text:
    CONSTITUTIONAL LAW — EVIDENCE—VALENTINE ANTITRUST LAW.
    [Erie (6th) Circuit Court,
    January 12, 1907.]
    Haynes, Parker and Wildman, í J.
    Henry Hughes v. State of Ohio. H. C. Webster et al. v. State of Ohio.
    1. Sufficiency of Indictment under Antitrust Law.
    An indictment charging defendants with being a trust combination in vio-, lation of the Valentine antitrust law, from March 10, 1900, and continuing until March 9, 1903, and further charging violations of said law during that time, is not demurrable or subject to motion to quash on the ground of duplicity, in that each day of the existence of such an alleged combination constitutes a separate offense under Lan. 7589 (B. 4427-4), and that the indictment attempts to charge numerous offenses in one count.
    [For other cases in point, see 5 Cyc. Dig., “Indictments and Informations,” §§ 436-448; 6 Cyc. Dig., “Monopolies,” § 80.- — Ed.]
    2. Additional Evidence in Chief Introduced after Clóse of Defense.
    It is within the discretion of the court to grant permission to the prosecution to introduce additional evidence in chief after the close of the defense, and after requests for instructions to the jury have been passed on.
    [For other cases in point, see 7 Cyc. Dig., “Trial,” §§ 184-220. — Ed.]
    3. Leading Question Inadmissible.
    After having exhausted the memory of a witness his attention may be drawn to a particular subject-matter of conversations; but it is error to permit a question suggesting to him the very statement desired, and secure his assent thereto. i
    [For other cases in point, see 7 Cyc. Dig., “Witnesses,” §§ 328-331. — Ed.]
    4. What Acts are within Venue under Valentine Law. 1
    To bring a prosecution under the Valentine antitrust act within the venue of a particular county, the illegal combination must have been entered into in such county, or some act must have been committed therein, in furtherance of the unlawful purposes of such combination.
    5. Evidence Inadmissible in Prosecution Under Valentine Law.
    Evidence of statements, conversation and conduct of alleged conspirators, not a part of the transactions charged in an indictment under the Valentine antitrust law, but offered to establish the existence of the alleged illegal combination, is not admissible against a defendant who was not present and did not concur in such statements, conversations or conduct.
    6. Provisions of Valentine Antitrust Law Invalid.
    A defendant in a prosecution of a trust combination, under the Valentine antitrust law, is deprived of his right to a decision of a jury as to his guilt or innocence, and deprived of his liberty or property without due process of law by the operation of Lan. 7591 (B. 4427-6), which provides for the proof of the existence of an illegal combination by the establishment of its general reputation as such; and therefore that portion of said statute is unconstitutional and invalid.

      7. Necessity or Knowledge op Chakactek op Combination by Employe to Warrant a Conviction op Latter.
    In a prosecution under the Valentine antitrust law, a charge to the jury, “If defendant was an employe of any such unlawful combination * * * or did knowingly carry out any of the stipulations or purposes * * * of any such unlawful combination, * * * then you would be warranted in finding him guilty,” is erroneous in that it might result in a conviction for being an employe of a combination, or carrying out any of its purposes without having knowledge of its unlawful purpose or character.
    ISyllabus approved by the court.]
    ERROR to Erie common pleas court.
    King & Ramsey, Hunt & Garn, Kinney, O’Farrell & Rimeispach, G. C. Beis, Waight & Moore, Kline, Tolies & Goff and Webber & Tur= ner, for plaintiffs in error.
    R. H. Williams, for defendant in error.
   WILDMAN, J.

In the court of common pleas on March 9, 1906, the plaintiffs in error, Henry Hughes, H. C. Webster, W. H. Lyons, W. N. Cleveland, J. H. Hilton, the Massillon' Bridge Company, the King Bridge Company, the Bellefontaine Bridge Company, the Canton Bridge Company and the Mount Vernon Bridge Company were jointly indicted with •other defendants for alleged violation of the Valentine antitrust law, I/an. 7586' (B. 4427-1) et seq.

> Two of the plaintiffs in error, the Massillon Bridge Company and the Canton Bridge Company, are not now prosecuting their proceeding in error.

The defendant Hughes was tried separately to a jury and convicted. The other defendants waived a jury, and the ease by their consent was submitted to the court on the recorded evidence in the Hughes case. All the defendants were adjudged guilty and each of them was fined $500, except Hughes, who was fined $1,000.

Prior to these proceedings, ■ except the finding and presentation of the indictment, motions to quash, pleas in abatement and demurrers were filed and overruled by the. court. All defendants except .Hughes waived any claimed errors in such rulings, and those of them who are prosecuting this érror proceeding base their prayer for a reversal substantially on the ground that the evidence does not justify the judgments of conviction.

The defendant Hughes preserved his exception to the overruling of his motion to quash the indictment and numerous other exceptions in the subsequent stages of the ease.

The accusation embodied in the indictment, which, under these exceptions, it becomes important to examine, is substantially as follows :

That the defendants on March 10, 1903, “at the. county of Brie aforesaid, and from and since the said tenth day of March, aforesaid, in the year 1903, aforesaid, continually until the day of finding this indictment to wit, the ninth day of March, in the year of our Lord 1906, engaging then and there in a conspiracy against trade, then and there unlawfully were members of, acted with and in pursuance of and knowingly aided and assisted in carrying out the purposes of a certain trust, the purposes of which said trust wei'e then and there to increase the price of certain commodities, to wit, highway bridges, superstructures of said highway bridges, structural bridge iron and structural 'bridge steel, and to prevent competition in manufacturing, transportation, and sale of said commodities, the said'trust being then and there a combination of capital, skill, and acts by the said persons and corporations aforesaid for the purposes aforesaid, and the said corporations being then and there corporations duly organized, existing, and doing business in said state of Ohio, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”

The motion to quash attacks this indictment upon .the grounds of indefiniteness and duplicity. The statute (Lan. 7589; B. 4427-4) provides that each day’s violation of this act “shall constitute a separate offense,” and it is urged that this indictment by its “continuando” extending over a period of three years, "attempts to charge numerous offenses in one count, and that this is not permissible.

Cases are cited to support this contention, but, without pausing to comment upon them, it is enough to say that in .our judgment they are inapplicable to this kind of an offense as set forth in the indictment.

No emphasis in argument is placed on the point that the indictment is indefinite and does not sufficiently apprise defendant of the nature of the accusation against him. We will therefore pass the question without, however, indicating approval of the form which the charge has taken. It is probable that the defendant Hughes, knowing in what transaction in Erie county he had been engaged in connection with bridges, was not prejudiced by any lack of particularity in the indictment.

We think that the indictment is not vulnerable to attack on other grounds and that the pleas in abatement and demurrers were not well taken.

The evidence taken on the Hughes trial and relied on by the state to justify the conviction of all the defendants, is presented to us in a printed pamphlet of something over two hundred pages, disclosing not only the testimony and- exhibits and the instructions given and refused, but numerous exceptions to rulings of the trial court. We will not attempt specific reference to all of them, but will consider such as seem to demand special attention-. Under the waiver by all defendants except Hughes and the submission of the case by them on the evidence on his trial, the various exceptions taken by him to the admission of evidence are not available to his eodefendants so far as those exceptions relate to the forms of questions or any matters other than the competency of the evidence itself. It is very manifest also that such eodefendants have no concern with refusals to instruct the jury as requested in the Hughes case, or with the charge of the court as given. Their trial was without the aid of a jury and no instructions were refused or given.

