author: Finley, J.

text:
    (Third Circuit — Allen Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Day, Price and Finley, JJ.
    JOSEPH B. MOORE v. THE STATE OF OHIO.

      Forgery — Order on its face not one for delivery of goods, under sec. 1091, JR, S. — What indictment should aver—
    1. An instrument as follows: “J. B. Vail, 322 WestMarket Street, Office 125 West Market Street. Please give bearer coat and oblige, J. B. Vail,” is not prima facie an order or request for the delivery of goods and chattels within the meaning of sec. 7091, of the Revised Statutes of Ohio; therefore, an indictment charging M. with having forged such instrument with intent to defraud, does not, in the absence of averments of extrinsic facts showing wherein such order was fraudulent, charge M. with the commission of a crime.
    Error to the Court of Common Pleas of Allen County:
   Finley, J.

The plaintiff in error, Joseph B.Moore, was indicted by the grand jury of Allen county' at its October term, A. D., 1895.

The material description of the crime charged is as follows:

“Do find and present that Joseph B. Moore, late of said county, oh the 8tb day of October, in the year of our Lord one thousand eight hundred and ninety-five, with force and arms, in said county of Allen and state of Ohio, unlawfully did falsely make, forge, and counterfeit a certain order for the delivery of goods and chattels, which said false, forged and counterfeited order for the delivery of goods and chattels is of the purport and value following: J. B. Vail, 322 West Market Street, Office 125, West Market Street, Please give bearer coat and oblige, J. B. Vail,’ with intent thereby to unlawfully defraud, etc.”

To this indictment the defendant filed a motion to quash, for the reasons set forth in the motion “that it appears upon the face of the indictment that a true copy of the order alleged to be forged is not given, but only the purport and value of the same, without setting forth the reasons or excuse why a copy of the order itself, instead of its purport and value, is not given.”

The motion to quash was overruled by the court below, and exception taken.

A demurrer was also filed to the indictment, which was overruled, and exception noted. Thereupon, on a plea of not guilty, the plaintiff in error was tried at the October term, 1895, found guilty, and sentenced to imprisonment in the penitentiary for a period of ten years. He prosecutes error to this court to reverse the judgment of the court below.

It appears from the record that the accused entered a plea of “not guilty” on the 22nd of November, 1895, and that the motion to quash was filed on the 17th of the following December, but it nowhere appears that the former plea of “not guilty” was withdrawn, nor does it appear that after the motion to quash and the demurrer were overruled, the accused was called upon to further plead to the indictment; nor does it appear that a motion for a new trial, or a motion in arrest of judgment was interposed by the accused, nor was any exception taken to the judgment and sentence of the court. Nor was a bill of exception^ taken containing the evidence on the trial.

Did the court err in overruling the motion to quash the indictment?

Section 7248 of the Rev. Stat. provides that the accused may except to an indictment by, 1st, a motion to quash; 2nd, plea in abatement; 3rd, a demurrer.

And Sec. 7256 provides that when demurrer is overruled, the accused may plead not guilty.

Sec. 7253 provides that the accused, by demurring, or pleading to the general issue, shall be taken to have waived all defects which may be excepted to by a motion to quash.

In this case, the accused, having entered a plea of not guilty, thereby waived all defects which he might have excepted to by the motion to quash subsequently made, and we hold therefore that the court below did not err in. overruling the motion to quash the indictment for that reason.

We think,however, independent of this objection, that the statute, Sec. 7218, provides what shall be sufficient in an indictment for forgery, namely, that it shall be a sufficient description of the forged instrument to set forth its purport and value, without alleging its loss or destruction.

Did the court err in overruling the demurrer to the indictment? In other words, does the indictment charge the accused with the crime of forging an order for the delivery of goods and chattels within the meaning of Sec. 7091 of the Rev. Stat, ?

Though the accused interposed no formal motion for a new trial, nor in arrest of judgment, and no formal exceptions were taken by him in any way to the verdict arid judgment, yet if the indictment charges him with no crime punishable by law, he die not by such neglect, forfeit his right to interpose that objection at any time or at any stage of the proceedings.

Though the purport and value of the instrument alleged to have been forged is only given in the indictment, yet, inasmuch, as the State on the trial would be confined in its proof of the description of the forged instrument substantially as set forth in the indictment, we may consider the instrument, as set out, a true copy of the original.

There being no averments in the indictment making it to appear wherein the purported order was fraudulent, the character of the instrument itself must be determined by its terms alone,

To constitute forgery of an order or request for the delivery of goods or chattels, it is essential that the instrument must either on its face be one coming within the meaning of the statute, or it must be made so to appear by averments of extrinsic facts in the indictment.

If, therefore, as in this case, the instrument requires averments of extrinsic facts, to bring it within the description of an order for the delivery of goods and chattels, and no such averments are made in the indictment, then the intent to defraud would not follow from the mere false making of the instrument. This so-called order, though nego-' tiable on its face, is addressed to no one. It is not an order on any one. It makes no request or requirement of any one. For aught that appears to the contrary, it is addressed to and subscribed by J. B. Vail, provided that the name and office address of the person at the beginning of it can be said to be the person to whom it is addressed; which is a matter of some doubt. The most that can be said of it is, that it is a request, by J. B. Vail, made upon himself, to give the bearer a coat. He is asked to give the coat — a mere donation — no words implying that the drawer or maker of the instrument expects to be charged with the value of or to account for the value of the coat. Would such an instrument, if genuine, be calculated to defraud J. B. Vail? Certainly not. Does its negotiable character change it in any way so as to make it calculated to defraud a stranger into whose hands it might fall? We think not.

We think that the instrument, if genuine, would not have created a liability on the part of J. B. Vail to account to the holder of it for the value of the goods, had they been delivered.

It is not prima facie an order for the delivery -of goods, whereby the drawer obligates himself in any way; therefore-we think it comes within the rule laid down by the tíupreme Court in Henry v. State, 33 Ohio State, 128, as follows:

“Where in an indictment for uttering a forged receipt, the instrument set out is not prima-facie a receipt, such extrinsic facts must be averred as are necessary to show that the instrument would, if genuine, have the operation effect of a receipt. ”

We are referred to Chidester v. State, 25 Ohio State, 433, as holding an instrument similar to this to be an order,

We think there is a wide distinction between that case- and this. In that case, unlike this,the drawer and drawee were different persons. In that case,unlike this,the drawer promised in the order to pay for the goods. Nothing of the-kind appears in this instrument. In this case, it is extremely doubtful whether the order is drawn upon any one; at most, the drawer and drawee appear to be one and the same person. In the Ohidester case, the court held the instrument to bean order for the delivery of goods expressly on the ground that it directs the drawee to deliver certain goods, (which were then the property of the drawee) to the person named in the order “on the credit of the drawer,” and says that if the order had been genuine, it would have created a liability on the part of Butler, the drawer, to account to Schroeder, the drawee, “for the value of the goods,” delivered by him to Ohidester (the accused) upon such order. These elements are wanting in this case.

We are therefore of opinion that the instrument set out in the indictment is not prima facie an order or request for the delivery of goods and chattels within the meaning of Sec. 7091 of the Rev. Stat. of Ohio, and in the absence of’ averments in the indictment of extrinsic facts in aid cf the allegation of fraud, and in explanation of the nature and character of the instrument; the indictment does not .charge fhe accused with the commission of a crime within the meaning of said statute.

