    EXECUTORS AND ADMINISTRATORS — SALES—TITLE.
    [Wayne (5th) Circuit Court,
    February Term, 1911.]
    Poweil, Voorhees and Shields, JJ.

       Isaiah Fisher v. George Fisher et al.
    Caveat Emptor not Applicable to Judicial Sale of Land by Administrator and upon Failure of Title Administrator is Liable.
    Where an administrator sells at judicial sale land to which his intestate had no title, and the purchaser is ignorant as to the facts regarding the title, an action by the purchaser will lie against the administrator in his individual capacity for the amount paid for the land, and in such case the administrator can not, in his individual capacity, escape liability by virtue of the doctrine of caveat emptor.
    [Syllabus by the court.]
    Error to common pleas court.

      Kean & Adair, for plaintiff in error.
    • L. B. Griichfield, Sr., L. B. Gritchfield, Jr., and A. D. Metz, for defendants in error.

       Affirmed, no op., Fisher v. Fisher, 86.0. S. 337, 365.

   PER CURIAM.

This action was brought by Isaiah Fisher against George A. Fisher, in his individual capacity. George A. Fisher was and is the administrator of Margaret Rockey, deceased, and the plaintiff’s cause of action grows out of a transaction in which George A. Fisher was acting as the administrator of the estate of said Margaret Rockey, deceased.

The petition sets out in detail the facts upon- which the cause of action is based. Briefly stated, the cause of action is a suit against George A. Fisher, in his individual capacity, for fraud and fraudulent' acts committed by him in the sale of property which was made by him as administrator of said estate of Margaret Rockey, deceased, when, in fact, said decedent had no title or interest in said property at the time of her death. It is conceded that the title to the lands involved in this case was not in Margaret Rockey, and therefore, her administrator, the defendant herein, when he sold the property, had no interest therein and the deceased, Margaret Rockey, had no title thereto at the time of her death. A sale of the property was made by the defendant, as administrator of said Margaret Rockey, to the'plaintiff and the purchase price therefor, to wit, $1350 was paid by the plaintiff to the defendant. The purchase price was distributed by the defendant and later it was discovered that the deceased, Margaret Rockey, had no title or interest in said property. This action was brought against said George A. Fisher to recover from him, individually, said sum so paid by plaintiff as aforesaid.

The cause was tried in the court of common pleas to a jury. Upon the trial, a state of facts was disclosed, substantially, as set forth in the petition. Whereupon the court directed a verdict for the defendant, the other defendants having made conveyances to said Isaiah Fisher whereby the action against them was dismissed, so we have no concern as to any parties excepting the plaintiff and the defendant named.

The plaintiff requested the court to charge the jury as follows: . ‘ ‘ Gentlemen: I say to you, as a matter of law, that the suit instituted in the probate court by George A. Fisher, as administrator of the estate of Margaret Rockey, deceased, and the proceedings therein to sell said property described in the petition in this case, being null and void for the reason stated, said Margaret Rockey had no title or interest in said property at the time of her death, and the said George A. Fisher did not and ■could not sell said real estate as such administrator, the said Margaret Rockey not being seized in fee simple thereof, and if you find from the evidence that said George A. Fisher, as an individual, wrongfully converted and sold said real estate on March 13, 1897, to Isaiah Fisher and was paid by said Isaiah Fisher the sum of $1350 therefor, and you further find that in a suit in partition instituted on November 12, 1900, by Julia A. Rockey, guardian of the Rockey children, minors named in said petition praying for the partition of said real estate, that the court of common pleas found that said minors were seized in fee simple of the undivided one-fourth of said real estate, and that Julia A. Rocltey had dower in said one-fourth; and you further find that said Isaiah Fisher was thus evicted by the order of said court of common pleas in said partition of said one-fourth of said real estate so sold to the said Isaiah Fisher by the said George A. Fisher, then I say to you that the plain- * tiff is entitled to recover in this action against the said George A. Fisher and you should find for the plaintiff and find that there is due the plaintiff from the defendant, George A. Fisher, the one-fourth of the said sum of $1350, to wit: the sum of $337.50 with interest at 6 per cent per annum from March 13, 1897, to the first day of this term of court, February 7, 1910, and the further sum of $323.25, with interest at 6 per cent per annum from July 1, 1904, to the first day of this term of court, being the sum said Isaiah Fisher expended and paid by order of the court in said partition ease for costs. ’ ’ This request the court refused to give and marked the same refused, to which refusal to give (as requested by the plaintiff), the plaintiff then and there excepted.

This narrows the case down to a single proposition, namely, whether the defendant, who -was selling property as administrator to which his intestate had no title, and receiving the consideration, is liable individually for the consideration so paid on failure of title.

The contention on behalf of the defendant in error is that he is. not liable, and that although it is conceded that the title to the property failed, it being a judicial sale, the purchaser is • subject to the rule of caveat emptor and he must bear the loss. We think there is no question but that that should be true so far as the defendant, as administrator, and the estate he represents ■are concerned, but not so as to the liability of the defendant individually. The facts that are set forth in the petition are sustained by the evidence, and were embraced in the charge requested, thereby presenting the question, whether or not, under such circumstances, an administrator who sells property to which the deceased had no title or interest, can be held liable individually for the purchase price.

When he filed his petition to sell real estate he represented that his intestate died seized of the property described in the petition, and he necessarily made representations throughout the whole proceedings that the property was the property of Margaret Rockey, deceased. The plaintiff, not knowing anything to the contrary, purchased the property, paid the money over to the defendant, and the title absolutely fails. Is the defendant liable individually? We think he is. Where an administrator makes representations as to the title of his intestate to the property he is selling, which are untrue, he is responsible to the purchaser who is not cognizant of such facts.

The court is unanimous in its opinion in this case. From the facts as shown in the record the plaintiff is entitled to' recover and it was error in the court to refuse to charge the jury as requested and in directing a verdict for the defendant; and for these reasons the judgment is reversed and cause remanded.

The rule of caveat emptor does not apply in a case like this. We think the ease of Mulvey v. King, 39 Ohio St. 491, sustains this holding.


source: Caselaw Access Project

author: NORRIS, J.

license: Public Domain

text:
    BOUNTIES — LIMITATION OF ACTIONS.
    [Lake (7th) Circuit Court,
    September Term, 1911.]
    Norris, Pollock and Metcalfe, JJ
    State ex rel. Snyder v. Horace Abbey et al. State ex rel. Bellman v. Horace Abbey et al.
    1. Payment of Soldiers’ Bounty not Presumed from Long Delay In Making Application.
    Under favor of the proviso to ’Sec. 3107-1 Bates Last Statutes, no presumption of payment of the bounty for reenlisted veteran volunteer soldiers provided for in that section is raised by-lapse of time in making application for the same, nor does the delay of the party entitled to such bounty in making demand therefor make a case of stale equity.
    2. Statute of Limitations not Applicable to Claim for Soldiers' Bounty.
    The statute of limitations does not apply.
    3. Interest on Unpaid Bounty Computed from Time of Demand.
    The interest on such .bounty should be computed from the date of making the demand.
    [Syllabus by the court.]

      Mandamus.

      Kelly & Hanck, and Alvord & Blakely, for relator:
    Cited and commented upon by the following authorities: State v. Washington Tp. (Tr.) 24 Ohio St. 603; Chinn v. Fayette Tp. (Tr.) 32 Ohio St. 236; State v. Crites, 48 Ohio St. 142 [26 N. E. Bep. 1052] ; Fraternal Mystic Circle v. State, 61 Ohio St. 628 [48 N. E. Bep. 940; 76 Am. St. Bep. 446] ; State v. Board Public Safety, 36 Ohio St. 409; State v. Richland Tp. (Tr.) 20 Ohio St. 362; State v. Harris, 17 Ohio St. 608; Cass Tp. (Tr.) v. Dillon, 16 Ohio St. 45.

      Homer Harper, for defendants.
   NORRIS, J.

The cases of the state of Ohio on relation of William Snyder against Horace Abbey et al., trustees of Leroy township, and the state of Ohio on relation of John C. Bellman against the same parties,-were submitted together; the petitions in each of the cases are identical and the cases involve the same facts.