The defendant Hughes excepted (see page 190 of the printed record) to the permission granted by the court to the state to introduce additional evidence in chief after the closing of the defense and after requests for instructions to the jury had been passed on. The matter was within a discretion of the court which seems to have been properly exercised.

In the introduction of this evidence, however, a question was asked of the witness, E. U. Hirt, by, the counsel calling him (see page 191), which we think should not have been permitted. The testimony related to a conversation with the defendant, Hughes, concerning the letting of a bridge at Fremont in March, 1906. The witness had stated the conversation as he seemed to recall it and added that what he had related was, he thought, the substance of all that was said. Thereupon counsel for the state asked:

“Did he say to you in words or in substance that there might be other bridge companies present, but that he could get them out of the 'way ?’ ’

The witness answered over defendant’s objection:

“Yes, he did.”

While it might have been proper- after exhausting the memory of the witness to invite his attention to any particular subject-matter of conversation, it was not within the bounds of legitimate questioning by the attorney who had called the witness, to suggest to him the very statement desired and obtain his assent to such suggestion. The answer so elicited furnished the only important item of evidence from this witness, and the ruling of the court permitting it was both erroneous and prejudicial. It was not justified by any apparent unwillingness on the part of the witness to testify favorably to the state or by any adverse interest, nor was it justified as impeachment of Hughes by any sufficient foundation previously laid therefor.

Although the charge in the indictment did not define the particu- . lar manner or set forth the transaction or transactions in which it was claimed that the defendants in Erie county “aided and assisted in carrying out the purposes” of the alleged trust, said purposes being “to increase the price of certain bridges,” and “to prevent competition in manufacturing, making, transportation and sale” of them, the evidence on the trial, so far as related to conduct of the defendants in Erie county, was directed by the state to transactions occurring in the summer of 1903, in the public letting of bids for the repair of what is known as the Fries Landing bridge. While all the defendants are charged with being members of the alleged trust during the entire period of three years from March 10, 1903, to March 9, 1906, there is no evidence that they did any acts in Erie county during said period, in furtherance of the alleged purposes of the trust, unless they did them in direct connection with the Fries Landing bridge. The language of the trial judge in one paragraph of his charge as found on page 195 of the printed record is pertinent, as showing his understanding, with which we are in accord, of the claims of the state in this respect. I quote a part of this paragraph as follows:

“I will say to you further in regard to this matter it is not' claimed by the state that any of the parties named in the indictment are residents of Erie county or that any trust or unlawful combination among the defendants named in the indictment has a permanent residence or existence in Erie county; but the state claims that such unlawful combination exists and did exist on the day named in the indictment or thereabouts, and that about that time the defendant in this action who is now being tried, Henry Hughes, acting for and on behalf of such unlawful combination, to carry out some of the purposes prohibited by the terms of the law which I have heretofore read to you, came into Erie county and did knowingly carry out some of the stipulations, purposes, prices or rates of such unlawful combination and orders thereunder, or in pursuance thereof in manner and form as charged in the indictment.”

Our conception of the spirit and purpose of the statute under which this case was instituted and- prosecuted is, that it was not contemplated that a member of an unlawful combination as defined, might be indicted in any or every county of the state wherein he or any of his associates should chance at any time to be.

To give the Erie county court jurisdiction some offense must have been committed in Erie county. The entering into an unlawful combination, or the doing of any overt act in furtherance of its unlawful purposes would be such an offense.

In this ease, then, the state was compelled to base its prosecution upon either (1) the entering into such a combination in Erie county; or, (2) the aiding of such a combination previously formed in this county or elsewhere.

The second of these theories is the one apparently adopted by counsel for the state, and, further, that the unlawful combination was formed outside of Erie county and several years prior to the date of the offense charged in the indictment.

In support of this latter theory and to establish the fact of a preexisting combination among the defendants, evidence was offered and received of transactions in other counties and conduct and statements of defendants other than Hughes and not in his presence, or, so far as appears, within his knowledge, at divers times from about the year 1898, the year in which the Valentine act took effect, to some time subsequent to the alleged unlawful transactions in Erie county. The view of the trial judge as- to the admissibility of this class of evidence is expressed in his language as quoted on page 16 af the printed record. In reply to the objections of defendant’s counsel, he says:

“They have a right to establish acts a reasonable time ¡Before and a reasonable time after the date of the offense charged, for the purpose of assisting the jury to determine whether or not at this particular time a trust existed.”

But-statements and conduct of alleged conspirators in the absence of a defendant, have never, we believe, been deemed competent to prove his complicity with them in their unlawful combination. Upon adequate proof that a conspiracy exists and that a defendant has entered into it, he is hound by the conduct of bis confederates in furtherance of their common unlawful purposes. Each conspirator is the agent of his fellows to this extent.' But the principle goes no further*. As' the authority of an agent cannot be shown by his own hearsay admissions or statements, so the conduct or hearsay statements of alleged conspirators in the absence of claimed associates cannot be used to establish their association.

As an illustration of this class of evidence admitted on the trial of Hughes over his objection reference may be made to the testimony of John J. Dun, beginning on page 15 of the printed record. He was an agent for the J. G-. “Wagner Company in the bridge business from some time in April, 1898, prior to the taking effect of the Valentine law, until the fall of 1899. He testifies as to various transactions during that period, tending to show arrangements among some of the companies named in the indictment and others in violation of the statute if entered'into after it took effect in July, 1898. Hughes does not appear to have been present at these transactions or to have had knowledge of them, or, indeed, to have been employed as agent by any of the defendant companies until the fall of 1901. The testimony of Dun could have no legitimate effect against him, and his objection to it should have been sustained. As appears on pa^'e 20 of the printed record, the judge said, as to a part of this testimony relating to bridge lettings in Cincinnati:

“The jury will understand this evidence is only competent in ease the prosecutor connects it with some of the companies named m this indictment.”

But, although indicted, none of the companies were on trial, and the evidence was then being introduced against Hughes alone. Upon his entering into relations with the Massillon Bridge Company as its agent in the fall of 1901, he cannot be presumed to have had knowledge of any secret and unlawful dealings of that or any other companies at least two years earlier.

Another important item of évidence admitted over objection is found on page 202 of the printed record. It consists of correspondence had between the Canton Bridge Company and its own agent, IT. G. Hammond, in the year 1903, concerning bridges in Lorain and Huron counties and proceedings relating thereto. Language in this correspondence strongly suggests some combination among this company, the Massillon Bridge Company and the Kiug Bridge Company, as to a pooling of profits on these bridges, and perhaps Others; but even if it had clearly recited such an arrangement and had mentioned Hughes as a party to it, the correspondence would not. have been admissible against him, in the absence of any showing that he had 'knowledge of it and assented to it, to prove that he was , engaged in the combination.

