text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    THE ANDREWS & HITCHCOCK IRON CO. v. THE I. D. SMEAD HEATING AND VENTILATING CO.
    One of the parties in this case offered to put in evidence the laws of another state. Held, under the issues made in the case, he should have pleaded the. existence of the laws in order to be entitled to offer the evidence.
    S. carrying on business of manufacturing and setting up heating furnaces, incorporated same into two companies one Co. to do foundry work the other to do the general business. The companies became insolvent and a receiver was appointed for each. The receiver of the Foundry Co. undertook to subject monies arising on certain contracts to the payment of alleged sub-contractors’ liens in favor of the Foundry Co.
    Held, under the facts of the case that no sub-contractor’s lien existed.
   Haynes, J.

We have heard this case upon the evidence and the arguments of counsel. There is a mass of papers in the case, and a great deal of evidence, a great many points have been raised, and argued by counsel. In the view that we take of the case, it will not be necessary to make any very extended statement of the case or to go into any extended discussion of the questions. Suffice it to say, it appears that the Smead Heating & Ventilating Company (which I shall call the Ventilating Company) and the Smead Foundry Company (which I shall call the Foundry Company), were organized in this city out of a business originally carried on by Isaac D. Smead & Go. The business of the company originally had been, among others, the manufacture of the Smead heating apparatus — a furnace. Smead & Co, (who was Isaac D. Smead, in fact), had become very much involved, and in January, 1893, or prior to that time, the Ventilating Company had been organized; and about that time there had been some change in the management of the company, but not in the organization of the company- — that is to say, it was the same corporation. Smead had also organized what is known as the Foundry Company, and in the carrying on of the business, the Ventilating’ Company had been in the habit of taking contracts for the putting in of furnaces and heating apparatus, in public and private buildings, and certain of the work had been performed “by the Foundry Company and furnished to the Ventilating Company, and the Ventilating Company had then put the same into the buildings, and had drawn the pay therefor. The matters ran along in this shape for a year or so, and both of these companies had evidently become very much involved, if not wholly .insolvent, and a receiver was appointed by the court of common pleas for each of these companies, who received and took charge of the moneys, the receiver for the Foundry Company being Harold H. Smith, and the receiver of the Foundry Company being Isaac D. Smead, at first, but subsequently Charles W. Bond. After the appointment of the receiver of the Foundry Company, he was permitted by the court — by an order, I understand — to prepare and file certain claims, under the mechanic’s lien law, in favor of that company and against the Ventilating Company; they were sub-contractor’s liens filed upon claims which it was represented that the Foundry Company held against the Ventilating Company, arising out of contracts which the Ventilating Company had, and it is claimed that proper notices were served upon various and sudry corporations who were owing the Ventilting Company, which company was at that time putting in furnaces and apparatus in their respective buildings, or had done so and were not yet fully paid. The claims of the respective parties, as they are presented before us, stand somewhat in this condition: Sundry persons had loaned to the. Ven til a ting Company moneys, in various sums —some of them in large sums — and at the time that the loans were made to the parties they had taken as collateral security for the moneys thus advanced an assignment of contracts, some of one contract and some of another, as security for the payment of the money thus advanced, with the under-' standing or arrangement made at the time the money was advanced, as it is claimed, made with the president and manager of the company, that the moneys thus advanced should be used for the completion of performance of the particular contract which was assigned. The Foundry Company filed these sub-contractor’s liens, as I have stated, and has set up the various liens. It claims, as between itself and these various plaintiffs, a priority over the plaintiffs in the moneys which are now in the hands of the court. It should be stated that under the order made by the court of common pleas, the moneys arising out of these various contracts have been paid, by the order of the court, into the hands of the receiver, and are now in this court to abide the order of court and. subject-to the various liens of the parties the same as they would have been if in the hands of the parties who paid them. The liens are set up, and there are stipulations in regard to the facts, as to the sub-contractor’s liens having been prepared and filed. Quite a -number of them arose upon contracts which were made with parties who reside out of the state of Ohio- — some in Michigan, and some in the state of Indiana, and some in the state of Kansas; others are upon buildings which are situated in the state of Ohio. Counsel representing these claims sought to offer in evidence and tendered in evidence the laws of the various states under which they claim their right arose; objection was made on behalf of the plaintiffs, that those laws ought not to be admitted for the reason that they had not been pleaded. An examination of the pleadings — we have not examined them all, but we understand that they are all substantially alike — shows that there is no reference whatever to such laws, much less are the statutes pleaded. We took this testimony which was offered under advisement, with the understanding that we should rule upon it when we came to decide the case after hearing the arguments of .counsel. We are clearly of opinion, that under the law of the land in regard to pleadings, that it was the duty of counsel-who drew these pleadings, if they intended to offer in evidence these various statutes, or if they were claiming any rights arising under the statutes of these respective states, to have pleaded the statutes in due and proper form, and we think it would be error for this court to admit them in evidence without having the same properly pleaded, and for that reason we sustain the objection made by counsel to the reception of those statutes. These moneys were loaned, some perhaps in the latter part of 1892 and early in 1898, and on up somewhat later than 1893. The work was carried on during the summer of 1898, and extended into the spring of 1894. Just at what time the receiver was appointed, I am not now advised.

