text:
    PUNISHING COUNSEL FOR. CONTEMPT IN THE PERFORMANCE OF A PROFESSIONAL DUTY.
    [Circuit Court of Lucas County.]
    Thomas H. Tracy et al v. The State of Ohio.
    Decided, July 21, 1906.

      Contempt—Attorney and Client—Professional Ethics—Reduction of Sentence-Discretion of Goiirt—Duty of Counsel Toward a Client Unjustly Punished—Good Faith Sufficient Ground for Action—Personal Knowledge of Trial Judge as to Falsity of Charges Immaterial —Proper Procedure—Necessary Findings in Support of Judgment for Contempt.

    1. Inasmuch as a court has discretion to revise, increase or diminish a sentence during term and before it has gone into operation, it follows that attorneys representing one under sentence have the right to invoke the exercise of this power, and this may properly be done by motion.
    2. Charges affecting the court may be strictly or substantially true and yet involve the one making them in contempt, if they are not made in due course of procedure and for legitimate and justifiable ends.
    3. There is, however, not only justification in such a course, but counsel would be recreant to their sworn duty as officers of the court if they did not urge, in proper language and spirit, the vacation of a sentence which, in their honest belief, is. excessive, and was based on a plea of guilty improperly obtained, and pronounced by a judge actuated by improper motives.
    4. Counsel so acting in entire good faith can not be subjected to proceedings in contempt, notwithstanding the charges they put forth • prove ill-founded, and were false to the personal knowledge of the judge at the time of the filing.
    5. Nor will a judgment stand for contempt against attorneys, based upon their manner of performing a professional duty, unless there is a statement or finding in the journal entry or bill of exceptions, setting forth that the said attorneys knew or had reason to believe their charges were unfounded, or that they acted in bad faith in presenting them.
    Widdman J.; TIaynes, J., and Parker, J., concur.
    In approaching the consideration of the important questions raised by the unfortunate controversy which has found its way to this court, we may perhaps clarify the atmosphere to some extent by the enunciation of a few general principles which we believe to be thoroughly grounded in justice and good sense and amply sustained by judicial authority.
    1st. The trial court had judicial discretion after sentence and at the same term to revise and modify the penalties imposed on the original defendants convicted under the anti-trust law. This rule is established beyond controversy by the case of Lee v. The Stale of Ohio, 32 O. S., page 113, as we read in the first paragraph of the syllabus:
    “Where a court, in passing sentence for-a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise qf judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law.”
    The judge rendering the opinion says, on page 116;
    ‘ ‘ The refusal of the court to allow the defendant to withdraw his plea of guilty, and again plead not guilty, rested in the sound discretion of the court.”
    We need not fortify this position, for it was substantially conceded in argument by attorneys for the state that the court below had discretion to do these things. In view of these adjudications and concessions in argument, it is, in our judgment, at present unnecessary to consider the applicability of the statutory grounds for new trial after conviction. The court recognized its discretionary power, with or without express statute, by revising and modifying the sentences after they were made and before the motions claimed to be contemptuous were filed.
    2d. If the court had such discretionary power it could entertain and consider a motion invoking it.
    3d. Attorneys for the defendants below, recognizing such discretionary power in the court after the sentence had a right to invoke the exercise of that power.
    4th. The natural, proper and regular way to invoke it was by motion addressed to the coui~t.

      5th. Charges that axe strictly or substantially true may involve the person making them in contempt if they are not made in due course of procedure for legitimate and justifiable ends. Many of the cases cited to us are of this character, and therefore give us no aid here.
    In elaboration of these principles as to the power of the court and the rights and duties of counsel,,we are clearly of opinion that the latter had no right to file motions containing indecent, profane, insulting or contemptuous expressions; but that they had the right, and it was their duty as attorneys under the oaths which they had taken, to urge all matters of fact and law which in their honest judgment ought to weigh with the court and induce the granting of the motions. If among those matters were honest claims, well or ill founded, that the statute under which the indictments were had was unconstitutional; that the pleas of guilty were improperly obtained; that the sentences were excessive; or that the judge in the imposition of the sentences had been actuated by improper motives, counsel would have been recreant in their sworn duty as officers of the court if they had refrained from presenting those claims. The principle is not different from that governing the filing of affidavits that judges are prejudiced, or that upon the trial the judge has committed errors or irregularities. In every such instance it may be said that there is some imputation upon either the fairness or intelligence of the judge. But the filing of the affidavit or motion is not, if offered in good faith, insulting or contemptuous. It is an appeal, rather, to the assumed desire of every just and upright 'judge as promptly as possible to undo a wrong. ■
    Any knowledge possessed by the judge as to the • truth or falsity of the statements, or, more precisely, the correctness of the claims of counsel, does not meet the question. It is not the knowledge of the judge, but the good or bad faith of the attorneys, that is vital to the question whether there was or was not contempt. It is the conduct of the attorneys that is under inquiry and the spirit and intent with which they did the act are involved.

      This court has heretofore, in the case of Hunt v. The Stale, 5 C. C.—N. S., 621 (638), expressed its views as to the current of authority on this precise matter, in the following words:
    ‘ ‘ The authorities give many illustrations of what are and what are not acts of contempt, and they are not in entire harmony, but so-far as we have been able to examine, where one is pursuing in an orderly and decent way and in good faith, what he supposes to be his right in a court of justice, he is not guilty of contempt though he falls into error and violates the rules of court and even statutes (not penal) without number; but to constitute contempt in such case, there must be something in the manner of doing the thing, or something in the circumstances under which it is done, that it must be disrespectful to the court, or a hindrance to the administration of the affairs of the court, and the act must be done willfully and for an illegitimate or improper purpose. ”
    The affirmation of this decision by the Supreme Court (72 O. S., 643), without report, may perhaps be deemed at least a tacit approval of his view:
    The Supreme Court of the United States in In re Watts, 190 U. S., 1, adds the weight of its high authority:
    “The preservation of the independence of the bar is vital to the due administration of justice, and its members can not be imprisoned for contempt for error in judgment when advising in good faith and in the honest belief that their advice is well founded. ’ ’
    Coming to the question of whether counsel acted in good or bad faith in the matter under inquiry, we may properly again refer to the opinion heretofore expressed in the Hunt contempt ease, supra, page 643:
    “It is a quasi-criminal proceeding. The presumptions are all in favor of the person charged with the offense, i. e., in favor of innocence. It is not a case of the character where a court reviewing the conviction is to assume, in the absence of -evidence to the contrary, that the action of a tribunal below was correct and lawful. It is a ease where the guilt of the person convicted must appear affirmatively in the record. ’ ’
    In the case of Springer v. Avondabe, 35 O. S., 620, the Supreme Court held that a judgment based on finding of fact is erroneous, unless the facts found are sufficient in law to warrant the-judgment.
    Referring to the record before us, there is a very clear and positive statement of the grounds on which the trial judge adjudged the attorneys guilty of contempt; but there is no statement or finding in the journal entries or-bills of exceptions: (1) That the attorneys knew or had reason to believe that the claims made in the motions were unfounded; or, (2) That they acted in bad faith in filing and presenting them. Without such findings or a recital of some évidence to show such facts, the guilt of the plaintiffs in error is not apparent.
    Counsel for the state, while conceding that the motions as to some of the claims embodied were altogether legitimate and proper, argue that they became contemptuous because of the embodying of charges that the judge permitted improper influences or purposes to enter 'into the measuring and fixing of the penalties on the defendants. We are not at present concerned with the actual motives of the judge. It is sufficient to justify the incorporation of these matters in the motions, if the attorneys framing the motions believed them to be proper grounds for orders vacating the sentences. They were entirely pertinent to the application for such orders.
    It is urged that certain of the matter set forth in the motions respecting the motives and purposes of the judge in imposing the sentences, i. e., to compel the convicted ice dealers to return to their customers all they may have exacted in excess of what the judge deemed a fair price for the ice sold; to compel them to reduce their prices to a scale that the judge might deem fair and reasonable, and like purposes, is clearly contemptuous because it imputes to the judge corrupt 'and sinister motives and designs.
    Fairness to the judge as well as to the attorneys requires an application of these cases of the usual rule that the language shall not be subjected to a strained construction in order to make it contemptuous, but that, on the other hand, if it is fairly open to a construction that makes it inoffensive or less offensive, it should receive that construction.