The relators, in their petitions, for their cause of action against the defendants say that in July, 1861, they duly enlisted in the 39th Begin)ent Ohio Volunteer Infantry, for the term of three years; that on December 22, 1863, while in the field and at Prospect, Tennessee, they reenlisted, and that they were credited on their reenlistment to Leroy township, in this county; that by virtue of such reenlistment under the laws of Ohio they are each entitled, or were entitled, at that time, to a bounty of $100 from Leroy township, and they allege that they had never received that bounty, and that they have never received a bond in lieu thereof, which is said to be provided for by statute that the trustees might issue for the payment of the money, and they ask for a writ of mandamus requiring the trustees of this township to pay them the $100 or instead thereof issue a bond for that amount payable within one year.

The defendants for answer admit they are the trustees, and deny the other allegations of the petition, and further, by way of answer allege a payment of this $100, and set out the manner in which they claim it was paid; that is, that they paid $1700 for seventeen men by the hand of William T. Shepherd, through the adjutant general’s office of this state, and said Sh.epherd received a receipt now on file in the adjutant general’s office for said $1700, and that each of these relators got $100 of this money; and for a second defense they say the writ ought not to be allowed because the statute under which the relators claim payment is in conflict with the constitution of the state of Ohio.

Testimony is offered by the relators which clearly sustains the allegations of their petitions, that they did enlist in the 39th Regiment of Ohio Volunteer Infantry in July, 1861, and served until 1863, and at Prospect, Tennessee, they reenlisted in the 39th Ohio Veteran Volunteer Infantry and served until the close of the war, in July, 1865; and they each testify under oath that they never have received any bounty for reenlistment from Leroy township or from any other section of the state.

A receipt is offered in evidence by the defendant coming from the adjutant general’s office in connection with the seventeen men and a certificate showing the muster roll of these men, which is in words as follows:

“$1700 Received of the trustees of Leroy township, Lake County, Eighteenth District, Ohio, Per William D. Shepherd, the sum of seventeen hundred dollars ($1700) as township bounty, to be equally divided amongst the above named veteran volunteers. ’ ’

And above, on this page, are the names of seventeen men, stating that they enlisted and reenlisted in 1863, and among these names are William Snyder and John C. Bellman; and it is claimed in connection with this receipt by the defendant that by virtue of the long lapse of time from 1863 to 1905 when the first demand was made by the relators for this bounty, that such a presumption should arise as to overcome the testimony of the relators that they were not paid, but the court ought to find that now, after the lapse of this length of time, that they ought not to have the relief prayed for.

Counsel for both sides cite the ease of Chinn v. Fayette Tp. (Tr.) 32 Ohio St. 236. The first proposition of the syllabus is that “The limitations of the code of civil procedure, as to the time of commencing civil actions, are applicable, as a bar, only to suits comprehended within the civil action of the code.” Holding that there is no limitation in the statute as to such an action. But they go on further and say that the court may in granting or refusing to grant the writ, consider the lapse of time before commencement of the action.

And in discussing it, Judge Scott says that the court in determining the right of the relator to have such relief,' should consider the lapse of time and whether any other intervening equities occurred, or the parties had so changed position that the granting of that particular relief at that time would be unjust.

And it is urged here that from this long lapse of time, that there is no equity in this application and that we ought to refuse the relief.

What the court might consider, if this ease was .governed by the ordinary rules of law, we have not determined, but this ease comes under an entirely different provision of law.

The statute referred to, — Bates Last Statutes 3107-1, providing for the payment of such bounties, contains in part the following provisions:

“The commissioners of the several counties, the trustees of the several townships, and the city council of the several cities of this state, are hereby authorized and required to issue to each reenlisted veteran volunteer who has heretofore been credited as shown by the muster and descriptive rolls or otherwise, upon the quota of such county, township, or city, or any ward of such city, under any requisition of the president of the United States for volunteers during the late rebellion, and who has not received any local bounty upon said enlistment, a warrant for the sum of one hundred dollars, or a bond for a like sum bearing sis per cent interest, redeemable at the pleasure of such commissioners, trustees, city council, one year after the date thereof.

And then goes on and provides in what manner they shall be credited; and further provides that if they have received any .such sum or if they have received a part of it, that shall be credited on Ms $100; but if they have not received any such bounty for such reenlistment, then they shall be entitled to it; and then contains in closing this proviso:

“Provided that this act shall not be construed so as to allow any such reenlisted veteran volunteer who has already received the bounty provided for by the act to which this is amendatory, or who has. received one hundred dollars bounty from the state or any county, township, or city under any prior act; nor shall lapse of time or state equities (and I think this court once before held that this is a misprint and should be “stale equities,” which it should be) be set up as a defense to any claim made under this act, or of any act to which is amendatory, or any act relating to this subject, and where said trustees of townships, city council or county commissioners have not issued said bonds, certificate or promise in writing to such reenlisted veteran volunteer, they are hereby required to do so. ’ ’

Now what effect shall the court give to that statute except to give it the effect required by the reading thereof — that lapse of time shall have no effect upon cases of this kind, nor shall stale equities affect cases of this kind; so that if we .are to give this languáge effect, it matters not how long a soldier may have waited before applying for this bounty. The first question before the court is if he comes under the provision of this act; the only other question for the court to determine is whether or not he has received it; and in considering the evidence as to whether or not he has received it, under this act we are required to treat that testimony as though there had been no long lapse of time, as though he had applied for, it right after he was entitled to it.

To give this act any effect whatever, we must treat the testimony, we must treat the whole case as though there was no lapse of time or stale equities in the case. It is evidently the purpose of the legislature in this act that soldiers applying for this bounty which they were entitled to in the war, shall have different consideration in the courts than in applying for other and different relief. I think that is the manifest interntion of this act, and in considering that in connection with this testimony, we have no difficulty in arriving at a conclusion.

The only question of fact in the ease is whether these relators have been paid this $100 bounty. It is to be borne in mind further, in considering this testimony, that these men lived in Cincinnati; they enlisted in Cincinnati, both of them; I think one of them resided perhaps not in Cincinnati but outside of that city. So far as the testimony shows they were never in this county, and they both .testify that they did not know to what county they had been credited; and at least one of them, and I think both, say that while they knew- they were entitled to government bounty as they called it, it does not appear by the testimony that they knew that they were entitled to $100 from Leroy township. One of them, I think Mr. Snyder, testifies that he had his claim in the hands of a comrade, Mr. Burner, twenty-five years ago, who did perhaps make some effort to collect it without suit, but never succeeded until his deathj and it finally went into the hands of other attorneys and this suit was brought. Mr. Bellman testifies positively that he did not know to what township he had been credited on his reenlistment.

The testimony does not show in what way these seventeen men were credited to this township: they both lived there, and both testify,, as I said before, that their recollection is clear that they never received this bounty.

There is nothing in the record indicating when this $1700 was paid to Major Lathrop; there is nothing in the testimony showing any authority on his part to collect this money for these men — that he was their agent in any way, or that the law required him to receive this bounty, and we are unable to say whether he received it or how it overcomes the testimony of these relators who testify positively that they never have received it, considered in connection with this statute.

So the order of the court will be that a writ issue to these defendants, requiring them to pay this money.

One ■ other question before I am through. The constitutionality of this statute is attacked in the answer, upon what ground the court is not advised; but these bounty statutes have been before the Supreme Court a number of times, commencing back in 1864, and perhaps the leading case is the case of Cass Tp. (Tr.) v. Dillon, 16 Ohio St. 38, where in its opinion the court reviews every possible objection that could be raised to paying bounties for saving the nation in time of war; considered every phase of the objection to that class of payments made when they say the country was in danger.

Anyway, we should not want to be the first court to declare this class of legislation in conflict with the constitution of Ohio.

The question of interest is to be considered; we do not think the trustees were required to hunt these men up and pay them, they are only entitled to interest after demand, and the decree of the court will be accordingly.