These are examples of what we deem objectionable items of evidence introduced on the trial. We hold that wherever during the progress of the trial the principles which I have endeavored to express were violated, the court erred.

An even more important line of testimony and one which seems vital to the case, was admitted by the court against objection and considered in the charge to the jury in the following words, found on page 194 of the printed record:

“The law prescribes a rule of evidence which you will consider in determining the question as to whether or not there was in existence at the time named in the indictment or thereabouts a combination or trust in violation of the sections which I have heretofore read to you. You will see from it that it is not necessary to have direct evidence of the existence of such combination or trust. Its character may be established by general reputation, that is,. what people generally say about it. You will look to all the evidence on this head, including the evidence of the reputation of ihe so-called bridge trust which is the subject of investigation in this prosecution, and determine from it whether or not there was in existence a trust or combination in violation of the law which I have read to you, in manner and form as charged in the indictment.”

This instruction and the testimony on which it was based, call for a careful examination of the statute. So grave doubts as to the proper construction and the constitutional validity of the section concerning evidence of the reputation of an alleged trust, have existed in the minds of lawyers and judges of the state, that in most, if not all, the prosecutions in other counties under the act, convictions have not been sought by means of such evidence. Up to the present time, so far as we are advised, despite the fact that there have been a number of such prosecutions, neither the Supreme Court nor any of the circuit courts have been called upon to give special attention to the section of the statute referred to. It is numbered in the present revisipn Lan. 7591 (B. 4427-6) and is as follows:

“In prosecutions under this act, it shall be sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement, or any written instrument on which it may have been based; or that it was evidenced by any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation as such.”

The last sentence above is the one on which emphasis must be placed in the present inquiry, but the rest of the section should not be ignored.

It is urged with force and plausibility by counsel for plaintiffs in error that the existence of the combination or trust must be proved by evidence other than that of reputation; and that it is only the character of the combination, after its existence has been so shown, that can be established by reputation.

We have been much impressed by the reasoning in support, of this construction, but we are unable to adopt it. It is “the character of the trust or combination alleged” that “may be established by proof of its general reputation,” and'it is its “general reputation as such” that is to be received; that is, its general reputation as being such a combination as the statute defines and makes criminal. The trial court was in our judgment correct in construing. the section as attempting to authorize the proof of the very existence of the criminal combination.

Counsel for the state seem to have gone somewhat farther and to have- assumed in at least some of their questions the right to prove by repute not only the existence of the combination, but the membership of the defendants in it. To illustrate: As shown on page 33 of the printed record, the following question was asked of the witness, Graham:

“You may state whether it is or is not a fact that the Massillon Bridge Company, with other bridge companies and persons, were generally reputed in this county to be organized in a combine for the purpose of preventing competition in the sale of highway bridges and bridge material since the first day of January, 1903, or during any part of that time.”

Perhaps inadvertently the court permitted the question to be answered as follows:

“That is the general reputation, as far as I know.”

It may be noted in passing that the question calls for evidence of. reputation during a period extending even to the time of the trial, and the answer of the witness is in the present tense.

To what extent any bad reputation of the defendants may have been created or increased by the very fact of this prosecution does not appear, but it may fairly be said that an indictment and prosecution under it are not such a testimonial of character as to enhance whatever good repute an accused person or company may have had.

Questions asked of witnesses as shown on pages 61, 62, 63, 65, 71, 73, and perhaps on other pages, are of like character and objectionable for the reasons which I have given.

Jt remains to be seen whether the section of the statute which I have quoted and which the judge correctly interpreted in his charge to the jury, is such an enactment as the legislature had power to make.

Our Supreme Court has recognized the legislative power to prescribe the rules of evidence which shall be observed by its judicial tribunals; but as stated by Judge Bradbury in the case of the Pennsylvania Co. v. McCann, 54 Ohio St. 10, 17 [42 N. E. Rep. 768], “limited only by the constitutional guaranties respecting the due process of law, vested rights and the inviolability of contracts.”

Article 14, Sec. 1, of the federal constitution prescribes that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Does the section of our statute providing that the existence of a criminal combination or trust may be established by its general reputation as such, attempt to deprive any person of life, liberty or property “without due process of law?” That the enforcement of the statute may involve a deprivation of liberty or loss of property by imprisonment or fine, is manifest. This may not be done except by due process of la.w.

From time immemorial accused persons have been tried upon evidence direct or circumstantial, documentary or oral, and, as to some facts and under some circumstances, general reputation has been treated as competent.

As to one class of cases, the maintaining oí orothels, the ill fame of a house has often, but not always been permitted; and the like rule has sometimes been applied to the character of a groggery or dram shop. This procedure in the case of such nuisances when places or houses of this character were defined or treated as such, existed long before the adoption of the federal constitution which I have quoted. Such procedure was deemed “due process of law” at that time in the jurisdictions where it was sanctioned. In Ohio, however, we have no adjudication by tbe (Supreme Court, recognizing the competency of such evidence. The decisions of lower courts as to evidence of general reputation under the Winn law prohibiting the selling of liquor in reputed houses of prostitution are not relevant to the present inquiry.

But we are not- advised that even under the semibarbarous practice which obtained and for many years existed under the common law, evidence that an accused person was generally reputed to have committed the crime charged against him was ever permitted in other classes of cases. In the section of our statute under investigation the legislature attempts to enact a wide departure from legal principles which have stood undisturbed for ages, in jealous protection of private rights.

True, the statute does 'not in terms say that the criminality of an accused person may be shown by his bad reputation; but as we construe it, and as we think its framers intended it, it does provide that the guilt of the association of which the accused may be a conceded member, may be established by such reputation.

In this connection I invite the reading of the forceful language of the supreme court of Rhode Island in State v. Beswick, 13 R. I. 211 [43 Am. Rep. 26], and especially page 216 and following.

If the legislature may, to make convictions more easy in alleged violations of this act,' provide that guilt may be so established, it is difficult to see why other crimes, equally difficult to establish by legitimate proof, may not be so shown.

Nearly all crimes are committed in secret, and convictions are often difficult, but it would be perilous indeed to open wide the door and say that we must find an easier way and will permit convictions on rumor, however general. Bad reputation is too often artfully created for wicked purposes, and at the best is too uncertain and perilous to admit of its use to such extent.

Never- before in our experience have we noted such open trials of accused persons in public places and public prints before the investigation by a jury, and for the obvious purpose of manufacturing public sentiment adversely to the accused, as have been made manifest of late. We cannot consent to uphold an enactment the certain result of which is to make more mischievous a public sentiment so created.

The opportunity afforded by such a. statute to an interested and unscrupulous attorney, by insinuations and accusations, to manufacture a public sentiment which may be utilized for the conviction of the accused, is manifest. Fortunately, the members of the bar who will descend to such dishonorable and unprofessional practices are not numerous, but they are not unknown to the profession. It is needless to say that such conduct would be impossible to the high-minded and honorable lawyer who, a's prosecuting attorney, represented the state in the present case.

Before leaving the question, I should add my judgment that the language of the section requires the construction that the effect of the general reputation if proven, not merely testified to, is to establish, that is to say, make certain, the criminal character of the combination or trust.