The judgment of the court of common pleas will therefore be reversed, and the plaintiff in error discharged.'


source: Caselaw Access Project

author: Swing, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Smith, Swing and. Cox, JJ.
    THE STATE OF OHIO, by Franklin Alter, a tax-payer, v. FREDERICK BADER et al., commissioners of hamilton county, ohio.

      Unconstitutionality of act of legislature — Courts are not in every case to consider it.

    1. Courts are always reluctant to hold acts of the legislature unconstitutional in whatever form the question is presented, and especially is this true of courts which are not courts of last resort. And it is not in every case that courts will enter into a consideration of the question whether a law is constitutional or unconstitutional.

      Voluntary payment of unconstitutional tax — Right of taxpayer to enjoin application of money so paid—

      % One who voluntarily pays a void tax with knowledge of the facts rendering it void, can not recover back the amount so paid, nor can he maintain an action to restrain the application of the money raised by such tax to the purpose for which said tax was paid.

      Same — No equity to restrain application of money for purposes for which voluntarily paid.

    3. There are no equitable considerations why a court, at the instance of a tax-payer, should interpose to prevent the doing what the complaining and other tax-payers voluntarily put it in the power-of the county or city and their officers to do. The contribution having been voluntarily made to a particular fund for the purpose of having it applied to a particular object, the plaintiff as such contributor cannot successfully invoke the aid of equity to prevent such application on the alleged ground that the respective law is unconstitutional.

      Suit in representative capacity — Requirements and rights, same as in suits in individual capacity.

    4. A tax-payer or citizen acting in a representative capacity stands the same as one in an individual capacity. If he has an equitable action, has been diligent and alert, comes into court with clean hands, having done equity, he may have a standing; otherwise, not.

      Application for injunction to restrain application of fund paid in by taxpayers without objection to purpose for which paid, on ground of unconstitutionality, too late — •
    5. Where an action is brought by a tax-payer on behalf of the state, against the county commissioners, asking for an injunction to restrain them from carrying out the provisions of an act of the legislature authorizing them to improve a certain avenue in said county, on the ground that such act is unconstitutional, and it appears that the tax provided by such act for that purpose has been levied and paid, and that the fund for improving such avenue according to such act of the legislature is in the county treasury, and that such tax was paid by the tax-payers, including the complainant, without objection, the application on behaif of a tax-payer for an injunction to restrain the county commissioners from proceeding to improve the avenue and apply the fund collected by taxation to that purpose in accordance with the act of the legislature comes too late, and such injunction will be refused.
    Appeal from the Court of Common Pleas of Hamilton County.
   Swing, J.

In the court of common pleas the plaintiff filed a petition to which defendants filed a demurrer, which demurrer was overruled; thereupon the defendants filed an answer, to which plaintiff demurred, which demurrer was sustained; thereupon defendants not desiring to plead further, judgment was entered as prayed for in the petition; thereupon defendants gave notice of appeal, and the case was after-wards brought into this court.

On the hearing in this court the whole case, as made by tbe petition, answer and demurrers, was heard together, and we will dispose of it in that way.

The petition and answer are as follows:

“For cause of action plaintiff alleges that he is a tax-payer in the county of Hamilton, Sate of Ohio; that defendants, Frederick Bader, Henry Korb and John Breen, constitute the Board of County Commissioners of Hamilton county, Ohio; that defendants, Lloyd Baen, J. R. McGavin and Conrad Klein assume and claim to be trustees appointed under authority of a pretended act of the General Assembly of Ohio, entitled, “An act to authorize the Commissioners of Hamilton county, Ohio, to levy a tax for improving, grading and macadamizing Indian Hill Avenue,in Columbia Township, and for other purposes,” passed by the General Assembly May 1, 1894.
“Plaintiff says on or about the 15th day of May, 1896, as such tax payer, be presented to the prosecuting attorney for said county of Hamilton, a written request to apply by civil action in the name of the state of Ohio, to a court of competent jurisdiction, for an injunction restraining said defendants from taking further action, with a view to improving, grading or macadamizing Indian Hill Avenue, in Columbia township, Hamilton county, Ohio, or any other action whatsoever pursuant to said pretended act of the General Assembly of Ohio,for the reason that said pretended act is unconstitutional and invalid, and the exercise of the powers conferred and duties imposed upon said Board of County Commissioners and trustees by said act would result in tbe misapplication of the funds of the county and the entering into of contracts in contravention of the laws of this state.
“Plaintiff says that said pretended act is found in Vol. 91, page 679, Ohio Laws.
■ “Plaintiff says that said defendants have already proceeded to act under said pretended act of the General Assembly, so as to appropriate property for the purpose of widening said avenue, and are about to enter into further contracts for said improvement, and to carry out the provisions of said pretended act.
“Plaintiff says that said pretended act of the General Assembly is unconstitutional and invalid, and that, unless restrained by this court, defendants will proceed to award and enter into contracts for the making of such improvement, by grading, paving, etc., and will issue bonds of the county to pay for the same, and do all and singular the acts which they are authorized or required to do by the terms of said act, and that to carry out the provisions of said act would result in the misapplication of the funds of the county, and the entering into of contracts in contravention of the laws of this state.
“Wherefore plaintiff prays that the defendants may be' enjoined until further order of court, from taking any further action as members of said Board of County Commissioners and trustees respectively, with a view to improving, grading, macadamizing or widening said avenue, and from issuing bonds or levying any taxes or expending any money with a view to carrying out the provisions of said act, and that upon final hearing said order of injunction may be made perpetual, and for such other proper relief as in equity plaintiff may be entitled to.”

To this petition the following answer was filed:

“Now come defendants, Frederick Bader, Henry Korb and John Breen, Commissioners of Hamilton county, Ohio, and for answer to plaintiff’s petition, say, that they admit that they constitute the Board of County Commissioners of Hamilton county, Ohio.
“They admit that the General Assembly of Ohio, on the first of May, 1894, passed an act entitled, “An act to authorize the Commissioners of Hamilton county', Ohio, to levy a tax for improving, grading and macadamizing Indian Hiil Avenue, in Columbia township, and for other pur-, poses”; said act is found in vol. 91,page 679, Laws of Ohio.
“Defendants further say, that in acccordance with and' in pursuance with section 7 of the said act, they, as Commissioners of said Hamilton county, Ohio, levied and assessed on the grand levy of taxes, on the taxable property of said Hamilton county, a tax of two-tenths (2-10) of a mill on each dollar valuation thereof, one-half of which was assessed and collected on the tax-duplicate of the year 1894, and the remainder on the tax duplicate of the year 1895. for the purpose of creating a fund for carrying out the provisions of the said act.
“That there is now to the credit of the said fund, in the treasury of Hamilton county, Ohio, as aforesaid, assessed and collected, the amount of $— ----- — , which was paid by the tax payers of said county, without objection or protest.
“Defendants further say that in accordance with the provisions of said act, said Hamilton county acquired title by dedication and releases of the right of way through certain lands in said Columbia township, for the purpose of improving said road in accordance with the said act aforesaid. And that the compensation to be paid for certain other lands necessary for the right of way of said avenue was ascertained in appropriation proceedings, but was never paid.
“Defendants further deny each and every other allegation in plaintiff's petition contained, not hereinbefore specifically admitted.
“Wherefore defendants pray that the petition of plaintiff may1 be dismissed, and for their costs herein expended,”

The act above mentioned is found on page 679 Ohio Laws, Vol. 91. It authorized the Commissioners of said county to improve a road to be known as Indian Hill Avenue. They were authorized to appoint trustees to obtain rights of way and make surveys, to appropriate property, and to levy a tax of 2-10 of a mill on each dollar, one half to be collected in the year 1894, and the other half in the year 1895. Under the provisions of this act the tax has been collected, the trustees appointed, surveys made, rights of way procured and condemnation proceedings terminated, with the exception of paying over the amounts awarded by the jury, and the county has incurred heavy costs, and the Commissioners were about to award the contract for the building of the avenue.