      While we hold that the conviction can not stand because of the absence of finding or evidence of bad faith, and therefore need not enter into any task of construction to justify our judgment, still we deem it proper to remark that it seems to us that a judge might attempt to attain to the full measure of justice on behalf of all concerned or affected by .compelling a restitution by an offender of the illegitimate profits of his wrongdoing, and a cessation of such wrongdoing, and that such attempt might be prompted by most praiseworthy motives, and need not involve any wrong intent, even if it should turn out that the judge erred in that he overstepped his authority in the premises. We do not discover, either in the substance or form of what is set forth in the motions in this regard, anything to justify the claim that the judge was charged with corrupt or sinister designs in thus attempting to accomplish the ends of justice for .all concerned. True the motions charge that the judge acted upon insufficient data, and without lawful warrant, but that does not necessarily imply more than that he erred or blundered. Whether this phase of his action is fairly open to this criticism can not be determined until all the facts of the transaction are properly brought before us and carefully scrutinized and tested by the law. What we desire to express upon this point now is simply that it is not fair to any of the persons concerned to extract the harshest tone and the bitterest flavor possible from these charges.
    It is said that the purposes of the judge were not susceptible of proof and that therefore it was a.n impertinence to assert the claims in that regard. Whether or not in support of the assertions evidence would have been competent, is a question which we need not stop to consider. A question of law as to such competency might properly be made by the motions, if made in good faith and in phraseology not offensive in any other way than as any legal charge of error, iregularity or misconduct may offend. If evidence could be properly offered in support of those claims the kind of evidence so admissible would perhaps not essentially differ from that with which courts and lawyers are familiar in like cases. Intent is to be determined from words and conduct or other circumstances throwing light on mental action.
    We should not lose sight of the fact that in the whole inquiry-are involved primarily and in the most important degree the rights of prisoners on whose behalf motions are presented.
    If attorneys are punishable for preparing and filing such motions on the ground that such conduct is contempt per se, it follows that their clients willfully participating therein are likewise punishable for preferring such petitions to a court either personally or through the.agency of attorneys; that to thus invoke the aid of a court in behalf of their liberties they still further imperil their liberty; that their petitions may be brushed aside without ceremony and they punished summarily by fine or imprisonment, or both, for having presumed to sue for what they may have conceived to be justice and their rights. ■
    The contention of counsel for the state logically resolves itself into this: that no matter how flagrant and corrupt may be the action asserted to have been committed by a judge, not only is the litigant against whom the wrong is alleged to have been pereptrated without remedy (for the road to the higher courts is not open to him unless he first give the trial judge 'an opportunity to undo his own wrong), but-in his appeal for such justice he is, in the words of the last of the Roman peoples’ tribunes, ‘ ‘ answered by the lash. ’ ’
    •Whether the contempt alleged here to have been committed is of a kind described in Section 5639 of the Revised Statutes, to be proceeded against without written charges or hearing and punished summarily (as was done in this case), or of a kind described in Section 5640 of the Revised Statutes, as “Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions,” requiring written charges and hearing, as provided in Section 5641, we deem it unnecessary to inquire. But finding that the convictions are not sustained by evidence or finding that the defendants acted in bad faith and are therefore contrary to law, and that there are no charges formulated or written as a basis of the prosecutions, so that nothing would be pending to be remanded upon reversal, we therefore reverse the judgments, dismiss the proceedings, and order that the defendants'be discharged.
    In the foregoing reasonings and conclusions, we have endeavored to intimate no views not essential to the inquiry in the contempt proceeding, and our opinion and judgment must not be construed as any reflection upon the motives or conduct of the judge below, or intimation of irregularity, or error, further than as herein expressed.

      King & Tracy, Brown, Gaddes, Schmeüau c(? Williams, Smith & Beckwith, and Hamilton & Kirby, for plaintiffs in error.

      L. W. Wachenheimer, Prosecuting Attorney, G. A. Seiders, Ralph Emery, Assistant Prosecuting Attorney, and G. II. Masters, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    COUNTY AND TOWNSHIP DITCHES.
    [Circuit Court of Fayette County.]
    Charles Sollars et al v. Mary A. Sever et al and Charles Sollars et al v. William Ging et al.
    Decided, June, 1906.

      Bitches ancVWater-fiourses—Location of County Bitch in a Township Bitch—Jurisdiction Acquired by County Commissioners, How— Alteration or Reconstruction of Bitch—Appeal to Probate Court— Error to the Common Pleas—Dismissal of Petition—Costs.

    County commissioners are without authority to locate and establish a ditch in a township ditch until there has been a refusal by the township trustees to act, as provided in Section 4510.
    Sullivan, J.; Wilson, J.j'and Dustin, J., concur.
    Where a township ditch has been located, established and constructed by township trustees as provided by law, the commissioners of the county in which said ditch, is located can not acquire jurisdiction under Section 4447, Revised Statutes, upon the petition of the owner of any lot or tract of land abutting upon, and benefited by, said improvement, t'o straighten, widen, alter, deepen, box or tile said ditch or any portion thereof, until the township trustees of the township in which said ditch has been established and constructed upon a petition filed with them to widen and deepen, etc., -have refused to act under Section 4510, Revised Statutes.
    If the commissioners act on a petition filed with the auditor, without such refusal be made to appear, all proceedings by them on such petition will be a nullity.
    The record in these cases shows that the ditch, for which the petition vras filed with the auditor to straighten, widen, etc., is a ditch theretofore located, established, and constructed by township trustees, as provided by law, and that no application was first made to the township trustees, and that they refused to act. The fact that the petition filed with the auditor included laterals and only part of said township ditch does not constitute a new ditch.
    Where proceedings are instituted to widen, deepen, etc., any ditch, drain, etc., if to accomplish the purpose of the improvement laterals are necessary, they are a part of the improvement, and therefore when included do not constitute an improvement different from that set forth'in the petition.
    The county commissioners, therefore, not having acquired jurisdiction over the subject-matter set forth in the petition filed with the auditor, the proceedings had by them were a nullity.
    Being a nullity, the probate court acquired no jurisdiction over the subject-matter on appeal, and hence all the proceedings had before said court were a nullity.
    The common pleas court in reversing the judgment of the probate court entered a correct judgment, except it should not' only have reversed the judgment of the probate court, but set aside the proceedings before the county commissioners, and dismissed the petition filed with the auditor. That court having failed to 'enter such judgment the judgment of that court is affirmed as to the reversal of the judgment of the probate court, the proceedings before the county commissioners will be set aside, and the petition bled with the auditor by the petitioners for the improvement dismissed.
    If the judgment .rendered by the common pleas court includes costs of proceedings before the county commissioners and probate court, that part of its judgment is reversed; with that exception its judgment will be affirmed. The judgment of this court includes only the costs of the proceedings in error in this court and the cause is remanded to the common pleas court to carry the judgment into execution.

      Post t& Iieid and Creamer <& Creamer, for plaintiffs in error.

      II. II. Sanderson and F. A. Chaffin, for defendants in error.


text:
    EXEMPTION AS TO TAXATION.
    [Circuit Court of Cuyahoga County.]
    State of Ohio, ex rel J. A. Smith, Trustee, v. Robert Wright, Auditor of Cuyahoga County.
    Decided, December 1, 1905.

      Taxation—Deduction for Destroyed Buildings—Mandamus to Compel— Constitutional Law—Sections 1038a, 1042 and 2731—Abatement of Taxes.

    Exemption laws having been recognized in Ohio ever since the adoption of the present Constitution, and long before, it has manifestly been the policy of the state to allow certain property to be exempted from taxation; and Section 1038a, relating to deductions from the duplicate for destroyed or injured property, must therefore be upheld as valid and reasonable, notwithstanding the constitutional provision as to the taxing of all property by a uniform rule according to its true value in money.
    Marvin,. J. (orally); Winch, J., and Henry, J., concur.
    This is a proceeding in mandamus brought by Smith, praying that a writ issue from this court commanding and directing the auditor to deduct from a certain tax list a valuation of a certain building which was destroyed after the 2d day of April, 1905. The petition sets out all the facts necesary to entitle the plaintiff to this reduction of the tax duplicate as provided in Section 1038a-, of the Revised Statutes, if that statute is to govern. The statute is:
    “The county auditor shall, whenever, after the first Monday in April, and before the first day of October, in any year, it is made to appear by the oath of the owner, or one of the owners of any building or structure, and by the affidavit of two disinterested persons, resident of the city or township in which such building or structure is, or was situate, that such building or structure has been injured or destroyed by fire, flood, tornado or otherwise, since the second Monday in April of the current year, deduct from the tax list and duplicate the value of such buildings or structures, or such part of the valué thereof as shall correspond to the extent of such injury. ’ ’
    Here the destruction was done by the relator. He tore down and destroyed a building on certain premises between the second Monday in April and the first day in October. The taxes on such building amounted to $135.68.
    It is said that the statute hereinbefore quoted is in violation of Article XII, Section 2, of the Constitution of Ohio, which provides that “laws shall be passed taxing by a uniform rule, all * * * real and personal property according to its true value in money.” It is urged that to permit one to have a deduction by reason of the destruction of the property and covering this period of time from the second Monday in April to the first day of October is to grant a special privilege to one who during that entire six months may have had the benefit and income from such building, and it is said that the fixing of the dates is arbitrary, but Section 2838, Revised Statutes, fixes the date of the lien for taxes as the second Monday in April.
    Section 1042 fixes the time for delivering the tax duplicates by the auditor to the treasurer as the first day of October, so that the dates fixed in this statute are fixed evidently because of the time when the lien attaches and the time when the duplicate is to be delivered to the treasurer. Similar provisions are made as to the deduction by the board of equalization of destroyed personal property, by Section 2807, Revised Statutes.