One of the first points of contention' in regard to these claims, is, that the Foundry Company had no right, under the facts of the case, under the conditions on which the business as carried on, and the way the work was done, to any subcontracor’s lien upon this money. And we are of opinion that that contention is right. We have been presented here with the opinion of the able judge who delivered the opinion in this case in the court of common pleas, and since we* have decided this case I have looked at it, and with the reasonixxg of the judge upon that question I am in full accord, and deem it unnecessary to recite to any great extent the views which have been stated by him. The substance of the matter.is, that the real company was the Ventilating Company, which took the contracts and performed the work, and, as we understood the evidence injthe case, has received -all the profits made upon the contracts, if any were made. The work that was done by the [FoundrylCompany was simply done, as we-understand it, at jits'cost price,-or the'cost --of the labor and material, so that practically there would be no profit, so far as we can see, accruing at any time to the Foundry Company; and the question was put to counsel by one member of the court in regard to the matter, and we are unable to see, from their statement of the matter, how any profits could accrue to the Foundry Company. Perhaps that is not very material here, but it is. a fact in the case. Now, there is another fact that has a bearing upon this, and that is, that in 1893, in June, there was executed by the Foundry Company to the Ventilating Company a lease of its foundry property, with its machinery and the right to carry on business there, for the sum of $3,000 per annum. That lease was to date from January previous, being January, 1893, to run for a [year with the right to renew it at the option of the lessee. It is said that there was no possession taken under that contract, that it was treated as a dead letter. Nevertheless the contract was made, and executed and recorded, for some purpose. It certainly is an item of evidence to show that the Ventilating Company was looked upon as the principal party in interest, as the party that was really carrying on the whole work. Further, the manner in which the work was done as between the parties, shows very clearly that that was the real condition of affairs as between those companies, for while the work was sent to the Foundry Company and was done there, payments were made by checks made by the Foundry Company on the Ventilating Company. It is shown that those checks, when they came in, were charged to the Foundry Company, and the Foundry Company was credited with work, a running account was thus kept, and it is said, and I think the claim is true, that the credit account was usually in favor of the Ventilating Company, at least for a very long period of time, and perhaps down to the close of the business. So that the evidence seems very clearly to us to. show that the real party in interest was the Ventilating Company, and that this Foundry Company was treated by both parties simply as an arm of the business of the Ventilating Company- — -as one method of carrying on one department of its business, and it is very certain, under the decision of the Supreme Court of Ohio, as set forth in the 38 Ohio St., that there could be no mechanic’s liens in favor of the Foundry Company, as against the Ventilating Company, if they had determined to make the lien • direct as between the Foundry Company and the Ventilating Company. Nevertheless, that case is to be distinguished from the present case, in regard to the facts, in this, that this is a sub-contracor’s lien, and if the Foundry Company is entitled to a sub-contractor’s lien, it would have a right to file their claim without regard to whether it had a ' direct claim against the Foundry Company. But that brings us to really another point in the case, which we consider fatal to this claim of the Foundry Company, and that is, that, in this course of dealing, the claims of the Foundry Company upon particular contracts cannot be distinguished. It is possible that some articles that came from the shops of the Foundry Company into these various buildings, might' be traced; but that is only a part of the case. The questions are: First, whether the articles have been furnished? and, second, whether they had been paid for? And, in the manner in which this account has been kept, it cannot be shown dhat these various accounts have not been paid off and satisfied by the Ventilating Company, exctept by showing — '; asserting the claim — that the Foundry Company, or its receiver at the present time, has a right to change these various payments which have been made,and apply them to any particular contract that they may choose, and leave the other contracts to be followed under the mechanic’s lien law. We'are clearly opposed to any such a claim. We think the plaintiff has no such right. . We think the receiver has no such right. We think these accounts were made as 'running-accounts, from day to day. The claims came in and were. passed to the credit of the Foundry Company, and were paid by charges in gross to the Foundry Company, and the moneys were paid from time to time, and they should be applied in the usual and ordinary manner to pay off the claims which were first found to be existing upon the ledger, and if any balance remained in favor of the Foundry Company, it should be paid to those who stand last upon the column. We are very clear in our minds, that as between the Ventilating Company and the Foundry Company, these claims have been paid and satisfied, and so no liens or claims can be founded on them.