Up to the time of the filing of this petition no objection had ever been made by any taxpayer to the paying of this tax. What are the rights of a tax-payer in a court of equity under these circumstances?

. The sole ground for the relief asked is that the law is unconstitutional. There is no claim that the Commissioners are, in any way, violating the law itself, or are not in good faith and correctly carrying out this particular law according to its terms. Speaking for myself, I very much question whether sections 1777-8, Revised Statutes,under which this action is brought, applies to the question here raised, But without passing upon this matter, we come to the consideration of the question above put. Courts are always reluctant to hold acts of the legislature unconstitutional in whatever form the question is presented, and especially is this true of courts which are not courts of last resort. And it is not in every case that courts will enter into a consideration of the question whether a law is constitutional or unconstitutional.

The Supreme Court of the United States, in the case of Stuart v. Laird, 1 Cranch 309, speaking to a constitutional question raised in the case, say:

“To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature, This praclical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not to be disturbed.”

Mr. Justice Curtis, in the Dred Scott case, 19 Howard, on page 616, says:

“A practical construction, nearly contemporaneous with the adoption of the constitution, and continued by repeated instances through a long series of years, may always find influence, and in doubtful cases should determine the judicial mind on a question of the interpretation of the constitution. ”

In the case of Prigg v. The Commonwealth, 16 Peters, on page 621, the Supreme Court of the United States say:

“Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity would, in our judgment, entitle the question to be considered at rest, unless, indeed, the interpretation of the constitution is to be delivered over to interminable doubt throughout the whole progress of legislation, and of national operations in Congress. The executive and the judiciary have upon various occasions acted upon this as a sound and reasonable doctrine.”

In two cases recently decided by the Supreme Court of the United States, not yet officially reported, The United Statesv. The Realty Company, and The United States v. Gay, known as the Sugar Bounty cases,in which the constitutionality of the act of Congress of March 2,1895, was sought to be brought in question, that court declined to' consider whether the act was constitutional or not, declaring that at that time it would be inequitable to do so, evidently going on the theory that the’time to have raised this question was before those affected by it had gone and acted upon it.

While it may well be said that these cases are^not directly in point on the question here presented, still they clearly show the reluctance of our courts to be continually and everlastingly bringing into question the constitutionality of the acts of the legislature. What the people want and need is stability in legislation, and confidence in its correctness, and this can never be attained if at any or all times it may be called in question.

Coming now more particularly to the position occupied by the plaintiff here. This is a suit in equity, and must be governed by equitable principles. An injunction is sought. It is an extraordinary remedy, to be granted only upon the clearest showing of right.

It is true that the plaintiff is here not as an individual, but in a representative capacity. But it is clear to us that this in no wise changes-or betters his standing-in a court of justice. The tax-payer or citizen,acting in a representative capacity, stands the same as one in an individuabcapacity. If he has an equitable action, has been diligent and alert, comes into court with clean hands, having done equity, he may have a standing, otherwise not.

In the case of Babcock v. The City of Font-Du-Lac, 58 Wis.,230, the first proposition of the syllabus is as follows:

“One who voluntarily pays a void tax with knowledge of the facts rendering it void, cannot recover back the amount so paid, nor can he maintain an action to restrain the application of the money raised by such tax to the purpose for which the tax was levied.”

The Court, in the opinion, say:

“This is a bill in equity, and to maintain the action the plaintiff was bound to present, affirmatively, such a case as would entitle him to equitable relief. The substance of the allegations of the complaint is that the plaintiff was a resident, free-bolder and tax-payer in the city, and that the contract was void, because it created a debt in excess of the constitutional limitation. The action is not brought to prevent any injury, or resist any burden, nor to restrain any diversion of any fund from the purpose for which it was raised, to a different use. On the contrary, the only object of the action seems to have been to prevent the money from being applied to the very purpose for which the tax was levied, the money paid and appropriated * * * There are no equitable considerations why the court, at the instance of the plaintiff, should interpose to prevent the doing what the plaintiff and other tax-payers voluntarily put it in the power of the city and its officers to do. The contribution having been voluntarily made to a particular fund for the purpose of having it applied to a particular object, the plaintiff as such contributor cannot now successfully invoke the aid of equity to prevent such application.”

In the case of Kellogg v. Ely, 15 Ohio St. 66, the court say:

Theo. Horstman, for Alter.

Win-. Renrfigs, County Solicitor, J. T. Demar and A.J. Cunningham, for defendants.

“We do not find it necessary to determine any one of the many questions made and argued by counsel in the case as to the legality or illegality of the proceedings by which this ditch was established; because, if we take for granted all that plaintiff below claims in this respect, we are of opinion that he does not make out such a case as to entitle him to a remedy by injunction at the hands of a court of equity. It is not for every threatened violation of the legal rights of a party that a court of equity will intervene with its preventative remedy by injunction, even in cases where that remedy would be efficient. A party appealing to a court of equity must make a case which can commend itself to the conscience of the court.”

These last two cases bear directly on the matter here in controversy.

No complaint was made as to this law or this tax by any tax-payer. The tax was all paid without a single protest. Taxes paid under well-settled law can not be recovered back by the tax-payer, and by well-settled law they can not be expended for purposes other .than that for which they were levied. It would, therefore, have to remain in the treasury at least until some legislative action might be had in regard to it. And at the same time, there is no claim made that the money is not to be expended in accordance with the act under which it was collected.

We are unable to see any equity in plaintiff’s case. If the act in question was unconstitutional, he should have spoken before the tax was levied and collected, and before those who were compelled or authorized to act under it had acted; then a court of equity would have listened to him; but now it is too late, and we will not consider whether the law is constitutional or not. The petition will be dismissed.


author: Rohn, J.

text:
    (Third Circuit — Logan County, O., Circuit Co.,
    October Term, 1896. )
    Before Day, Price and Rohn, JJ.
    THOMAS R. KERR v. THE VILLAGE (NOW CITY) OF BELLEFONTAINE, et al.

      Board of Trustees of Gas Works of Cities or Villages — Power to make contracts.—
    The Board of Trustees of Gas Works of cities or villages, have no power to make contracts which would be binding upon such cities or villages, except “under such rules and regulations as, by ordinance the council may prescribe — ” as' provided under the provisions of sec. 2484, Revised Statutes.

      Same — Money in treasury — See. 2702.—
    Under the provisions of sec.2702, Revised Statutes, it is a condition precedent to the right of the council of a city or village, or Board of Trustees of Gas Works created by it. to make or enter into a contract, agreement or other obligation involving the expenditure of money, and thus bind the city or village, that the clerk thereof shall first certify that the money required for the contract, agreement or other obligation, is in the treasury to the credit of the fund from which it is to be drawn, and not appropriated for any other purpose.

