text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    THE CITY OF TOLEDO v. JOHN SANWALD. THE CITY OF TOLEDO v. HELEN MASON.

      Accord and Satisfaction.

    An accord and satisfaction of a. judgment must be to the full amount of the judgment. If anything less is taken, it must be upon_a ■' consideration that is paid,

      Appropriation of land by city — Payment of award^in certificate of indebtedness — Requisites.
    Under the constitution, where land is appropriated for municipal purposes the city should pay to the owner the damages assessed ky the jury in the condemnation preceeding. But where this is not done, but the city gives to the owner a certificate of indebtedness to amount to an accord and satisfaction to relieve the city of liability, it must appear that the owners accepted such certificate with a full understanding and knowledge of what they were doing, and the certificate must be for the full amount of the indebtedness, or for a less amount, the payment of a consideration for the deficiency must appear.
    Error to the^Court of Common Pleas of Lucas County.
   Haynes, J.

These two suits, involving substantially the same state of facts, were heard together. In the court of common pleas an action was brought, by each of the defendants in error to recover the amount of a certain award that was made by a jury in the probate court to them, against the city of Toledo, for lands taken by the city of Toledo for street purposes. To those petitions answers were filed, setting up that the parties had been paid in a certain way, The case was heard upon testimony before the judge, a,jury being waived, and judgment was rendered in favor of each of the plaintiffs below against the city.

The claim of the city is that it had paid each of these parties by delivering to them^certificates of indebtedness of the city of Toledo. I will read only one of them, for they are both alike, except as to names, etc.:

Certificate of Indebtedness of the City oe Toledo.
“It is hereby certified, that there is due from the city of Toledo, Ohio, to Helen Mason or bearer, the sum of six hundred and ten dollars, with interest at the rate of six (6) per centum per annum from the twelfth day of July, 1886, in payment of amount awarded for condemnation of property for opening and extending Wabash street, from Fifteenth street to Lenk street.
“This certificate is issued under and. by virtue of an ordinance of the city of Toledo, passed July 12, 1886, (which ordinance is hereby expressly made a part of this contract, and the holder thereof expressly agrees to abide and be bound by all the terms and conditions of said ordinance), and is payable, principal and interest, when the assessment for opening and extending Wabash street from Fifteenth street to Lenk street is levied and collected. Proyided, however, that the city of Toledo shall .first be reimbursed for all money by it expended as provided in the ordinance herein referred to. And after that there shall be paid and applied on the certificates of which this is one, such proportional amounts of said assessment, if any, as has been collected on the first day of March, 1887, and every six months thereafter, until all the assessments collected for said purpose, less the amount necessary to reimburse, the city as aforesaid, shall be applied toward the payment of these certificates.
“This is one of a series of certificates issued by virtue of said ordinance, amounting in the aggregate not to exceed eighteen thousand dollars, all of which are payable, principal and interest, only out of the fund arising from the collection of said assessment for said opening and extending of Wabash street from Fifteenth street to Lenk street, and as payments are made, the amount of said payment is to be indorsed hereon.
“In witness whereof the mayor of said city and city clerk have hereto subscribed their names officially and affixed the corporate seal of the city of Toledo, this 13th day of July, A. D. 1886.”
(Signed by the mayor and city clerk.)
(Indorsed:) “Receivable in payment of the special assessments levied for the improvement for which this certificate is issued, after the city shall have been reimbursed, as provided in the ordinance referred to herein, and made a part of this contract.”

Some payments have been made upon these certificates of indebtedness, principally by way of appropriating a portion of the amount in payment of the assessment that was made upon the lots for the payment of the debt.

The constitution of the state provides that when land is taken for public purposes, a compensation shall be made in money of the value of the land taken. It was under this constitutional provision that proceedings were had in pursuance of the act of legislature, whereby, acting under the right of eminent domain, the city did take the lands of these respective parties for a public street in the city of Toledo. By the express terms of the constitution, the city should have paid the' owner of these lands money to the amount of the value of the lands so taken as assessed in court by a jury. The city never has done that. It says that the parties received these certificates of indebtedness in full payment of that judgment. The evidence shows, as to Sanwald, that the certificate was left at his house in his absence. He was a laboring man working for some firm in the city. When he came home he found it at his house. Afterwards, at their request, he went to the city officers, and they asked him for and he gave a receipt without knowing what was in it, supposing that it was the proper way for him to do; and especially not knowing in regard to the terms of the ordinance which was made a part of the certificate of indebtedness. In the case of Helen Mason, the certificate was received by the clerk of the attorney for her in the appropriation proceedings, as I understand, and he receipted for it. She says she never had any knowledge of the ordinance, or anything of the kind.

The question now comes up whether these parties have received these certificates of indebtedness in such manner that they can be held to the payment of the amount that was awarded in their favor in the probate court. We are very clear that the decision must be against the city in this respect. . The general principle is that an accord and satisfaction of a judgment must be to the full amount of the judgment. If anything less is taken, it must be upon a consideration that is paid. We see nowhere in this whole transaction any consideration given by the city to these parties in any manner or form, whereby, for that consideration, they agree to take these certificates of indebtedness in satisfaction of their debt.

It appears, also, as I have said, that they were not fully aware of the conditions of this certificate of indebtedness. If they had taken anything else than money, they should understand it, and know, and have full knowledge of what they were doing, so that they would be acting understandingly in regard to the matter.

These certificates of indebtedness, it will be observed, under and by the terms of the ordinance, provide that the city shall make an assessment' upon the property and land abutting upon the street, including that of the party whose land is taken, and that when the amount of this assessment is collected, the city will pay first to the city of Toledo the full amount of all expenses to which it has been put in making these appropriations, which includes attorneys’ fees, and matters of that kind. Those expenses are to be reimbursed to the city by these defendants to the appropriation proceedings, though the statute provides that the costs shall be adjudged against the city. Then of the moneys that are left, the city will prorate the sums among the different persons holding these certificates. - It follows that if the amount collected is not sufficient to pay. all the expenses, the party who holds the certificate of indebtedness will have to stand the loss. In this case there were so many rebates that the money received would not pay off the indebtedness. While the city received the full amount of its expenses, the property owner fell far short of getting the full amount allowed by the courts as the value of his land taken.

C. F. Watts, for Plaintiff in Error.

Beard & Beard, for Defendant in Error.

We feel very clear in this matter, this certificate of indebtedness ought not be held an accord and satisfaction of the judgment in any' manner or form. It is neither right or just that it should be so.

The judgment of the court of common pleas will, therefore, be affirmed, but reasonable cause will be certified.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    First Circuit — Butler Co., O., Circuit Court,
    Oct. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    SARAH E. WILLIAMS v. BENJAMIN W. BAKER ET AL.

      Injunction — Obligors on bond liable on judgment in appellate court—

    In an injunction case,commenced in the common pleas, but appealed to the circuit court, the judgment of the common pleas court making the injunction perpetual does not end the liability of the obligors on the injunction bond ; but on a reversal by the appellate court of the judgment of the common pleas and dissolving the injunction, such obligors are liable on the bond for the damages sustained by the other party by such injunction, although the appellate court does not expressly find that the judgment was improperly granted.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

In this case we are of the opinion that the injunction bond given by the defendants in error to Sarah E. Williams and others, bound them to pay to the defendants in the case in which it was given, the damages which they or either of them might sustain by reason of such injunction, if it was finally decided that the injunction ought not to have been granted. That when the court of common pleas made it perpetual by its final decree, ,and't,his decree was appealed from, that this did not operate to put an end to all liability of the obligors — but on the contrary, when it was in effect found by the appellate court that the claim of the plaintiffs in the original suit was unfounded, and dismissed the petition of the plaintiffs and quieted the title of Sarah B, Williams to the land in question, this was the final decision of the case, and in effect a decision that the injunction ought not to have been granted, though there was no express finding of the court that it ought not to have been granted. And,thereupon,a right of action arose on the bond in favor of plaintiff in error against the obligors to recover the damages she had suffered by reason thereof. And'it clearly appearing from the evidence that she did suffer damages by reason of the granting of the original injunction, and the trial court having found in favor of the defendants, the judgment is reversed, with costs.

Morey, Andrews & Morey, for Plaintiff in Error.

Thos. Millilcin and Edward Belden, for Defendants in Error.


author: King, J.

text:
    (Sixth Circuit--Lucas Co., O., Circuit Court
    Jan’y Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    ADA BANSE, ADM’X. v. GUSTAVE MUHME, GUARDIAN.

