author: VOORHEES, J.

text:
    CORPORATIONS — CONTRACTS.
    [Knox (5th) Circuit Court,
    March Term, 1903.]
    Voorhees, Donahue and McCarty,' JJ.
    A. L. White v. C. & G. Cooper Co.
    Facts Constituting Valid Contract or Sale oe Corporate Stock.
    C agreed in writing to sell and transfer to W, at their face value, 150 shares, of $100 each, of the capital stock of a corporation of which he was a member, and owner of the shares, for the consideration of $15,000 to be paid with interest at 3 per cent per annum payable annually from March 1, 1895, from and out of the dividends and earnings of said stock, as the same were realized; W to have the right to make payments from other sources as he might see fit.
    Said stock to be issued in the name of W, he immediately, by indorsement, to transfer it to C, as security for the payment of said $15,000 and interest. W having the right and option to redeem said stock as fast as he would make payments upon the principal and interest to the amount of $500 or any multiple thereof, and have possession of a corresponding amount of said stock.
    Under the agreement, 150 shares of stock were issued in the name of W and delivered to him, and by him indorsed and-, delivered to C. C received the annual dividends and credited them as payments on said stock. W attended meetings of stockholders and directors and voted the 150 shares of stock with the knowledge and without objection from C. C four years after said agreement was made and performed as above shown, in writing notified W and the company, of his rescission of said agreement; W not consenting thereto, Held:

    First. Such contract is not void for want of consideration or lack of mutuality.
    Second. The facts and circumstances above stated show an executed contract, and could not be rescinded at the option of one of the parties without the other’s consent.
    Third. A sale of stock in a corporation as above found is a valid sale, and vests the purchaser with a good title to said stock.

      Appeal from Knox common pleas court.
    L, B. Houck, F. V. Owen and C„ E. Burr, for plaintiff:
    There is a- fatal defect of parties. Smetters v. Rainey, 14 Ohio St. 287; Jones v. Marsh, 30 Ohio St. 20; Burke y. Taylor, 45 Ohio St. 444 [15 N. E. Rep. 471]; Sturges v. Longworth, 1 Ohio St. 544; Buckingham v. Bank, 21 Ohio St. 131; Teach v. Kerr, 41 Ohio St. 179; Page v. McConville, 6 Circ. Dee. 631 (10 R. 316) ; Page v. Pogue, 57 Ohio St. 633 [50 N E. Rep. 1132],
    Failure of proof. Williams, Executors 1180, 1182.
    The obligations of the contract were mutual and certain. 1 Beach, Mod. L. Cont. Sec. 73; Greenough v. Smead, 3 Ohio St. 415; Lewis y. Tipton, 10 Ohio St. 88 [75 Am. Dec. 490] ; German Fire Ins. Go. v. Roost, 55 Ohio St. 581 [45 N. E. Rep. 1097; 36 L. R. A. 236; 60 Am. St. Rep. 711]; Ashland Mut. Fire Ins. Go. v. Housinger, 10 Ohio St. 10; Nowlin v. Pyiie, 40 Iowa 166, 168; Newmarket Mfg. Co. v. Goon, 150 Mass. 566 [23 N. E. Rep. 380]; Lewis w,Insurance Go. 61 Mo. 534; Minneapolis Mill Co. v. Goodnow, 40 Minn. 497 [42 N. W. Rep. 356; 4 L. R. A. 202]; McCartney v. Glassford, 1 Wash. 579 [20 Pac. Rep. 423]; Ohio College of Dental Sur. y. Rosenthal, 45 Ohio St. 183 [12 N. E. Rep. 665]; Mosier v. Parry, 60 Ohio St. 388 [54 N. E. Rep. 364]; Kinney v. Hamilton Go. (Gomrs.) 4 Circ. Dec. 448 (8 R. 433) ; Nunez v. Dautel, 86 U. S. (19 Wall.) 560 [22 L. Ed. 161]; Cota v. Block, 48 Mass. (7 Mete.) 588 [41 Am. Dec. 464]; Gardner y. Barger, 51 Tenn. (4 Heisk.) 668; Palmer y. Hummer, 10 Kan. 464 [15 Am. Rep. 353]; Jones y. Eisler, 3 Kan. 128; Scott y. Lord Ebury, L. R. 2 C. P. 225.
    The transfer of title was completed before suit. Objections to the agreement are therefore remote. Warner v. Porter, 13 Dec. Re. 77 (2 Disn. 124); Burt v. Dutcher, 34 N. Y. 493; Arkansas Talley L. & Cattle Go. y. Mann, 130 IT. S. 69 [9 Sup. Ct. Rep. 458; 32 L. Ed. 854]; Beardsley v. Beardsley, 138 IT. S. 262 [11 Sup. Ct. Rep. 318; 34 L. Ed. 928]; Riddle v. Tarnum, 37 Mass. (20 Pick.) 280; Foster y. Ropes, 111 Mass. 10; Byles v. Golier, 54 Mich. 1 [19 N. W. Rep. 565]; Boswell v. Green, 25 N. J. Law 390; Barrow v. Window, 71 111. 214; Dean y. Nelson, 77 IT. S. (10 Wall.) 158 [19 L. Ed. 926]; Dorsey y. Packwood, 53 IT. S. (12 How.) 126 [13 L. Ed. 921]; Bunn v.' Winthrop, 1 John. Ch. 329; Delamater, In re, 1 Whart. 362; Bishop, Contracts Sec. 81; Story, Eq. Jurisp. (13 ed.) Sec. 793a.
    A pledgee is not permitted to- assert title to the thing pledged. Benjamin v. Gill, 45 Ga. 110; Willison v. Watkins, 28 U. S. (3 Pet.) 43 [7 L. Ed. 596]; Pomeroy, Rem. & Rein. Rights Sec. 751; Abbott v.
      Foote, 146 Mass. 333 [15 N. E. Rep. 773; 4 Am. St. Rep. 314]; Irby v. Kitchell, 42 Ala. 438; Johnson v. Gunter, 69 Ky. (6 Bush.) 534; First Nat. Bank. v. Wire & Iron Works, 58 Mich. 124 [55 Am. Rep. 660]; Dawson v. May all, 45 Minn. 408 [48 N. W. Rep. 12]; Tagg' v. Bowman, 99 Pa. St. 376; Bigelow, Estoppel (5 ed.) 535.
    Kelley & Follet, Mclntire & Mclntire, Weight & Moore and J. W. Warrington, for defendant.
   VOORHEES, J.

Plaintiff’s action against the defendant company is to recover the sum of $1,800, dividends due him for the years, 1899 and 1900, declared by the company on 150 shares of capital stock in said company, owned by him.

Defendant filed, an interpleader alleging that one Charles Cooper, in his lifetime claimed to be the owner of said 150 shares of stock, and the dividends thereon belonged to him, and not to the plaintiff; and since his, Cooper’s death, his executors claim the stock and. the dividends.

Cooper’s executors appeared in said action and filed their answer, setting up two defenses:

First, a denial of plaintiff’s title or ownership of said stock and of his right to the dividends, alleging that Cooper, their testator, in his lifetime, and they, as his executors, were the owners of the 150 shares of stock and were entitled to the dividends; and also a second defense, that the only claim plaintiff has to said stock arises out of a contract made by him with said Charles Cooper in his lifetime, which contract is made part of said second defense, and is in words and figures following, to wit:

“Mount Yernon, Ohio, February 26, 1895.
“This memorandum agreement witnesseth that Charles Cooper, of Mount Yernon, Ohio, upon the consideration hereinafter named, hereby sells and agrees to transfer and convey to A. L. White, of the same place, one hundred and fifty shares of one hundred dollars each of .the capital stock for the C. & G. Cooper Company, a corporation, for the consideration of fifteen thousand dollars ($15,000) to him to be paid by the said A. L. White, together with interest thereon at the rate of three per cent per annum from the first day of March, 1895, payable annually.
“The said fifteen thousand dollars ($15,000) with interest thereon as aforesaid is to be paid by tbe said White to the said Cooper, his heirs or assigns from and ont of the dividends and earnings of said stock as fast as the same • is realized ;• that is, all the dividends and earnings of said stock as fast as realized is to be applied first to the payment of the interest upon said $15,000, or the unpaid portion thereof, and second to the payment of the principal thereof until the whole has been fully paid; the said White having the right however to make payments from other sources as rapidly as he may see fit.
“Said stock shall be issued in the name of said White in blocks of five or ten shares at the option of said White, and shall immediately be assigned and transferred by a proper assignment in writing to the said Cooper, indorsed upon said certificate, and said certificate shall at the same time be delivered to the said Cooper as surety for the payment of said sum with interest as aforesaid. It is agreed however, that as fast as the said White makes payment upon the principal of said debt, .(after having paid all interest upon the whole) amounting to $500 or any multiple thereof, he shall have the right and option to redeem and have possession of a corresponding amount of said stock.
“(Signed) G. Cooper,
“A. L. White.”

The executors further allege that said contract is without consideration; that the plaintiff did not.pay or agree to pay anything for the stock and the dividends belong to them as such executors.

It is further alleged that Cooper in his lifetime intended to, and did, rescind said contract; that notice in writing of the rescission and intention to rescind was served upon plaintiff, White, 'also upon the company. The executors ask that the petition be dismissed; that the defendant company be ordered to transfer to them said 150 shares of stock, and pay to them the dividends that may be thereafter declared.