      Petition — Necessary averments. —
    In an action against such city or village on a contract,- express or implied, made with its Board of Trustees of Gas Works, it is necessary to allege and prove, as a condition precedent to a right to recover, that such board acted within the scope of its authority, under the rules and regulations prescribed by ordinance of the council creating it; and further,to allege and prove that at the time such contract was so made, the necessary certificate of the clerk showing that the money required for the same was in the treasury to the credit of the fund from which .it was to be drawn, and not appropriated for any other purpose, was obtained.
    Error to the Court of Common Pleas of Logan county.
   Rohn, J.

All the questions in this case arise on the demurrer of the defendant village (now city) to the third amended petition of the plaintiff in the court below. By this proceeding in error in this court the plaintiff seeks a reversal of the judgment of the court of common pleas in sustaining the demurrer to his third amended petition, and dismissing the same. Upon the sufficiency or insufficiency of the third amended petition of the plaintiff below depends the proper determination of all the questions involved, and, also, the question whether the ruling of the court below in sustaining the demurrer of the defendant village and dismissing the petition was proper.

This third amended petition of the plaintiff, alleges a claim against the village (now city) of Bellefóntaine in the nature of an account stated, in the sum of 12588.25; also a claim in the nature of an open account :'n the further sum of $1656.59. The plaintiff in his third amended petition sets forth in detail that the defendant, the village (now city) of Bellefóntaine, from the 12th day of June, 1892, was and still is the owner of Gas Works, erected by the said village under the provisions of sec. 2486, Revised Statutes, which Gas Works have, during all said time and down to the date of filing the petition in this case, been managed, conducted and controlled by a Board of Trustees, as provided in sec’s. .2487, 2488, and 2489 of the Revised Statutes;' and that the two accounts (stated and open) were for materials and labor furnished by one Joseph Askins through the legally constituted Board of Trustees of Gas Works of said village, to the defendant village (now city) of Bellefóntaine, for the use and maintenance of its Gas Works, under a contract with said Trustees of Gas Works.

The plaintiff in this case sues as the assignee of the two accounts above mentioned.

The petition is silent as to what, if any, authority the the Board of Trustees of GasWorks had from the village council, by ordinance or otherwise, to enter into any contracts binding upon the village; and is, also, silent as to the fact whether or not, at the time such contracts were made, the .necessary money required for the contracts, was certified by the clerk to be in the village treasury to the credit of the fund from which it was to be drawn, and was not’appropriated for any other purpose.

Now, the main question is, had the Gas Trustees of the village power to make contracts, and, if so, to what extent, to bind the village to the performance thereof.

Of course, it is no more than necessary to add that if the Gas Trustees had no power or authority to make contracts and bind the village, it would follow that they had no power to state an account, or an amount to be paid.

The only power cities or villages, or boards of such cities or villages have to make contracts, and be held to their performance, is purely and solely by statute.

In this case sec. 2486, Rev. Stats, provides that “The council of any city or village shall have power, whenever it may be deemed expedient and for the public good, to erect gas works at the expense of the corporation, or to purchase gas works already erected therein.” In such case, when the council acts under sec. 2486, sec. 2487 provides for the appointment of a Board of Trustees of not more than five and not less than three, “which shall construct said gas works according to plans and specifications to be furnished by the council, etc.”; and shall serve until their successors are elected and qualified as provided in the next succeeding section.

Section 2489 provides that the board may construct gas works, extend gas pipes, manufacture and sell gas and coke, collect gas bills and other moneys due for gas, coke or other material sold by it; manage, conduct and control the gas works * * *, under such rules and regulations as, by ordinance, the council may prescribe” etc.

It will thus be seen that the Board of Gas Trustees are in the first instance the creatures of the council of the city or village, after the city or village determined that it was expedient and for the public good to have gas works. And further, having created this board, it can only legally operate under such rules and regulations of the council, as it, by ordinance, may prescribe. In.other words, the Board of Trustees is the creature of council, and its operations are regulated by ordinance of the council. It would then follow that the trustees could not legally make or enter into a contract for the purchase of materials etc., for the construction, or in fact management, of gas works without the power delegated to it from the council by ordinance, under such rules and regulations as may be prescribed. The trustees operate under the authority delegated to them by the council or ordinance, and are accountable to the council for all their doings, and further must make monthly reports to the council. It is to be presumed that the trustees act within the scope of their'authority; but if they do not, they can no more bind the city or village for whom they are acting, than an entire stranger to the corporation.

In this instance it does not appear by the petition that the Board of Gas Trustees had any power or authority, by ordinance or otherwise, from the village council, which in the first instance created such board, to make or enter into any contract for the purchase of the materials and labor set forth in the petition.

■ This is a condition precedent to the right of the board to act or make contracts that would bind the city or village to the performance thereof: and in such case it would be as essential to a recovery to allege such power or authority, as to allege th'at the contract was made and entered into with such Board as the agent of the village or corporation.

Then again, had the Board of Gas Trustees, by virtue of the authority of an ordinance of the village council, power to make and enter into a contract for the purchase of material and labor (except perhaps the necessary running expenses of the plant), it would not, and in fact could not, have any power superior to the body that created it, and make contracts binding on the village, which the village council could not itself legally make for want of funds in the treasury, or a certificate from the proper officer to the effect that the same is in the treasury unexpended. This, under sec. 2702 Rev. Stat., also, is a condition precedent to the right or authority of the council of any city or village, or board as in this case, to make or enter into a contract involving the expenditure of money, and is as essential to be pleaded as any other fact necessary to be proved.

Howenstine, Huston & Miller, for Plaintiff.

West & West, for Defendant.

It is said that the enforcement of these statutes often involves a hardship against innocent parties who have parted with their materials and labor on the faith that the same will be paid for, etc. This may be true in some cases, but the court has nothing left for it to do but construe the law as it finds it. It is evident that these provisions of the statute were made for the protection of the general public, placing a safe-guard against the reckless expenditure of money by the councils of cities and villages, or the entering into contracts binding the corporation. To tear down these statutes by the court would open the doors to the councils of many cities and villages to make contracts and bind their respective corporations to the injury of the general public far more than the injury complained of by plaintiff. Such being the case no line can be drawn, but the statute, if good at all, must be, and should be, upheld in every particular.

All we eamsay is that all persons dealing with bodies, boards or corporations.having limited powers or jurisdiction, are bound to know the extent of such power or authority, and can not plead a want of knowledge on their part as a remedy for any injury they might receive.

It follows that the judgment of the court below will be affirmed.

Judge Price dissents.


author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court,
    Oct. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    WILLIAM A. GILBERT v. GEORGE GILBERT AND E. C. POPE.

      Proceeding to compel accounting against former guardian who has become a non-resident of the state — No provision of law authorizing notice to guardian in other state — Sec. 6406 JR. S.—
    1. There is no express provision made by the statutes of our state for the service of process upon a former guardian, in a foreign state in which he resides, in a proceeding by a ward to compel his former guardian to account, such guardian having become a nonresident of the state. Section 6406, Rev. Stat., which provides that “when notice of any proceedings in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the samo shall not be directed bj statute, the probate judge shall order notice of such proceeding to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable”, was not intended to provide a means of serving process upon a non-resident, but has effect only within the jurisdiction of the court.