      Child’s year’s support after father’s death — Child living in foreign country—
    A child under fifteen years is entitled to a year’s support out of its father’s estate under sec’s. 604Ó, 6041 Rev. Stat., although such child never was a resident of Ohio, and that besides the distributive share to which it may be entitled out of its father’s estate.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This was an application to the probate court of Lucas county by Gustave Muhme, as guardian, for an allowance to a certain child of one Otto Banse, to be made to it under sections 6040 and 6041, Revised Statutes, which provides for the allowance to the widow and children under fifteen years of provisions and other property or money sufficient for their support for one year. The probate court allowed the sum of $150 to this child, who was about twelve or thirteen years of age. The case was appealed to the common pleas court,and heard there. It is now here on error to the judgment of the court of common pleas.

It seems that the decedent, Otto Banse, was a native of Germany, who came to this country a dozen years age, leaving behind him a wife and child. Some four or five years after he came to this country he procured a divorce from his wife in this county, on the ground of willful absence, and thereafter married, and by the second wife had two children. He died, leaving a widow and these two children. An allowance was made to the widow and two children in this country, without any knowledge that there was another child anywhere, under the age of fifteen. But finally information was received of that, and the child through its attorneys put in a claim against the estate for its distributive share of the estate, and such proceedings were had that its paternity and rights were established. The land of the estate was sold, and this child’s distributive share was estimated in money, and paid to it — about $1,000. After receiving that sum of money the child made this claim in the probate court through its counsel, for a year’s support, and it was allowed, and that allowance, on appeal to the court of common pleas, was there affirmed.

It is claimed that the child ought not to have received that, because she was never a resident of Ohio, and does not reside here now; and, for that matter, does not reside in this country. It was also claimed in argument that this allowance for a year’s support was included in the distributive share of the estate paid to her, and that was a bat to this action. As there is no similarity in the two proceedings, we do not think that the receipt of the share of the estate would be a bar to her claim for a year’s support. Neither do we see any ground for the argument that because she is foreign born, and lives in a foreign land, the situation is different from what it would be if she lived here.

This allowance for a year’s Support, we think, is not made for any'purpose except as a continuation for a period of time of the obligation that existed at the time of the death of the parent. That obligation is one that is established by natural law, as well as the law of every civilized land, that the father must support his children. It is not alone known in Ohio, but in every other land. This obligation often finds itself in an express statute, and sometimes not; but whether it does or not, it is the law; the father must support his children. In Ohio the legislature have recently said (in 1887), that the husband must support himself, his wife, and his minor children, out of his property or by his labor. In 45 Ohio St., the Supreme Court held, in Pretzinger v. Pretzinger, page 452, that a father was bound to pay for the support of his child, even though a divorce had been granted to the wife, and the wife had been given the custody of the child, and she has been allowed alimony in a gross sum. No specific allowance kaving been made for the support of the minor children, still he was bound to support them, and the divorced wife can maintain a suit in her own right directly for all that had been expended for the necessary stipport of said minor children. And in the opinion the court say:

“The duty of the father to provide reasonably for the maintenance of his minor children, if he be of ability, is a principle of natural íaw. And he is under obligation to support them, not only by the laws of nature, but'by the laws of the land. As said by Chancellor Kent: ‘The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person.’ This natural duty is not to be evaded by the husband’s so conducting himself, as to render it necessary to dissolve the bonds of matrimony, and give to the mother the custody and care of the infant offspring. It is not the policy of the law to deprive children of their rights on account of the dissentions of their parents, to which they are not partiesv”

L. H. Wilkinson, for Plaintiff in Error.

Samuel Kohn, for Defendant in Error.

That is only a recognition of a well established principle of law, that the parent must support the child, and that duty primarily devolves upon the father. As a continuation of their relationship, the legislature has provided that for one year next ensuing after the death of the father there shall be allowed a sum sufficient for the support of the widow and such children as there may be under the age of fifteen. This child is under the age of fifteen. No matter if circumstances have thrown her life in another country, still the relationship existed, and the obligation upon the father while he lived to support that child was just as binding and obligatory as it would have been if she had been under his own roof. We think this statute is broad enough to authorize an allowance from his estate of a sum sufficient for her support for one year. The allowance in this case could not have been unreasonable, since the judgment was for only $150. So we think the judgment of the lower court is .correct, and it is affirmed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    DALTON v. BRUSH ELECTRIC LIGHT CO.

      Director of corporation serving as secretary — Compensation.
    Where directors of a corporation appoint one of their number to act as secretary, he is prima facie entitled to a reasonable compensation for his services as such officer,although there was no express contract made at the time of his appointment that he should be paid for his services, and no compensation for the secretary was fixed in the by-laws of the association, but where the circumstances were such as showed that it was the intention of both parties that he should be paid for his services.
    Error to the Superior Court of Cincinnati.
   Smith, J.

The plaintiff in error seeks the reversal of the judgment rendered against him by the Superior Court of Cincinnati, and the principal ground urged for the reversal is, that the trial court after,the testimony on both sides was fully heard, charged the jury that the plaintiff, on the evidence, was not entitled to recover, and directed them to return a verdict for the defendant. He also declined to give certain special instructions asked for by plaintiff’s counsel. Plaintiff excepted to the instructions as given and refused, and a verdict having been rendered by the jury, as directed by the court, a motion for a new trial was made on those, grounds and was overruled by the court, and exception taken, and a bill of exceptions was allowed, setting out what the evidence on the part of the plaintiff tended to prove, as well as that on the part of the defendant — the charges given and refused, and the exceptions thereto.

The petition of the plaintiff avers that the defendant company is a corporation, doing business in this state and city, and that on March 20, 1890, he was duly elected treasurer of said company by the board of directors thereof and that he accepted, and immediately entered upon the discharge of its duties, and so continued until August 15, 1890, devoting his time and services to the performance of its duties, from April 1, 1890, to Auugst 15, 1980, continuously, for which the defendant company became bound to pay to him a reasonable compensation for his services, which services are of the value of $200 per month; that the company has not paid him any compensation therefor, and the whole value thereof, $900, with interest from August 15, 1890, is due and unpaid, and he asks judgment therefor.

The answer admits that it is a corporation, and that on April 1, 1890, the plaintiff was duly elected treasurer of said company, and denies each and every other allegation of the petition.

The bill of exceptions shows that evidence was offered tending to show that at the request of the president cf the defendant company the plaintiff accepted a certificate of the capital stock of the company for one share; that on receipt thereof, he executed, in blank, a transfer and power of attorney upon the back thereof, and returned it to the president of the company, from whom he had received it, never having, in fact, any beneficial interest or ownership in the said stock, and was not otherwise interested in said company; and at the same time, March 20, 1890, he was elected by the board of directors of the company as a director therein, and on the same day was elected to fill the office of treasurer of said company; that he accepted the same, and continued in said office until August 15, 1890, and that he devoted his attention daily to the duties of his office as treasurer, examined accounts, took charge of and deposited moneys, executed checks, conferred with the creditors and with the president of the company in reference to corporate indebtedness, and spent the necessary time each day at the office of the company for the transaction of his official duties.

That he called the attention of the president to the matter of fixing his compensation several'times, and was informed that it would be attended to, but that itjnever was. Plaintiff also offered in evidence article 10 of the constitution of the company defining the duties of the treasurer of the company, and which duties, the evidence tended to show, had been performed by him, and offered article 4 of the by-laws of the company, which provides that the board of directors shall fix the price of all salaries, and further offered proof tending to show that no salary was or had been fixed by the board for the office of treasurer at the time he entered upon the office, or subsequently during his term,and that no agreement had ever been made as to- the amount of salary that should be paid to the plaintiff; and further, that his resignation as treasurer was accepted about September 1, 1890, he, in consequence of sickness, having ceased to perform its duties from and after August 15, 1890, and that •on August 15, 1890, he forwarded to the company, through its acting president, a bill -for said services from April 1, 1890 to August 15, 1890, at the rate of $200 per month, amounting to $900, which bill -the board declined to pay, He further offered evidence tending to show that his said services so rendered was of the value of from $150 to $250 per month.

The defendant then offered evidence tending to show that the plaintiff,as treasurer, did not render the services claimed, and that they were not of the value claimed by him. That the provisions of the constitution and by-laws referred to were in force at the time of his election and during his term, and that no salary for the treasurer had been fixed, and that the plaintiff had not called the attention of the acting president to the fixing of the treasurer’s salary'.

At the conclusion of the evidence the defendant company moved the court to instruct the jury to return a verdict for ■the defendant, which he did, refusing to give special charges asked by plaintiff’s counsel, and in accordance with the instruction, the jury returned a verdict for defendant. Was this action of the court in directing a verdict for the defendant company right?