Pollock and Metcalfe, JJ., concur.


author: POWELL, J.

text:
    EVIDENCE — WILLS.
    [Licking (5th) Circuit Court,
    March Term, 1911.]
    Powell, Voorhees and Shields, JJ.
    Allen B. Gregg et al. v. Samuel F. Moore et al.
    1. Incapacity to Make Will is not Shown by Physical Helplessness.
    The fact that a testator was afflicted with progressive locomotor ataxia and was for a number of years before his death physically unable to perform any task or to help himself in any way, is not cause for setting aside a will, since it appears that during all that time he directed in detail the operations on farms . aggregating over three hundred acres, and with reference to the management of his said lands did all that could have been done by a person of a sound and active mind, and the only testimony tending to show mental incapacity was slight forgetfulness on certain occasions and failure to include in his will certain legacies which be had declared he intended to make.
    2. Testator's Making Change In Will, Even to Causing Inequal or Inequitable Distribution of Hia Property, does not Support Contention of Undue Influence.
    Making a change in a will, if done for reasons satisfactory to the testator, is not, standing alone, a sufficient ground for setting aside the instrument for undue influence, notwithstanding ¡ the will as so changed did not, in the opinion of some, make a fair and reasonable distribution of the estate of the testator.

      8. Propounding Hypothetical Questions to Nonexpert Witnesses Improper in Will Contest.
    Testimony of nonexpert witnesses, the opinions of which are not based on facts and observations within their own knowledge but on a state of facts submitted to them by hypothetical questions, is incompetent in an action to contest a will.
    4. Defining Coercion as that Produced by Importunity, or Silent Resistless Power of the Strong Will, Makes Charge Erroneous.
    To charge a jury in a will contest that “it is coercion produced by importunity, or by a silent, resistless power, which the strong will often exercises over the weak and infirm, so that ■ the motive was tantamount to force or fear,” is erroneous.
    [Syllabus approved by the court.]
    Error to. common pleas court.

      Fitzgibbon & Montgomery, for plaintiff in error-.

      A. A. Stasel and Norpell, Norpell & Martin, for defendants in error.
   POWELL, J.

This is a petition in error to reverse the judgment of the court of common pleas, in a proceeding brought by Samuel F. Moore et al., defendants in error, against the plaintiffs in error, to set aside the will of one Ensley Finney Haas, who died on October 13, 1908.

The petition sets out the relationship of the various defendants, whether legatees or heirs at law of the said decedent, and avers that the paper writing purporting to be the last will and testament of the said decedent was not his will for the reason that, at the date of its execution, the testator was not of sound mind and memory, by reason of age and protracted disease, and that he was mentally incapacitated from making a will, or a proper distribution of his property; and, further, that he was influenced and coerced into making and signing said paper by the undue influence of the defendant, Allen B. Gregg, who was named as-executor of said will, and of others conspiring with the said Gregg; and, by reason of such' influence of the said Gregg and others, and at their suggestion, the said decedent was so influenced and prejudiced that the paper writing, purporting to be his will, executed at that time, was not the valid and subsisting will of the said Ensley Finney Haas.

They prayed that an issue be made up, which was done by answer of various defendants. The case was submitted to a jury, and a verdict returned setting aside said will.

The contest of said will was based upon two. grounds, viz.:

That by reason of age, disease and other causes, the said Ensley Finney Haas was incompetent to do or to understand ordinary business transactions, or to underátand and appreciate what he was doing when the said will was signed; that he was then of unsound mind and memory, and was without sufficient mental capacity to know or to understand the extent of his estate, and the persons who would naturally be the objects of his bounty; and, second, that the.will was procured to be executed by the defendant, Allen B. Gregg, with others conspiring with him to influence and persuade the said testator; and, by reason thereof, an undue influence was exercised over him by the said defendants at and before the time of.the execution of said will. .

After the death of the said Ensley Finney Haas, said will was admitted to probate and record by the probate court of this county; and this action was brought to set the same aside.

The said will, after making certain bequests, amounting to about the sum of $5,000, by item three, devised and bequeathed absolutely to the defendant, Allen B. Gregg, all the rest and residue of the property, real, personal and mixed, of the said testator, the same consisting, in part, of a farm of 135 acres, besides other property, real and personal.

By the terms of the will, all the legacies were made a charge and a lien upon the real estate of the said decedent. The said Allen B. Gregg was named as executor in said will, which was executed on April 21, 1908.

It appears by the evidence offered that the said decedent, Ensley Finney Haas, was, for a number of years prior to his death, afflicted with what is known as progressive locomotor ataxia, and that, by reason of such disease, he was, for some years prior to his death, physically unable to walk or to help himself in any way; that he was paralyzed from his waist down, and that he had to be carried whenever he moved from one place to another; that, by reason of his affliction, he was a great charge, having to be cared for continually by .persons employed for that purpose.

It also appears that he lived with his sister, Martha Goff, a widow, who took care of him and performed many of the services required by him on account of his condition, up until the day of her death, which occurred on the - day of June, 1907; that after her death, he had for a housekeeper, Harriett Hughes, who lived with him under a contract of employment until his death; that he also had in his employ, as a sort of body servant, to take care of him personally, one William Watson, who lived with him in that capacity until his death; that upon the death of his sister, he became the owner of the undivided half of a farm of 135 acres, he being already the owner of the other undivided half. He also had an estate for life, by the terms of her will, in another farm of 160 acres, besides being the owner of a large amount of personal property. At his death he had property, real and personal, of a value of between thirty and thirty-five thousand dollars.

The evidence discloses that during the whole time in which he had charge of this-property, he transacted all the-necessary business in looking after the same, and in carrying on the business of farming said lands; that while he was physically incapacitated from doing any manual labor, he made all the contracts necessary for conducting the business of the farm; that he bought all necessary materials and sold the products thereof, and that he directed all the farming operations that were carried on on said land; what fields should be plowed, and what crops should be planted when plowed, and generally did all that could be done by a person of sound mind, who was in his physical condition, in the carrying on and the conduct of said business.

The things relied upon as showing that the said decedent was not of sound mind appear to be but few, as shown by this record. It seems that, on the day after the execution of the will, as is shown- by the testimony of William Watson, who was his body servant and attendant, on awakening he told him to hitch np the horse, that he had to go to the city of Newark on account of some important business that he wanted to have done. Watson told him that he was there yesterday, and that the business that he wanted to have done had been done at that time.

It appears from the evidence that, on the day the will was made, the decedent, Ensley Finney Haas, got some intoxicating-liquor; that he drank some of it and took part of it home; that he no doubt was under the influence of liquor during the night after his return home. But there is no evidence that at the time he made the will he was under the influence of liquor; but he directed what he wanted done, how his property should be disposed of, and gave directions for the making of the will, without prompting or assistance from Mr. Kibler, who wrote the will, or any one else.

Some eight months prior to this time he had visited Mr. Kibler’s office, and had executed a former will. When he returned to make, the will in question, he brought back to the office said former will and stated to Mr. Kibler that he desired to make some changes in his will; directed what they were, and the will was written accordingly.

Without going further into details, or reviewing the vast volume of testimony which was offered in this case, pro and con, touching the capacity of the decedent to make a will at the time when the will in question was made, we have no hesitancy in saying and finding that, so far as his mental capacity was concerned, he was competent to make a will; and that the testimony offered in support of his mental capacity to make a will is clearer, stronger and more direct upon that issue than the •testimony of the contestants as to the want of capacity.

There was much of the testimony that was offered on behalf of the contestants that was the -testimony of nonexpert witnesses, who gave their opinions, not' based upon facts and observations which had come to their own knowledge, but from a state of facts submitted to them by hypothetical questions. We think there was error in permitting nonexpert witnesses to so testify. The rule as to nonexpert witnesses giving an opinion upon an issue of this sort is that the opinion must be based upon facts given by the witness upon which the opinion is based. Clark v. State, 12 Ohio 483.

Another reason why the asking of these hypothetical questions was improper and the answers thereto incompetent is that, in a number of them, after reciting the facts as to the condition of the decedent, it was assumed in the question that his disease had progressed into paresis — an affection of the mind, which the record fails to disclose had ever existed.

The only other transactions which we have been able to find upon which the plaintiffs below relied, as showing want of capacity, were the fact that, at one time within a year prior to his death, he had borrowed money of a brother of his sister’s former husband; that he had executed his note therefor, but told a number of persons that Gill Goff — the person from whom he had borrowed it — had made him a present of $500.