It is said here that there is a peculiar equity in this case, because there are certain laborers that are unpaid, and an account is presented to usAs a lienpf some $13,000 or $14,-000, showing the services of laborers where the laborers have not received their pay, extending from some time in 1893 until the year 1894, and perhaps down to the dato of the closing of the business. The rights of the laborers are to be protected, and we understand that they are protected by the statute of the state, and, of course, it is the duty of the court, as well as its pleasure, to enforce the law in their favor. It should be remembered, however, that these laborers were working for the Foundry Company at stated sums per day. There is not, and there can be no claim made that they have any right or lien, or right to file any mechanic’s lien, or any sub-contractor’s lien, as against this Ventilating Company; but it is sought to work out through the receiver what they claim to be the equities and rights of these particular individuals, and it is claimed that their liens are preferable to the liens of the plaintiffs. The statute of this state, which is, I believe; still in force, provides-^-and I read from the insolvent debtor’s act:

“5355. All taxes of every description assessed against the assignor upon any personal property held by him before his assignment shall be paid by the assignee or trustee, out of the proceeds of the property assigned in preference-to any other claims against the assignor, and every person who shall have performed any labor as an operative in the service of the assignor, shall be entitled to receive out of the trust funds, before the payment of the other creditors, the full amount of the wages due to such person for such labor performed within twelve months preceding the assignment, not exceeding $300.' But the foregoing provisions shall not prejudice nor in any way affect securities given or liens obtained in good faith for value, etc.,”

And the rule applies, we think, to receivers as well as assignees.

But judgments by confession should not be considered. So that within the statutes of the state of Ohio, which we are to enforce, persons who advance money and obtain liens upon the property of the company, are to be protected. It is true that under the statute it is possible that if the liens were sustained in favor of the Foundry Company, they might override the demands that have been made by the plaintiff; and that brings me to a proposition that I had in my mind, and that is, that the individual laborers have no rights under the statute; that whatever rights are worked out through the assignee under the mechanic’s lien law m'ust stand upon the statutes of the state. The assignee has no rights except those which the statute gives him, and while he may be entitled to a liberal construction of the statutes, nevertheless his claim is a statutory claim, and he must bring himself within the terms of the statute.

I believe that covers the leading points in this case. I do not at this moment remember of any further points that it is necessary to discuss here. These legal points are decisive of the case so far as the claims of the Foundry Company are concerned, and we hold that the claims are not valid claims against the funds which are in the hands of the receiver. In reference to the claims of the plaintiff, of course they will be worked out upon the general plan as they were worked out in the. court of common pleas. There was one claim where the money had not been paid over, which was represented by Mr. Thurston. I don’t remember, at this moment, the facts of it, and it may be passed upon at any time, on any question arising in regard to it, in the drafting of the journal entry.

Hurd Brumback & Thatcher, for the Foundry Company.

King & Tracy, G. H. Beckwith, A. L. Smith, W. S. Thurston, and others for several defendants.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    MONTA L. GREEN v. CLARA FARRIN, Same v. SAMUEL OAKES.

      Replevin before J. P. — What judgment entry sufficient.

    1. After the trial of an action of replevin before a justice of the peace, the justice duly entered upon his docket, the following: “Whereupon I do find that the right of property and possession of said goods and chattels when this action was commenced was in the paintiff, and I do assess his damages in the premises 8125.00 and costs of suit herein taxed at 8--.” This, though informal, was a good and valid judgment.
    2. The defendant having filed in the court of common pleas her petition in error to reverse said judgment, the court dismissed the same on the ground that no judgment had been entered by the justice of the peace. This was erroneous. If there was error in the proceedings of the justice, the[judgment should have been reversed, and the cause retained for trial in that court. If there was^no error in the judgment of the justice, it should have been affirmed.
    3. In the other case, which was an action against the surety on a redelivery bond given in the case, the court directed the jury to find for the defendant, because there had been no judgment rendered in the replevin case by. the justice of the peace. This was erroneous.
    Error to the Common Pleas of Hamilton County.
   Smith, J.