      Notwithstanding the provision of the Constitution and the provisions of the statutes, Section 2731 provides that “all property, whether real or personal in this state, and whether belonging to individuals or corporations; and all moneys, credits, investment in bonds, stocks, or otherwise,” etc., “shall be entered on the list of taxable property as prescribed in this title,” and provides for the taxation of such property except that which may be specifically exempted.
    Exemption laws in reference to taxation have been recognized in Ohio ever since the adoption of the present Constitution, and long before, and yet the provision of the Constitution is that “Laws shall be passed taxing by a uniform rule, all * *
    real and personal property according to its true value in money. ’ ’ It is manifest that the policy of this state has been to allow certain property to be exempted.
    In the case of Chisholm■ v. Shields, Treasurer of Cuyahoga County, 67 O. S., 374, it was held that a provision by which the widow of Chisholm was to have a large income during the period of her life from the time of his death (a provision by will) that there could be no taxing of that income notwithstanding that it was a very valuable thing.
    Cooley on Taxation, page 1376, under the head Abatement of Taxes, speaks of the fact that a certain property is exempt from taxation without violating the spirit of the Constitution, which provides that all property shall be taxed.
    Is this statute unreasonable? Notwithstanding it would sometimes relieve one from paying taxes on property from which he has had an income during a part of the year, it is not to us so unreasonable as would justify us, in the absence of the holding of any higher court, or any court as far as we know, that the statute is either unreasonable or ambiguous. We do not find it is either. We hold that, therefore, the prayer of the petition should be granted.' Judgment will be entered accordingly.

      Smith, Taft c& Artcr, for relator.

      Stage, Armstrong & Cannon, for defendant.


author: Wildman, J.

text:
    RECOVERING POSSESSION OF AGRICULTURAL FAIR. GROUNDS.
    [Circuit Court of Lucas County.]
    The Toledo Exposition Company v. John W. Kerr and Others as the Board of County Commissioners of Lucas County, Ohio, and The Lucas County Agricultural Society.
    Decided, June 23, 1906.

      Actions—For Recovery of Real Estate Under Section 5781—Equitable Features of Action—Pleading—When an Agricultural Society Ceases to Exist—Ejectment by County Commissioners of Tenant of Agricultural Society—Title of Property Purchased by County for Use of Agricultural Society—Grafting a Counter-Claim or Cross-Petition on an Ejectment Suit.

    The Lucas County Agricultural Society, having ceased to give fairs on • grounds purchased by the county for its use in that manner, granted a license to the Toledo Exposition- Company for the use of the lands for the giving of expositions of a prescribed character for a period of twenty years. The Exposition Company in turn ceased to give expositions, and the County Commissioners of Lucas County brought the present action for recovery of the real estate, claiming to be the owner thereof, and alleging that the property is wrongfully held by the Exposition Company, to which was added a cause of action for rents and profits and a prayer for a large amoúnt claimed to be due thereon. Held:

    1. The action is one for the recovery of real property under Section 5781, notwithstanding there are allegations which seem to call for some form of equitable relief.
    2. The Agricultural Society, by ceasing to give fairs, and leasing its grounds to-another organization to carry out. that purpose, did not fall within the statutory provision that, when such a society is “dissolved or ceases to exist” its real estate and the improvements thereon shall vest in the county. The time fixed by this provision for the lapsing of the rights of the society in the property is when it ceases to exist as a corporation, and not when it ceases to give fairs; and the action of this society did not, therefore, ipso facto deprive it of its right of property or the possession and control thereof.
    3. The Exposition Company, being a tenant of the Agricultural Society, has a right to defend under the title of that society, and can not be ousted from Uie property unless it be made to appear that the Agricultural Society has lost its rights therein, and a judgment against the Exposition Society on the pleadings was therefore erroneous.
    4. Inasmuch as one action in ejectment can not be engrafted or spliced upon another, these two actions by the county commissioners and the Agricultural Society for the recovery of the same property from the same defendant can not travel along parallel lines in the same case. The motion to dismiss the cross-petitio-n of the Agricultural Society was, therefore, properly granted in so far as it is a cross-petition or counter-claim; but in so far as this pleading was available for the purpose of combatting the claim of the plaintiff, as distinguished from an independent claim on its own behalf against the Exposition Company, it should stand, and the society should be allowed to remain in court to make its defense.
    Parker, J.; Haynes, J.,-and Wildman, J., concur.
    Error to the court of common pleas.
    Tbe action in the court below is entitled “John W. Kerr, L. B. Bailey and Frank Wortsmith, as the Board of County Commissioners of Lucas County, Ohio, v. The Toledo Exposition Company and the Lucas County Agricultural Society.” It was brought to obtain relief touching certain lands and was. it seems to us, in the beginning, very clearly and distinctly an action for the recovery of real property within the meaning of Section 5781 of the Revised Statutes of Ohio. The case has presented to us some puzzling questions, due largely to the changes made in the pleadings in the progress of the case in the court below, and to some changes in the opinions of the judges in the court below wbo had to deal with the case during its progress there. Judging from the journal entries, at times it appeared to the trial judges that it was an action for the recovery of real property, and at other times, that it was an equitable proceeding of some sort nr description. But, jin order that we may solve tbe problems presented, it becomes necessary for ns at the beginning to determine the character of the action, and we have concluded that dt is, and has remained throughout, an action for the recovery of real property; and that appears to have been the final conclusion of tbe trial court when the case was finally submitted and decided.

      It is provided by Section 5781 of the Revised Statutes that:
    “In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same,” etc.
    In the original petition in this case it is stated “that the plaintiffs have a legal estate in the following described lands and tenements” (and then follows the description). “That the said plaintiffs are entitled to the possession of said premises, and that the said defendants unlawfully keep them out of the possession thereof.” And the prayer to the first cause of action is: “The said plaintiffs therefore pray judgment against the said defendants for the recovery of the possession of said premises.” Then follows a cause of action for rents and profits, and a prayer for a large amount which the plaintiff claims is due upon that account.
    In the amended petition—and just why an amended petition was filed we are not clear—it is not so distinctly stated that the plaintiff and the defendant the Lucas County Agricultural Society are in court in an adversary attitude. While it is stated that the plaintiff has a legal right in the land, it is also stated that the plaintiff is entitled to exclusive possession and that the exposition company unlawfully keeps the plaintiff out of possession of the premises; but the plaintiff continues to assert that it is entitled to possession, and it has made the agricultural society a defendant, and the agricultural society has not demurred or sought to be excused from answering in the case on account of tihe absence of direct allegations of adverse possession against it, but has filed a pleading in which it claims that it is entitled to possession of the premises, and from which it appears that if the exposition company is in possession, it is in possession under the agricultural society; and therefore, we think, upon the pleadings as they stood at the time the ease was submitted and decided in the court below, it still remained an action for the recovery of real estate against both of'the defendants named, and that they both hid a right to be, and to remain in court, at least to defend. There is a great deal more set forth in 'the amended petition than I have stated—some allegations that would seem to call upon the court for some form of equitable relief—but we think these allegations did not change the character of the action.
    The case of Raymond v. T., C., Si. L. & K. C. R. R. et al, in the 57 O. S. Reports at page 271, affords a good illustration of the principle that matters of equity connected with an action to recover real estate do not change its essential character as an action at law. I shall only read the 'fourth clause of the syllabus*:
    "A petition against a railroad company by one'out of possession of real estate, which alleges title and right to possession of the land in plaintiff, and charges a wrongful entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant enjoined from interfering therewith until compensation is made, |sta,tes a case for the recovery of real property, notwithstanding the petition also contains allegations of threatened irreparable damage as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute; and of a dispute as to title, as a ground for asking that plaintiff’s title may be quieted. But such action being one in which either party may demand a jury is not appealable.”
    It is said by counsel for plaintiff in error that this amended petition does not contain a prayer appropriate to an action brought under Section 5781 of the Revised Statutes. But we think the prayer is sufficient; for, among other things, the prayer is, that "The Toledo Exposition Company”—the company, I remark, which appears to be in the actual possession of the premises—"may be ordered to surrender the possession of said premises to this plaintiff, and that it be enjoined and barred from interfering with the possession or use of said premises,” etc., very much like'the form of the prayer in the petition in the case to which I have just referred.