As a third circumstance, it is claimed that he told a large number of people that he intended to remember them in his will and to give them a legacy, which was not done.

We do not think that these circumstances are sufficient in themselves, to overcome not only the presumption as to his capacity, but the decided weight of the testimony sustaining such capacity. So, upon the first issue, viz., want of mental capacity, we think that the verdict of the jury is decidedly against the weight of the evidence.

Second* as to the ground of undue influence: To establish undue influence, the burden is upon the contestants, and the evidence appearing in the record in this ease, in our judgment, fails to establish this issue in favor of the eoiitestants.

It is true, as claimed, that the will is not such as, perhaps, some others would have made. It is contended by the contestants that it is unreasonable and unfair. We do not think that the law sustains this theory. The contention as to undue influence upon the part of the beneficiary in procuring the will i!n question, has its principal support in the theory that as he was a stranger in blood to the decedent, it would raise a presumption of undue influence exercised upon the testator.

It is further contended that the change'in the will is evidence tending to show undue influence. A change of testamentary intention, bearing upon the question of undue influence 'in procuring a will, is sometimes an important circumstance; but its force depends mainly upon its connection with associated facts. If made for a reason satisfactory to the testator, although it may seem inadequate to a • court investigating the question of undue influence, it furnishes of itself no ground for setting aside the will. A testator has. a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will; and he may, if he chooses, .exclude his relatives; he may even exclude his children, if he have any; and he may divide his estate unequally.

The question in all such cases is: Was the will the free act of a competent testator ?

The reasons for a change of intention in this ease do not very satisfactorily appear, but the testimony shows that the change was made at the instance and direction of the testator himself. Courts of equity will not vacate a deed or set aside a will on the ground of .influence or importunity, unless it has been unduly or improperly exercised. Fair argument and persuasion, or appeals to the conscience or sense of duty of the testator, if fairly made, lay no foundation for setting aside the will.

Upon the issue of undue influence as well as that of want of mental capacity, we think that the weight of the testimony is against the contention of the contestants and against the verdict of the jury.

We think also there was error in the charge of the court in this, to wit, in defining what constitutes undue influence.. The court said:

“It is coercion produced by importunity, or by a silent, resistless power, which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.”

This definition could be applied in every case of a will, and any influence that would induce a testator to give a legacy or bequest to any person whatever might be said to Be undue influence under this definition; and tbe charge in this regard was misleading and erroneous. \

It seems that the verdict in this case is the result either of a misapprehension of the testimony and the weight of the same, or was the result of bias and. prejudice in favor of the contestants. The jury must have been influencd by that spirit which sometimes gets into the jury box, that the will is not such as they would have made if they were disposing of the property that is involved in the will in controversy, and that tbe will in question was different from wbat they would h'ave made under the same or like circumstances.

Upon the whole record, the court is of the opinion that there was such a disregard of the weight of the testimony that the verdict of the jury and the judgment thereon should be reversed, set aside, and held for naught.

The cause is remanded to the common pleas court for further trial and proceedings according to law.

Voorhees and Shields, JJ., concur.


author: JONES, J.

text:
    MUNICIPAL CORPORATIONS — TRIAL.
    [Hamilton (1st) Circuit Court,
    March, 1911.]
    Smith, Swing and Jones, JJ.
    Catherine Morrissey v. Cincinnati (City).
    1. Respondeat Superior Applies to City Contract Performed under Direction of City Inspector.
    Under a contract for city work, where the specifications provide that “the work is to be commenced at such time after date of contract as the hoard of public service may order and carried on in such places and in such manner as the engineer or inspector shall direct,” the relation between the parties is not independent and the rule of respondeat superior applies.
    2. Liability of City for Damage Caused by Uso of Dynamite in City Contract, Question of Fact for Jury.
    In an action for damages on account of injury to a building from the explosion of dynamite in the street, the question of negligence in the amount of dynamite used and the effects of its explosion upon surrounding buildings, and particularly that of the plaintiff, should be submitted to the jury.
    [Synabus approved by the court.]

      Error to common pleas court.

      Rogers Wright, Nathaniel Wright and John E. Fitzpatrick, for plaintiff in error.

      Constant Southworth, assistant city solicitor, for defendant in error.
   JONES, J.

. The plaintiff in error, Catherine Morrissey, filed- her petition in the court of common pleas against the city of Cincinnati and John E. Mahoney.

She asks for damages against the defendants, alleging that while they were engaged in constructing a sewer in Kineon (now Bowman) avenue in said city, they “negligently and without the observance of proper care and caution exploded a large and excessive amount of dynamite, and that by reason of said explosion the foundation and walls of said plaintiff’s house were shattered, the house walls were cracked, ’ ’ etc.

A demurrer was filed by Mahoney, which was afterwards sustained without objection from plaintiff, and the ease proceeded to trial against the city only. At the close of plaintiff’s evidence, and upon motion of defendant, the court directed the jury to return a verdict in favor of* defendant. Later a judgment was entered upon said verdict, and it is to reverse this judgment that error is prosecuted in this court.

It appears that the ground upon which the court below granted the motion for a verdict was that the work was being done by an independent contractor (Mahoney) for whose acts the city was not liable. The contract between the city and Ma-honey is in writing, a-nd is a part of the bill of exceptions herein.

Where the entire contract is in writing, and the question of “independent contractor” is raised, it is doubtless within ' the province of the court to determine the relations of the contracting parties with respect to that question before submitting the ease to the jury, as was done in this case.

The plaintiff in error contends that the lower court erred in holding that Mahoney was an independent contractor; and further, claims that the judgment belotf must be affirmed because there was no negligence shown by the evidence.

This leads us to a consideration of the two questions presented by the petition in error, and the able and exhaustive briefs of counsel in this case:

First. Was Mahoney an independent contractor?

Second. If not, is there any evidence, as shown by the bill of exceptions, tending to prove negligence on the part of Ma-honey or his employes?

As has been said, the first question depends upon the written contract between the city and the contractor, and it must be determined from the language of that instrument whether or not Mahoney was an “independent contractor,” as that term has been defined by the courts of this and other states.

From a careful examination of the authorities cited, there appears to be little or no conflict as to the proper tests and principles to be applied and followed in determining whether the relation created by a given contract is an independent one or that of master and servant.

“The chief consideration which determines one to be an independent contractor, is the fact that the employer has no right of control as to the mode of doing the work contracted for, * * #. If the employer has the right of control, it is immaterial whether he actually exercises it.” 16 Am. & Eng. Enc. (2 ed.) p. 187.

It is true that contracts have in numerous instances been held to be independent where the right of inspection and supervision by engineers and inspectors is frequently reserved throughout the instrument, but in all of such cases the courts hold that from a reading of the whole contract it is apparent that the only purpose of such supervision is to bring about a satisfactory result, rather than to control the means used to bring about that result.

Section 51 of the general specifications, which are made a part of the contract in the case under consideration, is as follows:

“The work is to be commenced at such time after date of contract as the board of public service may order, and carried on in such places and in such manner as the engineer or inspector shall direct.”

,The excavation for the sewer was part of the work contracted for, and we think it clear that, under the provision just quoted, the city engineer or inspector had the right to control the manner of making the excavation, and to determine whether same should be by pick and shovel, blasting, steam shovel or otherwise, such right to be exercised reasonably and with a proper regard for the welfare of persons and property likely to be affected, as well as for the advantage of the contractor in the adoption of such method or manner as would cheapen and facilitate the execution of the contract.

It seems to us that the contract secures such right to the city without ambiguity. If any aids to construction were necessary, we think all the circumstances — the ' character of the ground, depth of excavation, power and duty of the city with reference to streets, contiguous buildings — all make such reservation qn the part of the city appear reasonable and necessary.

. In the case of Cincinnati v. Stone, 5 Ohio St. 38, the court in its syllabus says-.

“Where the employer retains the control and direction over the mode and manner of doing the work, and an, injury results, from the negligence of misconduct of the contractor or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of. principal and agent.”

The language upon which the city was held liable in the Stone case was as follows:

“The work to be done under the direction of the civil engineer, who shall have entire control over the manner of doing and shaping all or any part of the same, and whose directions must be strictly obeyed.”