It must be conceded, we think, that if Mr. Dalton had not been a director of this company at the time of his election to the office of treasurer thereof, and while he held the same, that on the production of his evidence tending to-prove his election as treasurer, that he had no substantial interest in the defendant company, and that as such he rendered services worth from $150 to $250 per month, and that on several occasions while rendering the services he called the attention of the president to the matter of fixing his compensation, and was informed that it would be attended to, he was entitled to have the judgment of the jury, on the question whether, on the evidence, he had shown a right to-recover, and if so, how much; that is, whether, in their opinion, on the evidence submitted, the services were-rendered by the plaintiff gratuitously, and without any expectation on his part that he was to be compensated therefor, or whether the defendant, under all the circumstances-shown, did suppose and have reason to so think, that they were gratuitously rendered. In this case there certainly was evidence tending to show that the services were rendered at the request of the company, and with its full knowledge, and that they were valuable, and that plaintiff expected to-be paid therefor. And we think it must be conceded that they were of that character that the jury might properly have found; are usually paid for, as well as those rendered-by a lawyer or other professional man, or by a laborer in the field or shop.

Does the fact that the person elected treasurer was at the time and during his term of office, a member of the board of directors, as a matter of law absolve the defendant company from any liability to pay the reasonable value of his-services? If so, the ruling of the court and the direction given to the jury were right, and the judgment should be affirmed; but if this is not the case, in our judgment the trial court erred, for then the proper course would have been to submit the matters in issue to the jury, with appropriate instructions. ~~

It must be admitted that the adjudications on this point are not harmonious, but are in direct conflict. For instance, it is held in the case of Kilpatrick v. Bridge Co., 49 Pa., St., 118, that corporations are not liable on a quantum meruit for services performed by their officers. There must be an express contract for compensation, or there can be no recovery. And in Holden v. R. R. Co., 71 Ill., 106, it is held, “that where a director of a railway company is appointed treasurer, he will have no right to claim pay for the same, and the subsequent allowance of a claim in his favor will not entitle him to recover.” And in 118 N. Y., 629, while the syllabus of the case simply is, “that if a stockholder of a corporation becomes an officer thereof, assumes the duty of the office and performs them without any agreement or provision for'compensation, the presumption, in view of his relation and interest, may properly arise that he intends to perform fhe services gratuitously, ” and that the evidence showed in that case that he did so; yet in the opinion of the judge announcing the decision, stronger language bearing on the question before us, is used. Judge Bradley says:

“It is well settled that a director of a corporation is not entitled to pay for services performed by him as such, without the aid of a pre-existing provision, expressly giving the right to it. They are the trustees of the stockholders, and as such have the management of the corporate affairs. And to permit them to assert claims for services performed, and then support them by resolution, would enable the directors to unduly appropriate the funds of the corporate enterprise. It would clearly be contrary to sound policy.”-

On the other hand, it is stated in Thompson on Corporations, section 4704, that:

“Such offices as those of secretary, treasurer, and general managing agent, are merely ministerial offices. Their incumbents do not stand on the same footing as directors, nor even as the president in respect to their right to compensation. It is not the rule, as in the case of a director, that the law does not imply a promise to pay for such services, On the contrary, while it can not be said that the law, under all circumstances, will imply such a promise, it may be affirmed on authority that it is not necessary in order for such an officer to recover a reasonable compensation for his services, that there should have been an express agreement that he should be paid for them.”

It is true that the case cited to sustain this doctrine is Smith v. Long Island R. R. Co., 102 N. Y., 190, in which case the plaintiff, who sued to recover for services as secretary, was not a director of the company, and in this respect was different from the case at bar. But it is difficult to see why the mere fact that he was a director should of itself operate to prevent him from recovering the reasonable value of his services as treasurer, if the other requisites were shown; that is, that they were rendered under an implied contract that he was to be paid therefor. In Beach, on Corporation, section 285, it is said:

“It is not customary to compensate directors for services rendered by them to the company, in the regular course of their duty, and they cannot recover therefor, except upon some express agreement entered into between them and the company before the rendition of the services., or under a previously existing charter or by-law. But for services beyond the scope of their official duty, directors, like other persons, may demand quantum meruit compensation.”

Our statute,, section 3252, provides that a corporation, by its regulations, may provide for: “4, the duty and compensation of officers.” And in 42 Ohio St., 579, the court held in regard to associations organized under section 3630, ■which contains no special provision as to compensation of officers, that the trustees,unless specially invested with the additional capacity and authority of officers or agents,are limited in their claims to compensation to'such sums as will reasonably compensate them for the time and expense in going to, attending and returning from their official meetings, and for their services while in session.

In the case of Rogers v. R. R. Co,, 22 Minn., 25, where the plaintiff brought an action to recover compensation for services claimed to iiave been rendered by him as secretary of the company, but his compensation had not been fixed as required by the by-laws, and where he also sought to recover the value of services rendered by him to the company as land commissioner and as attorney, while he was acting as a director of the company, and without any special contract, it was held that he was entitled to recover for all such services on the quantum mernit. And in 29 Kansas, 311, it was held that where the directors of a corporation appoint one of their number to act as treasurer, secretary or other ministerial officer of the- corporation, he is, prima facie, entitled to reasonable compensation for his services as such officer.

The judge who announced the decision of the court in the case of Gardner v. Butler, 30 N. J. Eq., 723, uses this language, which, it seems to us, states the law clearly and correctly on the general question:

“The directors of a corporation shall not be permitted to enter into engagements in which they have a personal interest, conflicting with the interests of those whom they are bound by fiduciary duty to protect, and that no consideration of their apparent or intrinsic fairness will induce a court, either of law or equity, to enforce them against the resisting cestue que trusts is well settled. ” * * * “The rule is that the trustee cannot fortify himself by a contract with himself for his own benefit, and set it up either at law or in equity as a valid obligation. It is of no binding-force as a contract, and tbe cestui que trust may repudiate it at will. The agreement, therefore, which the directors-made with themselves, must be pronounced to be illegal, and can furnish no support to their defense as contracts. But while the express undertaking is without legal force, the-directors of a company have a right to serve it in the capacity of officers, agents or employes, and for such services the-law will enable them to receive a just and reasonable compensation. The law restrains them from making a contract when their own gain intervenes between their exercise of' judgment and their duties as trustees; but it does not operate-to deprive the company of the service of those who,in many cases, may alone possess the skill requisite to the successful management and control of the corporate business, and who may have the chiefest interest in its prosperity. Stockholders, because they are directors, are not compelled to commit the business of the company to strangers or else-render their own service gratuitously. No claim which they may make against their company can acquire any support or validity7 from the fact that they have expressly sanctioned it; it must rest exclusively upon its fairness and justice, and be enforced upon the quantum meruit. Such is the full scope and effect of the rule, and the extent to which the transaction is annulled as will be found by an examination of the cases.”

The general doctrine as to a recovery on an implied contract by an officer of a corporation for extra services is well stated in the opinion of Morton, Judge, in the decision of Paw v. Bank, 130 Mass., 395:

‘‘A bank or other corporation may be bound by an implied contract in the same manner as an individual may. But in any case, the mere fact that valuable services are rendered for the benefit of a party, does not make him liable, upon an implied promise to pay for them. II often' happens that persons render services which all parties understand to be gratuitous. Thus, directors of banks and of many other corporations usually receive no compensation. In such cases, however valuable the services may be, the law does not raise an implied contract to pay the party who receives the benefit of them. To render such party liable as a debtor under an implied promise, it must be shown, not only that the services were valuable, but also’ that they were rendered under such circumstances as to -raise the fair presumption that the parties intended and understood that they were to be paid for; or, at least, that the circumstances were such that a reasonable man in the same situation with the person who receives and is benefited by them, would and ought to understand that compensation was to be paid for them. 6 Allen, 207.” 3 C. C., 291.

In this conflict of adjudication, we are of the opinion that the fact that Mr. Dalton was a director of this corporation when he was elected as treasurer thereof, and while he served as such, and that he had no express contract with the company at the time of his election that he was to be paid for his services, would not preclude him from receiving the fair and reasonable value of his services, if they were valuable, and were rendered under such circumstances as showed that it was the intention of both parties that he was to be compensated therefor. And as there was evidence tending to show this, the action of the trial court in directing a verdict for the defendant was erroneous, and for this reason the judgment will be reversed.


author: Rohn, J.

text:
    (Third Circuit — Putnam Co., O., Circuit Court
    CNov, Term, 1896.)
    Before Price, Day and Rohn, JJ.
    ROBERT B. F. PIERCE, RECEIVER v. CHARLES ANDREWS.

      Failure of railroad to maintain cattle guards in station-yard.

    In an action against a railroad company for damages for stock killed, because of its alleged negligence in failing to construct necessary and proper cattle guards: Held, that such an omission, was not of itself sufficient negligence as to warrant a verdict against the company, when the evidence showed that it was necessary for the proper use of the station yards, as maintained on each side of the station proper, to omit such cattle guards.