      As a further statement of what this ease is about, I shall read a part of the statement made by the court below in deciding the case, or in his opinion after the trial:
    “Briefly speaking, this action is brought by the Board of County Commissioners of Lucas County against the Toledo Exposition Company and the Lucas County Agricultural Society, to recover the possession of certain real estate of which it claims to be the owner, and which it alleges is wrongfully held by the defendant company (i. e., the exposition company).
    “The [agricultural] society, has, however filed a cross-petition against its codefendant, in which it alleges the same facts and asks 'the same relief as are set forth and demanded in the amended petition.
    “The defendant company [and here the judge evidently refers to the exposition company] denies the right of either plaintiff or cross-petitioner to the possession of the real estate in controversy. The ultimate question of law to be determined is: To whom .does this right belong?
    “The plaintiff is authorized by Section 845, R. S., “to ask, demand and receive, by suit, or otherwise, any real estate or interest therein, whether the same is legal or equitable, belonging to their county.
    “Therefore, if the plaintiff has a legal estate in and is entitled to the possession of the real property in controversy, judgment must be rendered in its favor.
    “It being admitted that all of this real estate was purchased with money raised by general taxation, and paid out of the county treasury of this county, it becomes important to examine the statutes by virtue of which the appropriation of public funds for this purpose was authorized.
    “February 28, 1846—9944 O. L., 70—an act was adopted by the General Assembly, entitled ‘An act to encourage agriculture,’ which provided that when thirty or more persons associated together as an agricultural society, organized by the adoption of a constitution and the election of officers, and gave an exhibition as required thereby, -the county in which they resided was empowered to aid the society by the annual payment of not more than $800. Sections 2 and 3 of the act provided that the society should annually offer and award premiums, regulate the same so that small as well as large farmers might compete therefor, and publish certain reports
    “The obvious purpose of this act was,' by the offer of public aid, to encourage the organization of societies formed for the purpose of stimulating improvements in agriculture and its products by the holding of annual exhibitions or county fairs, and the awarding of premiums open to general competition.
    ‘‘February 15, 1853, this act was supplemented by a law now embodied in Section 3700 of the Revised Statutes, which provided that the societies then existing- or thereafter organized for the purpose to which I have called attention, should become and be corporations, capable of suing and being sued, and of holding in fee simple real estate as sites whereon to hold fairs.
    “The defendant, the Lucas County Agricultural Society, was incorporated and organized under and in accordance with the act of February 28, 1846, and the amendments thereto, and on the 1st day of June, 1870, with moneys furnished by this county, it acquired title in fee simple to twenty acres of land situated in Section 33, Washington township.
    “April 18, 1874—O. L., 190—an act was passed by the General Assembly authorizing the county commissioners of this county to levy a tax for a term of years ‘for the purchase of additional grounds and improvements of the grounds’ of the Lucas County Agricultural Society.
    “By Section 4 of this act it is provided that all grounds purchased, and improvements made as aforesaid, shall be under the exclusive control and management of the board of directors of said agricultural society, and the title to all of said grounds and improvements shall be vested in fee in said Lucas county.
    “By virtue of the powers thus conferred, the board of county commissioners, on the 25th and 29th days of November, 1882, acquired title in fee simple to about twenty-three acres of land adjoining that purchased by the agricultural society.
    “August 13, 1892, the agricultural society entered into a written contract with the Toledo Exposition Company, a corporation, whereby the former attempted to grant the latter ‘the right and use’ of all said real estate for a term of twenty years. Thereupon the exposition company entered into possession ' of said real estate made improvements thereon, and has continously ever since, remained in the exclusive occupancy and control thereof.”
    The court below treated these as conceded facts, and we think that by the pleadings they are substantially so; this statement may require some slight modification, but, for the purpose of my remarks, it may be treated as true. Most of these facts are stated in the amended petition; and it is there said that this grant or right under the written contract or license, was in consideration that the Toledo Exposition Company should and would each year hold and give a public fair and exposition of the products of agriculture, horticulture, manufacturing and live stock, and such other entertainment in the branches of industry as shall be of interest and benefit to the people of Lucas county, Ohio, and surrounding country, and that this right was given for that and no other consideration; in short; that the exposition company should hold an annual agricultural fair on these premises. The plaintiff avers that this written license—as it is called in the amended petition.—“was made without authority from, knowledge or consent of, the Board of County Commissioners of Lucas County, Ohio. ” And that it was, is, and at all times has been, null, void and of no effect. That the Toledo Exposition Company took possession in pursuance of this license; that it has failed to give such a fair as it was privileged and bound to give upon these premises; that it has become and is insolvent and unable to give such fairs; that from the year 1902 down to the time of the filing of the petition, it has “not only failed to give any exposition on said grounds, but without any authority whatever, have used and rented said premises and permitted-the same to be used, and are now using and permitting the same to be used for keeping, training and racing horses and selling of beer and other intoxicating beverages, and for other uses and purposes of gain, all of which were unauthorized by virtue of said license and contrary to law; and have wholly abandoned the use of said premises for the purpose authorized by said license and by each and all of said acts, the defendant, the Toledo Exposition Company, has forfeited any and all rights which it sought to acquire or did acquire by virtue of said written license,” and that its rights in the premises have ceased and determined, and whatever rights the defendants may have had in the premises have become forfeited to the plaintiffs.
    A cross-petition was filed by the agricultural society setting up substantially the same facts with respect to the giving of this license, the consideration for it and the failure of the exposition company to comply with its terms. The prayer of this cross-petition is against tbe defendant, the Toledo Exposition Company, for the possession of the premises.
    Under the statutes providing1 for the purchase of these grounds and under which they were acquired, it appears that the legal title to one tract was taken in the county for the use of the agricultural society, and, as we construe it, in order that the agricultural society might use it for the purpose of an agricultural fair, because the agricultural society had no other business or concern with it. The fee was vested in Lucas county. The title to the other tract was taken in the agricultural society, but the law contained the following provision :
    “When the society is dissolved or ceases to exist in any county where payments have been made for the purchase or improvement of sites for the úse of such society, the improvements and real estate shall vest in the county making such payments. ’ ’
    The county, through the commissioners, is here asserting its right to the possession of the one tract by virtue of its legal title and the cessation of any legitimate use thereof by the agricultural society, and to the other tract under the provisions of the statute that I have just read, to the effect that when the society is dissolved or ceases to exist, the improvements and real estate shall vest in the county making the payments. These allegations of the amended petition and the cross-petition of the agricultural society are in part admitted, and in part denied by the Toledo Exposition Company; and the exposition company sets up some new matter of alleged estoppel, which is denied by the plaintiff in error.
    The answer of the Toledo Exposition Company to the plaintiff’s amended petition “denies each and every allegation in said petition contained which is not herein expressly admitted to be true.” And it is not admitted that it has done any of the things averred with respect to the misuse of these premises which plaintiff claims have resulted in a forfeiture. It is also expressly averred therein that the exposition company had complied in all respects with the conditions of the contract and license, and that it has not done anything unlawful or that should result in a forfeiture.
    It appears that the case was tried for some days to the court on the theory that it was an equity case, and the court held the ease under consideration for some months, and then concluded that it was not an equity ease, and what was then done appears from the following journal entry, under date of March 12, 1906:
    “This day came the parties to this action by their respective attorneys and thereupon the plaintiffs moved for judgment against the defendant, the Toledo Exposition Company,' upon the pleadings filed in this action, and also the defendant, the Toledo Exposition Company, moved for judgment on the pleadings filed in this action dismissing the cross-petition of the defendant, the Lucas County Agricultural Society, and the court being fully advised in the premises, finds the said motion of the said plaintiff for judgment on the pleadings against the defendant, the Toledo Exposition Company, well taken and should be granted, and that on said pleadings the said plaintiffs are entitled to the immediate possession of the real estate described in the amended petition, and that the defendant, the Toledo Exposition Company, is unlawfully keeping plaintiffs out of the same as alleged in said amended petition, to which action and finding- of the court, the defendant, the Toledo Exposition Company, then and there in open court duly excepted.
    “And the court further finds that the said motion of the Toledo Exposition Company for judgment on the pleadings against the Lucas County Agricultural Society dismissing its cross-petition against the said the Toledo Exposition Company is well taken and should be granted, to which, action of the court the defendant, the Lucas County Agricultural Company, then and there in open court duly excepted.”
    Appropriate judgments follow. The Toledo Exposition Company prosecutes error here to the action of the court in giving-judgment against it; and the agricultural society, by cross-petition in error, prosecutes error to the finding and judgment of the court against it dismissing its cross-petition.'
    It appeal’s from the opinion of the court which we have before us (to which I am sure I shall not do full justice in undertaking to state the substance, but which I can not take time to read in its entirety), that the court was of the opinion that, by the giving of this lease or license, and the surrender of possession of these premises and ceasing to hold fairs itself thereon, the agricultural society lost or forfeited all its rights in the premises under and by virtue of the provision of the statute, to the effect that when the society is “dissolved or ceases to exist” in any county, etc., the improvements and real estate shall vest in the county; and further, that the lease or license was so far illegal and void that the exposition company acquired no rights under it, and therefore, the judgment should award the possession to the board of county commissioners of the county, as against both the'se defendants; and it was so determined.
    This action of the court appears to have been based largely, if not entirely, so far as judicial authority is concerned, upon the case of The Trustees of the Cmandar qua Academy v. James McKechnie et al, found in the 90 N. T. Rep., page 618. The gist of that case so far as the point involved here is concerned, is stated in the first clause of the syllabus, which I shall read:
    “The Ontario Female Seminary was incorporated for the purpose of conducting a school for the edueaton of females, and by its charter (Chap. 145, Laws of 1825), it was declared that its funds should ‘be exclusively devoted to female education.’ Plaintiff advanced to said seminary ‡1,000, under a resolution authorizing such advance on condition that when the seminary ‘shall cease’ it shall return that sum on demand, and shall give security for such return on its real estate. As such security, the seminary, in 1827, gave a mortgage, which recited the resolution and contained a condition to the effect that ‘in the event of said seminary ceasing,’ and if it shall not pay said sum on demand, the plaintiff could foreclose, etc. Said seminary subsequently executed another mortgage upon the premises, which was foreclosed and the premises sold, and the seminary thereupon ceased to maintain any school and has not since exercised any of its franchises; it was divested, by the sale, of all its real estate, and had thereafter no means to enable it to keep or maintain any school. Held, that the seminary had ‘ceased’ within the meaning of the contract, and the contingency had happened upon which plaintiff was entitled to demand the sum advanced; that a formal dissolution of the corporation was not necessary, and that upon refusal to pay the money on demand, plaintiff was entitled to foreclosure.”