To this answer or cross petition, the plaintiff answers. He admits the contract and the notice of intention to rescind and denies all the other allegations of the cross petition, and by way of affirmative allegations, in substance says: That at the time of the transfer of said stock to him, he was superintendent of the defendant company’s shops located at Mount Vernon, Ohio, and had been since 1888; that he had been in the employ of the C. Cooper Company,-prior to its incorporation; in various capacities since 1875; when it was ¿reorganized into a corporation in 1895, he was one of the incorporators holding one share of the stock; that in consideration of these facts, and for his long services to the company, and for services to be rendered, and as an inducement to make him personally interested in the success of the company, Charles Cooper sold, assigned, and transferred the stock in question to him, and upon the terms set out in said written contraQt; that thereupon the stock, 150 shares, was transferred to him on the boobs of the company, known as block numbered three, and was assigned to him in his name; that in pursuance of the agreement, the stock was immediately assigned and delivered to Cooper, as collateral security for the payment of the stock, and the interest, and is still held by the executors as such collateral security. He, plaintiff, was after-wards elected one of the directors. That he was recognized as a stockholder; voted the 150 shares of stock with the knowledge and without objection from Mr. Cooper; that he received the dividends which were indorsed upon the contract and receipted for by Mr. Cooper as payments on the stock and interest as per the terms of said written contract.

The executors by a reply put in issue the affirmative allegations of plaintiff’s answer.

The cause comes to this court on appeal from the common pleas and is submitted on the pleadings and evidence.

The plaintiff’s right to recover is denied on two grounds:

First. Want of consideration.

Second. The contract is an executory one; Cooper could, at his option, and in fact did, rescind the same.

Upon the issues presented, we find from the testimony and exhibits the following facts:

Prior to January 15, 1895, the C. & G. Cooper Company, was a copartnership of which Mr. Cooper was a member; the plaintiff became an employe of the company as early as 1875, when he was about four-ten years of age, first as an office and errand boy, and remained in its employ until 1895, when the partnership was merged into a corporation under the laws of West Virginia; Mr. Charles Cooper subscribed for, and became the owner of, 613 shares of the capital stock; one share of stock stood in the name of the plaintiff, A. L. White. The first meeting of stockholders under the new organization was held February 21, 1895. On February 25, 1895, Mr. Charles Cooper and Mr. Á. L. White made the contract in question; they were and had been on friendly and intimate terms from 1875. Mr. White had occupied various positions from office boy to superintendent, continuing as an employe until 1900. Mr. Cooper was at the works every day or substantially so, and while not lookipg into the books or details of the business, he took an active part about the shops until a short time before his death.

At the organization of the corporation Mr. "White was elected á director, and continued in office until he left the company in 1900. He attended the meetings of the directors and stockholders, voting the 150 shares of stock at the meetings where Mr. Cooper as the president of the company was present, taking part in the proceedings.

No certificates of stock were actually issued to the stockholders until September, 1895; on the twentyrseventh of that month the certificate for 150 shares was issued to "White, and he receipted for the same on'the stub. The transaction, briefly stated, as to the issuing of this certificate, as given in the testimony of Mr. Kirk is this:

The certificate was filled out in the name of Mr. White and delivered to him with an indorsement thereon signed by Mr. White as follows:

“These shares.of stock are delivered to Charles Cooper, to be held as a collateral to a contract made by Charles Cooper and A. L. White dated February 25, 1895, and are to be held so until the provisions of said contract are fully carried out. Dated September 28, 1895.”

Immediately thereafter the certificate of stock was delivered to Mr. Cooper by White.

Thereafter annual dividends were declared on the stock. The dividends were credited to Mr. White and then turned over to Mr. Cooper. After the dividends were so declared and delivered to Mr. Cooper he indorsed upon the contract the credits; one of such indorsements-will be sufficient for the purposes of this opinion, which reads as follows:

“Received of A. L. White, $450, being interest $375 up to July 21, 1896, and $75 to apply on principal this February 4, 1896.
“(Signed) C. Cooper.”

It is claimed that by reason of the .written rescission of the contract by Mr. Cooper, the contract was rescinded and this stock reverted back to Mr. Cooper.

From these facts it is contended by the executors of Charles Cooper’s estate:

First. That the contract of February 26, 1895, is not a valid binding contract on the part of Mr. Cooper in favor of the plaintiff, for the reason that it is without consideration; that White does not bind himself or promise to do anything; that the offer Mr. Cooper made to transfer the stock was a mere gratuity, or a mere option to Mr. White that, if he would comply with the contract, and no change or withdrawal of the option by Mr. Cooper before complied with by White, the stock would belong to him; that it was at best an executory contract, and being without consideration could, at any time Mr. Cooper saw proper, be rescinded.

Is the contract without consideration?

Business relations and circumstances as they existed between these parties at the time the contract was entered into are material. Mr. White had been in the employ of the company before it was incorporated for many years; he was a skilled employe, and when the company reorganized he was induced to take one share of stock, in order to become an incorporator; and to secure his personal interest and concern in the enterprise, Mr. Cooper proposed to him to sell him 150 shares of the capital stock in the new company upon the terms and conditions set out in the written contract, which contract was fully complied with by both parties.

Valuable consideration, in the sense of the law, may consist in some right, interest, profit, or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Any bona fide consideration, however slight, which works any benefit to the one party or any injury to the other, is sufficient, in which there is no element of fraud. These elements in a contract have been held sufficient to constitute a valuable consideration by our Supreme Court in Irwin v. Lombard University, 56 Ohio St. 9 [46 N. E. Rep. 63; 36 L. R. A. 239; 60 Am. St. Rep. 727]; Robinson v. Boyd, 60 Ohio St. 57 [53 N. E. Rep. 494]; Dalrymple v. Wyker, 60 Ohio St. 108 [53 N. E. Rep. 713].

Suppose there were no valuable considerations for the transfer of this stock by Cooper to White, how does it affect the transaction? If Mr. Cooper saw proper, for reasons that were sufficient to him when this new organization was completed, that he directed 150 shares of the capital stock held and owned by him should be issued in the name of White and delivered to him, and they were so issued and delivered and White accepted the same, and as a part of the transaction the contract in question was entered into, whereby from the profits he would get its value on this stock, and further desiring to help White, and to keep him with the company, secure his personal concern and interest in the enterprise, he, Cooper, was willing to enter into the contract and which contract was afterwards carried out, it would be a binding contract — one that he could not rescind at his pleasure or option.

Judge Swan in his late Treatise, at page 543, says:

“This rule should be noticed in relation to a promise without consideration, that although no suit can be brought to enforce its performance, yet if it is executed both parties are bound by it. Thus, if you promise to give me a horse, or to work for me without compensation, I cannot maintain an action against 'you for not fulfilling your promise, but if you deliver the gift it is mine, or if you do the work you cannot recover from me any compensation.”

Mr. Cooper, for reasons of his own, was willing to have this stock issued in the name of A. L. White and delivered to him, White, to transfer it back to him by indorsement so that he, Cooper, could hold it as security for the payment of the face value of the stock, with interest at 3 per cent; both principal and interest to be paid from the profits or dividends arising from the success of the enterprise.

Upon these conditions, Mr. Cooper agreed to sell and transfer to White 150 shares of stock. The stock was so issued and delivered to White, and by him transferred back to Cooper to be held as security, etc.

This company was a corporation; the corporation through its proper officers issued its stock; 150 shares were so issued and delivered to Mr. White; he receipted for the same on the stub of the stock book. Can there be any doubt, but that this stock was actually delivered? We think not. Were the other conditions of the contract executed or carried out?

White, after receiving the certificate of stock, indorsed the same and delivered it to Mr. Cooper who received it, and held it for several years, treating it as security, as contemplated by the contract. It , would be a misconception to say that it was held as security, and at the same time to be treated as belonging to Cooper and not to White. Security presupposes that the party who offers it for security is the owner; and the receiver is not the owner, but a mere holder, to secure conditions assumed by the real owner.

If this certificate had never been issued or delivered to Wliite he would have no interest in it, and have no right at their stockholder’s or director’s meetings to vote 150 shares of stock in their business transactions. He did so vote the shares; Mr. Cooper knew he was so doing. In recognizing these acts of Wliite, Mr. Cooper was recognizing him as the owner of these shares, and the existence of, and the validity of, the contract. He further recognized it by receiving the dividends and crediting White with them as payments on the stock. Mr. Cooper did everything required of him under this contract. Same is true, as we find from the evidence, on the part of Mr. White. The transaction as a whole from first to last is consistent with this conclusion, that the contract was fully executed, on the respective parts of the parties to it, and therefore it was a valid contract between them, and Mr. Cooper could not, without the consent of Mr. White, rescind it.

Our conclusion is fully supported and in accord with the case of Dean v. Nelson, 77 U. S. (10 Wall.) 158 [19 L. Ed. 926].

It was urged by counsel for the plaintiff, Dean, in the case cited, as it is contended in this case, that there was no consideration whatever for the assignment of the stock from Pepper to Nelson, citing in support of their contention Dorsey v. Packwood, 53 U. S. (12 How.) 126 [13 L. Ed. 921], The court, in Dean v. Nelson, supra, in meeting this contention held, “That Dean was concluded on the question of the sale of his stock. Had the transaction been merely an agreement for a sale upon the terms on which the sale was actually made, and this a bill by the vendees for a specific performance,” the ease could hardly be distinguished from Dorsey v. Pachwood, supra. But the court say, “Here the sale was actually made and the stock was actually transferred to Nelson, so that, in the absence of fraud, it became absolutely his.” In Dorsey v. Packwood, supra, it is held that an agreement wheréby the purchaser of a plantation bound himself to transfer to his son-in-law one-half of the plantation, slaves, cattle, and stock as soon as this son-in-law should pay one-half of the cost of said property, either with his own private means, or with one-half of the profits of the plantation; the court held the contract lacked mutuality. The son-in-law was not bound to render any service nor pay any money. It was a nudum pactum. There was no conveyance made, the promisor did nothing only give his promise. Mr. Cooper did more than give his promise to sell this stock, he caused the stock to be issued to White and delivered but received it again by indorsement, and held it as security for the payment of the price for which he sold the stock.

Under the facts and the law, we think this stock belongs to Mr. White and Mr. Cooper could not rescind the contract without White’s consent.