As defined by Webster, to “establish” is “to make stable or firm, to fix or'set unalterably; to settle, to confirm.”

Anderson defines it: “To settle certainly, fix permanently, what was before uncertain,, doubtful or disputed.”

The words of the section were unhappily chosen if the legislature intended only a prima facie rule.

Construed as I understand the language, a defendant is deprived of his right to the decision of a jury as to his guilt or innocence and may be deprived of his liberty or property without due process of law. We deem the provision of Lan. 7591 (B. 4427-6) embodied in its last sentence unconstitutional and invalid.

This evidence, so permitted and used by the jury and the court below, was vital to the state’s case. The other evidence was insufficient, unaided, to establish the guilt of the defendants or any of them.

As the cases will necessarily be remanded to the court below, it is proper to consider other claimed errors in the record. These are based upon refusals to instruct the jury as requested by the defendant Hughes and upon the charge as given.

Several of these requested instructions involved the claim that the defendant could not properly be convicted of furthering the purposes of an unlawful combination unless he had knowledge of its existence. The court was not required under our criminal procedure to give such instructions before argument,, although requested so to do; nor to give them at all in their precise phraseology; but the substance of the proposition claimed should have been somewhere embodied in the general charge in'dear terms. This, we think, was not done, or if done, its force was destroyed by language found on page 195 of the printed record, in which the court charged as to Hughes that “If he was * * # an employe of any such unlawful combination, * * * or did knowingly carry out any of the stipulations or purposes * * * of such unlawful combination * * * then you would be warranted in finding him guilty.” The knowingly carrying out the purposes of a combination, and the knowing of the existence of a combination of an illegal character,'are not so clearly identical as tó justify the instruction in this alternative form. The instruction, if followed, might result in a conviction for furthering purposes of a combination without knowing of the illegality of the combination; or even for being an employe of a combination without knowledge of its unlawful purposes or character. \

There is language in other parts of the charge tending tó cure, but -not clearly doing so, this misleading instruction and the error in not charging substantially as requested.

The requested instructions numbered 7 to 12, inclusive, restricting the use to be made by the jury of certain items of evidence, should have been given in substance. The court, by not so instructing, and, indeed, by the language of the general charge, permitted their use generally in the case.

While some of these items of evidence were competent as to certain of the defendants,' their unqualified use as against the defendant, Hughes, was erroneous and prejudicial.

The judgments below are reversed and the causes remanded for further proceedings1. .

Parker and Haines, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    CHA RITI ES — TAX ATION.
    [Cuyahoga (8th) Circuit Court,
    January 28, 1907.]
    Marvin, Winch and Henry, JJ.
    Young Women’s Christian Assn. v. Albert K. Spencer, Treas.
    Land not Actually Occupied by a Chabitable Institution not Exempt eeom Taxation.
    Vacant lots owned by the Young Women’s Christian Association, purchased with money provided and to be used for acquiring a site, and erecting thereon a building suitable for the purposes of the organization, are not within the meaning of Rev. Stat. 2732 (Lan. 4067), which provides that all buildings belonging to, and lands actually occupied by, charitable institutions shall be exempt from taxation.
    [Eor other cases in point, see 2 Cyc. Dig., “Charities,” §§ 106-134; 7 Cyc. Dig., “Taxation,” §§ 291-305. — Ed.].
    [Proof of this decision and syllabus was submitted to Judge Henry and corrected. — Ed.]

      Appeal from Cuyahoga common pleas court.
    G. F. Shaver, for plaintiff.
    C. W. Stage, for defendant.
   HENRY, J.

In this appeal from the court of common pleas the sole issue is one of law, to wit, whether Subd. 6, or any other subdivision of Rev. Stat. 2732 (Lan. 4067), operates to exempt from taxation a certain vacant lot in the city of Cleveland, purchased by the plaintiff, out of moneys provided and to be used by it for acquiring a site and erecting thereon a building suited to the public charity which said association administers.

Said subdivision, so far as applicable, is as follows:

“All buildings belonging to institution[s] of purely public charity, * * * together with the road [land] actually occupied by such institutions, * * * and all moneys and credits appropriated solely to sustain, and belonging exclusively to said institutions * * ” shall be exempt from taxation.

It is argued here, on behalf of the plaintiff, that the moneys appropriated to the purpose aforesaid, were exempt, and the lands when occupied, and the buildings, when erected, by means of these moneys, will be exempt, and, therefore, it would be anomalous to hold that during the period of time between the expenditure of such money in the purchase of land, and the actual occupancy of the land, with buildings or otherwise, for the charitable purposes contemplated, the particular form of property assumed by the fund as temporarily unoccupied land, should render it taxable.

It is admitted, however, that statutes exempting property from taxation should be strictly construed, and, if we consider the frauds upon the public revenue which might result from exempting vacant property from taxation because of an intention existing only in the owner’s mind in regard to the ultimate use and occupation of such land, for purposes of purely public charity, it is sufficient reason for refusing to relax the rule of strict construction in this case. Indeed, it would require a very liberal construction of the statute to extend the exemption to unoccupied and unused lands.

The provisions of the law are very explicit, and we cannot assume that they mean more than such words ordinarily signify. The plaintiff’s petition is, therefore, dismissed.

Marvin and Winch, JJ., concur.


author: WILDMAN, J.

text:
    EVIDENCE — WILLS—REVOCATION.
    [Lucas (6th) Circuit Court,
    February 16, 1907.]
    Haynes, Parker and Wildman, JJ.
    Ella S. Coghlin v. John T. Coghlin et al.
    1. To Revoke a Will these must be a Positive Act with Intention.
    Whether or not there has been a revocation of a will is a question of the intention of the testator. To effect such revocation under Rev. Stat. 5953 (Lan. 9491), the're must be some positive act, either a total or partial destruction or obliteration, concurrent with the intent; and whether or not such intention exists is a question for the jury.
    2. Obliterating a Portion only does not Revoke a Will.
    Tearing a page from a will several years after execution thereof, with intention to revoke or cancel only the detached part, does not revoke the entire will; and where the part torn out has been preserved and reattached although by persons other than the testator, and remains legible, the whole will should be probated.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 143-148. — Ed.]
    3. Evidence Admissible to Snow Intent oe Testator in Destroying Parts oe Will.
    Testimony of an attorney as to statements made by the testator, concerning changes the latter wished to make in his will, is admissible, in a will case, as bearing on the intention of the testator in attempted destruction of certain pages of the will whether such statements were made before or after such act of attempted destruction.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2303-2310; 7 Cyc. Dig., “Wills,” §§ 354-380. — Ed.]
    [Syllabus approved by the’court.]
    ERROR.to Lucas common pleas court.
    Whitlock, Milroy & Mallow and Smith & Beckwith, for plaintiff in error.
    Hamilton & Kirby, for defendants in error.
   WILDMAN, J.