It might be claimed that this is a greater control than given the employer in the case under consideration, but we are of the opinion that the contract in the present ease gives the city the same right as was given the same city in the Stone case, and that the two clauses must be construed to mean the same.

In the case of Hughes v. Railway, 39 Ohio St. 461, where it was sought to hold the railway company for the negligent acts of an employe, the Supreme Court affirmed the lower courts in holding the relation to be one of independent contractor, for the reason as stated in the opinion, that the company retained no control over the mode and manner of doing the work. In that opinion the court incorporates a copy of the contract, and no such right of control over the manner of doing the work, as is found in the case at bar, is reserved.

We are of the opinion that the relation between the parties to the contract in this case was not an independent one and that the rule of respondeat superior applies.

With reference to the second proposition we think there was evidence of negligence sufficient to warrant a consideration by the jury. Before trial the plaintiff amended her original petition reaffirming the allegations thereof, and adding the allegation that: “The use of dynamite for making the excavation in said street was negligence on the part of the defendant.”

This court has since held that the use of dynamite for blasting is not negligence per se, which decision was affirmed by the Supreme Court, without report. Armstrong v. Cincinnati, 32 O. C. C. 714 (12 N. S. 76), affirmed, Armstrong v. Cincinnati, 82 Ohio St. 454.

Accordingly, the plaintiff added nothing to her case by the amendment. Neither did she subtract anything, and the allegation of negligence in the petition, as quoted above, remained. The defendant' was charged with negligently using an excessive amount of dynamite, which, fairly construed, must be taken to mean that there was negligence on the part of the defendant in the quantity of the explosive used.

Other things being equal the jar or concussion produced by dynamite is in exact proportion to the amount of dynamite used.

Negligence is the want of care. It is the violation of a duty which one owes to so conduct himself and his business as not to injure others in person or property. In other words, it is a want of such a degree of care as a person of ordinary prudence and foresight would exercise under like circumstances.

The use of a given quantity of dynamite, for instance, in the open country, clearing land of trees and stumps, might-be proper and harmless, while the use of the same quantity in a populous city for blasting would be grossly negligent or even criminal.

The evidence in this case showed the use of one and a half or two sticks of dynamite; showed where and for what' purpose it was used. Also, showed the effect of the discharge upon adjacent houses, especially that of plaintiff.

,. We find nothing in the Armstrong case or other cases on the same point cited by counsel for defendant in error which will excuse the uste of dynamite in such quantity as will do substantial injury to adjacent owners where such injury could have been foreseen as the natural result of such act.

The position taken by the city in presenting this phase of the case seems to be that under the rule laid down in the Armstrong ease, holding that the use of dynamite is not negligence per se, the user of such explosive is only required to use care with reference to preparations for the explosion without any reference to quantity used or consequential injury to others.

That case does not so decide, and the proposition needs but to be stated to show the dangers and absurdities to which it would lead.

The language of the court in Cherryvale v. Studyvin, 76 Kan. 285 [91 Pac. Rep. 60; 11 L. R. A. (N. S.) 385], is in point:

“Negligence will not be presumed from the jarring of the earth or the concussion of the air, but the burden is upon the claimant to make it appear that the explosion was unnecessarily violent and carelessly prepared for, having regard to the place and the surroundings.”

In this case, plaintiff’s evidence shows the amount of dynamite used, the place and surroundings, the damage to plaintiff’s property, and the question of negligence is one of fact to be determined by the jury.

The judgment of the court of common pleas will be reversed.

Smith and Swing, JJ., concur.

       Affirmed, no op., Cincinnati v. Morrissey, 87 O. S. 000; 58 Bull. 75.


author: PER CURIAM.

text:
    ADVERSE POSSESSION — DEEDS—INJUNCTION.
    [Licking (5th) Circuit Court,
    March Term, 1911.]
    Powell, Voorhees and Shields, JJ.
    Amy Loughridge v. M. D. Hartshorn.
    Prescriptive Rights in Land do not Pass to a Grantee by Deed of Specified Acreage.
    A purchaser of a specified acreage of land, cut off by accurate survey from one side of a larger tract belonging to the grantor, does not acquire title to an additional- strip lying outside of his surveyed line, to which he contends his predecessor acquired title by adverse possession through a mistake as to the location of the true boundary line; in the absence of the predecessor in title as a party to the ease, the owner of the adjoining lands will be granted an injunction against occupancy of said strip by the grantee of said predecessor in title.
    [Syllabus by the court.]
    Appeal from common pleas court.

      Smythe & Smythe and J. M. Swartz, for plaintiff.

      Flory & Flory, for defendant.
   PER CURIAM.

The petition in this ease was filed by the plaintiff, Amy Loughridge, alleging that she is the owner in fee simple of certain described real estate and in possession of the same, giving a pertinent description of the lands owned by her, and alleging also that the defendant is in possession of and claims to be the owner of a tract of land immediately west of her lands, described in said petition, and that the two parcels of land are divided by a straight line running north and south, a distance of about 113 rods. She further alleges that, by an agreement heretofore made by the owners of said respective tracts of land, the fences erected and to be erected and maintained along said line were erected and maintained as follows:

The owners of said east tract, being the land now owned by plaintiff, wnre to erect and maintain a fence along said line, commencing at the north end thereof, and running south about forty rods; the owners of the west, tract, being the land now-•owned by the defendant, were to erect and maintain a fence along said line,, commencing at the point where her fence terminated and to connect with the same, and running thence south along said straight line about forty-nine rods; and that ' the owners of said east tract were to erect arid maintain a fence along said line, from the point last mentioned to the south end thereof, i. e., along said line dividing the said two parcels of land.

She alleges that the defendant threatens to and has commenced to erect a fence on the said line of plaintiff, at a point about forty rods south from the north end of said line, at least two feet at said point, from the true line, by planting posts there and running in a southeasterly direction, and in a straight line, to a point about twelve feet east of said true line, and alleges that his intention and purpose in so doing is to enclose within his own land so much of plaintiff’s land as lies east of said true line and west of the fence so to be erected by him; and she asks that he be enjoined from erecting said fence on the line on which he is attempting' to construct the same.

To this petition the defendant filed an answer and cross petition, in which he claimed that the line on which he is intending to construct his fence was the true line between his land and the lands of plaintiff, and that he and those under whom he claims had, for more than twenty-one years last past, constructed and maintained a fence upon the line between the lands of plaintiff and defendant, commencing at the end of plaintiff’s part of said partition fence and extending south, and that plaintiff and those under whom she claims had, for more than twenty-one years, ■ constructed and maintained a fence upon said line between the lands of plaintiff and defendant commencing at the south end of that part of the partition fence constructed and maintained by defendant and those under whom he claims and running south to the end of the line between the lands of plaintiff and defendant; and he makes the claim that he and those under whom he claims have, for more than twenty-one years, been the owners in fee simple of the land located on the west side of the land owned by plaintiff, and that he is now the owner'of said land, and that said fence has been a partition fence.

A supplemental answer and cross petition was filed, alleging that the plaintiff was about to construct her fence at the south end thereof, not on the line where it .had formerly stood, but upon the lands of this defendant. To this answer a reply1 was filed, denying each and every allegation therein contained.

On this issue trial was had, in which the petition was dismissed in the court of common pleas, and an appeal taken by the plaintiff to this court, where the same was tried upon the evidence.

• It appears from the evidence adduced' that the defendant, Hartshorn, purchased the real estate owned by him, adjoining the lands of plaintiff, about the year 1905, from one Margaret Bean; that the same consisted of thirty acres off of the east end of what was known as the Bean farm; that at that time the county surveyor, John J. Gilpatrick, was called upon to survey said tract of thirty acres and to furnish a description of the same, for the purpose of making a deed by the then owner to the defendant; that a survey was made some time during the months of June and - July, 1905, by said surveyor, and the deed for the lands so conveyed, being thirty acres, was executed by the owner of said Bean farm to the defendant, Hartshorn.

It appears from the. evidence of Mr. Gilpatrick that hjs survey was to measure off the exact amount of thirty acres, and that the east and west lines of such survey were parallel lines and included within the boundaries measured by him the exact amount of thirty acres out of the Bean tract.