Under the contract, White is not entitled to receive or collect the dividends and appropriate them to any other use than the payment of the interest, the balance to be applied on the principal, namely, the $15,000, until it is fully paid.

The decree will be drawn in accordance with this finding of law and facts.

Decree for plaintiff with costs.

Affirmed by Supreme Court and on rehearing reaffirmed. Kirk v. White, 72 Ohio St. 615; Kirk v. White, 72 Ohio St. 691.

Donahue and McCarty, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ATTACHMENT AND GARNISHMENT — JUDGMENT.
    [Hamilton (1st) Circuit Court,
    1905.]
    Jelke, Swing and Gift'en, JJ.
    Theresa Esman v. Phillip Roller.
    Judgment upon Claim fob Necessaries is a Debt oe Demand fob Necessaries within Pubview of Lan. R. L. 8958 (R. S. 5430).
    A judgment rendered upon a claim for necessaries is a debt or demand for necessaries within the purview of Lan. R. L. 8958 (R. S. 5430), for the satisfaction of which 10 per cent of the personal earnings of the debtor may be attached.
    Error to Hamilton common pleas court.
    G. C. Wilson, for plaintiff in error.
    J. A. Deasy, for defendant in error.
   PER CURIAM.

A judgment rendered upon a claim for necessaries is a debt or demand for necessaries within the meaning of Subd. 6, Lan. R. L. 8958 (R. S. 5430), and of Lan. R. L. 8942 (R. S. 5414), and under proceedings in aid of execution upon such judgment 10 per cent of the personal earnings of a debtor may be subjected to its payment. Freeman, Judgments Sec. 244, and Lan. R. L. 9012 (R. S. 5483).

The judgment of the common pleas court will be reversed and cause remanded, with instructions to render judgment for the plaintiff in error upon the conceded facts.


author: WILDMAN, J.

text:
    ARBITRATION AND AWARD — FEES, COMPENSATION AND SALARIES — PARTIES.
    [Lucas (6th) Circuit Court,
    October 14, 1905.]
    Haynes, Parker and Wildman, JJ.
    Lem P. Harris v. C. R. Brand.
    1. Arbitrators Entitled to Compensation without Reference to Satisfactoriness of Award.
    Arbitrators are entitled to compensation for services rendered without reference to the question of the satisfactoriness of their conclusions to the parties.
    2. Arbitrators may Recover their Compensation from a Party to an Arbitration UNDER THE TERMS OF THE AGREEMENT TO ARBITRATE.
    The rule which obtains in this state, that one may sue on a promise made for his benefit to a third person, is applicable in the case of an agreement of arbitration, in favor of the arbitrators where compensation is provided for in the agreement.
    3. The Obligation of the Parties to the Arbitration Joint and Several.
    The parties to an agreement to arbitrate may be sued jointly or severally by an arbitrator, for his compensation, if consistent with the terms of the submission and award.
    Error to Lucas common pleas court.
    King & Tracy and H. N. Lloyd, for plaintiff in error.
    Seney, Johnson & Seney, for defendant in error.
   WILDMAN, J.

This is said to be one of three actions which involve substantially the same questions now pending in this court upon petitions in error. Only one of the cases, however, has been submitted to us and whether there are any points of difference which might involve separate hearings, we are not advised.

The plaintiff in error with one Arthur L. Mills and Thomas F. Whittlesey were appointed and acted as arbitrators to determine certain disputes existing between the defendant in error and the Toledo, St. Louis & Western Railroad Company, under and in pursuance of an agreement set forth in the pleadings in the case below. The court below, upon motion of the defendant, entered judgment in the defendant’s favor. Lem P. Harris, as I have said, was one of three arbitrators, chosen in the dispute between Brand and the railroad company, and, after the rendition of certain services by the arbitrators in the carrying out of the duties placed upon them by the arbitration agreement and their acceptance of it, Harris brought suit against Brand for compensation as such arbitrator. To arrive at the exact point upon which the case'was disposed of in the court below, reference may be had to the docket entry which is recited in the brief of one of the eóunáel, and which gives the ruling of the court and the reason therefor:

“Submitted upon motion by defendant for a judgment on the pleadings. The precise question involved was decided in Bates v. Townley, 2 Exch. 164. Arbitrators are not parties to the contract of submission, and cannot sue upon it. They are entitled to compensation for services rendered and, both parties to the contract having jointly requested the same, both jointly and not each severally, are liable therefor. Petition dismissed at costs of plaintiff. Plaintiff excepts.”

This naturally invites an examination of the case to which reference is made by the trial judge in Bates v. Townley, 2 Exch. 164. The case did not arise in precisely the same form as that presented by the case at bar. It was not a suit, as finally decided, by the arbitrator for compensation, but one of the parties to the agreement for arbitration, having made, as he claimed, a payment of the other party’s share of the compensation to the arbitrators, indeed claiming that he had paid the entire compensation, sought to recover in the way of contribution, one-half of the amount which he had paid. It was claimed in the case that the arbitrators had not acted strictly in accordance with the requirements of the contract of submission. Two arbitrators were named in the contract and they were authorized to select a third arbitrator and indorse the fact of his appointment upon the contract of arbitration. This they failed in part to do. They proceeded with the reference and appointed a third arbitrator, but his appointment was not indorsed upon the submission, as required of them. Subsequently the three arbitrators made their award, whereby they found that there was due from the defendants to the plaintiff the sum of something over two thousand pounds, which they directed that the defendants should pay to the plaintiff; and they did further award:

“That the costs of the reference and award, including compensation to.the arbitrators, should be borne as follows: that is to say, one moiety thereof by the-plaintiff, and the other moiety by the defendants. On the twenty-second of February the plaintiff took up the award and paid the whole costs of it, amounting to 25 L., 8s., 9d., and on the following day served the defendants with notice thereof, but there was no express request to pay,” — that is, the plaintiff paid it without being requested so to do by the defendants.
“The plaintiff now sought to recover 12 L., 14s., 9d., the moiety of those costs, as money paid for the defendants’ nse. The declaration contained a count on the award, which had been demurred to, and judgment given for the defendants, 1 Exch. 572; so the plaintiff now relied upon the award itself as evidence of an account stated. On the part of the defendants, it was objected that the plaintiff was not entitled to recover the moiety of the costs as monejr paid for the defendants’ use, on the ground, first, that the award was not binding, the appointment of the third arbitrator not having been indorsed on the submission; secondly, that the costs of the reference were not ascertained, either by the award or by the taxation of the court.”

A careful examination of the case discloses that this latter clause is made an element in the final adjudication by the court.

The court avoids any decision as to whether the three arbitrators should be joined; but does hold that the plaintiff who paid the entire amount of the award might have been compelled to do so by reason of the fact that his obligation was joint with that of the other party to the award. It will be noticed that the court does not hold that the arbitrators might not also at their option, have the right to sue eithér of the parties to the award severally. We might tarry for a moment and consider the fact that we have three kinds of obligations upon contracts: The obligations may be joint, or may be several, or they may be joint and several. Now while that court held that this obligation was joint, so that the arbitrators might have sued all of the parties to the award together, they did not hold that the arbitrators might not, in their discretion, have sued them severally; nothing is said upon that subject. It is held that the contract is joint, but it is not held, and it was not necessary to hold, that it might not also be several. The liability of one of the parties to the award to be sued and required to pay the entire compensation might be a justification for his paying it in its entirety and then suing the other party who had contracted with him, for contribution. That is about all that the court here was compelled to hold upon this point, but the case finally went off on another. The result would have been the same, whether the obligation was joint, or whether it was joint and several.

“The first point to be considered is, whether both the parties were jointly liable to the arbitrators to pay them for their trouble. This 'depends upon the question, whether the arbitrators were parties to the submission, and agreed to be paid on the terms contained in it only. If they were, then they had a remedy only against each for the part which they by their award should direct each to pay, and so this action could not be maintained.”

That would be true if the contract was several, not joint. Then if one of the parties paid that part which the arbitrators decreed should be paid by the other, he would be a mere volunteer and he could not recover the amount so paid.

We are not satisfied that the precise point presented in the case before us was decided by this case of Bates v. Townley, supra, as the judge below seemed to understand it. It is true that the English court did hold, as the court below holds, that arbitrators are not parties to a contract of submission and cannot sue upon it; but the court does not discuss the question as to whether in considering the rights of arbitrators, if they had brought suit they would or would not have been entitled to sue the contracting parties severally instead of jointly. They are only holding in substance that they had a right to sue them jointly, that the parties had jointly bound themselves.

In 3 Cyc. 726 under the head, “Implied Assumpsit Will Lie,” I find this language:

“Inasmuch as the arbitrators are to be regarded as .acting for all of the parties, the liability is joint and several, and an action of implied assumpsit may be maintained, either jointly or severally, against one or all of the parties.”

A number of cases are cited under this paragraph, and we have examined them all with care. We are.not entirely satisfied that this-general statement in the text, is borne out by the authorities cited, and we are inclined to look a little further into the condition of our Ohio law to determine whether or not one of the arbitrators can sue one of the parties to an agreement for an arbitration without joining the other. There seems to be no question in .the contention of the parties that the arbitrators would be entitled to compensation, if they performed the duty placed upon them by the agreement of the parties. The court below in this docket entry says they are entitled to compensation for services rendered, and we believe that is correctly stated, if they rendered the services, and it is of no consequence whether the parties are satisfied or are pot satisfied as to the conclusions arrived at by the persons to whom the contractors submitted their matters of difference.

In Lawson, Contracts Sec. 113, this rule is stated:

“It is a principle of the common law that one cannot acquire rights under a contract to which he is not a party, and hence no right to enforce a contract is given to a person not a party to it or the assignee of such party.
“In the code states, the statutory provision that every action must be prosecuted in the name of the real party in interest, gives the party for whose benefit a contract is made, the right of action. And even independent of the codes, the modem American rule is, that where a person makes a promise to another for the benefit of a third person, the latter may maintain an action upon it.”