      Proceeding for accounting against administrator — To hold surety he must have notice —
    2. While it is sometimes said that proceedings to settle an account between an administrator and an estate are to some extent of the nature of a proceeding in rem; that the administrator’s bond is within the jurisdiction of the court; that it is the thing sought to be reached, and to reach it is by an action in rem, yet, the bond can only be enforced against the surety by a personal action, even if the bond is within the jurisdiction of the court, the settling of the account is not conclusive as to the surety upon it, without notice.

      Proceeding against former guardian for accounting commenced after eighteen years — Laches—Jurisdiction of JTóbate Coiiri. — •
    3. Where a former ward, many years after becoming of age, commences a proceeding in the probate court against his former guardian for an accounting reason and common justice require that after such laches on the part of the ward, some legal notice should be given the former guardian before an accounting could be legally made between him and his ward, and where the surety alone defends'the action brought upon the bond, he can not he met with the objection that in a proceeeding had in the probate court, without notice either to the former guardian or to himself, and nearly twenty years after the bond was given, an accounting was had between the guardian and the ward, conclusive against him, and against which no defense can be made. If the probate court had at any time jurisdiction to compel the accounting without notice to the former guardian, who had become a non resident of the state, there certainly must come a time when such jurisdiction would be lost.

      Same — After loss of jurisdiction by Probate Court, accounting may be compelled by action in equity. —
    4. While in this state, as a foundation for an action upon a guardian’s bond, an accounting in the probate court ordinarily is first to take place to asceratin the amount due the ward, still, if for any reason the probate court looses jurisdiction of the guardian to compel an accounting, an action in equity may be maintained upon the bond without that accounting.
    (Decided December 12, 1896.)
    Error to Court of Common Pleas of Cuyahoga county.
   Hale, J.

The defendant in error, Pope, obtained a judgment in his favor, against the plaintiff in error, in the court of common pleas, which the latter seeks to reverse.

The case has been most .thoroughly prepared, and has received the best attention that the court could give it, It presents some hardships, perhaps, whichever way it shall be decided, and we shall as briefly as may be, announce the conclusions which we have reached. I have not time, and shall not attempt to review the authorities cited.

The essential facts are these: George Gilbert, on the 8th day of June, 1874, was by the probate court of Cuyahoga, appointed guardian of his son, William A. Gilbert, then a minor. On the same day the guardian commenced proceedings in the probate court to obtain an order authorizing him to sell certain real estate to which the ward held the legal title. The sale was ordered, appraisal and sale made and approved on the same day, all on the 12th day of June, four days after his appointment. The guardian received for the sale made the sum of $8,000.00. By order of the court at the time the sale was ordered, the guardian was required to give an additional bond to that which he had given on his appointment, in the sum of $12,000.00. This bond he gave, with the defendant Pope as surety. William became twenty-one years of age’on the 12th day of June, 1875, but continued to reside in his father’s family until some time in 1876, when the father abandoned his home in this county,and removed to the state of Illinois, where he has ever since resided. The guardian filed no account in the probate court. On the 28th day of August, 1893, eighteen years after William became of age, he filed a complaint against his former guardian, it is said, to compel an accounting by his guardian in the probate court. The court thereupon issued a citation or notice to George Gilbert. That citation required Gilbert to appear in the probate court on the 14th day of September, 1893, to answer to the complaint of William A. Gilbert for failing to file his final account as such guardian and make distribution of the balance in his hands. “And said George Gilbert is hereby ordered to show cause, if any, why said complaint should not be heard and the prayer thereof granted,' ’ On the back of that citation is an affidavit showing that a copy thereof was served upon Gilbert personally in the city of Chicago. No other or further notice was served upon George Gilbert, the principal in the bond, or Pope, the surety. In fact, the surety had no knowledge whatever of the proceedings in the probate court, although a resident of this county. There was no appearance in the probate court at that hearing of either Gilbert or Pope. On the 14th day of September, the day named in the notice for the hearing of said complaint,the probate court entered judgment against the former guardian for the sum of $8,000.00 and interest from the 12th day of June,1874. The court found the facts substantially as I have stated, the sale of the land and the receipt of the money by the guardian, the fact that he was a non-resident, and then entered and ended the judgment as follows: “It is therefore considered by the court that said guardian is indebted to his said ward in the sum of $8,000.00 with interest thereon from the 12th day of June,1874; and said guardian is ordered to pay forthwith said sum, with interest, to said Willliam A. Gilbert, for which, together with the costs to be taxed, execution is awarded.” An execution was issued as authorized by this judgment, against George Gilbert, who, as the judgment shows, was anon-resident of this state, and returned wholly unsatisfied. Thereupon an action upon the bond was instituted in the court of common pleas against Gilbert, the principal, and Pope, the surety, to recover the amount of the penalty in the bond, being less than the amount found due from the former guardian to his ward. After the usual number of motions and demurrers had been interposed, and after an answer had been filed, an amended petition was filed upon which the case was finally tried. To this petition the defendant Pope interposed an answer in which he states seven separate defenses.

The first defense makes certain admissions, and denies everything else in the petition. The second defense relates to the jurisdiction of the court to render the judgment. The third defense is one of payment. The fourth defense presents the statute of limitations, claiming that the action was barred. The fifth defense sets up the fact of laches on the part of the plaintiff in bringing this action. The sixth defense charges that the land was not in fact the property of the ward at all, but the title was held in the boy’s name for the benefit of his father. And the seventh sets up the fact of bankruptcy — that Pope was discharged in bankruptcy in the year 1876, and therefore released from payment of this claim.

A demurrer was interposed to each defense of that answer, which was sustained as to three of the defenses, the second, fourth and seventh; and a reply was filed to the other four.

The cause then came on for trial before the court and jury. The trial court ruled that the probate court had no jurisdiction to render the judgment of September 14, 1893; excluded all evidence tending to establish that judgment, and as there was no other evidence offered by the plaintiff, directed a verdict for the defendant, to which the plaintiff excepted. Exceptions were also noted by the plaintiff to the overruling of a motion for anew trial.

The evidence offered was not a record of the entire proceedings in the probate court. It consisted of the citation that I have quoted, and of certain docket entries in what is denominated Docket D, Probate Court, page 131, as follows: “June 8, 1874, George Gilbert, guardian for William A. Gilbert, aged 20 years. Bond, $500.00. J. M. Richards and E. M. Brown sureties. Bond filed and letters issued 42. April 23, 1883. Citation to file account issued. April 3, 1893. Citation returned “not served”, August 28, 1893. Complaint by former ward filed, set for hearing September 14, 1893, at 10 A. M,, and citation ordered, etc. Journal 41-44. Citation issued.” The complaint itself was not produced, and it does not appear from this record what it was, other than appears from the journal entry and these brief docket entries. Upon this evidence the plaintiff rested his case.

The plaintiff contends that that judgment is a final and conclusive determination of the amount due William Gilbert from his father and former guardian, and that by that judgment both the principal and surety,who signed the bond,are bound; while the defendant asserts that such adjudication was and is absolutely void.

The determination of this question in favor of either party determines the case. The other questions are of comparatively small importance, for if that judgment was conclusive upon the surety, logically T do not see why that does not end the case — -all the defenses sought to be made here should have been plead when that judgment was taken. Ii it was not conclusive, but absolutely void, the judgment of the court of common pleas was right, because there was no evidence other than that offered to sustain that judgment, and if that judgment was void, then the judgment of the court of common pleas was correct.