This [Ella S. Coghlin, Individually and as administratrix of the estate of John D. Coghlin, Deceased, v. John T. Coghlin, executor of the will of Dennis Coghlin, et al.] is a will contest case and comes into this court on error from the court of common pleas. Judgment below was against the contestants. Dennis Coghlin died in August, 1900, and after his death a will which had been executed in 1893, and to which a codicil had been added in 1896, was admitted to probate. The contest subsequently instituted was based upon a claim that in tbe fall of the year, 1898, Coghlin had revoked this will, by tearing it, with an intention of revocation.

The case is one of large importance, by reason of the very valuable estate disposed of by the will, but, so far as the issues before us are concerned, they are not complicated or numerous. The claims of the plaintiffs in error are based upon Rev. Stat. 5953 (Lan. 9491), reading so far v as pertinent to the present inquiry, as follows:

“A will shall be revoked by the testator tearing, canceling, obliterating, or destroying the same — with the intention of revoking it — by the testator himself, or by some person in his presence, or by his direction.”

It appears by the testimony that in the fall of 1898, Dennis Cogh-lin, in the presence of one person, who testified in the case subsequently as a witness, tore from this will — which was somewhat voluminous— one sheet thereof, and threw it into a waste paper basket. The remaining part of the will, including his' own signature and the signatures of the attesting witnesses, he laid upon a table by his side. There is no evidence of any accompanying words expressive of his intention either to revoke or not to revoke the will. The will having been admitted to probate, the burden rests, of course, upon the contestants to overcome the prima fade case thus made in favor of the validity of the will. The claim of the contestants is, that a destruction or attempted destruction of the particular part of the will which was tora, so far interfered with the general plan of the will and with the provisions written therein as to evidence clearly the intention of the testator to effect a complete revocation of the instrument.

On the other hand, it is urged that there is no evidence tending to show an intention to destroy or revoke anything more than the particular part of the will found on the page which was tom, and that the preservation of the rest of the will is clear and convincing evidence that it was not the intention of Dennis Coghlin to destroy or revoke the entire instrument.

In the case of Giffen v. Brooks, 2 Circ. Dec. 64 (3 R. 110), it was held by the circuit court of thte seventh circuit, and fully expressed in, the opinion rendered by Justice Laubie, that, under the section which I have just read, of the Revised Statutes, providing for a revocation of wills, that “a clause-of a will cannot be revoked by the testator drawing ink lines through the words thereof, with an intent to revoke such clause, but not with an intent to revoke the whole will.” And in the next clause of the syllabus:

“In such case, where all the words of such clause remain legible, the whole will should be admitted to probate, including such erased clause as a valid part of such will.”

The opinion is somewhat long and I will not read from it. It discusses the construction of the statute and the results of the act of drawing pen lines over a part of the will, as it is said was done in the ease cited. This case of Giffen v. Brooks went to the Supreme Court and was affirmed in Giffin v. Brooks, 48 Ohio St. 211 [31 N. E. Rep. 743].

In the case before us, after Dennis Coghlin had thrown into the waste paper basket the part of the will which he had torn, it was taken from the basket by a gentleman present, and not being disfigured or made illegible, it was subsequently pasted together and replaced in the original will. The testimony does not disclose who made this restoration. Subsequently, the entire will, so restored, was handed to an attorney, Mr. Waite, who testified also as a witness and with regard to whose testimony some question has been raised.

It is manifest from a reading of the section of the statute referred to, that the question whether or not the will was revoked, is largely a question of intention. Two things must concur for a revocation— an intention alone will not do it. There must be some act, either a destruction or partial destruction or obliteration of the will, and this must concur with an intention on the part of the testator to revoke, not simply to amend. If it was the intention of Dennis Coghlin to extract from the will the items appearing on the page torn from the will, and if that was his only intention, then, inasmuch as the part which so torn still remained legible and was subsequently restored to it, the Avill would not be revoked. The question of intent was, clearly, one for the jury. The case was properly submitted to the jury upon this issue and the jury found in favor of the defendants.

To our minds, not only is the position of the plaintiff in error— that the verdict is clearly against the weight of the evidence — untenable, but it seems to us that the evidence strongly indicated that it was the intention of the testator not to destroy the will in toto. And this inference is strengthened by the testimony of Mr. Waite, the attorney, as to conversations and transactions with Mr. Dennis Coghlin both prior and subsequent to the tearing of the will. I will not go over this testimony in detail. It was objected to by plaintiffs in error and the admission of the testimony by the court is laid as one of the grounds of claimed error here. It is sufficient to say that the testimony of Mr. Waite discloses the fact that, prior to. the tearing of the will, Dennis Coghlin had expressed an intention of making certain changes as to the management of his estate, by substituting John Coghlin for Amadeus, in one of the items of the will, as a sort of trustee or manager of the estate after his death. There was talk between Dennis Coghlin and Mr. Waite about the making of a change in the will so as to substitute the name of John Coghlin for that of Amadeus, and, in pursuance of that conversation, Mr. Waite drew two separate codicils, which, although never executed or signed by Dennis Coghlin, were the result of the interviews between Mr. Waite and him. There was also- testimony as to declarations and conduct of Coghlin, after the tearing of the instrument.

Was.this testimony as to the subsequent conduct and declarations of Dennis Coghlin, competent, or, did the court err in its admission?

In the case of Behrens v. Behrens, 47 Ohio St. 323 [25 N. E. Rep. 209; 21 Am. St. Rep. 820], we have a case of an alleged spoliation of a will, which, in our judgment, governs the consideration of the present case in the respect to which I have just referred. I read from the syllabus:

“When a will, once known to exist, and to have been in the custody of the testator, cannot be found after his decease, the legal presumption is, that it was destroyed by the testator, with the intention of revoking it.
“To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.”

While this is as far as the court went in its statement in the syllabus of the case, it is very clearly indicated in the opinion, announced by Judge Dickman, that such evidence was admissible, either to strengthen a presumption of destruction of a will, or, on the other hand, to weaken it. It was competent when offered by either party. But it is urged by counsel for plaintiffs in error that the case of Behrens v. Behrens, supra, had reference to a lost will, and that the ruling of the court would not apply to the case of the partial destruction of one, effected by tearing or obliterating any part of its contents. We think that this position cannot be maintained, in view of the approved citations of other cases by Judge Dickman, upon which eases the court evidently bases its conclusions. Among other cases cited is that of Lawyer v. Smith, 8 Mich. 411, 412 [77 Am. Dec. 460]. Judge Dickman says of this case:

“After the death of the testatrix, a will twenty-five years old was discovered in a barrel, among some waste papers, and either torn or worn into several pieces * * *. Whether' the injury to the instrument was done by the testatrix or by some other person, and if by her, whether accidentally, or intentionally, and for the purpose of revoking the will, are questions of fact for the jury; and to aid them in determining these questions, and not as separate and independent evidence of a revocation, the declarations of the testatrix, made after the date of the will, that she had destroyed it, are competent evidence.”

The court also cites Patterson v. Hickey, 32 Ga. 156, as deciding “that where the question is revocavit vel non, parol evidence as to the acts.and declarations of the testator, are admissible, although made at any time between the making of the will and the death of the testator. ’ ’

Judge Dickman adds:

“A will is said to be ambulatory until the testator dies. Until his death the instrument has no force or effect, and until then, he has the power to cancel or revoke it. If from being clothed with this power the presumption arises after his death that he destroyed his will, that presumption will be aided by his declarations as expressive of his feelings and intention.”