I think no principle has been more firmly settled in Ohio than the one embodied in this last clause that, “Where a person makes a promise to another for the benefit of a third person, the latter may maintain an action upon it.” Perhaps it is not necessary to cite authorities, but in passing it may be well enough to remind ourselves of some of them. 1 Bates, Pleading 1; Crumbaugh v. Kugler, 3 Ohio St. 544; Thompson v. Thompson 4 Ohio St. 333; Emmitt v. Brophy, 42 Ohio St. 82; Irwin v. Lombard University, 56 Ohio St. 9, 21 [42 N. E. Rep. 63; 36 L. R. A. 239; 60 Am. St. Rep. 727].

Indeed the authorities are numerous that recognize in one form or another this principle that if A promises B that he will pay something to C not only may B have the right to insist upon a fulfillment of the obligation, but C also may take advantage of it, although no consideration moved from him.

This must be treated as a common-law arbitration. Brand asserts in one of his pleadings that by a supplemental contract it was agreed that the award of the arbitrators should be made a rule of court; but that supplemental contract was denied in the reply of Harris, and, as the court rendered judgment upon a motion for judgment upon the pleadings, it cannot be taken as conceded that the parties entered into any such agreement. It was not disputed, and so was to be taken by the court as conclusively shown by the pleadings, that they entered into the original contract for arbitration; and that contract did not provide for any order of court. It provided only that the award should take the place of proceedings in court, and that the case in the court should be dismissed. Perhaps the language of the contract should be read, not only in this connection, but as bearing upon another matter to which I am about to come. In the answer of Brand this agreement for arbitration is copied. It reads as follows:

“Agreement.
“Made this thirty-first day of July, 1903, between Toledo, St. Louis & Western Railroad Company hereinafter called the first party, of the first part, and C. Rudolph Brand hereinafter called ■second party of the second part.
“Whereas, in an action now pending in the common pleas court of Lucas county, Ohio, and entitled C. Rudolph Brand v. Samuel Hunt, Receiver of The Toledo, St. Louis & Kansas City Railroad Company, et al., Defendants, the second party claims the sum of seventy-eight hundred dollars ($7,800) as rental for the alleged use by the first party and its predecessors in title, of a certain side track, the property of the second party, and leading from the main line of the first party to a certain quarry owned by the second party near Neowash, Lucas county, Ohio, from the year, 1893, to the date of the commencement of said action on June 23, 1900.
“And whereas, said second party in said action further claims the sum of four thousand dollars ($4,000) as compensation for damages alleged to have been caused to said track by the first party and its predecessors in title in the use thereof, all of which more particularly appears in the second amended petition in said action filed.
“And whereas, the parties have agreed to submit the questions arising in said action to arbitration, subject to the limitations and conditions hereinafter' contained.
“Now therefore, it is hereby agreed that the disputes and differences between the parties as in the said second amended petition set forth, but subject to the limitations hereinafter contained, shall be referred, and the same are hereby referred to, to the arbitration and determination of Lem P. Harris of Toledo, Ohio, and A. L. Mills of Toledo, Ohio, arbitrators nominated by the said parties respectively, or in case they shall not agree in making an award,' then as regards the matter or matters to which they shall disagree, to the umpirage of such persons as the said arbitrators shall in writing, before they enter upon the said arbitration, appoint and that the questions to be determined by said arbitrators shall bé as follows:
“1. Whether or not the said track was used by said first party or its predecessors in title between April 10, 1896, and June 23, 1900, was damaged by the improper use thereof as in said second amended petition alleged, and if so, what compensation, if any, said second party is entitled to for damages.”
“The said arbitrators shall not take into consideration any use of or damage to said track occurring prior to the tenth day of April, 1896, or subsequent to the twenty-third day of June, 1900.
“The said arbitrators shall make and publish their award in writing and deliver the same to the parties on or before the-day of .-- next, or on or before such subsequent date to which the said parties shall in writing extend the time for making said award.”
“The said action pending between the parties aforesaid shall be continued, and all proceedings therein stayed, and upon the making of said award, said action shall be dismissed and the costs thereof together with the expenses and costs of this reference awarded by said arbitrators in their discretion to either or both of the parties hereto.”
“The award herein shall be binding upon the parties and the said parties hereto agree each to the other, that he will not bring or prosecute any action in any court against the other, or against the arbitrators or either of them, concerning the matters in difference, or any of them, and that the award of the arbitrators shall be a bar to the prosecution of the aforesaid action now pending between the parties, or to any other action for compensation for the use of, or damage to the said track which otherwise might or could hereafter be commenced by them.
“In witness whereof, the said Toledo, St. Louis & Western Railroad Company has, hereunto caused its corporate name to be subscribed, and the said C. Rudolph Brand has hereunto subscribed his name on' the day and year first above written.
“Witness the signature of Toledo, St. Louis & Western Toledo, St. Louis & Western Railroad Company,
Railroad Company: By Benj. Norton, President.
“E. S. WORTHEM, C. Rudolph Brand.
“Chas. A. Schmettau.
“Witnesses to the signature of C. Rudolph Brand:
“L. W. Ishmund,
“L. A. SlEDEL.”

Now it may be said that the defendant in answer claims that the arbitrators failed to make all the findings referred to in this agreement for arbitration; but the issue thereby tendered .is met in the reply of the plaintiff which denies the allegation that they failed to do these various duties devolving upon them by the arbitration, so that for the purpose of this inquiry, this issue being made, the court would not be justified in finding that the arbitrators had failed to perform the services.

We are inclined to think and to hold, that the principle which has obtained in Ohio, that where one person makes a promise to another for the benefit of a third, .such third person may maintain an action upon the promise, applies to the agreement between these persons and to the extent that it contemplates a compensation to the arbitrators that they would be bound by any such award as the arbitrators might make, as to the expenses and costs of the reference, and that the arbitrators might award these expenses and costs in their discretion to either or both of the parties hereto.

The petition of the plaintiff below alleges that by the award made by the arbitrators, they found and determined that, “The defendant and said railroad company should each pay the cost of witnesses, by them respectively called in said arbitration proceedings, but that all other costs and expenses should be equally divided between them; that the costs of said arbitration proceedings were thereby fixed at $600, $200 to each arbitrator; that the services of the plaintiff as arbitrator in said arbitration proceedings were reasonably worth the said sum of $200; that this defendant has not paid, and refuses to pay his share of said $200, to wit, $100, or any part thereof, although often requested < by plaintiff so to do,” — $100 being the amount sued for.

We think, under all these circumstances, in view of the claim of the plaintiff that the services had been performed, that the services were worth the amount charged; that the arbitrators in their award had fixed the share that each one of the agreeing parties should pay, and in view also of the general principles to which I have referred, that the defendant was not entitled to a judgment upon the papers, upon his motion therefor.

There is another matter which was stated in argument, and I think without dispute, although I have been unable to find it in the pleadings; and that is, that the railroad company had paid to the arbitrators its proportion of the expenses, including the compensation of the arbitrators. If this had appeared upon the pleadings it might present still another interesting question. As the case will go back to the court of common pleas for further consideration, I simply call attention to that matter by way of suggestion to counsel.

Laning R. L. 4881 (R. S. 3162) provides as follows:

“When a partnership is dissolved, by mutual consent or otherwise^ any partner may make a separate composition or compromise with any creditor of the partnership; and such composition or compromise shall be a full and effectual discharge to the debtor who makes the same, and to him only, of and from all and every liability to the creditor with whom the same is made, according to the terms thereof,”

Laning R. L. 4885 (R. S. 3166) provides:

“The above provisions in reference to partners shall extend to other joint debtors, who may, individually, compound or compromise for their joint indebtedness, with the lite effect in reference to creditors and to joint debtors of the individual so compromising, as is above provided in reference to partners.” •

Under all the circumstances, we feel that the judgment of the court below should be reversed and the ease remanded for further proceedings.

Haynes and Parker, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    October 21, 1904.]
    Haynes, Parker and Wildman, JJ.
    Henry Marshka v. Republic Iron & Steel Co.
    Allegation that Master Assured Servant of Safe Character of Work, not Sustained by Proof of such Assurance Respecting Similar Job.
    An employe engaged in the operation of a certain machine for cutting iron, who had been in charge of the same for six months, will be held to have assumed as a risk incident to his employment, the danger arising from the cutting of two pieces of iron bolted together at the ends, where it appears that there was no special request on the part of the master that he perform the job in question and no specific assurance that such work was without hazard; and an allegation that plaintiff had been assured by the master that there was no danger connected with such work will not be sustained by proof that a superior servant representing the master had at a time prior to the accident assured the plaintiff that another operation consisting of the cutting of two pieces of iron similarly bolted together was not hazardous, where it appears that the deduction could not reasonably be made therefrom that the cutting of other pieces so bolted together, but of varying thicknesses and degrees of hardness, could also be performed without danger.
    Error to Lucas common pleas court.
    C. A. Thatcher, for plaintiff in error.
    Holbrook & Monsarrat, for defendant in error.
   WILDMAN, J.

The plaintiff in error, who was plaintiff below, brought a suit against the defendant, claiming a verdict because of a certain injury sustained, as he claimed in his petition, by reason of the negligence of the defendant. The plaintiff was an employe of the defendant and was engaged in the operation of a certain machine or device designed for cutting iron in the shop or factory of the defendant; and while so engaged on March 26, 1904, he sustained the injury described in his 'petition. He was engaged in cutting two pieces of iron fastened together by bolts at the ends; and he alleges in his petition that to attempt to cut two pieces of iron so bolted together was dangerous; that he was unaware of that fact; that he had been instructed by a superior employe, representing the company, that the work could be conducted without hazard.