As I have said, at the time that judgment was rendered, Gilbert was a non-resident of the state. Had the probate court jurisdiction to render that judgment? This question must be sohed by an examination of the statutes of the state upon which the validity of that adjudication depends. There was an attempted service of process upon the guardian, the former guardian, proceeding upon the supposition that notice of some kind to the guardian was necessary in order to give the court jurisdiction to render the judgment that was rendered. But so far as we are able to find, there is no provision made by the statutes of our state for the service of process in this proceeding upon a former guardian, in a foreign state in which he resides. There is no express provision of the statute authorizing such a service.

It is said that sec. 6406 of the Rev. Stat. is sufficient to sustain the service of this citation. That section provides that “when notice of any proceedings in a probate court shall be required by law, or be deemed necessary by the probate judge, and the manner of giving the same shall not be directed by statute, the probate judge shall order notice of such proceeding to be given to all persons interested therein, in such manner and for such length of time as he shall deem reasonable.”

We are of the opinion that this statute was not intended to provide a means of serving process upon a non-resident, but that it has effect only within the jurisdiction of the court.

Again, the record discloses no order of the probate court providing the manner and the length of time for which notice should be served. Notice was served apparently as if no order'was required.

Again, it is said that secs. 5048 and 5052, Revised Statutes, are broad enough to authorize the service that was made in this case.

We think there was no attempt on the part of the plaintiff to procure service under those sections. Nor are we convinced that they are applicable to this kind of proceeding. The general rule of course is, that process served beyond the limits of the state in which the court is located, is without any effect, — certainly unless authorized by some statute of the state.

In this case the process was without authority,and wholly void, as we think. No jurisdiction therefore was obtained by virtue of the process served on the defendant Gilbert in Chicago. And if some process was necessary, then the court was without jurisdiction.

It is further said in support of this judgment, that the proceedings in the probate court, of September, 1893, were in the nature of proceedings in rem, and no notice on the person was necessary.

We are aware that it is sometimes said that proceedings to settle an account between an administrator and estate,are of the nature of proceedings in rem to some extent. The argument of counsel for plaintiff in brief is that the bond was within the jurisdiction of the court; that it was the thing sought to be reached, and to reach it was by an action in rem. The bond could only be enforced against the surety certainly by a personal action. And it would seem that any judgment by which he could be concluded was, as to him, an action in personam The bond is a contract; and fixes and measures the liability'of the surety to the ward. We cannot assent to the proposition that because the bond was within the jurisdiction of the court, the settling of that account was conclusive as to the surety upon the bond, without notice.

Again, it is said that by the appointment of the guardian the court acquired jurisdiction to compel this account and render the judgment which was awarded by the probate court, and that no notice whatever was necessary. The jurisdiction was acquired in the appointment of the guardian.

This question is not without difficulty.

We are aware that the district court of Hamilton county in a case in some respects like the one now under consideration, reported in 12 Weekly Law Bulletin, page 197, sustained the jurisdiction of the probate court. In that case, however, the proceedings were commenced promptly in the probate court, and prosecuted without delay. In the case under consideration the facts are entirely different. The guardian, after his ward became of age, remained in the state for a year or more. Whether he appropriated the property of his ward to his own use before or after he left ■the state, is not disclosed in the record. The ward made no move to compel an accounting during the year his father remained within the jurisdiction of the court, nor for more than seventeen years after he became a non-resident of the state. The claim insisted on here is, that under these circumstances the probate court obtained jurisdiction to render the judgment and award an execution,

We think such a rule would be grossly unjust, and should ■not prevail. Reason and common justice require that after this long length of time, and such laches on the part of the ward, some legal notice should be given the former guardian before an accounting could be legally made between him and his ward. It will be observed that the surety alone defends the action brought upon the bond. He seeks to defend against an action, brought upon his contract, and is met with the objection that in a proceeding had in the probate court, without notice either to the former guardian or to himself, and nearly twenty years after that contract was made, an accounting was had between the guardian and the ward, conclusive against him, and against which no defense can be made. Judgment is sought on the bond against him, based solely upon that judgment of accounting made in the probate court. If for the reason now under discussion the probate court had at any time jurisdiction to compel this accounting without notice to the former guardian, who had become a non-resident of the state, certainly it seems to us that a time must come when such jurisdiction- would be lost.

We are therefore of the opinion that under the circumstances of this ease, the jurisdiction of the probate court cannot be sustained under this claim.

Without extending this discussion, we hold that the judgment rendered in the probate court, relied on as a basis of this action, is without any binding effect or force whatever as against the surety in the bond. Upon the proof offered upon the trial, no other judgment could properly have been rendered than the one that was rendered.

It may be said that this leaves the ward without any remedy whatever. That proposition is not well taken." While in this state, as a foundation for an action upon a' bond, an accounting in' the probate court ordinarily is first to take place to ascertain the amount due the ward, still, if for any reason the probate court loses jurisdiction of the guardian to compel an accounting, an action' in equity may be maintained upon the bond without that accounting. Such has been, at least, the expression of our Supreme Court, in a case it is true, where it was not directly involved. But a case to which our attention has been called, recently - decided in the state of New York, in the- Supreme Court, Appellate Division, an action was sustained upon an executor’s bond, given in the state of New York, where the property came into the hands of the executor, who removed to the state of New Jersey, and there squandered the estate, or in some way disposed of it. An action was instituted upon the bond in the state of New York, and the defense made that no accounting had been had, and therefore no action upon the bond could be maintained upon the bond. But the court held: “The non-residence of the executor gave to a court of equity jurisdiction upon the bond without the accounting.”

Winch & Wolcott, for Plaintiff.

Webster, Angelí & Cook, for the Defendant E. C. Pope.

We do no mean to say that at this late day an accounting upon this bond in equity can be had. An attempt to institute and enforce that right would be met by a plea of the lapse of time that'has been allowed to pass, the effect of which we need not here pass upon. That action, if it could be maintained at all, could have been maintained many years ago.

But the view we have taken results in the affirmance of this judgment.

It might be suggested that the judgment goes beyond the power of the probate court. That is, conceding that the probate court may compel an accounting in a case of this kind, it may well be suggested that was not what the probate court did. That court found that theie had been no accounting; that the guardian was in default, and thereupon found that amount due the ward, and rendered a personal judgment for that amount against the guardian. But possibly that would be not void, but an erroneous judgment, and not subject to a collateral attack.

But we have concluded to affirm this judgment.


text:
    (First Circuit — Hamilton Co. O. Circuit Court,
    Jany. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    REYNOLDS v. RAILWAY CO.

      Passenger directed by station agent to wrong train, and ejected thei'efrom — Liability of P. P. Go. — Action for damages is as for tort.