In Weeks v. McBeth, 14 Ala. 474, 475, as quoted by Judge Dick-man, with seeming approval, it was held that the declarations of the testator are also. admissible to strengthen the presumption of revocation, and to show that the will was destroyed by the testator animo revocandi. It is the invariable rule in the courts of England, to admit the declarations of the testator, either to strengthen, or to repel the presumption of revocation, arising from the nonproduction off the ■will, after the death of the testator; or to explain the act of destroying, or canceling it.

Another ease cited is Smiley v. Gambill, 39 Tenn. (2 Head.) 164. This is a similar case, where a paper which the testator had thought to be a will was burned, and the question there was whether the burning was with the intention to revoke, or otherwise, and it was held that the declarations alone might not be sufficient, but they were competent, and it would be for the jury to determine whether they, together with other facts proved, made- out the intention to revoke.-

There are other authorities cited by Judge Dickman in this case of Behrens v. Behrens, supra, along the same line and bearing on the position taken by counsel — that some distinction is to be made between the case of a lost will and that of one partly or wholly destroyed. We. think that there is no distinction in principle. In either case the intention of the testator is to be arrived at, and if his own declarations or conduct subsequent 'to whatever act he did with reference to the will, is competent as evidence for its bearing upon his intention, then it would' seem that such evidence must be competent in every case where the intention of the testator is sought.

The trial judge in his charge to the jury made a proper use of this evidence. He restricted the jury in their consideration of it to its bearing upon the intention of the testator. His words and his conduct were not to be used by them to determine whether or not he had attempted to destroy a part of the-will — indeed as to this matter there was no dispute; there was no .contradiction of the testimony of the one witness as to the fact of the tearing of the paper. The paper, which appears as a part of the bill of exceptions, shows the fact indisputably, that this sheet of the will was tom into several pieces; so that, practically the only question for the jury was the question of intention of the testator. The judge so told them, and also that they might take'these declarations and conduct for such light as they might throw upon the question of intention, but for no other purpose.

Exceptions were taken to some of these instructions by the judge, but we find no error in them. There was some objection to the statement to the jury that certain parts of the will might be entirely removed from it without destroying the will as such — in other words, that the will, so far as its substance was concerned, would be complete in itself even after the removal of the sheet of paper torn from it. We think the court was within proper bounds in giving this instruction to the jury. Indeed, in the entire trial of the ease we have been unable to find any error on the part of the court. We think that the contestants were fairly treated throughout, and that the construction which the court gave to the statute and to the various decisions was altogether correct.

Our judgment is, that the judgment of the court of common pleas should be, and it is, affirmed.

Parker and Haynes, JJ., concur.;


author: DONAHUE, J- TAGGART, J.,

text:
    EASEMENT — PRESCRIPTION.
    [Licking (5th) Circuit Court,
    March Term, 1905.]
    Donahue, McCarty and Taggart, JJ.

      Oliver N. Holtsberry v. Linsley Bounds et al.
    Continued Use of Land for Twenty-itve Years Creates an Easement Therein.
    Where one, and those under whom he claims, has used, without let or hindrance, a right of way over and across adjoining lands to a public highway for more than twenty-five • years, and such way has been confined to one 'well-defined course, an easement subject to the duty of keeping gates and bars closed, and appurtenant to the land, is acquired; and evidence of a threat to close up the way for failure to close the gates does not show the right of passage to be a revocable license.
    [For other cases in point, see 3 Cyc. Dig., “Easements,” §§ 47-61. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Licking common pleas court.
    J. H. Jones, for plaintiff.
    Kibler & Kibler and Hunter & Hunter, for defendants.

       Affirmed, without report, Bounds v. Holtzberry, 52 Bull. 67; 75 O. S. 000.

   DONAHUE, J-

This ease comes into this court by appeal. From the evidence we find that the plaintiff, and those under whom he claims title, have used, without let or hindrance, a right of way over and across the premises of the defendants, from his property to the public road, for a period largely in excess of twenty-one years next preceding the commencement of this action. That said road was well defined, and of one general course and to definite and certain Objective points; but that over a portion of the way detours were made around mud holes and bad places in the road and fallen trees; and that in some places as many as four or five distinct wagon tracks, parallel with each other, ran a distance of from one to two hundred feet, and that these various tracks have been used at will without let or hindrance, for a period of about forty-five years and that said right of way was subject at all times to gates at the entrance to the woods lot, and at the fence separating the woods lot from the pasture lot and at the public road.

This user having 'continued for the time named, without let or hindrance, and at the will of the plaintiff and his grantor, easts upon the defendants the burden of showing that the same was permissive; and while there is some evidence of threat to close up this way in case of failure to keep the gates closed and the bars up, there is no evidence that at any time the owners of this servient estate did exercise the right of closing up the same, or did any act whatever to interfere and obstruct the use of such roads by the plaintiff and his grantor during all the time they have used and enjoyed the same; and therefore, we find that there is an easement over said lands of the defendant, appurtenant to the lands of plaintiff, and that he is entitled to use and enjoy the same, subject, however, to the condition of keeping the gates closed; and this easement having been enjoyed all these years, subject to such gates and bars, the statement of the owner of the servient estate that unless they kept the same closed he would prevent their traveling over it, is clearly in line with his authority in that behalf, because this easement is subject to the same; and such statement to the owners of the dominant estate is not in effect a statement that they have no interest in such easement, and no right to travel the same, but, on the contrary, that they must use and enjoy it subject to these obstructions, and must keep the gates and bars closed according to the manner of the use for many years previous thereto.

The plaintiff in his petition claims only a right of way fifteen feet wide. So it is not important whether he acquired a right of way wider than that or not. Attall events, that is sufficient for his purposes, and this court would not enjoin the defendants from confining him to such a width as might be necessary to his use and purpose for a right of way, even though he were able to show that he had acquired by user more land than was absolutely necessary for his use. He would be required to assert that claim in some other form.

So that he will be confined to a strip fifteen feet wide, along the general course of travel, and that being in conformity to those portions of the road where there is but one track; and as a condition to the enjoyment of said easement, he is required to keep the said gates closed.

A decree may be drawn perpetually enjoining the defendants from interfering with the use of this right of way fifteen feet wide through their lands, as prayed for in this petition; and that plaintiff may quietly use and enjoy the same so long as he complies with the conditions under which said easement was acquired, and keep said gate closed.

It further appearing that there has been some neglect in this behalf, .and that plaintiff .and those under whom he claims have been attempting to exercise further rights over said premises, and travel out and beyond the well-defined line of the right of way, especially through the pasture lands of defendants a judgment for costs, is refused plaintiff, and he will be required to pay his own costs, and the defendants will pay their own costs; and this cause is remanded for execution.

A motion for new trial by defendants filed and overruled, and exceptions noted, as are also their exceptions to the judgment and finding of the courts herein.

McCarty, J., concurs.

TAGGART, J.,

dissenting.