To state the matter a little more specifically, he alleges that sometime prior to March 26, 1904, the date of-his injury, the defendant company had pieces of iron so bolted together placed with other material, which the plaintiff was required to cut; that the plaintiff told the superintendent and foreman over him and in charge of his work, that he feared that he might receive injury in attempting to cut two pieces of iron fastened together; that said superintendent and foreman told plaintiff that there was no danger in doing said work and requested and required plaintiff to continue to do said work, and then he alleges that in the operation of the machine on the day of the injury and while so engaged in cutting iron he was required to cut two pieces of iron so fastened together; that, while so doing, said pieces of iron flew from the machine in such manner as to strike plaintiff’s right arm and fracture both bones thereof' between the wrist and elbow. He alleges that the defendant was careless, and negligent in requiring and requesting plaintiff to cut two pieces of iron so bolted together. He-says that he did not know and had no means of knowing of the danger to which he was exposed and continued at work relying upon the assurance of his superior that the same was safe; that the defendant kne'w, or, by the exercise of ordinary care should have known, that to require the plaintiff to cut two pieces of iron so bolted together in said machine would expose plaintiff to the danger of receiving bodily injury-

After the introduction of the plaintiff’s evidence the court arrested the case from the jury and directed a verdict for the defendant, and to this order and ruling exception was taken, and the plaintiff preserved his rights in the usual form.

It appears by the evidence that upon some previous occasion this plaintiff had received another injury while operating the same machine. It does not appear as to just how that prior injury was caused, but it also appears, and perhaps might fairly be inferred, if it did not appear, that the plaintiff had some apprehension of injury at almost all times while operating the machine; and indeed, in the very transaction which is the basis of this ease, the plaintiff indicated by his conduct, as it seems to us, a sort of nervousness or fear that injury to him might result from his work. There is no claim whatever of any defect in the machine itself. There is no claim that there was any negligence of any kind on the part of the defendant company, except as stated in the petition, “in requiring, and requesting plaintiff to cut the two pieces of iron so bolted together.” There is no charge in the petition that the defendant was otherwise negligent in the giving of the directions which thé plaintiff received. It is alleged, to be sure, in the petition, that he received assurances from the superior that it was safe to do the work in the manner described, or safe to cut two pieces of iron while bolted together; but he alleges that, rather in the way of exonerating himself from any charge of contributory negligence than in the way of charging the defendant company with negligence in the mere assurance, to him, that it was safe to do the work-.in this way. The only allegation of negligence as against the defendant company that I can find in the petition is the allegation that the defendant was careless and negligent in requiring or requesting him to cut two pieces of iron so bolted together.

Now we think this was a danger incident to the business; that the danger was reasonably apparent; that the plaintiff did apprehend it; and, unless the case is analogous to that found in one of the decisions by our Supreme Court, Van Duzen Gas & Gasoline Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998], the plaintiff would not be entitled to recover. The Yan Duzen case laid down a' general proposition which has been not seldom misapplied by counsel in the trial of personal injury eases, and an effort has been made to extend the doctrine therein expressed to cases which do not stand on all fours with the case in which the doctrine was enunciated. That was a ease where the person injured had been peremptorily directed to go into a place of danger, and the Supreme Court held in substance, — I have not the case now before me, — that where the danger was not so obvious as to have prevented any man of ordinary prudence from obeying the order to do the hazardous work, he would not be prevented from recovery against the company giving the direction to do the work, notwithstanding the fact that the danger was not a concealed danger. I have before me the case of Cleveland v. Wolf, 25 O. C. C. 406. The syllabus reads:

“A charge to the jury in an action by a servant against the master to recover for damages resulting from the negligence of the latter, is improper, which permits the jury to conclude that the servant would not be guilty of negligence by reason of obeying general orders of the master unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it, and which wholly ignores the question of assumed risk, it appearing from the evidence that plaintiff was engaged at the time in the performance of his usual and ordinary duties which he had been engaged in for several years for the master, and it also further appearing that no special or peremptory orders or instructions were given to the servant on the particular occasion. In such case, the court should define the kind of orders or instructions which would relieve the servant from the thought, care and scrutiny which he otherwise would be bound to exercise in the discharge of an ordinary duty which had in it certain elements of danger which he assumed while so engaged.”

The judge announcing the opinion says, on page 407:

“There was no evidence produced showing that Wolf was peremptorily ordered into the trench at the time he was hurt. He himself says, upon cross-examination, that he always knew his duty and went down into the trench without being told, and that the pipe was put in the trench that day in the same way and in the usual manner of putting pipes in trenches. Wolf had worked for the city twelve or thirteen years, the first five or six years in digging water pipe trenches, and the remainder of the time in putting water pipes in position at the bottom of the trench and connecting them together — the very things he started to do when he was injured.”

After some consideration of these facts in connection with the rule announced in Van Duzen Gas & Gasoline Eng. Co. v. Schelies, supra, the court concludes that the proper rule is set forth by the Supreme Court in the case of Northern Ohio Ry. v. Rigby, 69 Ohio St. 184. I have this ease also before me and deem it pertinent to the case at bar. I quote the decision of the court as expressed in the syllabus:

“2. In the trial of an action brought by an employe, against a railway company, to recover for injuries sustained by the explosion of a car heater on a passenger coach, while he was attempting to thaw out the frozen water pipes while the car was standing in the yards of the company; and where the evidence tends to prove that the heater was without a steam gauge to the knowledge of the employe, and that the explosion was caused by the use of a solid plug in the drum of the heater instead of a safety valve, which plug was put in by the employe a few days before the explosion by direction of his superior; and where the evidence further tends to prove that the employe was an experienced foreman of car repairers, and familiar with the system of heating used on said car, and with the proper method and means of thawing ont the water pipes when frozen; and where the only order from the superior was a telegram to get the car ready for use; to charge the jury without further explanation, that: ‘If you find at the time of the explosion and for several days prior thereto, there was no safety value in the drum of the Baker heater in car 22; that said safety valve had been removed and replaced by a solid plug, and that Rigby knew of these facts when he attempted to thaw out said heater at the time of the explosion complained of; and further, if you find that said explosion resulted wholly from the fact that said drum had a solid plug instead of a safety valve, then Rigby would nevertheless be entitled to recover in this action if you find by a preponderance of the evidence that in attempting to thaw out said heater, as he did, he was acting in obedience to a positive order of his superior, that a person of ordinary prudence would, under the circumstances, have obeyed such order, and that in obeying such order he used ordinary care,’ is misleading and 'erroneous.
“3. Where the superior, while absent, sends an order to an employe to perform certain work or duty, but leaves to such employe the selection of the means and manner of performing' the service, the doctrine of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298, does not apply.”

I will not tarry to call attention to the reasoning of the judge to sustain the doctrine laid down in the syllabus by the court; but it is enough to say that the case at bar has many features paralleling those in Cleveland v. Wolf, supra, decided by the Cuyahoga circuit court and the case to which I have just referred, the case of Northern Ohio Ry. v. Rigby, supra. The plaintiff in this case had been for some time employed in the operation of this particular machine, and for a period of about six months, he was in charge of it; he had had experience in the cutting of different kinds of iron, and upon more than one occasion he had had occasion to cut bars or pieces of iron bolted together; and that he clearly apprehended some hazard from the work in which he was employed, is very apparent from all the evidence.

Now there is another circumstance, which to the mind of the court makes the ruling of the court below entirely justified by the circumstances here. As I have said, the only negligence complained of was the giving the direction to this man to cut bars or pieces of iron when bolted together. The evidence clearly discloses that the machines did not at all times and under all circumstances work alike; that is to say, that the manner in which the machines would cut would vary with the hardness of the metal sought to be cut, with perhaps the size or length of the pieces and some other conditions. It does appear by the testimony that upon a prior occasion the plaintiff had been assured, in substance, by one Jones, his superior, that the work which he was then complaining about would be safe, and Jones went on and did it himself with apparent safety; he cut some pieces of iron which were bolted together without any resulting injury to himself, and the plaintiff saw him do it; and upon the assurance that it was safe, it is possible that the-plaintiff continued in the work and thereafter without any instructions cut all kinds of material when so bolted together. Whether they were precisely like the pieces which were cut by the superintendent Jones upon the occasion when he gave the instructions to the plaintiff does not appear; that assurance, after all, was at the best but an opinion of the superintendent; and the work was not so complicated, it was not so difficult to ascertain whether it was safe or perilous, as to excuse the plaintiff from any observation for himself. It was emphasized to some extent by one witness, that while it might be dangerous to cut steel when so bolted together, it might not be so dangerous to cut. iron. I am referring to the testimony of the witness, Hathaway, found at the bottom of page 7 and some paragraphs following.

Now the conditions when the superintendent gave instructions may have been altogether safe conditions. He did not say, so far as the testimony discloses, “You may go on cutting bars of iron at all times and under all circumstances when you find them bolted together and you can do it with safety. ’ ’ There was no assurance of that kind, no expression of opinion along that line; but the only expression was, that upon that particular occasion, with that particular iron bolted together, just as it was, in the opinion of the superintendent, it was safe to do the work. It appears from the testimony of Marshka that the iron which did the injury was made up of a sort of strap or bar iron, and a round or cylindrical piece or rod about an inch in diameter which was bolted to it at the ends; the rod or bar, whichever it was, that was cut by the superintendent was only three quarters of an inch thick. It does not seem to be a very great difference and yet it might be just the difference which would make' the one operation safe and the other perilous.