      Error to the Court of Common Pleas of Putnam county.
   Rohn, J.

The defendant in the court below commenced an action against the plaintiff in error as receiver of the Toledo, St. Louis & Kansas City Railroad Company for the sum of $150, with interest, upon two causes of action. . The causes of action are both for damages .for stock killed on the railroad operated and controlled by the receiver, because of an alleged negligence in failing' to construct necessary and proper cattle guards to keep stock from getting in upon the right of way of the railroad from the public highway, and that by reason of this negligence on the part of the receiver and his predecessor, the railroad company, the stock of the defendant Andrews, without fault or negligence on his part, strayed upon the track of the railroad, and was run over and killed.

The plaintiff receiver filed his answer to both causes of action, which very clearly sets out the defenses relied upon, which are, first, on each side of the right-of-way of the Toledo, St. Louis & Kansas City Railroad, north and south of the public road in plaintiff’s petition described, there is, and was at the time mentioned in said petition, a wire fence constructed as provided by the statute, north of said public road, except where said right of way is crossed by the right-of-way of the Findlay, Ft. Wayne & Western Railroad, the fence extends to a certain bridge which serves the purpose of a cattle guard, and is sufficient to prevent stock from going on the right-of-way north of that point; south of said highway said fence extends to the cattle guard constructed according to law, which, prevents stock from getting on the right-of-way south of that point.

Defendant admits that said heifer was killed in a collision with one of the trains of the defendant, but says that the place where said heifer came upon the right of way of said railroad is within the station limits of said railroad in the village of Cloverdale, and is part of the depot grounds. He further says the necessities and conveniences of the public and of the receiver and railroad company and the safety of the employes of said receiver require that said depot grounds and station limits at the crossing of said highway should remain open and unobstructed; and that said bridge north of said public road and the cattle guard south of said public road has been put in and built by said railroad company at the first point north and south of said highway where the construction of cattleguards would not interfere with the necessities and convenience of the public and of the railway company and its receiver and' endanger the safety of the employes of said receiver. To the second cause of action a similar answer was set out relating to the cattle guard, or want of cattle guard south of the railroad station.

Upon the amended petition of Andrews and the answer of the receiver the issues were joined and trial had before a jury, which returned a verdict in favor of the defendant in error Andrews, for $120.00, upon which verdict the court below rendered a judgment; a bill of exceptions embodying all the testimony had on the-trial in the court below was duly taken and allowed, and a petition in error filed in this court by the receiver, seeking a reversal of the judgment of the court below on the grounds, first, that the trial court erred in overruling the motion of plaintiff in error for anew trial; second, the court erred in its charge to the jury on the trial of the action; third, the court erred in the admission of evidence on behalf of said defendant in error to which said plaintiff in error objected; fourth, said court erred in ruling out evidence offered by defendant in error; fifth, said judgment was given for the defendant in error when it should have been given for the plaintiff in error.

Only two questions are presented by the petition in error on the record. The. first is, was the verdict against the weight of the evidence? Second, did the court err in its charge to the jury ? All other errors assigned in relation to the admission or rejection of testimony are not considered by reason of failure to ha,ve the required marginal notes and references, as required under the rules of this court. The only question raised on the sufficiency of the testimony as to its weight, is whether, under the exception which the Supreme Court has seen fit to read into the statute, the plaintiff, by a fair preponderance, showed that by the public necessities and convenience and proper use of its station yard, the railroad company was relieved of the requirements of the statute. The railroad company claims it is necessary for the proper use of its yard, to omit cattle guards at the highway known as the Truax road and the highway known as the Plank road, one mile north of and the other south of its station.

This was controverted by the plaintiff below. This was one issue to be submitted to the jury under proper instructions by the court, and we are of the opinion that the charge of the court below, in so far as it related to this branch of the case, gave full and proper instructions to the jury, and in that respect there is no error; but, for some reason, we think that the jury failed to properly consider the testimony in reference to this particular part of the case in connection with the instructions from the court.

We are of the opinion that the testimony fully shows that the railroad company was not negligent within the meaning of the statute, requiring cattle guards at all crossings of highways as construed by the Supreme Court. This being true, we are further of the opinion that the verdict was against the weight of the evidence, as the uncontradicted testimony of most of the witnesses produced shows that for the proper use of the stationyard, as maintained on each side of the station proper, it was necessary to omit the cattle guards at each side of the highways, crossing on the north and south of the station, to the point north to where the bridge acts as a cattle guard, and south to the next highway crossing. "This being the case, we do not think such an omission was, ■of itself, sufficient negligence, as shown by the testimony, to warrant a verdict.

It follows, then, that there was error in' the court below in overruling the motion of the receiver of the railroad company for a new trial.

Next, in relation to the charge of the court to the jury, where the three portions of the charge were excepted to by the receiver of the railroad company, and they are as follows:

First. “I dont mean to say that if it happened.to be a little more convenient to the company to omit the cattle pguards, that they could, for that reason, omit to have cattle guards at this point.”
Second. “Because it might be convenient to stop trains •at this point or somewhere along there and save two stops, would not, of necessity, be regarded as a necessary use of this particular locality for taking on and letting off passen.gers, if the had another convenient station ground at which they could stop just as well.”
Third. “Use your good, common sense; that is, your •own knowledge upon this subject. You are not absolutely bound by the testimony of witnesses

We are of the opinion that the first two portions of the •charge excepted to, taken in connection with the other portions of the charge, were properly given, and there was no error in giving the same.

In relation to the other portions of the charge excepted to, we are of the opinion that the court erred in this, that it was misleading, and would have a tendency in having the ]ury not only disregard the testimony to which it related, but also the other testimony in the case. To give this part ■of the charge was error.

This case will be reversed as being against the weight of the testimony, and for error in the charge of the court to '•the jury, as indicated in the third exception to the charge.

Cause reversed, with costs; motion for new trial allowed, new trial granted, cause remanded to the court of common pleas for execution and other proceedings according to law.

Charles A. Schmettau and Bailey & Bailey, for Plaintiff in Error.

Handy & Ogan, for Defendant in Error.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1897).
    Before Haynes, Scribner and King, JJ.
    IRWIN I. MILLARD v. THE BOARD OF COMMISSIONERS OF LUCAS COUNTY.

      Fees of probate judge.

      King & Tracy, for Plaintiff in Error.

      J. A. Barber and O. W. Nelson,for Defendant in Error.
    Error to the Court of Common Pleas of Lucas county.

      Note — See opinion"of Pugsley, J., in Lucas County Common Pleas, in I Nisi’JPrius Reports,[53.

   Haynes, J.

Error is brought to reverse the action of the court of common pleas, in rendering a judgment against plaintiff in error, in an action brought by the Board of County Commissioners against Millard, in regard to certain fees about which there is a controversy between the Commissioners and the plaintiff in error. The case was submitted to us on written briefs, and the brief on one • side is the opinion of the court of common pleas.*

We have given the matter a very careful examination,and we have had a very full discussion,and are clearly of opinion that the action of the court of common pleas is correct; and the reasons?|upon ¡¡which that court proceeded to judgment against the plaintiff in error are so well stated in the opinion that was rendered by the judge of that court, that it would be useless for us to attempt to enlarge upon it.

The judgment'ofthe court of common pleas will be affirmed, and reasonable cause certified for filing petition in error, and judgment will be rendered in this case, for costs, against the plaintiff in error.


text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court
    Dec. Term, 1896.)
    Before Haynes, Scribner ahd King, JJ.
    NELSON T. BALDWIN v. OHIO OIL CO.

      Oil Lease — Construction—
    A lease which conveyed to the lessee all the gas and oil in about one hundred acres of land owned by the lessor, the first well to be sunk within three months from date; all wells to be completed within eighteen months from date, and no well to occupy more than one acre of ground, does not mean that the lessee shall have sunk a well on each acre of the tract within eighteen months.

      Same — Forfeiture—
    Where the lessee has not sunk all his wells before eighteen months from date, he can not after the expiration of the eighteen months sink additional' wells; but there is no forfeiture, and where the lessor consents to permit the lessee after that time to sink additional wells, and he proceeds to do so, he can not be enjoined by the lessor from going on the land drilling additional wells.
    Error to the Court of Common Pleas of Sandusky county.
   Haynes, J.