I desire to enter a dissent to the judgment and opinion of the courts in this case, believing as I do that the testimony shows that the use of this way by the plaintiff, and those through whom he claims title, was simply permissive, and not adverse, nor under a claim of right; and therefore, the judgment of the court is not warranted by the facts or by the law of the case.


author: MARVIN, J.

text:
    LIMITATION OF ACTIONS.
    [Erie (6th) Circuit Court,
    April 22, 1899.]
    Haynes, Parker and Marvin, JJ.
    (Judge Marvin of the eighth circuit, sitting in place of Judge Hull.)

      William Deering & Co. v. H. G. Miller et al.
    Account Stated with Declaration Thereon oe Amount Due and Signed by Debtor is a Promise in Writing or Agreement in Writing with a Fifteen-year Limitation.
    When an account stated between two parties has been drawn and a declaration in writing is added thereto, signed by .one party, that the same is an account stated and there is due from the party signing to the other party a sum certain, subject to the acceptance of the latter and the latter accepts in writing, this constitutes -in law a promise in writing although no promise is specifically made, or, at least, it is an agreement in writing, and an action thereon for the amount named is not barred in six years but in fifteen years from the date thereof.
    [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]
    Error to Erie common pleas court.
    J. F. McCrystal and F. W. Babcock, for plaintiff in error „■
    Kelly & Merrill, for defendant in error, C. A. Wikel.

       Affirmed, without report, Wickel v. Deering & Co. 64 Ohio St. 548.

   MARVIN, J.

This [William Deering & Co. v. H. G. Miller and C. A. Wikel, late partners, under the firm name of Miller & Wikel], is a proceeding in error seeking to reverse the judgment of the court of common pleas, and the determination of the case rests upon the effect to be given to the statute of limitations as applied to a writing which was executed by the defendants and which is set out in the bill of exceptions which gives all of the evidence in the case.

The defendants were partners under the firm name of Miller & Wikel, doing business in this county, and were handling the goods of William Deering & Co., of Chicago, having been éngaged in this business for some time. They were handling these goods on commission. They had received for goods sold certain amounts and had forwarded or paid to Deering & Co. certain moneys, and on October 28, 1890, the defendants stated an account between themselves and the plaintiff and entered upon such statement of account these words:

Huron, Ohio, October 28, 1890. This adjustment of accounts made this day as per the foregoing statements showing as due Wm. Deering & Co., as the proceeds of these commission goods not' yet paid over, the sum of $479.75 after deducting all credits, set-offs or claims due us by reason of any and all matters and things growing out of the business or otherwise due to this date, tendered by me, subject to the acceptance of Wm. Deering & Co. at their Chicago office.

This was signed by Miller & Wikel and accepted by William Deer-ing & Co.

On the part of the plaintiff it is urged that this was an agreement entered into between the parties to this action, and that they were entitled to bring suit upon it at any time within fifteen years after its execution, because of its being in writing; while on the part of the defendants it is urged — and that -is the only defense sought to be made, as shown by the bill of exceptions — that this is not such an agreement in writing as is included within the language of Rev. Stat. 4980 (Ldn. 8495) but that it is such an agreement as that suit must be brought within six years from its date.

Revised Statute 4979 (Lan. 8494) reads:

Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of the action accrues.

And Rev. Stat. 4980 (lian. 8495) :

Within fifteen years: An action upon a specialty, or an agreement, contract, or promise in writing.

The suit was brought more, than six years not only after the execution of the contract, but after any payment which could be regarded as an acknowledgment of the debt. The court of common pleas found that the statute of limitations ran against the claim, of the plaintiff, on the ground that this was not such a contract as is contemplated by Rev. Stat. 4980 (Lan. 8495).

The claim is made on the part of the defendants that there must be a promise in writing to bring an agreement or contract within the terms of Rev. Stat. 4980 (Lan. 8495). On the other hand, it is contended that there need not necessarily be a promise, that in any event there need not be an express promise, but that if there be an agreement entered into and that be in writing, then a suit may be brought upon such agreement at any time within fifteen years.

It is said on the part of the plaintiff that this contract has in it a promise to pay the amount stated in the contract to be owing and to be due from the defendants .to the plaintiff, that because the defendants acknowledged by that writing that there was due from the defendants to the plaintiff the sum of $479.75, the law incorporates into that a promise to pay and that it is to be read as though it contained an express promise to pay.

There is a case, Haines v. Tharp, 15 Ohio 130, to which the attention of the court has been called. On page 133 of the opinion this language is used:

“An indorsement is a written contract of which the law declares the effect; and when counted upon, it is the foundation of the action, and a plea that the cause of action did not accrue within six years, is no bar under the statute.”

It is said that the fact that the courts hold that an indorsement upon commercial paper is a contract, is a promise, although there is no express promise, to pay, does not result from the fact that the law implies a promise to pay from such indorsement, but that it is an abbreviated contract, and we are cited to the case of Farr v. Ricker, 46 Ohio 265 [21 N. E. Rep. 354]. The first clause of the syllabus of that case reads:

“The indorsement of a negotiable promissory note, made to transfer the title to one who has purchased it for value, is, though in blank, an abbreviated contract in writing, whereby the indorser binds himself to pay the note if on presentment the maker does not, and due notice is given him of such nonpayment; and, in the absence of fraud or mistake, the legal effect of such indorsement cannot be varied by parol.”

In the opinion, Judge Minshall, on page 266, quotes the following from Mr. Justice Matthews in the case of Martin v. Cole, 104 U. S. 30, 37 [26 L. Ed. 647] :

‘ ‘ The contract created by the indorsement and delivery of • a negotiable note, even between the immediate parties to it, is a commerr cial contract, and is not, in any proper sense, a contract implied by the law, much less an inchoatg or imperfect contract. It is an express contract, and is in writing, some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less, on that account, perfectly understood. All its terms are certain, fixed and definite, and, when necessary, supplied by that common knowledge, based on universal custom, which has made it both safe and convenient to rest the rights and obligations of parties to such instruments upon an abbreviation.”

It is urged that there is a distinction to be made between an abbreviated contract such as the indorsement of commercial paper and the reading into a contract such as the one in this case words which the law fixes as the legal result of the words which .are *used. There is a case Waring v. Railway, 7 Dec. Re. 553 (3 Bull. 893). The head note of which reads:

“Though a bill of lading is silent as to the goods being delivered within a reasonable time, yet'that obligation is part of the written contract, and an action for failure to deliver in a reasonable time is not barred in six years, but in fifteen years.”

Judge Burnet, in his opinion, says:

“It is the duty of a common carrier, when goods» are tendered to him for transportation, to receive them upon being paid a reasonable compensation for his services, and within a reasonable time to deliver them at the place of destination, and for a refusal except upon good cause, to undertake the service, a right of action exists against the carrier. When goods are delivered to a carrier for transportation, the contract which the law implies, is, whether there be any writing or not, that the carrier, for a reasonable compensation, will within reasonable time deliver the goods at the place of destination to the consignees. If there be a bill of lading given at the timé the goods are delivered to the carrier, that bill of lading comprises, not only a receipt for the goods, but a contract to fulfill the obligation which the law imposes, on the carrier, and although the words be not put in the bill of lading that the carrier will deliver within a reasonable time, that is the legal interpretation of the contract which he enters into when the bill of lading is given, there being nothing put into the bill of lading to exclude that interpretation; and in the case of a bill of lading then, that is a paid of the contract in writing', and the right of action will subsist for fifteen years without being barred by the statute.”