It further appears from the evidence that the west line of plaintiff’s land is a straight line; that a stone was planted at the northwest corner of plaintiff’s land, in the center of the fence running south, being the west line of plaintiff’s land, and the southeast corner of plaintiff’s land and the.southwest comer of defendant’s land was ascertained and marked in said survey.

The defendant can claim only such lands as were conveyed to him by the deed of Margaret Bean; and these lands are accurately marked 'and defined by tbe survey then made by Mr. Gilpatrick and described in the deed.

It further appears from the evidence that at the south end of the partition fence that belonged to plaintiff there had formerly stood a worm rail fence, which was not upon the true line, but which diverged east of the true line or the line located and established by the Gilpatrick survey; and defendant claims that because said fence, as located, had stood on said line for more than twenty-one years, it had, by prescription, become the true line between his lands and the lands of plaintiff, and that he owned the land to said; line without regard to the line marked and established by said county surveyor; but it is not claimed or contended by the said defendant that he himself had been in possession of said land for the. twenty-one years, but he claims to own to said line because his predecessors in title had so occupied said land for more than twenty-one years.

We find that the defendant is the owner of the land surveyed and designated by the county surveyor and incorporated in his deed, and of nothing more; that if there is a strip of land lying east of the surveyed line, and west of the line where said fence stood, it does not become his land by prescription, and that if any right by prescription has accrued to his predecessors in title, the same was not conveyed to him by his. deed.

For this reason, we think we are not called on to ascertain whether any such prescriptive right exists or not, because if it does exist, it exists in favor of Margaret Bean and not of the defendant, and he should build his part of the partition fence upon the actual line surveyed by Gilpatrick, the county surveyor, and not upon the line where such’ worm fence formerly stood.

It appears from the evidence that plaintiff has the title to - the lands east of and adjoining the land so conveyed to the defendant, subject to any prescriptive right that any other person not a party to this suit may have to the strip west of said worm fence, and as no such party is here making claim under such prescriptive right, except the defendant, she has the right to have her title quieted to said line.

The 'holding of this court is supported hy the authority in the case of Early v. Hall, 14 DeC. 234, wherein it is held:

“Where land owned by two tenants in common is partitioned with reference to a fence upon the premises, which, under a mutual mistake, is believed to be the true boundary, and both parcels are occupied and farmed by their respective proprietors up to and with reference to such line in an open, continuous, notorious and exclusive manner for a period of twenty-one years, a title by prescription is thereby acquired.
“Where an occupant claims title under a deed which does not in fact include the land in dispute, his possession thereunder can not be tacked on to the adverse possession of his grantor in order to make out a title by prescription. ’ ’

We think the second proposition of the syllabus controls this case and does not’ conflict with the holding of the SuprEme Court in the case of McNeely v. Langan, 22 Ohio St. 32, but is in harmony with the principles recognized by the Supreme Court in the ease of Smith v. McKay, 30 Ohio St. 409, and the case of Humphries v. Huffman, 33 Ohio St. 395.

For the reasons above stated, a decree may be entered in favor of the plaintiff, quieting her title as against the defendant for the premises in dispute, and restraining the defendant from interfering with her in the possession and enjoyment of the same, and from constructing his fence as he threatens to do, ail as prayed for in the petition.


author: ROCKEL, J.

text:
    BILLS AND NOTES — CORPORATIONS—ESTOPPEL.
    [Montgomery (2nd) Circuit Court,
    December 23, 1910.]
    Rockel, Dustin and Allread, JJ.

      J. B. Siders v. Gem City Concrete Co. et al.
    1. Corporation Purchase of its Own Stock not Illegal.
    A corporation where not prohibited by its charter, or a statute or constitutional prohibition, may purchase its own stock, and there is no statute or constitutional provision in Ohio preventing such purchase.
    2. Purchase if Made in Good Faith, not Injuring Creditors, Good.
    Before such a purchase will be held for naught it must be shown that it was not made in good faith and will result to the injury of creditors.
    3. Purchase Price Note not per se Void.
    Such a’ transaction is not malum in se, and a note given by the corporation, the consideration of which is the purchase price of such stock, is not per se void.
    4. Note Embracing Other than Purchase Price Considerations not Void as to Other Considerations,
    ^ If such note includes other considerations than the purchase price of the stock and these can be separated, the note would at ' • most only be void to the extent of the consideration which was included therein for the purchase of the stock.
    5. Want of Power to Purchase not Defense.
    Where a'corporation purchases its own stock and gives a note therefor, such transaction so’ far as the sale and purchase of the stock is concerned becomes ah executed contract, and the mere want of power to purchase such stock will not be a good defense in an action against the corporation to collect such- note.
    6. Corporation Estopped to Set Up Want of Power to Purchase Stock as Defense to Note.
    A corporation, which has purchased its own stock and given a note in payment, and thereafter sells the stock, is estopped from setting up the defense of want of power to make such purchase.
    [Syllabus by the court.]
    Error to common pleas court.

      Munger & Kennedy, for plaintiff in error.

      Thompson & Thompson, for defendant in error.

       Affirmed, no op., Siders v. Concrete Co. 87 O. S. 000; 58 Bull. 60.

   ROCKEL, J.

In the court below, plaintiff in error brought suit on an ordinary promissory note,, against the defendants, the Gem City Concrete Co., W. L. Blocher, A. F. Meeker and Philip J. Rotterman and C. E. Clark, endorsers on said note. The petition did not so state, but it afterwards appeared that said endorsers were at the time endorsement was made, directors of the said Gem City Concrete Co., and that they occupied the relation of accommodation endorsers. ,

To this petition an answer was filed, admitting the execution of the note, but alleging that the consideration therefor was a transfer and delivery back to the company of nineteen shares of stock, and further alleging that the company had no power to purchase said stock and that there was no consideration for said note.

To this answer a general demurrer was filed and overruled. Afterwards, however, the Gem City Concrete Co., by leave of court, filed an amended answer alleging substantially the same matter and setting up the fact that the plaintiff was the owner of twenty shares of stock in said company and that there was an accounting held between the Gem City Concrete Co. and the plaintiff for money advanced by the plaintiff for various purposes and that the plaintiff had paid for said stock the sum of $950 and that the board of directors of the said company had purchased said stock, and had issued its note to that amount, and that there was no other consideration of said note and that the same was void.

It also filed a claim in the nature of a cross petition, in which it averred that said plaintiff had subscribed for twenty shares of stock, but had only paid for nineteen, and that there was still due said company the sum of $50, for one share of stock. To this amended answer and cross petition, demurrers were filed, which were overruled and exception taken thereto.

Then the plaintiff filed a reply, to which a motion was filed on a number of grounds, which motion was sustained. Thereupon an amended reply was filed which contained a general denial, and by way of a first defense admitted the incorporation and capital stock, etc., and averred that the consideration of said note set up in the petition was for money advanced to defendant and services rendered, and for the second defense, among other things, denied that the plaintiff ever subscribed for the one share of stock for which judgment was sought and averred that all of his stock was transferred back to the company, and by the said company re-sold to other persons to this defendant unknown; and that they were estopped, etc. To this a motion was filed, which was sustained, that practically struck the same from the files, to which the plaintiff excepted.

The plaintiff then filed a second amended reply, the first' defense of which admitted the execution of the note, and denied each and every other allegation of said amended answer. The second defense admitted that the plaintiff was the owner of eighteen shares of the capital stock, and that at a meeting of directors, July 27, 1906, said directors being the endorsers on the note sued on, that it was agreed with the plaintiff to purchase said stock so held by him, and that in pursuance thereof plaintiff has signed, transferred and surrendered said stock and delivered same to said company, and fully carrying out the contract on his part to be performed; said company executed and delivered to this plaintiff said note, endorsed by said directors, as set forth in said petition and canceled said stock; that said company thereafter (December 28, 1906) bargained and sold all of its authorized capital stock to other parties, including said stock formerly held by this plaintiff, and that the company increased its capital stock without. notice to the plaintiff, who was no longer a stockholder.

That said company further did not offer to return said stock to plaintiff, and that it is now not in the possession or control of said company and can not be returned, and that said company is now insolvent.

This second defense on motion of the plaintiff was stricken out, to which exception was taken by the defendant. There was also a general denial in this second amended reply to the matters set up in the cross petition of defendant’s amended answer.