, Again,^the regulation of the speed of the machine might have something to do with the safety or the peril. Mr. Marshka in his testimony on page 20 says that he could regulate the speed of the machine. There are so many circumstances that are to be taken into account in the determination as to whether the instructions were negligent or not, and there was such an utter failure to show that the conditions were precisely the same on the day in March when Mr. Marshka received the injury and on the prior occasion when the superintendent gave the instruction that the court was justified in not permitting the case to go to the jury and allow the jury to guess that the instruction was to be construed as one applicable to the work on the day of the injury and with the materials which were then to be operated upon. Again applying the principles of Cleveland v. Wolf, supra, and Northern Ohio Ry. v. Rigby, supra, already cited, there was no peremptory order on the day of the injury to go into a place of danger; he was simply doing the work as in Cleveland v. Wolf, supra, as stated by Judge Winch of the Cuyahoga circuit, in the usual way of doing it, the way he had been accustomed to do it for months. There was no special direction upon that occasion. The hazard seems to have been altogether apparent, and we think that it is the kind of a hazard which was assumed when he accepted the employment, and with regard to which it is to be presumed that his compensation was fixed. Under all the circumstances we think that the court did not err in arresting the case from the jury and directing a verdict for the defendant.

The judgment will be affirmed without penalty.

Haynes and Parker, JJ., concur.


author: DONAHUE, J.

text:
    WARRANTY — SALES—RESCISSION.
    [Fairfield (5th) Circuit Court,
    September 23, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    John Allen v. Charles Hass.
    Warranty Must Be Both False and Fraudulent, in Action to Rescind Contract and Recover Purchase Price.
    An action will lie for the rescission of a contract of sale and the recovery of the purchase price where the vendor’s warranty was both false and fraudulent; if however, the warranty was falsely, but not fraudulently made, the vendee’s remedy is a suit for damages for the breach.
    Error to Fairfield common pleas court.
    L. G. Silbaugh, for plaintiff in error.
    C. W. McCleery, for defendant in error.
   DONAHUE, J.

In this case the trial court made a mistake in his charge to the jury, and one which it is very evident that the court did not intend to make at the time of the charge. The court’s opinion of the law was very proper under that issue, and he was endeavoring to give to the jury a clear idea of the two remedies that the plaintiff might have in this case, but in some unfortunate way he omitted to state that the warranty must be fraudulent as well as false before the full purchase price can be recovered in an action to rescind. ¥e think there is no question in Ohio upon this heretofore disputed point that if a contract be procured by fraud, the buyer may rescind the contract and recover the purchase price, but for a mere false warranty, that is, a mere breach of the contract of warranty, he must sue for damages. One is an action to rescind and recover the purchase price. The other is an action for damages for breach of the warranty. It is true that those damages may be equaled by the amount of the purchase price. But the evidence here does not sustain such a verdict. If such a verdict were returned after a proper charge on the subject of fraud, we would feel obliged to reverse it as being against the weight of the evidence.

It does clearly appear to us that, because of the unfortunate fact that those two or three words were left out of the charge, the jury did take it as their right to return a verdict for the whole purchase price and rescind the contract. We are compelled to reverse the case for failure of the court to state to the jury that before there could be a rescission of the contract and recovery of the full purchase price, the jury must first find that the warranty is fraudulent as well as false.

If the evidence supported the verdict, we would not disturb it. The verdict is contrary to law as we view it. When a thing is warranted fit for a special purpose, fraud is not necessary to a rescission of the contract. This action does not belong to that class of cases. This horse was warranted not to go lame. He was fit for the purpose for which he was sold at the time of the purchase and for five or six months after-wards. Therefore this case is not within the line of cases cited in the Cullen v. Bimm, 37 Ohio St. 236. An exception to the charge of the court would not be necessary as we hold the verdict is contrary to the law and the evidence.

Exception noted by defendant in error.

Voorhees and McCarty, JJ., concur.


author: HULL, J.

text:
    NEGLIGENCE — DAMAGES—EVIDENCE.
    [Lucas (6th) Circuit Court,
    March 4, 1905.]
    Hull, Haynes and Parker, JJ.
    Toledo (City) v. Lena Fuller.
    1. Existence of Certain Street Sufficiently Proved, when.
    The fact that there was a street called “Sycamore street” as alleged in plaintiff’s petition in a personal injury case against a municipality, is sufficiently established for the purpose of the case wherein such question is raised where its existence was assumed by counsel for the plaintiff and , the municipality in the examination of witnesses, and some of the witnesses testified that they lived on, or had been on, and used the sidewalks of, a street commonly called by such name, and there is no evidence to the contrary.
    2. Person not Bound to Leave a Defective Sidewalk, etc.
    A person is not bound to leave the sidewalk and go into the roadway of a street because he knows the sidewalk is out of repair, and his act in keeping on the sidewalk is not sufficient to charge him with contributory negligence where the evidence shows that, while upon the sidewalk, he was conducting himself as an ordinary prudent person would under the same or similar circumstances.
    3. One Walking on Defective Sidewalk must Exercise Care Commensurate with Danger.
    One knowing a sidewalk to be out of repair may nevertheless walk upon it, but he must use care commensurate with the danger of the situation, i. e., ordinary care under the circumstances.
    4. Plaintiff’s Evidence not Sufficient to Show Negligence, when.
    Where plaintiff, who was an uneducated woman and in the ordinary walk of life, in response to a question asked her upon cross-examination as to whether she exercised the same care while walking upon the defective sidewalk as she did when walking upon another street which was in good repair, answered that she did, her response will not be considered as sufficient to show that she was guilty of negligence with respect to walking on the defective sidewalk.
    5. Verdict for $1,000 not Excessive, when.
    A verdict for $1,000 in favor of a woman who was injured by falling on a defective sidewalk is not excessive where it appears that the bone at the elbow was fractured; that her arm had to be kept in a plaster cast for several weeks, that she is unable to straighten her arm which has to be kept at an angle; that she is unable to open and close her hand, and that by reason of such injuries she not only suffered great pain, but has also become a dependent upon county charity.
    Error to Lucas common pleas court.
    U. G. Denman, city solicitor, and C. K. Friedman, assistant city solicitor, for plaintiff in error.
    L. H. Wilkinson and G. W. Kinney, for defendant in error.
   HULL, J.

This action was brought in the court below by Lena Fuller to recover damages for a personal injury which she claims to have sustained on account of the negligence of the city in regard to a certain sidewalk, .which she says was on ‘ ‘ Sycamore street. ’ ’ Her claim is, that the boards of the sidewalk were loose; that while walking over it, towards evening, but while it was still daylight, with another who stepped upon and tipped up a loose board, she was tripped and fell injuring her arm and other parts of her body. On the trial below she was awarded a verdict of $1,000. Judgment was entered upon this verdict, and it is to reverse that judgment that proceedings in error have been begun in this court.

It is claimed by the city, first, that there was no such street at the place where she alleges she was injured; that the evidence does not show that there is any such street as ‘ ‘ Sycamore street, ’ ’ ás it was called by the plaintiff, and that question may be considered first; for, if there is no such street and no liability on the part of the city to keep it in repair, that, of course, is the end of the case. There were no witnesses called on the part of the plaintiff to testify that the place where she fell was a part of the street or that it ever had been dedicated as a street or established as such by the city. It was alleged in her petition that she fell on “Sycamore street.” That was denied, along with the other allegations of the petition, by a general denial — there is no specific denial in the answer of the allegation in regard to the street. The ease was tried as though there was no question about this being a street and so tried by both plaintiff’s and defendant’s counsel.

Witnesses were asked about the street — witnesses for the plaintiff —and were cross-examined by counsel for the city as though it was an admitted fact. Almost the first question asked of Mrs. Fuller, the first witness, when she went upon the witness stand, was: “Where do you live?” And her answer was: “On Sycamore street.” And when it came to the cross-examination she was asked by counsel for the city: “Now, Mrs. Fuller, you were living down on Sycamore street, weren’t you?” And her answer was, “Yes, sir.” And many questions of the same character were asked of witnesses, by both sides, assuming that the place where she fell was in a street and that street was Sycamore ¡ street. Witnesses for the plaintiff were asked these questions, and when cross-examined by counsel for the city the same assumption is made in regard to this street.

Again, on cross examination of Mrs. Fuller, she was asked: “In going back to your house it was necessary for you to go up to Sycar more street from Summit?” and she answered that it was. And on page seven of the' bill of exceptions: “And before you lived there, you used to be on Sycamore street, quite a bit, didn’t you?” To which she answers: “Not very much.” And the same method is followed in the examination of defendant’s witnesses when they were called. A witness named Daniel Reams was called by the city, and the first question put to him is: “You live on Sycamore street?” And he answers that he does. He is asked if he has lived there some years, and he answers that he has. The witness, George Bolán, called by the city, was asked: “Mr. Bolán, where do you live?” and his answer was: “222 Sycamore street.” “Are you on Sycamore street between Summit and Water streets?” “Yes, sir.” And so it reads through the record.

No question was made at any time during the trial as to this being one of the streets of the city. The court charged the jury as though there was no question about it and no special exception was taken to it; we think a prima facie case was made here, beyond question, that this was a street known as “Sycamore street.” The witnesses testify, among other thing's, as to where it went — that it ran down to the Toledo furnaces and in the direction of the Yulcan Iron Works, and as to the number of people who travel on it down to the street below.

There was no denial of this, no effort on the part of the city to show that this was not a street, and, in the absence of any such evidence, it is clear to us that this does tend to establish the claim that this was a public street. It is not necessary to show that it had ever been dedicated or located as such by the city, but if used as a street for a long period of time, as this had been, apparently, and houses were built upon it, with numbers upon them, and having sidewalks upon it and people had been calling it a street, it is sufficient to establish the claim of the plaintiff that it was a public street, in the absence of evidence to the contrary; so that question may be passed without further discussion.

It is claimed and insisted upon by the city that the plaintiff was guilty of contributory negligence which caused or contributed directly to her injury, and that therefore, she cannot recover — her negligence consisting in her walking upon this walk without proper care. This walk had been laid along Sycamore street, apparently, a good many years ago, was a little out of repair, and for a portion of the way along the side of the street there was nothing but a cinder path. She came down from Summit street at the time in question and when she reached this strip of sidewalk, a man named Garrigan came up and offered to carry her basket of provisions, and she permitted him to do so; and they walked along the street together until' he stepped upon a loose board, which flew op and tripped her down. This walk was in. bad répair. The stringers were rotten; the nails were loose the boards perhaps loose. As they lay upon the stringers, it would be impossible to tell from their appearance whether they were loose or not. Some few of them were out, but not very many. The evidence does not disclose what the condition of the street was along there, — the roadway at the side of the walk, —whether it was passable for walking upon, but we understand the law to be, that one is not required to leave the sidewalk and walk in the road because the sidewalk is out of repair.