And the reporter says, page 554:

‘ ‘ The court here referred to the case of Haines v. Tharp, 15 Ohio 130, and said it was precisely similar in principle to the case at bar. In intendment of law, the contract contained in the bill of lading was to deliver within a reasonable time, and the contract was in writing, and was not barred in six years.”

We are impressed with the soundness of the reasoning of Judge Burnet, and it seems to us that to say that where one enters into such a contract as the one here sued upon there is no promise on the part of the debtor to pay the debt because there is not in words a promise to pay, is to do violence to well-settled principles. The law implies in such a contract as the one in this case, as in such an one as Judge Burnet was discussing — a bill of lading — a promise. It is said that the suit must be brought upon a contract in writing under the statute, and that there must necessarily be a promise in writing. We think it is sufficient if there is a promise in the contract and that there is by law just as distinctly understood, just as completely settled as in the case of the in-dorsement of commercial paper or in a bill of lading, a promise here to pay the amount which is acknowledged to be due.

But even if that be not true, if we are wrong in that we are still of the opinion that this contract comes within Rev. Stat. 4980 (Lan. 8495), for it will be observed that it is not a promise only to which the fifteen-year limitation applies, but an agreement or contract in writing. Now, it is agreed that this is an account stated, and an account stated is an agreement; it is an agreement entered into between the parties between whom there lias been an account. An account stated is an agreement entered into between those two parties, by which one owes the other a given amount, or that the account balances — it may be such an agreement as that, but it is necessarily an agreement. When that agreement is put into writing it seems to US’ it clearly comes within the provisions of the statute. It certainly literally comes within the provisions of the statute and it seems that in reason it should come within the provisions of the statute.

The purpose of allowing a longer time within which suit may be brought upon a written contract than is allowed upon a parol contract, or one of the reasons, at least, is, that in the one ease you must depend upon the treacherous memory of witnesses as to what the contract is, and too much time ought .not to be given, whereas in the other you have it so expressed that there can be no trouble to determine what it is and that lapse of time does- not take away the ability to prove what the contract is, as it does in the case of a parol contract.

A very elaborate brief is furnished on the part of the plaintiff and a great many authorities are cited, to some of which we have given attention, and those authorities are considered by the defendants in a brief filed by them. The case of Neighbors v. Simmons, 2 Blackf. 75, is very short, and attention is called to it because of the fact that not only is it cited on the part of the plaintiff, but commented upon on the part of the defendants to show, or, the claim is made by defendants, that it does not apply in a case like this. The syllabus reads:

“At the foot of an account containing several items, charged in 1817, there was the following acknowledgment, — ‘I acknowledge the above account to be just. — Thos. Neighbors ’: Held, that this acknowledgment was a written contract which, under the act of assembly, was not barred by the statute of limitations.”

T,he court says in the opinion:

“The contract, on which the action is founded, is an account of sundry items in favor of Simmons against Neighbors, amounting to one hundred and twelve dollars and sixty-two cents; the first item of which bears date the twentieth of January, 1817, * * * at the foot of which there is this writing, — ‘I acknowledge the above account to be just. — Thos. Neighbors.’ The act of assembly provides, that no statute of limitations shall be pleaded as a bar, or operate as such; to any action* founded on an instrument or contract in writing, whether the same be sealed or unsealed. We are ,of opinion that the written acknowledgment of this account forms a contract in writing; and that the plea of the statute of limitations, in this case, was inadmissible. ’ ’

That reason, as we understand it, applies exactly to this case, and without stopping to read from other authorities, we have come to the conclusion that there was error on the part of the court of common pleas in holding that this was not such a contract in writing as authorized suit to be brought upon it at any time within fifteen years.

The court of common pleas, whose opinion we have before us, called especial attention to promissory notes and reasoned from the language used by Daniels and other authorities on promissory notes that this ought not to be held to be a promise, but, as has already been said, we are of opinion it is a promise, although it is not an express promise, but whether a promise or not, it is a contract in writing. It 'was urged in argument that if the statute read “contract, promise, or in strument in writing” it might, well be said here is an instrument in writing, and that, there would be more reason for saying that this came within the statute and for the reason that it is an instrument in writing. "What kind of instrument is it? Clearly an agreement; and, therefore, it is an agreement in writing.

The definition of a promissory note given by Daniels and the definition given substantially by all the authorities is “An open promise in writing,” meaning, of course, an unsealed promise in writing, “by one person to pay another, or to his order or to bearer, a sum of money.” Daniels, Negotiable Instruments Sec. 28 and then in Sections 36 and 37 Daniels goes on to'say that unless there is an express promise in a written instrument having all the other features of a promissory note, it still would not be a promissory note, and he says that it has been held that “I. O. U.” so many pounds has been held in ^England as not a promissory note, that there is a conflict of authority as to whether an ordinary due bill is a promissory note; but we apprehend that there can be no doubt that each of those is a contract in writing. Whether it be a promissory note or not, the question before us is, whether the instrument here is an agreement or contract in writing. We hold that it is.

The judgment of the court of common pleas is reversed. And now coming to dispose of the case, as we understand under Rev. Stat. 6726 (Lan. 10318) we should do, we here enter the judgment that ought to have been entered in the court below. Judgment is gendered for the plaintiff for its claim.

Haynes and Parker, JJ., concur.


author: PER CURIAM.

text:
    INJUNCTION.
    [Hamilton (1st) Circuit Court,
    May 19, 1906.]
    Jelke, Swing and Giffen, JJ.
    Charles C. Breuer et al. v. John H. Gibson et al.
    Abutter Petitioning for Improvement may not Enjoin Collection op Assessments to Pay por Same, when Made as Requested, on Ground op Improper Construction.
    One who petitions a city for street improvement abutting on his property, te be made in a certain manner, may not enjoin the collection of assessments to pay for the improvement on the ground that it was improperly and negligently constructed, if the improvement is made in the manner asked for.
    [Syllabus approved by the court.]
    INJUNCTION.
    Horsiman & Horstman, for plaintiffs.
    C. J. Hunt, city solicitor, for defendants.
   PER CURIAM.

This action [Charles C. Breuer and H. W. Morganthaler v. John H. Gibson et al.] was commenced to enjoin the collection of certain assessments levied upon the plaintiff’s lots for a street improvement, on the ground that the street was improperly and negligently constructed. The amended answer contains the averment that the plaintiff petitioned the city through its proper boards tc make said improvement in the manner in which .it was afterwards made, and wherein they agreed to pay for the whole cost of such improvement except 2 per cent of the entire cost of the improvement and the costs of the intersections. This averment is nowhere controverted by reply, and hence the court did not err in refusing to hear testimony tending to prove that the street was negligently and improperly constructed.

A rehearing will therefore be' denied.