      It will be observed that that ease turned upon the construction of a. contract. A donation of $1,000 had been made, which was to be repaid when the seminary should cease; and we think that the construction given by the court to that contract was a fair and reasonable one; that the word ‘cease’ was intended to mean and did mean the cessation of the school, and we think this ease would be much like that if the Legislature had provided that upon the agricultural society ceasing to maintain or carry on a fair, the property should revert to and vest in the county. That is the construction put upon this statute by the court of common pleas, but we can not bring our minds to accept that construction. While the words in this provision of the statute are “dissolved or cease to exist, ” and the court below is of the opinion that “cease to exist” must therefore mean something else or something different from ‘ ‘ dissolve, ’ ’ we entertain the view that the phrase contains mere tautology; that “ceases to exist” there means ceases to exist as a corporation, and not merely ceasing to carry on such fair as the corporation should carry on and that the agricultural society is not divested of its right to the property by mere non-user thereof. We think this view is sustained by a ease to which we are cited: Auslm Webb v. Vmcleveer B. Moler, found in the 8th Ohio, page 548. The character of the case is made sufficiently apparent by what is said by Judge Lane, who delivered the opinion. It is very short and I will read it:
    “No proposition is more thoroughly established than that the franchise of a corporation can not be forfeited without a judgment either on scire facias or quo warranto. Abundant authorities are cited to this effect in the argument.
    “The court of common pleas seems to have considered, that although corporate franchises can not be divested without a judicial sentence, corporate property might be lost by nonuser alone. No such distinction is known in law. The capacity to hold land in one franchise. The grant of land to a corporation is called, by Blackstone, ‘an estate for life, which may endure forever, or which reverts to the donor only when the life of the donee is terminated. ’ 1 Black. Com., 484.
    “Among the multitude of authorities bearing on this point, it is enough to refer to two from New York: 6 Cowen, 23; 1 Hall. 97. The doctrine these authorities declare is, ‘that proeeedings of trustees of a corporation, da facto, are valid, until ousted by a judgment in a proper suit, and that no advantage can be taken of any non-user, on the part of a corporation, by any defendant in a collateral action.
    “The trust of a charity is not lost by the trustees’ neglect of duty. If it can not be carried into execution, the land may revert to the donor. But where it can be enforced, a court of chancery will furnish all needful relief.”
    Of course, it is not pretended here by the representatives of the county that the corporation has been dissolved or that it has ceased to exist, in the sense that it is no longer a corporation. We think it fairly appears from the pleadings and is an assumed fact in the case, that the organization is kept up, and we are of the opinion that it may be rehabilitated; that it may •resume its functions and duties as a corporation, and that if it had such rights as it asserts against the exposition company, it may repossess itself of its property and enter upon the holding of agricultural fairs, for aught that appears in the pleadings in the case.
    Entertaining these views,' we hold that the judgment ;on the pleadings as against the agricultural society'—for it is in effect that—that the plaintiff has a right to the possession of these premises—is wrong. Reasons why the right of possession may have been forfeited by or possession may be taken away from the agricultural society and full dominion over the property may be given to the county, may appear in the further progress of the case; but we are of the opinion that the giving of this lease or license, and the ceasing upon the part of the agricultural society to hold annual fairs, do not alone and ipso facto, deprive it of its right of property or its right of possession of and control over the property.
    As to the exposition company, it appears to us that it is a mere tenant of the agricultural society. Whether it has forfeited its right to the agricultural society so that the agricultural society may resume possession of these premises, we need not now determine. It has a right to stand here on its defenses under the title and right of the agricultural society, and we conceive that its rights do not fall below and can not rise above those of the agricultural society. The plaintiff, to prevail against these two defendants, must, as a necessary part of its case, make it appear that the agricultural society has lost all its rights, whereby the county has full right to possession as against both defendants. Therefore, it appears to us that a judgment against the exposition company on the pleadings is necessarily erroneous.
    I now come to a consideration of the case presented upon the cross-petition of the agricultural society and the action of the court thereon. It fairly appears from these pleadings and the arguments of counsel, and, indeed, counsel very candidly declare that the board of county commissioners and the agricultural society are working in harmony; that they are indifferent about which one prevails against the exposition company. But they are not here in the same right; they are not here standing upon the same premises; they are not here asserting joint rights, but they are standing upon independent grounds; the county is claiming the right to possession for itself and the agricultural society claiming the right to possession for itself. The board of county commissioners 'has brought what we are in the habit of calling “ejectment’-’ (a short and easy name, used for this style of action because it closely resembles the old action in ejectment), against the exposition company, and, as we view it, against the agricultural society. The agricultural society, by its cross-petition, brings an action of ejectment on its own behalf against the exposition company.
    It is said that they may do this under the code, either by cross-petition to determine the rights of all the parties in the subject-matter, or by way of counter-claim.' When this cross-petition was filed, a demurrer to it was filed by the exposition company, the claim of that company being that this was not properly a counter-claim; that it was not the kind of a claim that could be asserted by a cross-petition in the action. A majority of this court are of the opinion that that contention was correct. This demurrer was overruled.
    A motion was afterwards made to strike the cross-petition from the files; and we think that, in so far as it is a cross-petition, it should have been stricken from the files—it ought to have been gotten out of the case in some way. We are of the opinion that one action in ejectment may not be engrafted or spliced upon another action in ejectment as attempted here.
    We know that the provisions of the code are very liberal, and that its purpose is to settle, as far as possible, all controversies between parties respecting the subject of an action, and that in cases where land is to be sold and a fund distributed, where there are equities to be determined, and in a variety of actions of that'sort, everything that might have been done formerly in an action at law and by a bill in equity touching the same subject of an action, may be done now in a so-called civil action, but we have no knowledge of any case where two actions, distinctly at law, carried on together for the recovery of the possession of real estate, have been sustained by the court. If the plaintiff should fail in the action which it brings into court for the possession of this real estate,it would not have theleastinterestinthe action of the agricultural society on its so-called cross-petition. It is difficult to see how the case could well be submitted to a jury without very great confusion and difficulty; and we do not think it is the purpose of the code to promote confusion in trying to effect the purpose of preventing a multiplicity of actions. If .the board of county commissioners had brought an action against these two. defendants charging them with trespass, we think it would have been a very strange and unwarranted proceeding for one of the defendants in the same action to file a so-called cross-petition or counter-claim against his co-defendant admitting that a trespass had been committed but alleging that it was committed by the co-defendant against it and not against the plaintiff, and asking' that it might have a judgment on account of the trespass. We think that in this character of suit the subject of the action is the claim of the plaintiff to possession of the premises. It is so held in a number of authorities in New York, to which our attention has been cited, and we know of nothing directly upon the subject in this state. It is true that there are various actions in which the subject of the action is the land itself, but we think that is not so in an action of ejectment.

      The case of Brown v. Kuhn in the 40 O. S., page 468, is a case where the facts are complicated, and I shall not try to state them, but I will call attention to a remark by Judge Granger in his opinion. At page 486 this is said:
    “But the law does not allow two petitions by different plaintiffs in the same action. It does not permit a petition containing different causes of action in one of which one set of plainiffs are alone interested, and a second in which another set of plaintiffs arc alone interested.”
    And it is pointed out' that the answer could properly seek relief only touching the subject-matter set up in the petition. What is quoted does not make very clear what was involved, and it could not be made very clear without taking more time than I care to devote to the case, but it indicates the views of the court on the subject of two actions at law traveling along parallel lines in the same case against the same defendant —that it is not permitted and can not be done. If the agricultural society conceived that it had a cause of action to recover possession of these premises from its tenant, it should have instituted an action in that behalf. The pirrpose the parties appear to have in view might be accomplished through the acquisition by the county of the rights of the agricultural society, so that the county could sue not only in its own right, but in the right which it now appears to us is lodged in the agricultural society. I merely suggest that, but I have not thought it out; it may be entirely impracticable. But they are not here in the same right now; they are asserting entirely independent claims, each on behalf of itself, to recover this property from the exposition company, and this, we think, can not be done.
    In so far as any pleading that the agricultural society has filed or may file constitutes an answer to the claim of the plaintiff, in so far as it may be available for the purpose of combating the claim of the plaintiff, whether you call it an answer, or cross-petition, or counter-claim, or what not, so far as it may stand in opposition to the claim of the plaintiff rather than as an • independent claim on its own behalf against the exposition company, we think it should stand; that the agricultural society should remain in court to make its defense. We hold, however, that the order of the court dismissing its cross-petition, is not erroneous, unless it may be open to the construction.that the dismissal was on the merits and not without prejudice. The judgment of the court of common pleas against the exposition company will be reversed; that part of the judgment dismissing the cross-petition of the agricultural society will be modified so that it may not prejudice the society in any future action on the same cause of action. As I have indicated, we regard the agricultural society a proper defendant and still in court for the purpose of asserting defensively any claim that it may have against the claims of the plaintiff.
    Judge Wildman does not concur in our views expressed on the subject of the cross-petition.
   Wildman, J.