It is the duty of the city to keep the sidewalks in reasonable repair and citizens traveling upon the streets have a right to walk upon them and that is not contributory negligence; it does not constitute contributory negligence, alone, for one to walk upon a sidewalk that is out of repair; for, if that was the, law — if all the sidewalks in the city were in such bad condition as to make them dangerous — it would afford practically complete protection to the city, if it were true that one who walked on such a sidewalk could be found guilty of contributory negligence.

But we think the court charged the jury correctly upon that proposition : that one knowing the sidewalk to be somewhat out of repair, may walk upon it, but he must use care commensurate with the danger of walking upon the walk; he must, under the circumstances use what would be ordinary care. If some of the boards are out, and he knows it, he must look out for them, or if some of the boards are loose, and he knows it, he must use care according to his situation. The evidence does not show that Mrs. Fuller was walking in a careless manner upon this walk. She testifies that she was walking along and looking out; that she did not know that these boards were loose at this particular point. Apparently, she was walking along as well as she could, upon this day. She was asked, upon cross-examination, if she was exercising the same care that she had exercised when she was walking upon Summit street, and she says she did, and it is urged that this shows that she was guilty of negligence, as it is said she ought to have exercised greater care in walking upon this sidewalk which was so much out of repair.

That, however, was simply a remark of hers in answer to a question put by counsel. She was an uneducated woman, in the ordinary walk of life, making her living as a cook and living down on this street with this dilapidated walk, and probably did not comprehend the full import of the question, put as it was, and answered it as she did without consideration and we do not think that should be taken as proving absolutely that she was guilty of contributory negligence — that fact is to be determined by the evidence and by the manner in which she was in fact walking upon this sidewalk according to the testimony.

She was not required to walk in the road, where the Supreme Court has held that pedestrians ought not to walk; she was not required as a matter of law, to get off the sidewalk. She was apparently doing the best she could. She says she did not know that these boards were loose, and she probably would not have been thrown down if it had not been for the man walking with her stepping upon the board and tipping it up, which is quite a common way of being tripped up and thrown down. We are unable to find, upon reviewing the ease, that she should be held to have been guilty of such negligence as would preclude a recovery for her injuries. We do not cite any authorities upon this question. The law of contributory negligence is well established in these cases and they are governed by well-known principles of law. If she was conducting herself as an ordinarily prudent person would under the same or similar circumstances, that was sufficient, and we cannot say that she was not.

It is said that the damages awarded by the jury are excessive, and evidently appear to have been given under the influence of prejudice or passion. Quite a large number of physicians were called to testify in the trial. Soon after she was hurt she was taken to the hospital, and she claims that her shoulder was injured and also the bone at her elbow. The evidence shows that she fell very violently and that the bone in her elbow, known as the olecranon process, as one doctor says, at the angle of the elbow, was fractured. She also claims that her hand was injured. Since her injury and at the trial, she was unable to open and close her hand — the fingers were stiffened. Her arm is injured, the elbow being stiffened so that she is unable to straighten the arm, which has to be kept at an angle. It is urged by the city that the evidence shows that she had injured her wrist when she was a child. She denied that she had done so or that her arm had ever been injured before ; and it is urged that the stiffening of the fingers and of the hand could not have been produced by the injury at her elbow.

The evidence showed that she had sustained a very severe injury. This bone at the elbow was fractured; all, practically, agree upon that. Her arm had to be put in a plaster cast and kept there for several weeks. Since that time she has practically lost the use of her arm and hand, for the reasons that I have given. It is said that if she had moved her fingers and hand while the arm was in the east, that they would not have become stiffened by anchylosis, as it is called, which, the doctors say, comes largely from nonuse of the hands in case of a fracture or injury. The doctor who treated her testifies that he instructed her to move her fingers and hand. She differed with him somewhat. But we think she may not have done all that she might have done to move her hand, and the doctor at the hospital may not have instructed her as fully as he should.

However, she is now in this condition as the result of this injury. The use of her arm is practically lost. She is now at the poorhouse; was at the time the case was being tried and has been there for some time. She had been earning small wages, $2 to $2.50 per week, at cooking. She earned enough to support herself and enable her to rent her humble rooms on this street and to get her food. It looks as though she would never again be able to provide for herself in this way — as though she is practically deprived of ability to perform manual labor in the manner in which she had been accustomed to. She has suffered a great deal of pain on account of this injury. This question of damages has been argued very fully by counsel for the city, and therefore I have discussed it somewhat; but, after looking through the testimony, we are unable to say that the jury were influenced by prejudice or passion or that this verdict for $1,000 is excessive. It does not seem- to us that it is more than she is entitled to for the injury which she has sustained. She has lost her independence which she had before in life; she has become a dependent. To be sure she is in the poorhouse at the expense of the public, but that does not deprive her of her right to recover for damages which she has sustained. We cannot find, therefore, that the amount allowed by the jury, and the amount of the judgment is excessive, under the testimony.

No objection is made to the charge and no other objections are made than those I have mentioned. We'find no error in the record of the case; the judgment, therefore, will be affirmed.

Haynes and Parker, JJ., concur.


author: SULLIVAN, J.

text:
    CRIMINAL LAW — JUSTICE OF THE PEACE — ERROR.
    [Franklin (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    William Whitman v. State of Ohio.
    1. Transcript Attached to Plea in Bar not Part of Bill of Exceptions, when.
    Certified transcripts from the docket of a justice of the peace, attached as exhibits to a plea in bar, for the purpose of showing that the accused had previously been convicted of the same offense, but which are nowhere referred to or made a part of the bill of exceptions, cannot he considered by a reviewing court as a part of the bill itself.
    2. Plea in Bar must be Supported by what Evidence, etc.
    When a plea in bar to a criminal prosecution is offered, it must be supported not only by the record of a former conviction or acquittal of the same offense, but the accused must further prove that he is the same person charged in the record. Such a plea is not supported by merely attaching certified transcripts from the docket of a justice of the peace, showing a former conviction, as an exhibit, when the record fails to show that they were offered in evidence.
    3. No Presumption that Transcript Attached to Plea in Bar as Exhibits WERE OFEERED IN EVIDENCE.
    There is no presumption that certified transcripts from the docket of a justice of the peace, attached as exhibits to a plea in bar, were offered in evidence in the trial court, where they are not referred to, or made a part of the record.
    4. Plea in Bar Raises Issue of Fact, etc.
    A plea in bar presents an issue of fact, and requires evidence to support it, and a finding upon the evidence, all of which must be presented by a bill of exceptions taken as required by law, in order to be reviewed by a court of error.
    5. Judgment in Issue Presented by Plea in Bar Reviewed under Lan. R. L. 10147 (R. S. 6565).
    The judgment of a mayor upon the issue presented by a plea in bar, may be reviewed under favor of Lan. R. L. 10147 (R. S. 6565), independent of the other issues in the case, upon a bill of exceptions containing the evidence upon this issue alone.
    Error to Franklin common pleas court.
    E. C. Turner, for plaintiff in error.
    C. T. Clark, for defendant in error.
   SULLIVAN, J.

These cases involving substantially the same questions were presented and argued by counsel as one case, and what is said in the opinion disposing of the contention between counsel, applies to both cases. The record shows before proceeding to trial before the mayor, counsel for plaintiff in error, filed a plea in bar in shape of a motion. To this motion was attached, certified transcripts, from the docket of a justice of the peace, which were referred to in the motion, as certain exhibits claimed by counsel for the accused, as showing that the accused had been charged, tried and convicted of the same offense set forth in the respective affidavits before the mayor. These several transcripts are attached to the respective bills of exception, but nowhere referred to or made a part of the bill as required by the statute and therefore cannot be considered as constituting a part of the bill itself. Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640].

Counsel for the accused contends that because of the fact, as shown by the record, that a plea in bar was filed before the mayor, and that the transcript of the docket of the justice, before whom it was claimed the accused had been tried and convicted for the same offense, was attached thereto as an exhibit that he had done all that was necessary to support the plea, and that upon the mayor overruling his motion or plea in bar as designated by him that when he had his exception noted in the form of a journal entry, that Laning R. L. 10147 (R. S. 6565), had been fully complied with, and, that this court can review that proceeding of the mayor, though the transcripts referred to are not made a part of the general bill.

When a plea in bar is offered, it must be supported not only by the record of a former conviction or an acquittal of the same offense but the accused must further prove that he is the same person charged in the record. In these cases the act of attaching the transcript to the plea, was not an offering them in evidence. The record fails to show that they were offered in evidence. After the mayor overruled the plea in bar, the counsel for the accused excepted generally and then excepted specially because the court overruled the motion before reading the transcript. This is followed by a statement by counsel for the accused as to what the transcripts contained in bill of exceptions, page 405, but nowhere is it shown by the bill of exceptions that the transcripts were offered in evidence upon plea in bar or for any other purpose and that the mayor passed upon the competency or incompetency of them as evidence and it cannot be assumed that they were offered. Nowhere in the bill does it appear that the accused offered any testimony to show that he was the identical person stated in the record. Upon the failure of the accused to present any evidence upon his plea in bar, the court below could not do otherwise than dismiss it, which was accómplished by overruling the motion.

A plea in bar presents an issue of fact, and hence requires evidence, and a finding, upon the evidence; all of which, must be presented by a bill of exceptions, taken as required by statute. So that the judgment upon such issue may, if desired, be reviewed by proceedings in error. Under Lan. R. L. 10147 (R. S. 6565), the judgment of the mayor upon this issue could have been reviewed, independent of other issues in the causes, by proceedings in error, upon a bill containing the evidence upon this issue alone. The record simply shows, that a plea in bar was offered with no testimony offered to support it, and the overruling of the motion, must be assumed to be a judgment adverse to the accused because the plea was not sustained as required by law.