The case was then ordered for trial upon the pleadings as they then stood, the reply of the plaintiff being considered only a general denial to the answer and cross petition, the court, not permitting the plaintiff to file a defense other than a general denial to the new matter set up in the defendant’s amended answer and cross petition. The case was submitted to the court without the intervention of a jury, and the court made a finding of facts as follows:

First, that the note set forth in plaintiff’s petition is found to have been executed as claimed.

Second, that the allegations of the amended answer of the Gem City Concrete Co., and the facts therein set forth, are true as claimed, and that the sole consideration of said note set forth in the petition herein was the pretended sale of stock to the issuing company.

Third, that the endorsers were accommodation endorsers and no consideration of whatever kind or character inured to them. ■

Fourth, that the said note set forth in the petition should-be declared void and of no legal force and effect, and further found that there was due to the Gem City Concrete Co. the sum of $50 for unpaid subscription on one share of stock.

The plaintiff filed a motion for a new trial, which was over- ■ ruled. In the trial of the case the plaintiff attempted to introduce testimony which would have substantiated the defenses set up in his amended reply, which was refused by the court and exception taken, particularly, testimony showing that the company had increased its capital stock and that all of this stock including that which it received from the plaintiff had been sold.

The plaintiff also desired to offer testimony showing that the company employed one L. E. Spear as its agent to sell the stock of the company, and that the said Spear did sell the stock, which was not permitted and exceptions taken by the plaintiff. Ffom the finding of the court and the alleged errors occurring in the trial of said case, error is prosecuted to this court.

The principal questions involved are:

First, is a note given by a corporation for the purchase of its own stock, absolutely void and without consideration?

Second, is the transaction of the corporation in purchasing its own stock of such a character that if a note be given for the same, and said note includes as a consideration therefor other considerations for the purchase of the stock, is such note void?

Third, can the corporation after it has given the note and received the stock, plead its want of power and successfully defend against the same without returning the stock, or placing the seller of the same in statu quo.

These questions involve the doctrine of ultra vires and estoppel as applied to the corporation.

The court below seems to have taken the view that the corporation had absolutely no power to purchase its own stock and that the note was therefore without consideration and void; that the transaction was malum in se and that the note was void, although considerations went into the consideration for the note other than the purchase of the stock.

There is some authority in Ohio in support of the view that a Corporation can not buy its own stock, but our Supreme Court has held that if this be a general rule, that it is not without exceptions, and in Morgan v. Lewis, 46 Ohio St. 1, 8 [17 N. E. Rep. 558], we find this language:

“It at least helps us to distinguish it from the ease of Coppin v. Greenlees, 38 Ohio St. 275 [43 Am. Rep. 425], relied upon by defendants in error. In that case it was held that, ‘an executory agreement between a manufacturing corporation of this state, and one of the stockholders, for the purchase of the stock of such corporation, by the former from the latter, can not be enforced, either by action for specific performance or for damages.’ ”

That this presents a very different ease from one of an executed contract is emphasized by the following language of Mcllvaine, J., by whom the opinion was prepared.

“If it were averred that the plaintiff had purchased the stock from'the defendant, or from others, under an agreement with the company that it buy the same from him wheh he quit its employment, or-if the contract of purchase by the defendant ¿ad been executed, very different questions would arise.”

In State v. Building Assn. 35 Ohio St. 258, 263, the general principle that a corporation may not traffic in its own stock is recognized. Yet in the same connection it is said:

“We do not deny that a corporation has power to receive shares of its stock as security for a debt or other similar purpose. Robinson v. Beal, 26 Ga. 28; Chicago St. Ry. v. Marsailles, 84 Ill. 145; Columbus v. Fox, 17 N. Y. 507; Dupee v. Water Power Co. 114 Mass. 37; Bank v. Transportation Co. 18 Vt. 131.
“It is apparent from the foregoing that no inflexible rule b.as been recognized by this court, that a corporation may not in any case, nor for any purpose, receive iis own stock. On the contrary, the way is left open for the application of exceptions to the general rule in proper cases.”

In the ease of Coppin v. Greenlees, supra, Judge McIlvaine .admits that there are a line of authorities which support the doctrine that corporations may, when not prohibited by their charters, buy and sell their own stock, but that “they think the decided weight of authority both in England and United States, is against the existence of the power, unless conferred by express grant, or clear implication. ’ ’ However, he recognizes that there may be exceptions and therefore it is logically not true that a corporation can not buy its own stock for want oE power; for if there was no power, then the transaction would lie absolutely void, and the courts would have no right to inject life into something that was absolutely dead. But this last case was decided principally upon the ground that a corporation could not buy its own stock by reason of the constitutional double liability of a stockholder, which is well known existed at that time, and that the withholding of such stock would be taking from the corporation a valuable asset. This constitutional liability of the stockholder, double the amount of his subscription, does not now exist, and therefore the decision of that case is not of much force at the present time. This constitutional liability of the stockholder is now only whatever may remain due and unpaid on his subscription; and if the decision of Judge Sater of the United States Federal Court, of Columbus, Ohio, in Mannington v. Railway, 16 O. F. D. 552 (8 O. L. R. 451), be correct, it being recent and under the present condition of onr statutory and constitutional law, it is certainly entitled to considerable weight; there is no constitutional provision now, as to the stockholder’s liability on his stock, that will prevent a corporation from buying its own stock.

In this last case Judge Safer says: “I have been cited to no Ohio case, and I have found none, which announces, as an inflexible rule, that a corporation may not purchase its own stock.” The case of Merchants’ Nat. Bank v. Carriage Co. 9 Circ. Dec. 738 (17 R. 255), was also decided while the stockholder’s constitutional double liability existed.

In the case of Coppin v. Greenlees, supra, it is said, “that •the great weight of authority in England and United States is .against the right of the corporation to purchase its own stock. ’ ’ This might have been true at the time it was uttered, but can hardly be said to be true now, at least so far as the United States is concerned. Cook, Corporations (4 ed.) Sec. 311, takes the contrary view and gives a number of cases in support of the doctrine, that “when not prohibited by statute or constitution a corporation may in good faith pui’chase its own stock. ’ ’

Thus in Burnes v. Burnes, 137 Fed. Rep. 781 [70 C. C. A. 357], it is stated, “that in the absence of a constitutional or statutory prohibition, corporations have the inherent right to buy, retire and sell their own stock.” Castle, In re, 145 Fed. Rep. 224, it is said, “when all the stockholders consent, a purchase will be sustained where there is no proof that the corporation was insolvent, even though it should afterwards go into bankruptcy.”

In Copper Belle Min. Co. v. Costello, 11 Ariz. 334 [95 Pac. Rep. 94], it was held “that a mining company might purchase its own stock from a person who is superintendent, for the purposes of getting rid of him on account of his bad management, even though the officers believe that the company was insolvent.”

In Republic Life Ins. Co. v. Sivigert, 135 Ill. 150 [25 N. E. Rep. 680; 12 L. R. A. 328], it was held “that a corporation may, if it act in good faith, buy and sell its own stock.”

In another case, Chicago v. Marseilles, 84 Ill. 643, the court said that “if the powers of the directors of a company are not prohibited by their charter, their right to purchase shares of their own stock is well recognized.” (Cornis v. Thayer, 94 U. S. 631.)

In the recent case of Smith, In re, 132 Fed. Rep. 618, the court uses this language:

“In the United States, I take it, the weight of authority upholds the right of the corporation in absence of a statutory prohibition to become the purchaser of shares of its own capital stock. * * * But the courts which have held this doctrine have most definitely held to and rigidly enforced the collateral principle, that a corporation can not become such purchaser where it results in a fraud upon the rights of, or injury or loss to the creditors of the corporation. * •* * The danger of fraud being perpetrated upon or of- injury and loss resulting to creditors, was one of potent reasons moving the courts of England to establish and adhere to the rule that a corporation can not become the purchaser of its own shares of stock.” (Upon the last proposition citing Trevor v. Whitworth, L. R. 12 App. Cas. 409; Cook, Corporations (4 ed.) Sec. 309.)