A petition is tiled in the court of common pleas setting up an oil lease, claiming that the plaintiff is entitled to an injunction against certain alleged acts of defendant company, which consisted in sinking certain wells upon the premises. To that a demurrer was interposed, and upon the hearing in the court of common pleas, the demurrer was sustained. The plaintiff, not desiring to plead further at that time, a judgment was rendered against him dismissing petition, and for costs. To that judgment an appeal was taken to this court, the case was heard upon the demurrer to the petition in this court, and an opinion was rendered by the court at (he time in overruling the demurrer, and defendant asked leave to file an answer; an answer was filed, and to that a reply was filed, and the case has been heard upon the evidence, and is now before us for our decision.

The lease that was made between the parties was dated on the 26th of May, 1892. It was a grant by the plaintiff herein to the defendant. The Ohio Oil Company, of all the oil and gas in.and under the following described premises: “about one hundred acres of land owned by the plaintiff, lying in Woodville township, this county.” There was a condition in regard to gas that is not in question, for no gas has been found; there was a provision that no well should be drilled nearer than five hundred feet from the house or barn on said premises, and no well should occupy more than one acre. Further provision was, if no well was completed within three months from date, this grant shall become null and void.

The record .and evidence[discloses that the necessary wells were sunk to avoid that condition. There was further, condition that the first parties should receive $100.00 for each well drilled on said premises as[soon as the well was located; all wells to be completed on said land eighteen months from date, and no well to occupy more than one acre of ground. The petition avers that at the time this petition was filed, which was in April, 1895, the defendant company had already sunk five wells,[and[was about to sink another well upon the premises, andjhe prayed that it might be enjoined. The petition proceeded[upon[theyLtheory that this clause I have read, that no welFshall occupy more than one acre of land was, in fact, an affirmative provision, or at least-was construed into an agreementthat there should be a well upon each acre of ground of the one hundred acres, in order to develop the landjproperly,[and] that because defendant had not proceeded within¡eighteen months to sink one well upon each acre, therefore, plaintiff had the • right to consider the lease, as to ninetyffive acres of land, forfeited, and null and void. We decided the demurrer,® and decided against the view that was taken by[the[[parties, and it was stated upon the trial in this case by associate counsel that they, make no claim upon that ground. The answer discloses,[among other things, after denials of allegations, to th¿[petition", that the defendant admits it is claiming a right to drill'and complete other wells, and before the commencement' of this action it was making preparations to drill other wells upon said premises, and had commenced the erection of a derrick ■for that purpose, with the consent and approval of plaintiff, and would, had it not been prevented by the order of the court herein, have drilled and completed other wells thereon and operated the same, if producing wells, paying plaintiff >one-sixth of the oil produced therefrom. The reply denied ithat the plaintiff ever in any manner or form approved of the putting down of additional wells on said premises, and the testimony was taken on this point, the point at issue between them.

Defendant for the affirmative produced two witnesses, and plaintiff, on his part, produced himself, his wife and son, giving testimony in opposition to that given by defendant’s witnesses. On behalf of the Oil Company, its general agent for this territory, Mr. Gordon, gave testimony that in November, 1894, the plaintiff came to him where he was at work upon some premises adjoining the premises of plaintiff, and said to him he would like to have other wells drilled upon the premises. The following testimony was given:

Mr. Baldwin seemed anxious he should have more wells.
“Q. State what was said? A; He was anxious to have more wells drilled; I told him when spring opened we would •drill more wells., ' „
“Q. Was that all that was said and done at that time? A. There was other conversation.
*“Q. I want the whole conversation? A. He said: I want my farm drilled up; if you don’t I will have some one else drill it. We said: In the spring we will come and drill it up. He said, very well, and that was the substance of the conversation.

Witness further stated that in the spring he sent •to an employe, Mr. Reed, the location of the wells, and ^sked him to call upon plaintiff and notify him. By the terms of the contract plaintiff was to have the location of the first two wells; after that, we suppose, defendant was to locate the wells himself; at least the contract is silent upon that subject. The point where the well was to be located was two hundred feet from the Herman well north, on the Herman farm, two hundred feet from the east line of another farm; I have forgotten the name.

Mr. Reed testifies he went to see plaintiff, and says, “I told him I had been instructed to see him by Mr. Gordon, in regard to the building of the rig, and they gave permission.

“Q. State what you said to him; state conversation? A. I told him I had instructi'ons to see him in regard to the building of the rig, and he said he was satisfied to the building of the rig, but would like to make arrangemnts to get gas from one of the wells, and also wanted to lease the rest of his farm. I told him Mr. Gordon would be back in a few days; would be back and see about leasing the other farm.
“Q. State whether you informed him as to whether or not any location had been made, and if so, where you proposed to drill? A. I told him where the location was.
“Q. At this time lumber was hauled within five hundred feet from Baldwin’s house? A. I told Mr. Baldwin that was a mistake made by the teamsters; he objected to the derrick being erected there. I told him it was a mistake, and told him where the derrick was to be, and he said he was satisfied.
‘‘Q. What did you say where it was to be? A. I told him it was two hundred feet from the south line, and two hundred feet from the Herman farm — 30 acres.
“Q. What did he say when you told him? A. He said he was satisfied with the location,and we could build the rig, but before proceeding to drill he would like to see Mr. Gordon, and the rest of the conversation was with regard to the other lease.”

The plaintiff, on his behalf, in testifying says:

‘‘I went up to see Mr. Gordon on other business; he had a well I wanted to see him about putting up lead. He had left it about a year or a little over, and. I went to see when he was going to put it up; I went to see him to tell him I would like to have him come down; would like to lease to him and have him develop the rest of the farm; he said ‘I am going to come,’ but he didn’t'come. I think it was the next week, as near as I can remember,- he said he would be down and fix it up with me. '
‘‘Q. Did you meet him again? A. No, I did not meet him again until I had leased to Mr. McCaskey; before that time I spoke to him in the court house once, and he set a time to come, but did not come. Then, in regard to Mr. Reed, he says, I had no conversation with Mr.' Reed until after I had leased and they were at work on the rig.
”Q. Tell what conversation you had with him then? A. I stopped him; served injunction on him — this suit was commenced.
By Court — “Q. Didn’t have a talk with him until after suit was commenced? A. No, sir; not about this; he had passed the house, and passed the time of day; that was all.”

The wife knew nothing of the matter that had any bearing upon this question, except some conversation with regard to the lumber piled up there. Plaintiff then called his son, who-testified:

”Q. During the springtime,( say in March or April, 1895, do you ever remember meeting Mr.Gordon with your father, or Mr. Reed with your father, on your place, either one of them? A. Reed wasn’t superintendent there at that time; a man by name of Lester was filling Reed’s place at that time.
‘‘Q. Did you meet Mr. Reed? A. He wasn’t in the field that I know of, at that time.
‘‘Q. Did you meet him at all? A. Yes, have met him since then.
‘‘Q.-1895? A. Yes; was in the field then.
‘‘Q. In March or the early days of April, did you ever meet him there? A. Yes, sir.
‘‘Q. What, if any, conversation did you hear between him and your father about this lease and premises? A. I heard him talking; I was there, present, when he came there.
“Q. Where was it? A. At our home, there, on the farm.
“Q. In the house or in the barn? A. Out by the well; and then we went into the house.
”Q. With the old gentleman? A. Yes, sir; and I was with him.
”Q. With reference to the time the lease was made with McCaskey, was this conversation before or after that; before the 13th of April, 1895? A. I can't tell the day of the month he leased to McCaskey.”
”Q. What was that conversation?
By the Court — ‘‘Q. Do you know how long it was before he commenced the injunction he leased to McCaskey? A. He leased to McCaskey, I couldn’t tell you the day of the month; I think in April or May; it was in the spring,
“Q. Do you know how long it was before your father commenced this injunction ? A. Couldn’t tell exactly, but it wasn’t long; it wasn’t, anyway, over a month, I don’t think.
“Q. Do you know anything about a conversation between Mr. Reed and your father in relation to sinking well where derrick was afterwards placed; if so, state it? A. Yes, I do. I heard them in conversation, talking about when he moved that derrick; he asked them to take it away, and they moved it on to another place, and he told them they couldn’t put it down under that lease,
”Q. Who was talking? A. Both talking.
‘‘Q. Name the person talking? A. My father told them they couldn’t put it down under that lease; that he gave Gordon time to come over and make out a new lease with him, but he had never showed up at the time he agreed to, at the time he came back.
“Q. Tell the conversation ? A. Cannot remember it word for word.
“Q. Substance of it? A. He told them they could not put that well down where they moved that rig; not to build any on the lease; that is what he told them.
‘‘Q. That is what your father told Mr. Reed? A. Yes, sir.
“Q. What did Mr. Reed say ? A. Showed a dispatch he got from Mr. Gordon, and told him that was the place to make the location; and I read it myself.
”Q, What did your father say to that when he showed the dispatch ? A. Said they should never put it down under that lease, for their time was up for drilling.
“Q. What else was said; did he 'say he would not, or would? A. Reed did not say anything to the contrary; talked about one thing or another until he got enough of it, and went away same as anoyne else would that was headed off on 'anything, and that was about-all there was about the matter,”