    Where a person has a ticket purchased from a company engaged in the business of a common carrier of passengers, entitling him to be carried from a certain station to another on the line of its road, good only on trains stopping at his destination, and he is by the fault of the company’s station-agent, induced to take a train that does not, under the schedule, stop at such place, and, as a consequence, is ejected by the conductor on calling for his ticket and before reaching his destination, such facts show a right in the passenger against the company to recover as for a tort, and not merely for a breach of contract.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

Reynolds brought his action in the court of common pleas alleging that on the 4th day of July, he purchased at South Lebanon, a station on the line of said Railway Company, > two round trip tickets from that station to Loveland, a station on the same road — one ticket for himself, and one for his eleven-year old son. That on the following day he went to the ticket office at Loveland and inquired of the ticket agent whether a train, which was then approaching would stop at South Lebanon, and was informed by said agent that it would, and further that it was the only train that would stop there that day. Thereupon, plaintiff boarded said train, and when about two miles out, the conductor asked for his fare, whereupon he tendered his said tickets; but the conductor refused to accept the same, and thereupon stopped the train and ejected the plaintiff and his son from the train. He alleged that the ejection was wrongful, and asked for damages in the sum of $1,000.

The case was tried to the court, a jury being waived, on an agreed statement of facts. In addition to the facts set out in the petition, the substance of those in the agreement was as follows:

The tickets purchased by plaintiff were excursion tickets, and they provided that they were good only on trains stopping at South Lebanon and Loveland. That the train plaintiff boarded on the return trip was an express train, and that it did not stop, according to the schedule, at South Lebanon; that by the rules of the company, the conductor was forbidden to stop at said station, and that the ticket agent at Loveland" had no authority to stop said train at said station. That the train did not stop until it reached Morrow, a station some distance from South Lebanon, and that the conductor offered to take said tickets in payment of fare as far as South Lebanon, and demanded the difference in cash to Morrow; but plaintiff refused to pay the same, he having no money, and thereupon the conductor stopped the train about two miles from Loveland,and put the plaintiff and his son off. The place where they were put off was on an embankment in a corn-field,and plaintiff was compelled to walk from there to South Lebanon, a distance of about six-miles. Whether the plaintiff inquired of the ticket agent was not agreed upon, but it was agreed that he inquired of the person who was in charge of the ticket office at Loveland,, and was directed by him to take that particular train as the one stopping at South Lebanon. He made no inquiry before boarding the train, of the train men as to whether the train stopped at South Lebanon, neither was he asked by them as to his destination.

The learned judge of the court of common pleas on these facts found that the plaintiff had no cause of action against' the defendant, and dismissed his petition. The ground upon which said finding was made was, that the plaintiff had misconceived his remedy; that he had brought it in tort, while his right of action was for a breach of contract.

Was the court correct in this? We think not.

In the first place, as said by Judge Gholson in the case of Baker v. Cincinnati in the 11 Ohio St., there is no magic in names, especially under our rules of pleading. Here the plaintiff set forth all the facts of the case. If the facts entitled him to a recovery, it could matter little whether he properly alleged which facts were the gist of his action.

Does ha state an action? We think he does. What is it?

His tickets entitled him to ride from Loveland to South Lebanon on a train stopping at the latter place. But he got on an express train which did not stop at South Lebanon. The conductor of this train could not stop the train at this point. His orders were positive. He had no discretion. At the same time, he could not carry plaintiff on his train to any point without paying his fare or producing a ticket. With this requirement plaintiff refused to comply, therefore there was nothing left for the conductor to do but to eject the plaintiff from the train; this he had a right to do. He did nothing but his duty, and the plaintiff can not complain of this. Therefore, when he alleges this ejection as the gravamen of his action, he is clearly in error.

But plaintiff was rightfully on the train. He made inquiry of the person in charge of the ticket office at Love-land before taking the train, as to whether it stopped at his station. In doing this, he acted as a prudent man should. He did what the company wanted and expected him to do. He inquired of the person that the company held out to him as the proper person to give such information. Therefore, he was placed upon this train, in effect, by the company itself. He was there without fault. He could not be at fault, when he obeyed the order of the company. But somebody had made a mistake,for the train did not stop at this station. The plaintiff did not make the mistake, and the company did. The mistake resulted in an injury to the plaintiff. Why should he not recover? Clearly he should. But what does he recover for? The learned judge of the court of common pleas held that it should be for a breach of the contract. But how can this be? There was no refusal of the defendant to carry the plaintiff on trains stopping at South Lebanon, as agreed to in the contract, but there was a refusal to carry plaintiff to South Lebanon on an express train which did not stop at South Lebanon. There was no breach of contract in this; and he was put off of this train and, as we have found, rightfully. But we have found that he was wrongfully placed by the company, without fault on his part, on this train, and that he has the right to recover whatever damage may have resulted to him by reason thereof. Therefore, he has a cause of action. Wha't is it?

Similar actions have given rise to considerable discussion as to the nature of such actions, and there has been a conflict- of decisions on the question, especially in England. But under our rules of pleading, we do not regard such distinctions as of vital importance. In a recent cause decided by the Supreme Court of Minnesota, reported in the 50 N. W, Rep. at p. 1021, in a like case, the court we think correctly states the distinction and gives the correct rule.

The court there say:

“Inasmuch as the conductor did nothing but what he would have a right to do, had plaintiff had no right to ride on the ticket, it is evident that plaintiff could not have maintained the action at all without pleading and proving his contract with -the defendant and its breach, either by malfeasance, or non-feasance. In other words, an action could not have been maintained for a tort simply without reference to the contract between the partise. In that sense it is an action arising on the'contract. But it is not an action on the contract properly so called. The gist or gravamen of it is a tortious act which constituted a breach of the contract. It is what is sometimes called “an action for tort founded on contract, or an action ex quasi contractu.” In considering the measure of damages and the elements of damage proper to be considered, the courts in this country have almost universally treated such actions as sounding in tort. * * * Mr. Sedgwick in his work on Damages, sec. 868, remarks the practical effect of it has been virtually neutralized in most jurisdictions by holding, as already stated, that actions like the present sound in tort. But it seems to us that very often a great deal of time and learning have been unnecessarily expended in discussing the exact nature of such an action. ”

In our judgment, therefore, plaintiff stated and proved a cause of action; that his action was not, strictly speaking,an action on the contract, but was an action founded upon a contract, sounding in tort, and the court of common pleas erred in finding that plaintiff had not stated a cause of action which was sustained by the agreed statement of facts, and in dismissing plaintiff’s petition, and the cause is reversed and remanded for further proceedings.

(Affirmed by Supreme Court, December 15th, 1896, 35 W. L, B. 326; reported.)


author: Day, J.

text:
    (Third Circuit — Hancock Co., O., Cicruit Court,
    May Term, 1896.)
    Before Seney, Day and Price, JJ.
    ELI W. PEPPLE, GUARDIAN, v. DAVID E. PEPPLE ET AL.

      Conveyance to son in consideration of support — Degree of capacity—
    1. In a transaction between father and son, or other member of the family, in which there is a conveyance of real estate made by the father, to the son, and an agreement by the son to maintain the father during life, and all made for the purpose and with a view to secure a home and support for the father during his life, and also as an advancement to the son, equalizing him in the father’s estate with the other members of the family, as great a degree of capacity is not required as if the transaction was with a stranger, or, of an adversary character.

      Same—

      2. Such transaction in such case is, in effect, final disposition by the father of his property; and if he have sufficient mind to know and comprehend the extent and value of his estate, and the names and rights of children, or those who are naturally entitled to share in it, and is free from restraint, such transaction will be sustained.

      Appeal from the Court of Common Pleas of Hancock county.
   Day, J.