I am unable to concur with the majority of .the court as to the disposal of the cross-petition filed by the Lucas County Agricultural Society. On all other questions involved in the case I am in accord with my associates.

The action was brought in the lower court by Kerr and others, as county commissioners, asserting both title and right of possession to the land in controversy. The agricultural society and the exposition company were both properly made defendants. The exposition company was in possession, and the agricultural society, equally with the plaintiffs, was a claimant to both title and possession. Its claims were adverse to those of the other parties and were “connected with the subject of the action, ’ ’ which, as I view the law, was the land in dispute.

The majority of the court seems to place some reliance on supposed adjudications in New York as to the scope of a counterclaim under our code procedure, defined in Section 5069, of the Revised Statutes, and treat the “subject of the action” as “the claim of the plaintiff to possession of the premises. ’ ’

The claim of the plaintiffs is larger than a mere possession. They assert title as well as right to possession, and the claim of the agricultural society, as alleged in its cross-petition, is equally, broad.

These claims are inconsistent and adverse. They are connected, with the land, and the land itself, rather than the claim of either party to it, is the “subject of the'action.” The rights asserted constitute “the causes of action,” not its subject.

That this is the proper distinction is clearly indicated in several adjudications and text-books, and has been recognized even in New York. See language of the opinion in The Glenn & Hall Mfg. Co. v. Chas. S. Hall, 61 N. Y., 236, where the “property” is said to be the “subject of the action” in a “real action” (such as the one before us), although it may in some other cases be a “violated right.”

Bliss in his work on' Code Pleading, Section 127, says, that the New York Court of Appeals has been less liberal than other courts in its construction of the phrase “subject of the action,” as applied to counter-claims, and in Section 126 says that the land is the subject of the action in ejectment. Phillips (Code Pleading) gives substantially the same rule both as to land in ejectment suits and as applied to personal property in replevin suits. See Phillips, Section 181, note 1, Section 330 and Section 252, and also Loversohn v. Ward, 45 Cal., 10.

In our own state this rule was applied to personal property in Morgan v. Spangler et al, 20 O. S., 38; and in Peter v. Farrel Foundry & Machine Co., 53 O. S., 534, definitions and principles were adopted and enunciated which seem to me decisive of this question in Ohio. See pages 552 to 556 inclusive, in which Judge Bradbury discusses and - construes several sections of our civil code of procedure applicable to counter-claims, cross-petitions and the scope of the court’s jurisdiction when invoked.

In the case at bar the court had all parties asserting title to the land in controversy before it; their claims were adverse and related to the same land; and under the policy of our liberal code of preventing a multiplicity of suits, the agricultural society should, in my judgment, be permitted to litigate its claims against not only the plaintiffs, but its co-defendant. The complexity of issues or difficulty of trying them to a jury is not so great as in many a case of set-off or counter-claim clearly permissible under the code; but, however complex or difficult, the cross-petition asserted what our statute defines as a counterclaim :

Kohn & Northrop, for plaintiff in error.

G. W. Everett, for the agricultural society.

“A counter-claim is a cause of action existing in favor of a defendant, and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, * * * and connected with the subject of the action.” R. S., 5069.

No question • is or can be made that, under R. S., 5006, the agricultural society was not properly made a defendant, and R. S., 5311, provides that the court “may determine the ultimate rights of the parties on either side, as between themselves,” and R. S., 5782, gives to a defendant in an action to recover real estate, special and express power to plead such matters of counter-claim “as he has or might have in any other form of action, whether they are such as have heretofore been denominated legal or equitable, or both.”


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    SPECIAL INSTRUCTIONS TO JURY WHERE SPECIAL VERDICT IS ASKED.
    [Circuit Court of Hamilton County.]
    The Village of Madisonville et al v. Rosser & Castoe et al
    Decided, July 14, 1906.

      Charge of Court—Special Verdict—Requires Full Instructions as to the Facts to ~be Found—Measure of Damages—Where a Water Tower Failed to Come up to the Specifications.

    1. A reguest for a special verdict renders it necessary that the jury should be fully instructed as to the facts which they are required to find, and this necessity is not met by the general instruction that they must find the facts necessary to determine the case.
    2. In an action to recover on a contract for building a water tower, which the answer alleges has not been constructed in accordance with the specifications, the proper finding for the jury to make is not the amount of money which would be required to make the tower conform to the specifications, but the diminished value of the tower by reason of the failure to construct in accordance with the specifications.
    Gieeen, J.; Jelke,. P. J., and Swing, J., concur.
    ' This action is founded upon a contract for the construction of a water tower for the Village of Madisonville. Plaintiffs below, in their amended petition, aver that they performed their part of the contract in accordance with the plans and specifications, ánd aver that said specifications provided, among other things, that no payment shall be made until the engineer has approved the same, and that he has and does withhold, upon insignificant and frivolous grounds, and therefore wrongfully and unreasonably, his approval of the payment in full upon said contract, but insists upon a large and unreasonable reduction on the contract price thereof.
    The defendants, by answer, admit that the engineer has refused to approve payment, but deny each and every other allegation.

      At the request of the defendants the jury was instructed to return a special verdict, upon which the court rendered judgment for the entire amount claimed less five dollars for the value of a pressure gauge which the plaintiffs failed to provide according to the contract.
    The plaintiffs requested that a special instruction be given to the jury, that in the event the jury find that the plaintiffs had failed to build a tower and tank in accordance with the plans and specifications, they also find on the evidence certain specified facts, which the court refused. At the conclusion of the general charge the defendants excepted to the same for the reason that it did not point out the particular issues and questions of fact to be determined by the jury, and after the jury returned its verdict the defendants requested the court before the jury was discharged, to direct the jury to retire and consider and return its findings on certain specified facts relative to the issue, which the court refused and to which the defendants excepted.
    The jury was instructed in general terms to ascertain and find in its verdict, the facts necessary to a determination of the case, but the court nowhere pointed out to the jury the precise issues, nor the facts, which when ascertained, would leave nothing for the court but to draw from them conclusions of law. It is said in Railroad v. Lochwood, 72 Ó. S., 586, that—
    “ In submitting a ease to the jury, it is the duty of the court to separate and definitely state to the jury the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.’ ’
    This is required when a jury return a special verdict no less than when the verdict is general. Indeed, it would seem from Section 5200, Revised Statutes, which defines a special verdict, that it is even more essential that the jury should be fully instructed as to the facts which they are required to’ find, and upon which only the court can render judgment.
    We see no objection to the special instruction requested after the argument, unless it be the fourth subdivision, which required the jury to find the amount of money it would take to make such tower and tank conform to the specifications.
    The bill of exceptions does not contain any evidence, nor does the special verdict disclose -whether the tower and tank could have been made to conform to the specifications without rebuilding the entire tank, and a more appropriate finding would have been the one suggested to the court after the verdict was returned and before the jury was discharged, to-wit:
    “ The diminished value of said tower and tank, by reason of the failure to conform to the specifications as set out in finding three.”
    With this exception, we think the court erred in refusing to give the special instruction, inasmuch as the court failed to instruct the jury upon this subject in its general charge. It appears from the record that the court was under'thé impression that counsel for plaintiffs having submitted a form of special verdict, and the defendants having likewise submitted a special verdict, thereby the jury were fully instructed as to what facts they wrere to return in the verdict, but manifestly the forms presented by the respective parties differed, each submitting the one most favorable to his theory of the case, and the jury were allowed to make any finding from either of the forms, and add others such as they might deem essential, without any instruction from the court as to wdiat wrere necessary and essential to enable the court to draw conclusions of -law. To illustrate the effect of the failure of the court to charge as requested, the jury returned as one of its findings that the engineer refused to finally approve the payment for the job, which was already admitted by the pleadings, and failed to find upon what grounds the refusal was based, although put in issue by the answer.
    There is no finding whether the plaintiffs through inadvertence or willfully furnished bent and crooked columns and left the surface of the abutting posts not in contact at all points, and painted the tank inside and out before being inspected and tested. We think, however, it may fairly be inferred that it was not done willfully, and that there was a substantial performance of the contract, but this does not relieve the plaintiffs from deducting from the contract price such loss or expense incurred by the defendants by reason of such defects and violation of the contract.
    We think it may fairly be assumed that the defendants did sustain loss thereby, and they were entitled at least to an affirmative finding of the amount, if any, thus sustained.