It seems there was another piece of land owned by plaintiff, and there was talk about leasing that, and so far as the making of a lease has anything to do with the subject matter of conversation, it is claimed on the part of witness for the defendant, that the conversation referred to a lease of the other piece of land. Baldwin claimed that he had the right to have the balance of the farm released. His theory was that defendant company should .occupy five wells with an acre of ground attached to each,and as to the balance of the land he might have a new lease,or should have a new lease; in other words, the land was forfeited, so far as the rights of the lessee in it is concerned. There is some confusion as to the statements of witnesses as ‘ to the conversations, but taking the statement of Baldwin to be true, we are of the opinion that Baldwin had no right to set up the claim he was setting up at that time. Taking the condition of affairs as they existed, this contract of lease was made, and by its terms a well was to be sunk in a certain number of days, another well in two months, and with a further limitation that all wells that were sunk by defendant company should be sunk within eighteen months. There was no provision as to the number of wells the lessee should sink, or in wbat manner the premises should be worked. Some of the questions that are argued before us in this case are questions that have been brought before us frequently, but on some of them we have never passed. It should be remembered that this lease is a conveyance to the oil company of all the oil and gas upon the premises, with the condition as to the time the wells are to be sunk. The defendant, the lessee, was, apparently, on the face of the papers, to proceed and develop the premises according to its own judgment. It has a title to the property to the extent of the lease; has the right to take oil from the premises, and has the right to go upon the premises and sink wells and take the oil; but the method and manner in which it should proceed to do that work, further than' that all wells were to be sunk within eighteen months, is not stated in the contract, and it would seem to be fair and just that the question of the development of the premises should be left largely to the judgment of the party who has possession of the premises. We must remember that the oil under these premises is of a fugitive nature; sometimes it is found, sometimes it is not. The sinking of wells costs quite a large sum of money. The lessee has gone forward and spent the necessary money to sink five wells, and, so far as the record discloses, has paid to plaintiff $100.00 for each well sunk. Has got $500.00 invested in the wells already sunk, besides the cost of them, which is from $1,200 to $2,000.00 each. Whether in its judgment it would be prudent to sink wells upon the other parts of the premises is a matter that must rest largely with it. To say the court shall come in and direct the manner in which it shall work the premises, how many wells shall be sunk, and form a judgment as to the result of sinking these wells, we think, is certainly asking a great deal of a court of equity.

We have never gone so far yet as to adopt a general rule or hold, that the lessee shall work or develop the premises to their fullest capacity. The farthest I think we have gone is to hold that the lessee should proceed to make some use of the property. The party, at the time he made his contract, did not see fit to make any condition in regard to the number of wells, but left it to the lessee to act according to its judgment. We had a case in Wood county where a party had paid $500.00 for leasing a farm, sunk a well, and found no oil, allowed the matter to rest a year or two, and then went on the land, and the owner of the land undertook to declare the premises forfeited, and we decided against him, decided that the party had a right to the time limited for sinking wells to act according to his judgment in the matter. "It turned out that oil afterwards was on the premises. . We have been cited here to the case of Kelley v. The Ohio Oil Co., 9 C.C.511,as laying down the doctrine that a party must proceed to develop the land, perhaps not to its full capacity, but certainly with reasonable activity, and must sink wells. We have read that decision, and probably, if we had the same case before us, we would come to the same conclusion that the circuit court, of Hancock came to; but this case is not that case. In that case the lease had been made of certain premises, and the lessees were to sink what wells they desired to sink within three years, but the defendant proceeded to state that the lessees already owned the lands adjoining to the leased lands, and were sinking wells upon these premises adjoining or opposite wells upon the leased premises, and were drawing oil from the leased premises through their wells upon said adjoining premises already owned by the lessees, and refused to work the leased premises, and it was argued that such action was a fraud upon the rights of the lessor. The court sustained that view of the case. The action was to enjoin new lessees from sinking wells on the leased' premises,and the defendants set up the alleged fraudulent acts of the original lessees, the plaintiffs, and the court held the allegations of fraud gave the court jurisdiction to hear and determine the action, and they held inasmuch as the lessees were doing the acts complained of wrongfully and fraudulently, that they had no standing in a court of equity, therefore, their petition was dismissed. The court, it is true, in its decision, largely cited from Pennsylvania decisions with which we are familiar, and spoke of a custom in that county that required the lessees to sink off-setting wells, an off-setting well being a well nearly opposite, perhaps directly opposite,wells on the adjoining property, and being sunk for the purpose of taking oil out and also preventing its being drawn out by a well upon adjoining premises. In this case before us there is nothing to show that the premises surrounding these premises were owned by The Ohio Oil Company, no allegations to show any wells being sunk for the purpose of drawing oil from plaintiff’s premises, Application was made for leave to amend the petition, and we thought it no more than our duty to try this case as before us, and not to permit any further amendment.

The complaint of plaintiff is that the company has not sunk more wells on the premises, is not taking out oil as fast as it ought, was not developing the premises as rapidly as plaintiff thought they should be developed; and the main controversy now is whether the plaintiff had given consent to the company to sink the well in question and other wells on the premises. Plaintiff, however, claims that he wanted the company to take a new lease, and then sink wells. The testimony, to say the least, is conflicting upon the points as to whether plaintiff had not given his consent that the company should go forward and sink the well, Taking it upon the testimony of Baldwin himself, the lessee had taken possession of the property, and had proceeded to'sink five wells, and was,in its own manner,taking oil out, The plaintiff’s complaint was that the company was not acting fast enough. Both say the subject was spoken of between them in the fall of 1894. The company was willing to go forward and sink wells, but when it proposed to go forward and sink other wells, plaintiff said, you shall not do it; for the reason that I have a right to the forfeiture of the lease on .these premises, and I will have a new lease. We see no ground of forfeiture whatever. Taking this statement as true, they were seeking to sink these wells which he claims they ought to sink under the lease. He was preventing them from sinking wells because wrongfully setting up a claim of forfeiture. We think, upon the testimony of the case it very clearly appears that this defendant was willing to sink, and was proceeding to sink this well, proceeding with what they supposed to be the. plaintiff’s full and free consent. Plaintiff says himself they had-this conversation, that he wanted them to work the premises. One objection he made was they should make a new lease and’ take it upon different terms. We are of the opinion that the plaintiff has no equity here to enjoin these parties from proceeding to sink this well. We think upon the testimony, fairly considered, that plaintiff did give his consent to the sinking of the wells as claimed by defendant. On this point the testimony of Mr. Gordon is very clear. His testimony shows he was acting upon that conversation, and the further fact is shown, he proceeded to do just what he told plaintiff he would do. He sent lumber and material there, sent a man to locate the well, sent men to erect the derrick, got the foundation erected and derrick part way up, and was stopped by an injunction on behalf of this plaintiff. Tt is true he said to the plaintiff at the time, we have no right to.sink additional wells upon your premises without your consent;, "and that was true because plaintiff had provided that all wells should be sunk within eighteen months, and as soon as he found plaintiff was anxious, and gave his consent, he was willing to have the company proceed with the work. It is argued by counsel that from-tnis statement, Mr. Gordon must have understood that the company’s rights under the lease were forfeited. No such construction can be-drawn from the language or statement by Mr. Gordon. He stated as a fact that the company, under the lease, was not permitted to sink wells after eighteen months. He undoubtedly referred to thé clause as limiting the company’s right.

A. W. Eckert, for plaintiff.

King & Tracy, of counsel.

Bartlett & Wilson, attorneys^for defendant,

We are strongly inclined to the opinion that in the talk in the fall of 1894, about further developing the ninety-five acres, if any lease was spoken of, it was in regard to a lease of lands not included in the lease in question, and that the claim of making a new lease of the ninety-five acres as a condition of sinking more wells on the same was not brought forward or stated until the spring of 1895, and after negotiations had with other parties for the lease of the ninety» five acres.

We think, therefore, from 'the reasons that have been stated, that the petition should be dismissed and the injunction heretofore granted,should be dissolved,and are inclined to think, under the circumstances of the case, that in regard to costs we will allow defendant to pay his own costs in this court, all other costs tó be paid by plaintiff.


text:
    (First Circuit — Butler County Ohio, Circuit Court
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    BRADLEY v. WACKER.

      Attachment before J. P. — On error counter-affidavits should, be embodied, in bill of exceptions.