The plaintiff, Eli W. Pepple, as guardian of John Pepple, an imbecile person, brings this action against David E. Pepple, Ella M. Pepple and Loa Curtis, defendants, to vacate and set aside certain conveyances of real estate made by John Pepple to David E. and Ella M. Pepple, in November, 1891, and February, '1893, on the grounds of incapacity on the part of John Pepple to contract,and of coercion of defendant Pebble - by which the conveyances were compelled. Loa Curtiss is made a defendant because she claims a lien on the said real estate by virtue of a mortgage from her co-defendants to her. Issue is joined on the claims made in the petition, by an answer of defendants Pepple, in which they assert that John Pepple, at the time of the transactions, and fora time afterward, was not imbecile, but was possessed of judgment and capacity sufficient to properly transact the business which he did, in good faith, uninfluenced and uncoerced by any one. That the transactions were proper ones, made upon good and proper considerations, and wronging no person, least of all the grantor named in said conveyances, and defendants ask that the conveyances be sustained.

The most of the facts of the transactions are undisputed —all of them, in fact, except the incapacity of John Pepple to do business, and that he was coerced and controlled in the matter by David E. and Ella M.‘ Pepple. These two alleged facts are in dispute. The undisputed facts are: In October, 1891, John Pepple, who before that time had been duly adjudged an imbecile and was under guardianship as an imbecile, was by the court of common pleas of the county, in a matter pending therein, found to be sane, and was discharged and restored from such disability. Soon thereafter, in November, 1891, he conveyed a forty-acre tract, his homestead, to his son David E. Pepple, and also leased to 'David E. a sixty-six acre tract for a term during the lifetime of the old gentleman. As consideration for this conveyance and lease the grantor was to be furnished a comfortable home, cared for and supported during his natural life, and decently interred at his death. In February, 1893, the sixty-six acres, being the same tract leased to David E., was conveyed to Eilen M. Pepple, wife of David E,, for an expressed consideration of $1,650; $450 of which was paid in cash, and notes bearing interest to the amount of $1,200 for the balance were executed and delivered as a consideration for the conveyance. Before these transactions, and before the appointment of a guardian, John Pepple had made advancements in various amounts to some of his children other than David E., and had become liable, as surety, for others, for the payment of money, and the cash payment received for the conveyance to Ella M. Pepple, was required and used in payment of a judgment against a son-in-law for wbom Mr. Pepple had so become liable as surety. Since November, 1891, David E. has been in possession of the two tracts, receiving and enjoying the rents and profits thereof, and the old gentleman has been furnished a home with defendants, and has been supported and properly cared for by them. Since 1894 he has become entirely imbecile and helpless, wholly incapable of caring for or helping himself in any way, and has been, is now, arid so long as he lives will be, a serious charge and burthen on defendants. This plaintiff was appointed guardian in May, 1894, and is now and since then has been, the duly appointed, qualified and acting guardian, and brings this suit to set aside the said conveyances made by the old gentleman to defendants, and also for an accounting by defendants with him for the rents and profits derived from the farm.

If it shall appear that the transactions by which the lands were conveyed were invalid, by reason of want of capacity on the part of the grantor to make them, or, because of coercion on the part of defendants, then an accounting will of course become necessary; but otherwise if the conveyances are sustained. So, in the first place, the single question is presented: Had John Pepple sufficient capacity t@ transact the business, and did he transact it in freedom and unrestraint? The plaintiff has the affirmative side of this issue, and the burden is on him to establish it affirmatively, by the weight of the evidence. For that reason the testimony has been produced and submitted to the court, and it is but fair to say there is a serious conflict in it. On the question of capacity, the witnesses were 1'imited to six on a side, and they all testified, sincerely and honestly, wo think, according to their various notions and beliefs on the subject. Notions and beliefs of a witness, however, as evidence of a fact or condition, are only valuable when formed and based upon intelligent and careful observation under favorable opportunities, and utterly without value or weight unless it appears that the notice taken was careful and judicious and under favorable conditions. Some of these witnesses were interested in the results of the litigation. Some were very general and casual in their observations and opinions, while others were disinterested, entirely so, and having regard for their fair reputation as professional men, were of necessity required to very carefully observe and note the precise condition of the old gentleman’s mind at the precise time of the transaction, with a view of fairly and properly transacting important business for him in a way that would be both lawful and right. To this last named class of testimony we are disposed to give controlling influence in determining the question before us. Very few of the witnesses on either side had occasion to more than casually notice the old gentleman’s condition of mind. None, perhaps, except the gentlemen1 who were called upon to advise with him and to prepare the legal documents necessary to carry into effect his wishes in regard to the matter. All noticed he was forgetful — lived more in the past than the present, as most old people do. That he could not remember readily, and sometimes repeated quotations and statements over and over again. All these things are, perhaps, evidence of senility or approaching senility, but they alone do not evidence total absence of capacity. They do evidence impairment of mental forces, but not total absolute wreck, and may all very well exist, and the old gentleman still be possessed of sufficient capacity to make such proper disposition of his property as must be upheld. The rule in this case, and all similar cases, I imagine, will not require as high degree of judgment and sense, as if the contract was with strangers or persons not of his immediate family, or was of an adversary character. All of these elements are absent in this case, and, in effect, to all intents and purposes, John Pepple was making a final disposition of his estate, as if by will, and if he had what is known in law as “testamentary capacity,” that would be sufficient. It is a general rule, of general, if not universal, application, that a person having sufficient mind to know and comprehend the extent and value of his property, and the names and rights of his children or those who are naturally dependent on and entitled to his bounty, such person-has testamentary capacity, and may properly dispose, finally, of his estate, and any disposition he may see fit to make, if it is his free act, will be sustained.

Having reference to the proofs submitted, we regard John Pepple, at the time of the conveyances, as having had even more than testamentary capacity. After the removal of his disability and discharge from guardianship, in October, 1891, he seemed to rally all his waning faculties, and to become alive to the exact requirements of the situation. He not only knew the extent of his estate and the names and rights of all his children, but he was able to recall the fact that part of them had been provided for, in the way of advancements, and that certain other ones were entitled to be provided for as well; and one of the purposes he had in view, supplying a motive for his action, appeared to be to equalize his children in his estate, to see to it while he might, that all those who were dependent on his bounty were properly made participators in that bounty. This seemed especially true of the conveyance of November,1891. At about the time that conveyance was made,' he also made a will giving the sixty-six acres to his children and grandchildren who had not before that time received advancements. The conveyance of the sixty-six acres in February, 1893, was in a sense compelled by his surroundings, and seemed to be made necessary because of a judgment for a considerable sum, rendered against his son-in-law, and upon which he was surety. He was required to meet and discharge it, and the only property, he had, available for its payment, was the sixty-six acres. He had capacity, so the evidence is, to intelligently discuss the entire situation and to suggest the remedy by a sale of that particular tract to Ella M. Pepple. He obtained a fair price; considering the encumbrance of a lease for his life time to his son, David E. Pepple. In fact, the entire transaction, from beginning to end, impresses- us as being most judicious and proper, and we have been unable to discover anything savoring of imbecility, coercion or undue influence in it. The great weight of the evidence is, we think, to the effect that John Pepple, in the matter of conveying real estate to David E. and Ella M. Pepple, had both capacity and freedom to act. And we therefore find for the defendants.

James A. Bope, J. Blackford & Byal, for Plaintiff.

Shaffer & Shaffer, Pendleton & Whitely, for Defendants.

Plaintiff’s petition is dismissed,and he is required to pay all costs.