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    BOUNDARY LINES FOLLOWING NAVIGABLE STREAMS.
    [Circuit Court of Wood County.]
    Lewis Overly v. The State of Ohio.
    Decided, May, 1906.

      Venue—Prosecution for Illegal Fishing—In Stream Forming Boundary Line Between Two Counties—Charge of Court.

    1. Where an island in an unnavigable stream forming the boundary line between two counties, lies substantially south of what would be the middle thread of the entire stream, extending only eight or ten feet north thereof, and the channel south of the island is not more than half the width of that on the north, the boundary line follows the thread of the northern channel, and the island lies in the southern county.
    2. Venue in a prosecution for illegal fishing on the northern shore of such an island is properly laid in the southern county.
    Wildman, J. (orally); Parker, J., and Haynes, J'., concur.
    The plaintiff in error, Lewis Overly, was charged and convicted in the justice’s court with illegally fishing in the waters of the Maumee river, and the sole question arising here, though presented in different forms, is really one of venue.
    It is not contended on behalf of the plaintiff in error that the evidence does not disclose a violation of the law on his part in the act described in the indictment. It is substantially conceded, and the evidence shows that he did fish for black bass in violation of the statute, but it is claimed that he ivas improperly prosecuted and convicted in Wood county; that the precise point where he violated the law was within the boundaries of Lucas county, rather than Wood county.
    The matter has been very ably argued and numerous author-ties have been cited in support of the contention in behalf of the plaintiff in error, and in behalf of the state. It is not my purpose to review these authorities. It is sufficient to say that we are not disposed to disturb the conclusion arrived at by the court below, in his rulings during the trial and the instruction which he gave to the jury as to how the boundary line between Wood and Lucas counties was to be ascertained. He substantially followed the rule of the Supreme Court of Ohio in the case of Benner’s Lessee v. Platter el al, 6 Ohio, 505, following especially the language of Judge Wright, who delivered the opinion, as expressed on page 508 and following. This rule was consistent, also, with the decision of this court in the case of Ludwig v. Overly, in 19 C. C. R., 107, and also with certain decisions of the Supreme Court of the United States in determining boundary lines between some of the states along the Mississippi river on either side.
    The question as presented in the case in the 6th Ohio is not altogether free from obscurity; nor indeed does the principle which governs eases of’ this character appear very well defined by the adjudication. It has been established by a long course of authority that in Ohio the boundary line between ownerships and probably between political territorial lands of the state where a stream of water is defined as part of the boundary, will be the thread of the stream; in other words, the middle line between the banks, having no regard for the depth of the channel. It is claimed on one side that where an island intersects a part of said line, lying partly on one side of the line and partly on the other, that the line will still follow the middle of the entire stream. The substance of the holding in the case of Benner’s Lessee v. Platter ei all, to which I have referred, is that in legal contemplation the main channel, or rather the thread of the main channel of the stream is to be taken in such cases as the boundary line. It is not, perhaps, apparent in that case that the island did intersect the middle line of the stream, but the court lay down the very broad general proposition, that a boundary on a stream, not navigable, is a call for the channel or middle of the stream—a call for the main stream, not a mere branch or a narrow channel. Judge Wright, in this decision referred to, say.s that “whether where the tract claimed as an island be one, that is, land permanently surrounded by water, or a peninsula, sometimes insulated by water flowing through a ravine, or into a bayou, makes no difference. The boundary being the main channel or center of the creek, islands, properly so-called, will belong to the proprietor of that side of the channel where the island is found. This disembarrasses the case of the inquiry, whether the disputed land is an island or not”; the discussion suggested growing out of the fact that there was some question in the case whether the particular tract of land called an island was such, or whether it was a peninsula or part of the main land.
    In the case at bar, the island which the defendant in error claims shifted the boundary line further north, lies almost south of what would be the middle of the entire stream. It is not contended on behalf of the defendant below, the plaintiff in error here, that more than eight or ten feet in width of the island projected north of this line.. The island then was substantially south of what would be the middle thread of the river, and the channel south of the island is not much more than half the width of that on the north. The north channel was properly deemed by the jury to mean the channel the center of which should mark the defined line between the two counties, the boundary line. Considering the case with this view, we are not disposed to disturb the verdict rendered, and the judgment rendered by the court thereon will be affirmed.
    L. F. Conway, for plaintiff in error.

      J. E. Ladd and E. G. McClelland, for the state.


text:
    CONSTRUCTION OF CONTRACT OF SALE.
    [Circuit Court of Wood County.]
    William A. Gills v. Simon George.
    Decided, May 4, 1906.

      Salea—Absolute and Executory—Contract of Sale—Bailments—Passing of Title.

    A contract for the sale by A to B of twenty-two cattle, of a specified aggregate weight and at a named price per pound, payment not to be made for some months, during which time the cattle were to be fed by B and then re-sold to A at an increased price per pound, is not a bailment, nor is it an executory sale from A to B, but the sale is absolute and title passes, and loss from injury to the cattle while they are in the possession of B, and before the time fixed for their resale to A, must be borne by B.
    Wildman, J. (orally); Parker, J., and Haynes, J., concur.
    In the case of Gills y. George a very peculiar question is presented for our consideration,. and one with regard to whieh it is not strange that the minds of intelligent men aiay not be in unison.
    The ease is presented upon the pleadings, an agreed statement of facts, and the fuling of the.court below. It appears from the agreed statement that William A. Gills and Simon George, on November 3, 1904, entered into a transaction with regard to certain cattle. Gills was the owner of the cattle and they were delivered to the defendant, George, and a writing drawn between the parties, intended to be in duplicate. There is some slight variation in the phraseology, but they are substantially alike. The one before me reads as follows:
    “Nqv. 3d, 1904. W.' A. Gills sold this day to Simon George, 22 cattle, weighing 20,259' lbs., at 3%e., to be paid for when taken back, 1905. Said George sells said cattle back to W. A. Gills, to be taken from 15 May -to 15th June, 1905, price 5 cents per lb. Said George is to shrink 3 per cent, when taken lip by W. A. Gills.
    “(Signed)
    “W. A. Gills,
    “Simon George.”