    ' Where in an attachment case before a J. P. the defendant flies an affidavit denying the facts stated in plaintiff’s affidavit for the attachment, and files an affidavit claiming his homestead exemption, if exceptions are taken to the ruling of the J. P. thereon, such affidavits should be embodied in the bill of exceptions to bring the questions before the appellate court on error. Copying such affidavits in his docket by the J. P. is without warrant of law, and will not bring the affidavits to the consideration of the appellate court.

      Burden of proof of grounds of attachment if denied.

    It is error for the J. P. not to discharge the attachment where the only evidence is plaintiff’s’affidavit, averring the grounds for the attachment, and defendant’s affidavit denying the same. The burden of proof is on the plaintiff to show his affidavit tobe true by other evidence.

      Marriage of defendant after attachment served — Exception.
    An attachment against an unmarried man will not be dissolved because, after the attachment was served, the defendant married and claimed his exemption.

      On reversal of J. P., case to be retained,.

    Where the judgment of a J. P. is reversed on error, the appellate court should retain the case for trial and final judgment.
    Error to the Court of Common Pleas of Butler county,
   Smith, J.

The facts in this case, as shown by the record, in brief are these: Mrs. Bradley commenced an action before a justice of the peace July 9, 1895, against the defendant, Waeker, to recover $22.25 on account for boarding furnished to him, and she at the same time, filed an affidavit for an attachment, alleging that lie fraudulently contracted the debt, and that the property sought to be attached was not exempt from execution, and that the defendant was not the head or support of a family. The C. & D. R. R. Co. was named as garnishee, as having in its possession money due to the defendant. So far as we see, the affidavit is in due form, and, as required by the statute, it was copied in full upon the docket of the justice. Thereupon bond having been given, a summons and order of attachment were issued, and both were served on the same day, and were returnable July 18, 1895, at 9 A. M. On July 11, 1895, the garnishee appeared and answered, admitting that it owed defendant $28.15, and was thereupon ordered to pay the money into court to abide the event of the suit.

On July 18, 1895, the defendant appeared and filed an answer denying any indebtedness to the plaintiff, and at the same time filed an affidavit denying the allegations of the affidavit for attachment, and moved for the discharge of the attachment on the ground that the statements in the affidavit of the plaintiff were not true. This motion was at once overruled, and no exception to this ruling was entered. The affidavit of the defendant was, without warrant of law, copied in the docket. The only way in which it could properly get there was by an exception to the ruling of the justice in refusing to discharge the attachment, and taking a bill of exceptions setting out the evidence submitted. But neither of the steps were taken, and without them, the ruling of the justice on this point cannot be reviewed on error. If the proper steps had been taken, it would plainly have appeared that the justice erred in not discharging the attachment where the only evidence was the affidavit of the plaintiff averring the grounds of the attachment, and that of the defendant denying those'averments. It has been expressly held in several cases that in such case the burden is on the plaintiff by other evidence to prove his affidavit to be true. See 9 Ohio St., 397; 46 Ohio St., 52; and 7 C. C., 208. But, as has been said, in this case there was no exception to the ruling, and no bill of exceptions on this point, and such ruling could not. prop-rely be reversed by the common pleas on error.

After the decision of this motion another was filed by the defendant, on July 24, 1895, asking the court to set apart the sum garnisheed in the action for the reason that on July 18, 1895, he had married a wife, and that he and his wife are residents of the state of Ohio, and that neither of them has a homestead or any real or personal property worth more than $100; and because the money garnisheed was his personal earnings for daily labor performed for the company within the last sixty days prior to that time. Those allegations were supported by his affidavit. The motion was overruled and exception taken, and a bill of exceptions taken showing that no evidence had been introduced on this motion of defendant, except his own affidavit; but the affidavit was not a part of the bill, though it also had,without warrant, before that, been copied upon the docket. ■ This would seem to render this bill defective as not containing the evidence upon which the court acted. But if it had been done, we think that the facts stated would not have justified the justice in granting the motion. Wacker was not a married man when the attachment was issued or served, or when the court ordered the money paid into court, and we do not see how his subsequent marriage could affect the vested rights of the plaintiff. After this a trial was had and a judgment rendered for the plaintiff, and the money garnisheed ordered to be paid to her.

Wacker filed in the court of common pleas a petition in error, the object of which, as -we understand it, was to reverse these orders and rulings as to the attachment proceedings, and not the final judgment by which plaintiff recovered a judgment for her claim. The grounds assigned were, that the affidavit for attachment was'insufficient,and the overruling by the justice of the two motions as to the discharge of the attachment and the release of the money therefrom wa§ erronous. On the hearing in that court, a judgment was entered substantially as follows: “That there is error in the judgment rendered by the justice of the peace, and it is therefore ordered and adjudged by the court that the judgment of said justice, wherein the money due to the plaintiff from the C. & D. R. R. Co. was taken and applied to the payment of the claim and costs of the defendant Susanah J. Bradley be, and the same is set aside and held for naught. ” It was ■further ordered that the justice pay to Wacker all money received from the company, and that Mrs. Bradley pay the costs of this suit.

To reverse this judgment Mrs, Bradley filed this petition in error in this court.

It is difficult to say what is the effect of the judgment of the court of common pleas, whether it undertook to reverse the final judgment, or only one or more of the rulings of the justice on the attachment proceedings. Grammatically, perhaps, it refers to the final judgment, but we incline to the opinion that it was the intention of the court only to reverse one or more of the rulings as to the attachment. As before stated, we think there was no case for a reversal, and the judgment as to this should have been affirmed. No claim is made that the final judgment was erroneous, but if it was reversed, it was the duty of the court, under section 6738, Revised Statutes, to retain the case for trial and final judgment as in cases of appeal. This was not done, and it is another ground for believing that it was not the final judgment that was reversed. If it was the final judgment which was reversed, and the case retained there for trial, this proceeding in error, to reverse such judgment would be premature, and would not lie until after a final judgment in the case in the common pleas.. See Bates New Digest, Vol. 1, page 883, paragraph 90. But the case was not so retained for trial, but what purports to be a final judgment was entered, so that we think in any view the judgment of the common pleas was erroneous, and will be reversed, with costs, and the case remanded to the common pleas to be further dealt with according to law. If on consideration that court should find that the justice did not err in its orders as to the attachment, or in the final judgment rendered, of course the whole should be affirmed. If the court should still be of the opinion that there was error in such rulings or judgment, the same should be reversed whene erroneous. And we incline to the opinion toat the case should be retained for hearing as to the matter reversed under the provisions of section 6773.

Donley & Rhonemus, for Plaintiff in Error.

Doty & Todhunter, for Defendant in Error.


author: Frazier. J.

text:
    (Seventh Circuit — Ashtabula Co., O.,Cir. Court
    March Term, 1897.)
    Before Laubie, Erazier and Burrows, JJ.
    ALICE S. COTTON, EXECUTRIX OF MARVIN S. COTTON, DECEASED, v. S. D. ASHLEY, ATTONEY AT LAW.

      Plaintiff failing to make out his ease, - incompetent evidence for defendant 710 groitoid for 7'eve7'sal of judgment in his favor.

    When in a proceeding tried to the court it clearly appears from the pleadings and the evidence on the part of the plaintiff, that he is not entitled to any relief, a judgment for the defendant will ‘ 1 not be reversed solely for the reason that the defendant, after the. plaintiff had rested his case, was permitted to give incompetent evidence in his own behalf.
    Error to the Court of Common Pleas of Ashtabula county.
   Frazier. J.

The original proceeding was instituted in the court of common pleas, not as a civil action by filing a petition and causing a summons to be issued thereon. Neither is it a proceeding under section 563, Revised Statutes, to suspend or remove an attorney at law; nor a proceeding in a summary way,on motion,under section 564, to compel an attorney refusing or neglecting, on demand, to pay money collected for his client in the same manner as sheriffs and coroners are for money received on execution.

Counsel for plaintiff say it is a proceeding, not under favor of any statute,but a proceeding under the common law. In the complaint or motion, the first paper prepared and filed in the case, the parties in the caption are stated as, “The State of Ohio, on relation of Alice S. Cotton, Executrix of Marvin S. Cotton, deceased, against S. D. Ashley, Attorney at Law;” and in the body of the paper the parties are designated as relator and respondent, and the matters complained of are stated at length and with much particularity.