. We therefore find no prejudicial error to plaintiff upon this ground, and none in any of the other several grounds set forth in his petition. It therefore follows that the judgment of the court below must be affirmed at plaintiff’s costs.

Dustin and Wilson, JJ., concur.


text:
    TRIAL — MOTIONS AND ORDERS — CHARITABLE INSTITUTIONS — FEEBLE-MINDED.
    [Franklin (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Gustavus Doren et al. v. Joseph Fleming.
    1. Error in Overruling Motion to Arrest Case from Jury not Reviewed, when.
    An assignment of error based upon the contention,' that the erial court erred in overruling defendant’s motion to take the case from the jury and dismiss the action will not be reviewed on error when' the defendant after the motion was overruled elected to proceed with their testimony, introducing testimony tending to support in part claims made in the petition and not rely upon their claim that plaintiff had failed to prove this case,
    2. Courts do not Prescribe Rules for Charitable Institutions, etc.
    The court will not assume the authority to prescribe rules for the government of state charitable and benevolent institutions; their authority to interfere arises only where it is shown that the rules are unreasonable and subversive of the purposes for which such institutions are established and maintained.
    3. Rule Making Inmates of Charitable Institution Subject to Direction of Parents Reasonable, when.
    The rule adopted by the trustees of the state institution for the feeble-minded, that all inmates should be entirely subject to the direction of their parents, and be discharged therefrom upon their order or direction, is reasonable.
    4. Duty of Superintendent of Institution for Feeble-minded to Return Escaped Inmates, etc.
    When an inmate of the state institution for the feeble-minded escapes from the institution without any authority from his parents or those who were instrumental in Dlacing him there, a duty devolves upon the superintendent to have him returned. And where such superintendent had nothing to do with having such person admitted to the institution, except that he propounded certain interrogatories for the purpose of ascertaining whether he was a proper subject for admission, as authorized by the rules adopted by the trustees, he is not liable in damages for performing his duty in having such inmate returned.
    Error to Franklin common pleas court.
    Smith 'Bennett, for plaintiff in error.
    M. E. Thrailkill, for defendant in error.
   SULLIVAN, J.

Joseph Fleming, the defendant in error, on July 16, 1904, recovered a judgment in the court below against plaintiffs in error for the sum of $412.50, together with costs of suit. The suit was for damages and the trial was to a jury. Plaintiff’s motion for a new trial was overruled and a judgment entered upon the record against plaintiffs in error for the amount above stated. A bill of exceptions was taken by plaintiffs in error containing all the testimony submitted to the jury and is filed here, together with the transcript and original papers. Plaintiffs in error complain that said judgment is erroneous, and therefore ask that the same may be reversed for errors set forth in their petition, and apparent upon the record. Plaintiffs claim first that it is apparent from the record that the court erred in overruling their motion made at the conclusion of the testimony of plaintiff below, to withdraw the case from the jury and dismiss the action. This question cannot be considered by this court for.the reason that the defendants below after this motion was overruled, elected to proceed with their testimony, which testimony tended to support the claim of plaintiff in part that Fleming had not been admitted regularly to the institution, and not rely -upon their claim that plaintiff below had failed to prove his case. The other grounds of error assigned are:

First. That the judgment is against the weight of the evidence and not sustained by it.

Second. That the judgment is contrary to law.

Third. That the court below erred in overruling plaintiff’s motion for a new trial. The grounds of the motion for a new trial are the same as above stated.

Though separately stated there is really but one ground of error set forth in plaintiff’s petition and that is, that the verdict is manifestly against the weight of the evidence, and if this be true, then the verdict would be contrary to law. Hence the sole question here, is the verdict of the jury supported by the weight of the evidence or any evidence. It nowhere appears from the evidence that any of the plainr tiffs in error aside from Gustavus Doren, had anything to do with or were engaged in any way in bringing Fleming to the institution, in October, 1892, or that they in any way restrained Fleming while there and yet the verdict is a joint one, covering the entire period that Fleming was at the institution. This is not averred as error, and it is perfectly apparent from the evidence, if they are liable at all, it would be only for return of Fleming to the institution August 10, 1902.

Coming now to the consideration of the evidence, set forth in the bill, we find there is not a scintilla of evidence tending to prove that the superintendent of the institution, Gustavus Doren, was actuated by any improper motive, in receiving Joseph Fleming into the institution, or that it was done with any hope or expectation of any personal benefit to himself, and further there is not a scintilla of evidence that said superintendent received any personal benefit from any labor or anything done by Joseph during the entire period he was at the institution. If the proceedings taken for the admission of Joseph were irregular, the evidence shows that they were not inaugurated by the superintendent and such part as shown by the evidence taken by him was necessary and with the view to discharge his duty and for the benefit of the patient.

The undisputed evidence shows substantially the following state of facts:

Joseph was without a home. He had been driven from (lie home where he had lived for some seven years. His relatives, residents of Columbus, one being the sister of his father with full knowledge of his situation and condition did not want to furnish him a home, so they, together with the priest superintendent of the parochial school Joseph had attended up to that time, held a conference at which they determined from their knowledge of Joseph’s situation and mental condition that he was a proper subject and entitled to enter the state institution for the feeble-minded. The relatives of Joseph, or at least, some of them took steps to have him entered there. They stated that Joseph was fourteen years of age or thereabouts. The statute does not provide that the applicant should be first examined as to his or her mental condition, but authorizes the trustees to prescribe and publish instructions and forms for the admission of pupils, and they may include therein such interrogatories as they may think necessary or useful to have answered.

The trustees in pursuance of this authority did formulate and publish rules for the admission of applicants, and authorized the superintendent to submit such interrogatories as he thought should be answered by the parents, guardians, etc., of the applicant. The rules provide that applicants may be admitted by the superintendent with the advice and counsel of the executive committee. Laning R. L. 1108 (R. S. 671) provides who may be admitted. Any person of the class therein named are entitled to admission. The legislature for wise reasons no doubt, left with the trustees the authority to say what proceeding should be taken to enable them to determine whether an applicant was of the class named in Lan. R. L. 1108 (R. S. 671), supra. Interrogatories were propounded by the superintendent to be answered by persons presenting the applicant for admission. Numbers 7, 11, 12 and 26 relate directly to symptoms that would be a subject of inquiry, if an examination by some authority outside of the institution was required. In addition to this the superintendent testifies that he made an examination as to Fleming’s mental condition the day he was brought to the institution. True, Fleming denies this, but no other witness corroborates Fleming. The superintendent states that he found Fleming came within the class named in Lan. R. L. 1108 (R. S. 671) and hence entitled to admission. Upon this matter he is corroborated by such a number of respectable and unimpeached witnesses that there can be no doubt as to the fact. The relatives .who made the application were the nearest friends of Joseph and those who are still living do not deny, but admit that they applied to have Joseph admitted. Neither do they deny their answers to the several interrogatories submitted to them. Hence, it is wholly immaterial whether they did or did not sign them. It was left to the superintendent as to what interrogatories should be answered by parents.

In conclusion upon this point we are clearly of the opinion that Joseph was a proper subject to be admitted to the institution and that he was not unlawfully deprived of his liberty thereby. Joseph testifies that he knew he could not be discharged from the institution, except upon the application or order of those who placed him there if living. He wrote his uncle and aunt, who, in connection with Ryan, now dead, procured his admission, to take him out, but they refused and said to the superintendent that the institution was the better place for him. The superintendent in person solicited the uncle to take him out and give him work. The uncle admits this and that he reused to do so. The rule that those admitted should be entirely subject to the direction of the parents, and discharged therefrom upon their order or direction we are of the opinion is a very salutary one. Were it otherwise, anyone at his or her pleasure upon their own volition might leave and ramble anywhere and everywhere without the needed care and supervision of anyone.

When Joseph left the institution July 27, 1902, it was without any order from those instrumental in placing him there and it was the duty of the superintendent to have him returned to the institution, as much so as it would be his duty to return a youth of tender years. The rules must be uniform; otherwise the efficiency of the institution would be destroyed. We are therefore of the opinion that the superintendent acted within the scope of his authority and the return of Fleming was not a legal wrong. Courts will not and do not assume the authority to prescribe rules for the government of institutions of this character. Their authority to interfere arises only when it is shown that a rule or rules are unreasonable and subversive of the purposes for which such institutions are established and maintained by the state.

We are of the opinion that the rule observed by the authorities of the institution and enforced against Joseph when returned to the institution upon August 10, 1902, is not an unreasonable one. Joseph’s own testimony, is we think, entitled to but little credit. In support of this view we regard it necessary only to call attention to his testimony respecting his statement to Powell relative to a contract with the Press Post, and his denial of such contract, and that he simply told the falsehood to get clear of his inquisitor. He admitted the falsehood he told the party who accosted him one evening after dark within the enclosure of the grounds of the institution, that he had been trusted to the care of the conductor when he came from Minneapolis here, and immediately after, admitted he was placed in the care of an uncle from Minneapolis to Chicago and from there to Columbus in the care of a cousin of his mother’s. In face of the testimony of the nurse, Frank Goehlhart, not denied by Fleming, Fleming’s statement of the treatment he received whilst kept on the third floor, we think is not correct. He is contradicted not only by witnesses of the defendant’s, as to the time he was kept in the room on the third floor, but also by George Hill, his own' witness, who testifies he was there but two weeks, corroborating defendant’s witnesses upon this point.

Upon the whole record we think that the verdict in this case is not only against the weight of the evidence, but that there is no evidence to support it and the judgment therefore will be reversed and the cause remanded at the costs of defendant in error.

Dustin and Wilson, JJ., concur.