      Each of the duplicates is signed by both parties. On May 14th; 1905, the barn in which the cattle were, was struck by lightning and a large number of them were killed, and others injured. The principal question here is, on which of the two parties the loss shall fall.
    Let us analyze the first part of this contract, to ascertain, if we may, to what extent it embodies an executed transaction between these parties; that is, a transaction executed on the day of the delivery of the cattle to George. Perhaps I ought to stop long enough, however, to say that there is some dispute as to whether this writing constitutes only' one contract between the parties, or whether there are two separate and distinct contracts.
    The defendant, George, insists that these cattle were left with him in bailment, to be cared for and fed, and-finally returned at the period mentioned in the writing, and that the difference between the amount recited as the payment for the cattle by him and the price which he was to receive, was really intended as a compensation for the care which he was to give to the property. On the other hand, it is insisted that Gill actually sold the cattle to George, that the sale was completed, and that George thereby became liable to pay the purchase-price of 3% cents per pound for the number of pounds specified in the writing, to-wit, 20,259 pounds.
    We do not deem it very important to discuss the question as to whether there is one contract or two. My own judgment is that there is but one contract, and that there would be but one contract if there were two writings, in one of which the obligation of Gills were stated and in the other the obligation of George, for it was but one transaction, no matter whether embodied in one writing or two. But the principal question is not thereby solved.
    To determine the effect of a consummated transaction of November 3d, 1904, and the intention of the parties as to a transaction in 1904 let us see whether the phraseology of the writing may not be, to some extent, simplified. It is to be noted that a definite number of cattle is mentioned; a definite weight in pounds, to be paid for at a definite price per pound; which is as much as to say that William A. Gills has sold this day to Simon George, 22 cattle for the agreed price of $709.06, because this is the amount ascertained by computation to be the sum which, under those circumstances, and if there were nothing else in this writing, would unquestionably be due from George to Gills as the purchase-price of the stock.
    We are inclined to think that the mention of the number of pounds and the mention of the price per pound does not change this rule. If it had been indefinite, if there was something to be ascertained by weighing, or counting, or otherwise, so that it was not susceptible of, mere computation to determine how much George was to pay, then an entirely different question would arise; but so far as we have proceeded with this contract, there is a statement that a sale was made of certain property at a certain definite price, and then we reach the provision as to the manner and time of payment. The writing says, “to be paid for when taken back by Gills. ’ ’ That is to say, that when, ,in the subsequent provision of the contract, in the other transaction provided for by its terms, the same stock should -be surrendered by George and received by Gills, that then George is to pay the $709.06. subject, however, to another provision, and that is, that he is to receive something from Gills, and the contract proceeds to tell what that -shall be. It shall be an amount, not fixed and certain, not already determined, but it is to be determined by the weight of the cattle at the time they are so surrendered by George to Gills at a specified price per pound, subject to a shrinkage of 3 per cent, of the aggregate weight of the cattle at that time.
    Our judgment, without dwelling longer upon the first branch of this contract, is that, by its terms, the parties having used the word “sold,” a sale was effected, and George became the owner of the cattle.
    It is well argued by counsel that the use of the word “sold” in the first branch of this contract, and the word “sells,” in the second, is not conclusive of the question as to whether this was a sale or a bailment. We agree with counsel on this point, but we are not disposed to reject words used by the parties to a transaction, if they throw light upon what was intended. We think that to construe this contract as defendant would have us construe it, requires the rejection of the word sold in one case and sells in the other, because, if counsel for defendant is right, there was no sale in the first place, and no agreement to sell in the other. Contracts are to be construed without the rejection or change of the phraseology used by the parties, if it can be done without prejudice to the sense apparent from the entire writing.
    Now, it has occurred to us that, although Mr. Gills was a dealer in stock, and Mr. George was „a farmer, having land adapted to the grazing or pasturage of cattle, and, although it was intended that the identical cattle'should be returned at the time stated, by George to Gills, still the question may have arisen as to who should stand the loss in case there.should be any injury ■to the cattle while in the possession of George; as, for instance, in ease of some accident to them; or whose should be the loss in case of disease or death of a part or the whole of the herd. It is not probable that these parties had in their thoughts such an extraordinary event as that which did occur'—the striking of the barn or place where the cattle were by lightning, and the destruction of a large number of them; but it is altogether likely that Mr. Gills, the owner of the stock, when he entered into this deal with Mr. George, desired that Mr. George should be accountable for the proper care and treatment of the stock to prevent diseases, and also for care in their preservation as against any sort of danger. He was willing to rely, to a certain extent, upon the personal interest of George to preserve the stock and increase their weight by the treatment which he should give to them, and to induce the care of this stock by reason of such personal' interest, the additional price per pound was stipulated as a payment to George upon redelivery or sale of the stock to Gills. But provisions in contracts that they should be held at the owner’s risk, or.that one party or the other shall suffer loss in case of destruction by fire, are not very uncommon in various classes of contracts, and here, if this had been a bailment, it would have been not unnatural to have a clause inserted as to who should suffer the loss, in case of disease or injury. The parties sought to provide, upon the question as to who should suffer in case of loss, by an entirely different provision. They did not say that the defendant, George, receives the stock to hold and care for during- this period, arid is to receive certain compensation, and during- that time they are to be held at the risk of the one party or the other, as regards injuries or otherwise, from the elements; but instead of that they provide that the transaction shall be a sale, and George shall become the- owner, thus guarding Gills from loss; for, during the time, he would have no opportunity to see that the cattle were protected from injury.
    The question remains as to whether, by the terms of this arrangement, George resold to Gills, the title then passing, or whether it was an executory sale, that is, a contract by which, when certain things were done, the title to the stock should pass to Gills. But now two things were left to be done. One was the delivery of the stock and the other was the payment of a price, which, before its payment, was to be ascertained by the weight of the cattle. It is not said in so many words that the cattle were to be weighed, but manifestly, there was no other manner by which the price of the cattle could be ascertained. It is not stipulated which party should weigh them, but they were tube in the care and control of George and, so far as the form of this contract is concerned, he was to be the vendor; he was to sell the property back to Gills and was to receive for the property five cents for every pound, subject to the shrinkage of the aggregate weight of three per cent.
    A large number of eases have been cited to us bearing upon the question as to the effect of such conditions in sales. The question has often arisen as to when, a sale is executory and when one becomes executed, when the title passes.
    At the time of this fire, the 14th of May, the day before the beginning of the period during- which the weight of the cattle was to be ascertained, and the stock turned over to Mr. Gills, the weight of the stock had not been taken. George was to be. permitted to subtract from the price which he had agreed to pay as the purchase-price of the stock when he received them, the price which would be due to him from Gills upon the reselling. His right was somewhat in the nature of a recoupment or counterclaim, which must be ascertained in some way before it could be subtracted from the amount which was at that time owing, though not yet due, from him to Gills.

      In the 13 C. C. Rep., 631, is the case of Parker v. Davis, decided by this court while Judge Haynes, Scribner and King were upon the bench, Judge Haynes announcing the opinion. This was a sale of a certain stock of goods and chattels, and the price was fixed by an inventory taken, not entirely by the vendor, but by third persons, selected by both vendor and vendee, and it was held that when the price of the stock had been fixed by the taking of the inventories, and not before, the title passed. On page 639, Judge Haynes says:
    “Without going through the charge of the court, it is sufficient to say that the court, in our judgment, properly took this view of the case; that under this arrangement and agreement, there must have been not only the inventory taken of the goods —the amount ascertained—but that the notes and mortgages must have been given, and everything must have been done between the parties before the title would pass, or before there would be any risk in regard to the loss on the part of Davis.”
    This was a sale by Parker to Davis. Now, it has been somewhat of a question sometimes as to whether delivery is not essential to the passing of the title. We think, however, that under the decisions in Ohio this is not the rule, although there is some language in the case of Ormsbee v. Machir, 20 O. S., 295, which might tend to favor it. On page 306, however, the court substantially adopts the rule asserted by Mr. Benjamin in his work on sales, ’ ’ viz:
    “When there has been no manifestation of intention, the presumption of law is that the contract is an actual sale, if the specific ihing is agreed on, and it is ready for immediate delivery; but that the contract is only executory when the goods have not been specified, or if, when specified, something remains to be done to them by the vendor, either to put them in a deliverable shape, or to ascertain the price.”
    Now, it will be noted here, as in very many of the cases cited, that the expression is used “where something remains to be done by the vendor,” and it is not stated in this writing whether the weighing was to be done by the vendor or by the vendee. Presumably it was to be done by the vendor, because he was to have the care and possession of the stock, but in the case of
      Parker v. Davis, supra, the inventory was not to be taken by either vendor or vendee, but it was to be taken by them conjointly through the medium of persons chosen by them both, and still the court held that the title would hot pass until the completion of the inventory. Judge White, who gave the opinion in Ormsbee v. Machir, supra, on pages 306-7, says:
    . ‘ ‘ But in the present case the plaintiffs engaged to deliver the corn at a future time, at a given place, and it was only to be paid for as fast as delivered at that place. The payment and delivery were to be concurrent acts. If there was no delivery, nor what was equivalent to a delivery, there was to be no payment. This consideration, in our opinion, repeals the idea of the property passing to the purchaser at the date of the contract. ’ ’
    I say that that tends somewhat in the direction of the holding that delivery was essential to the passing of the title as well as the inventory or weighing, but I hardly think that' is the rule as generally held by the authorities of this state, or elsewhere. There is a case in the 16th O. S., 509, which seems to hold to the contrary, and without stopping to read through them I might cite for such reference as may be proper the case of Belief ontaioie v. Vassaux, 55 O. S., 323, and Booihaon v. Ilaonilion, 66 O. S., 82. Our judgment is that it is impossible to ascertain by any evidence in the ease—it is not apparent from the agreed statement of facts—and in the nature of things it can hardly be ascertained now, what these cattle weighed on the 14th of May. The ascertainment indeed was not to be made as of the 14th of May; it was to be taken at some time between the 15th of May and the 15th of June. It was during that period that the price was to be determined by the weight of the cattle, and nineteen of the cattle were destroyed upon the day before the beginning of the period. The price which was to be paid by George to Gills had already been settled as conclusively as if he had given a promissory note for the amount. In the first part of this contract we have words almost equivalent to a promissory note, except that the time of payment is not quite certain. The time of payment was to be between certain dates, and it was to be at the time of the redelivery of the eattle to Gills, but there is no other condition annexed to the contract of George that he will pay the $709.06.
    Now, he would be entitled to apply as against the price which he was to pay, whatever might become due from Gills to him upon return of the cattle, but he never in fact returns them. He does not surrender them to Gills; they are not taken back because he is not ready to deliver them-. It may be no fault of his; he may have given them the best of care; it may have been an event which he could not help. One of the parties must suffer, and our judgment is that under the rules of law which pertain to- a contract such as this, and a transaction such as has been disclosed to us, the loss must fall upon George; he had become the owner of the stock. It does not answer this proposition to say that he had no power of disposition. We think that he had, subject to the right of Gills to sue him for breach of the contract on his part to deliver the stock at the period mentioned. We think that they might have been subject to levy upon a claim against George during this time; that the title was in substantially the state in which it would have been if the herd had belonged to George in-the first instance, and he had made the kind of a contract which he makes in the second part of this agreement with Gills. He was the legal owner of the stock. He made a contract that at a certain time he would sell so many cattle, for a price to be ascertained by weight, to Gills, and before that time arrived, and while the stock still remained his property, this unfortunate accident occurred, and we see no way out of the difficulty for him -except to suffer the loss, which naturally falls upon him, under all the circumstances. We think that the judgment of the court below, which adopted the other version of this contract, and treated this transaction as a bailment, should be reversed, and under the agreed statement of facts and the pleadings, that a judgment should be entered in this court accordingly. It is, therefore, entered for the plaintiff, Gills, in the sum of $709.06, and interest.

      James O. Troup, for plaintiff. .

      Baldwin & Emrington, for defendant.