The substance of the complaint is that Ashley had refused, on demand, to pay Alice S.'Cotton, as Executrix, the amount, with interest thereon, received by him on two mortgages, which it is claimed he was, by Marvin S. Cotton, in his lifetime, employed to collect in his capacity [as attorney, one made by P. M. Reed, the other by Sarah M. Ashley. Also that he be compelled to deliver to her certain papers or memoranda made by Marvin S. Cotton, and which, it is charged, he wrongfully received, and refused, on demand, to return and deliver up. And attached to and filed with the complaint, and in support of it, are affidavits of various persons, and with the complaint and affidavits was filed a motion, as follows:

“The State of Ohio, on Relation of Alice S. Cotton, Executrix of Marvin S. Cotton, deceased v. S. D. Ashley, Attorney at Law. Motion.
“And now, July 18th, 1895, on motion of Charles Lawyer, Jr., and S. Newton Pettis, attorneys for relator in the above entitled case, the court is asked for a rule upon the respondent, S. D. Ashley, Esq., a member of the Bar of Ashtabula county, to show cause why a writ of attachment prayed for by the petitioner Alice S. Cotton, Executrix of the estate of Marvin S. Cotton, deceased, in said case, should not issue by this court commanding and compelling him, the said S. D. Ashley, Esq., to pay over to the said petitioner, the amount of the mortgage given to the respondent by M. S. Cotton, for collection, v. M. C. Reed et al., with the interest thereon collected by him, as set forth in her petition, and which he, the said S. D. Ashley, Attorney at Law, has refused upon demand made to pay over and return to, surrender and deliver up the mortgage given toM. S. Cotton, in his lifetime, by Sarah M. Ashley, for Fourteen Hundred Dollars, and duly recorded in the office for recording mortgages in Ashtabula county, vol. 17, page 61, on December 21st, 1889, and any note or obligation given by Sarah M. Ashley, or any one else, in such connection, for the better securing the payment of said mortgage, said mortgage and papers having been received by him from M. S. Cotton, in connection with payments made to him by any one upon the said mortgage from Sarah M. Ashley, and which he obtained and received from B. M. Cotton, at Lineville, in the spring of 1895, which he has refused, upon demand, to return and deliver up, returnable the 26th day of July, 1895, at 10 o’clock, A. M.
“S. Newton Pettis and Charles Lawyer, Jr.,
“Attorneys for Relator.
“July 18th, 1895.”

The court thereupon made and entered upon the journal an entry, allowing and directing that a citation issue as asked for in the motion, which was issued by the clerk, and served upon the defendant S. D. Ashley, who appeared in response thereto, and the court, without any answer, or denial of the matters complained of,dismissed the proceeding.

A .petition in error was filed in this court, the parties named and designated as “Alice S. Cotton as Executrix of Marvin S. Cotton, Deceased, Plaintiff in Error, v. S. D. Ashley, Attorney at Law, Defendant in Error.” This court reversed the judgment of the court of common pleas and remanded the cause for further proceedings. This case is reported in 11 C. C., 47, where the authorities are reviewed, and the law of the case stated.

After the mandate was entered in the court of common pleas, the defendant, on leave, filed an answer, in form, and verified as in a civil action. In the caption the parties are designated as “ Alice S. Cotton, Executrix of .Marvin S. Cotton, deceased, against S. D. Ashley, Attorney, Defendant.” The cause was tried as a civil action, the plaintiff first producing her witnesses, who were examined orally, in court, and then the defendant producing his testimony, a finding for and judgment entered in favor of the defendant. A motion for a new trial by plaintiff was overruled, a bill of exceptions taken setting out all the testimony and rulings of the court, and a petition in error is filed seeking to reverse the judgment of the court of common pleas.

Of the errors assigned, the principal one relied on in argument, and the only one we shall notice, is, that the defendant was, against the objection of the plaintiff, permitted to testify in his own behalf to facts occurring before the death of Marvin S. Cotton, in violation of the provisions of section 5242, Revised Statutes. And counsel for plaintiff in error call our attention especially to that part of the 5th paragraph.

“And when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.”

The object of the proceeding was to compel the payment of money to Alice S. Cotton, as Executrix. No person would be benefited or lose by the result,or be liable for costs except the executrix, or the defendant Ashley.

Counsel for defendant claim that the provisions of section 5242 are not applicable; that the executrix is not the adverse party; that it is a special proceeding in which the state of Ohio is the adverse party, to punish the defendant as for contempt.

With the filing of the first petition in error, there was omitted from the title of the case the words “The State of Ohio on relation of,” and without objection the cause proceeded in the name of “Alice S. Cottun, as executrix of Marvin S. Cotton, deceased,” treating the words omitted as surplusage, and not as changing the real character of the action, or the rights of parties. The majority of the court are of opinion that the defendant, by reason of the provisions of section 5242, was not a competent witness in his own behalf.

All the evidence being set out in the bill of exceptions, we are required to examine the whole case, to see whether the plaintiff is prejudiced by the testimony.

When this case was before this court, 11 C. C., 47, we held that the court, upon such summary proceeding, “could only compel the attorney to pay over the money he has received, and to deliver the papers in his possession, and that for his wrongs, or any failure to perform his duties as an attorney, plaintiff is remitted to her action at law.”

The defendant in his answer denies the employment as claimed by plaintiff, and says the mortgages were transferred to him for a full consideration, and in the ordinary course of business, and says he delivered the papers mentioned in the motion to plaintiff’s attorney.

When the defendant rested, the evidence showed the return of the papers, that the mortgages had both been transferred by Marvin S. Cotton to the defendant, by assignments absolute on their face, and that the testator had notified the maker of one of the mortgages, when about to make a payment,that defendant held the mortgage, and was entitled to the payment. The evidence also showed that the testator had at one time boarded with the defendant, and at times employed him as an attorney. And that they had for many years other dealings, and sustained other relations than that of attorney and client.

It appears from the plaintiff’s own showing, that the issue as to whether the mortgages were assigned to defendant for collection, or for a consideration and to invest the ownership in the defendant, is one the defendant has the right to have tried to a jury in a civil action, and not to be disposed of on motion in a summary proceeding. If, when the plaintiff rested her case, the defendant had moved for judgment, treating it as a demurrer to the evidence, the court should have given judgment for defendant.

When it clearly appears from the case made by the plaintiff, that she never can recover, a judgment for the defendant will not be reversed because the defendant, after the plaintiff had produced her evidence and rested, was wrongfully permitted to testify in his own behalf. For these reasons the judgment is affirmed.

Judge Burrows: — I agree fully with the conclusion arrived at in this case, but am under the impression that there was no error committed in permitting the testimony of Mr. Ashley in these proceedings.

S. Newton Pettis, Charles Lawyer, Jr,, L. S. Sherman and Hoyt & Munsell, Attorneys for Plaintiffs.

Northway &. Perry and Wade & Betts, Attorneys for Defendant.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    THE VILLAGE OF ST. BERNARD v. REIG & MARTY, PARTNERS, AND CO.

      Breach of contract for personal services — Damages.
    In the case of a contract for personal services, and a wrongful discharge before the work contracted for is completed, or where the person is wrongfully prevented from doing any work under the contract, he can recover damages for breach of the contract. But he is not allowed to remain idle for the whole or the residue of the time and recover the contract price ; if he can get like employment he should do bo, and if he receives a sum equal or greater than that contracted for in the first instance, he is not damaged.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

We incline to the opinion that the court of common pleas erred on the trial of this case, in refusing to receive parol evidence offered by the defendant as to what the contract really was. There was no allegation in the pleadings or proof offered by plaintiff that the contract was in writing. It tended to show that a proposition was made to the council by plaintiff to superintend the erection of the building for four per cent, of the cost thereof, but it does not appear that this was in writing. It was accepted by the council by a resolution duly passed, but if it was verbal, this would not ( prevent the defendant from showing what it was.

But we tihnk the court clearly erred in refusing to allow the defendant to show that the plaintiff suffered no injury by the alleged breach of the contract on the part of the village. The contract claimed was for the personal services of the plaintiff in superintending the erection of the town hall; and the breach claimed was the refusal of the .village to allow them to do so; The defendant then offered to prove that the superintendence of the building would have required the whole time of the plaintiff for six months, and that during the time required for the erection of the building the plaintiffs were not idle, but were employed in like services for others at a much greater compensation than they would have received if defendants had allowed them to. do this work. This was rejected, and, we think, wrongfully. The action was to recover damages sustained for the breach of the agreement, not for work ..actually performed. They could properly recover only their actual loss, and it was not necessarily what they would have receivod if they had performed the service. In the case.of a contract for personal services, and a wrongful discharge before the work contracted for is completed, or whejre the person is wrongfully prevented from doing . any work under the contract, he is not allowed to remain idle for the whole or the residue of the time and recover the contract price. If he can get like employment he should do so, and if he receives a sum equal or greater than that contracted fer in the first instance, how is he damaged? See a full discussion of this subject in the decision of the case of James v. Allen County, 44 Ohio St., 226.

The court also erred in directing the jury to return a verdict for $571.11, and in refusing to grant a new trial. The judgment will be reversed, and the cause remanded to the common pleas for a new trial. .