From this decision, we would be led to believe that the reason for the holding even in England, that a corporation could not purchase its own stock, was not founded upon a want of power, but upon the fact that the exercise of such a power might result in fraud. ' '

In 10 Cyc. 1109, it is stated as a general proposition ‘‘that in the absence of a statute denying the right, a corporation may purchase and dispose of its own stock, provided the transaction is made in good faith and without causing injury to its creditors. ” In support of this doctrine, the case of Shoemaker v. Limber Co. 97 Wis. 505 [73 N. W. Rep. 333], is cited. In 7 Am. & Eng. Enc. Law (2 ed.) 818, this is said to be the prevailing doctrine.

We, therefore, come to the conclusion that the eonsidera- , tion of the purchase of a corporation of its own stock, is not of such an illegal character, that if joined with other considerations in a promissory note, that it would affect the entire consideration of the note and make the same void; but that in case the note could be apportioned, and the holder could recover to the extent of the valid consideration, and no further; and where the parts of the note are not respectively liquidated and definite, the question what amount was founded on one consideration, and what on the other, is to be settled by the jury upon the evidence. Doty v. Bank, 16 Ohio St. 134.

It might be well here to add, that it is not claimed so far as we know that there is any statutory provision in Ohio denying the right of a corporation to purchase its stock; neither in the case at bar, is it claimed in the pleadings of the defendants, that the purchase of such stock would injure creditors; nor is there anything in the testimony to show that the corporation was absolutely insolvent at the time it made its purchase. True, one witness says that it was probably insolvent, but the directors, those who endorsed the note, all say that they did not expect to pay the note, as they believed that the corporation would pay it.

The conclusion, therefore, is that, in the opinion of those who ought to have known, the corporation was solvent; and if that be true, creditors could not have been injured.

The further fact exists that the corporation, if it was insolvent at that time, continued in business for a year or two thereafter. It seems to us further that the testimony conclusively shows that the sole consideration of said note was not alone the purchase price of the stock.

In the minutes of the corporation, which ought to be conclusive upon the defendants in this case, we find the statement that Mr. Siders, the plaintiff, who was secretary of the company, offered to resign his position, if the company would pay him what they owed him and take back his stock; and thereupon he presented a bill of what he claimed that the company owed him, and finally he agreed that, “for his stock, salary and money advanced to ,pay small bills, he would take $950. ’ ’ The bill that he rendered to the corporation showed claims aggregating $1,249, and the most that he could have owed the company for the twenty shares of stock which they claimed he had subscribed for would be $1,000.

Therefore, in addition to his stock at its full subscription price, he was surrendering his position of'Secretary and $249, which he claimed.

We have been somewhat at a loss to understand how the defendants, or the court below, came to the conclusion that he had only -paid his subscription for nineteen shares of his stock and still owed for one share. There is no evidence anywhere showing that he specifically paid for nineteen shares. The most that could be claimed was that from a statement furnished by him he charged himself with $900 paid on stock. In the agreement for which he was to accept $950, it was specifically stated that it was to be for all of his stock, and there was no claim made at that time that there were-any unpaid subscriptions] and the conclusion -would irresistibly follow that whether his stock was paid or unpaid, that it all should go back to the corporation, and for such stock, paid or unpaid, and the other considerations, he was to receive the sum of $950; certainly the corporation would not give its note for $50 more than it owed. And that further he did resign his secretaryship, and turned over to the corporation all of his said stock. The mere fact that nineteen shares of stock at the subscription - price of $50 per share, equals the face value of the note, does not show that the consideration of the note was. intended as a payment of that much stock.

But if it be admitted that as a general rule a corporation cannot purchase its own stock, the case at bar comes within an exception recognized by our Supreme Court, and that is that when the contract has been executed, then the corporation can not plead its inability to purchase.

In the case at bar the transaction so far as the purchase of üie stock was concerned became a completed one when the note was signed and delivered, and the plaintiff released all his claims against the corporation, resigned his secretaryship, and turned over to the corporation all of his stock.

’ The fact that the note remained unpaid did not affect the execution of the contract, Wright v. Pipe Line Co. 101 Pa. St. 204 [47 Am. Rep. 701] ; and under these circumstances the defense that the giving of the note, for the amount of the stock, was ultra, vires will not be permitted. Dewey v. Railway, 91 Mich. 351.

In addition, however, to its having been executed, we have in this case the further fact that the corporation has received all it contracted for, and it has made no offer or proposition to turn back to the plaintiff the alleged consideration, and it will be further observed that, it not only accepted the stock, but it sold it to other parties and received a consideration therefor.

Therefore we might well say as was said by the court in Wright v. Pipe Line Co. supra, above referred to, “the defense of ultra vires comes with' better grace, if made before it has discovered that it has made a bad bargain.”

In 10 Cyc. 1156, it is said:

“The great mass of judicial authority seems to be to the -effect that where a private corporation has entered into a contract in excess of its granted powers, and has received the fruits or benefits of the contract and an action is brought against it to enforce the obligation on its part, it is estopped from setting up the defense, that it had no power to;make it. * * * (Citing authorities from California, Connecticut, Colorado, Illinois, Indiana, Iowa, Kansas, Michigan, Mississippi, New Hampshire, New Jersey, New York, Oregon, Pennsylvania, South Carolina, Washington, Texas, Wisconsin and United States Supreme Court.)' The principle is that the rule requiring the observance of good faith and fair. dealing, is just as applicable to corporations as to individuals, and that neither can involve others in onerous engagements and, with the consideration of the contract in their possession, disavow their acts to the damage and discomfiture of others, unless it clearly appears that there was an absolute want of capacity to make the contract.”

And as in one illustration it is said:

“Thus if a corporation has executed a promissory note for a consideration which it has received and retained it is bound to pay the note, although it may have been executed in furtherance of a contract which was ultra vires;” also, “It can not where it has purchased property contrary to a prohibition or without an authorization in its charter retain both the property and its price; it can not retain the property and refuse to pay the price or set up the defense of ultra vires when sued for the same. ’ ’

And again:

“The most frequent application of this doctrine, is that where a corporation has entered into a contract which has been fully executed by the other contracting party, so that nothing remains for the corporation to do but to pay the consideration money, it will not be allowed to set up that the contract was ultra vires.”

Our own Supreme Court has said: ‘ ‘ and it seems to be now the well established rule that where a contract, not illegal, has been executed and fully performed on the part, either of the corporation or of the other contracting party, neither will be heard to object that the contract and such performance were not within the legitimate powers of the corporation.” Larwell v. Savings Fund Soc. 40 Ohio St. 274.

In a case in the United States Supreme Court, Cornis v. Thayer, supra, under a statute which provided that no national , bank shall be the purchaser or owner of any of its own stock, the court held that the purchase by the bank of its own shares was not void, even if it was ultra vires.

So in the case at bar, at least where it is not shown that creditors of this corporation were injured by its purchase of this stock, we are forced to the conclusion that such purchase could in no sense be determined to be an illegal contract. It is at most a voidable one, and the defense of ultra vires can not be successfully made on that ground.

The endorsers upon this note having been directors of the coi-poration, at most can not stand in any better position than the corporation itself; if anything, having full knowledge of the corporation affairs and, as continuing stockholders and directors, they might easily be held to have received a benefit from this transaction. Undoubtedly they thought they would, or they would not have lent their credit to this note.

We think that the court below erred in sustaining the defendants’ motion to strike out the plaintiff’s second defense in his second amended reply, and in not permitting the plaintiff to introduce testimony tending to substantiate the averments of said second defense; that there was error in not permitting the plaintiff to introduce evidence tending to show that the Gem City Concrete Co. had employed an agent to sell the stock purchased from this plaintiff, which was in full at least of the consideration of the note, the cause of plaintiff’s action herein, and that said agent did sell said stock and that the court erred in its finding of facts that the sole consideration of said note was the sale of said stock to said defendant, the Gem City Concrete Company, and that said note was void and of no effect; that the court erred in finding that there was due from the plaintiff to defendant, the Gem City Concrete Company, the sum of $50 for unpaid subscription on one share of stock; and that the court erred in overruling the motion for a new trial herein.

The judgment of the common pleas will therefore be reversed and the cause remanded for further proceedings.

Dustin and Allread, JJ., concur.