These two cases which were heard together, though they are somewhat different in character, depend on the settlement of one question; and that is whether any judgment was rendered by Esq. Farrell, a justice of the peace in this city, in a certain action which was pending before him, in which Green was plaintiff and Clara Farrin was defendant.

The facts were these: Green broughtTan action of replevin against Mrs. Farrin to recover the possession of certain personal property, which property was all taken by the officer, and delivered to the plaintiff on the due execution of an undertaking by him, but the defendant having given a redelivery bond,the property was returned to her. The action was afterwards tried by the justice, the defendant appearing by her attorney, and witnesses were examined on the part of the plaintiff, but defendant offered no evidence, and after stating this hearing, the transcript contains the following language:

“Whereupon I do find that the right of property and possession in said goods and chattels when this action was commenced, was in the plaintiff, and I do assess his damages in the premises $125.00 and costs of suit herein taxed at $ — . ” This was on August 22, 1893, and on September 8, 1893, an execution issued thereon and was delivered to a'constable, who returned it, showing a levy on certain goods and their sale for $48.05. No exception of any kind appears to have been taken to any of these actions or proceedings.

But on December 6, 1893, Clara Farrin filed in the court of common pleas a petition in error to reverse this judgment on the ground, first, that the justice erred in not assessing the value of the property taken and delivered to her, separately from the other damages, and second, that no judgment was entered. The defendant in error moved to dismiss the petition in error on the ground that it did not conform to law, but manifestly if there was any judgment the motion should have been overruled. But the court on hearing the case rendered this judgment: “This cause coming on to be heard on the petition in error, it is found by the court that no judgment was rendered by the justice of the peace in the action of replevin before him, and in which error is claimed to have been committed, to which defendant in error, by his counsel, excepts, and that the petition in error be and is dismissed at the cost of the plaintiff in error, to all of which the plaintiff in error excepts and the defendant in error, by his counsel, excepts.”

Thereupon Green filed his petition in error in this court to reverse this judgment:

Was there a judgment rendered by the justice in the original case? Though informal and showing great negligence in not following forms at the command of every magistrate, we are of the opinion that there was. It is a settled rule that great indulgence is to be shown to the proceedings and judgments of such officials, who are not presumed to be acquainted with the technical rules of law and the practice of the higher courts, and we think that the rules of law, as shown by the adjudications of many, courts, fully justify us in holding that the finding of the justice in this case, that the right of property in, and of the possession of the goods, in controversy were at the commencement of the suit in the plaintiff, and that he assessed the damages of the plaintiff at $125, and costs taxed at $ — , was intended by the justice to be a judgment for that sum and the costs, and that it was not essential that it be followed by a statement that it was considered or adjudged by him that the plaintiff recover these sums. These conclusions seem to us to be warranted by secs. 50, 51, 53, 53a of Freeman on Judgments, and Black on Judgments, 123, where this question is fully discussed. The court of common pleas erred, in dismissing the petition in error. It was filed in time, and the plaintiff in error was entitled to raise the question whether the judgment of the justice was a valid judgment, for no exception to that was necessary to enable her to raise that question. The judgment, in our opinion, should have been affirmed, for the ruling in 7 C. 0. Rep. 303, is not applicable to this case.

We have had some doubt whether there was anything in the judgment of the common pleas prejudicial to the pain-tiff in error. He got what he asked, viz., the dismissal of the petition in error, We incline to the opinion that this left his judgment before the justice in full force — even if the common pleas did assign as the reason for the dismissal that there was no judgment to review. But it may be that it might operate to estop him from thereafter claiming that he had such a judgment, and that was the holding of the court of common pleas, of which we will hereafter speak, and this is the reason why the plaintiff in error now seeks its reversal. And as there was error in dismissing the petition in error and in not affirming it, that judgment will be reversed, with costs, and remanded to the court of common pleas for further proceedings.

The other case was one brought by Green against Oakes, the surety on the redelivery bond, to recover the amount still due on his judgment. If there was a judgment in the original case, the proof offered in this, entitled him to recover. But the trial judge in this case, on the journal entry of the dismissal of the petition in error being produced, held that there was no judgment on which to predicate the right of the plaintiff to recover, and directed the jury to find for the defendant, which it did. The rights of the plaintiff in error were duly preserved by exceptions to the rulings and charge of the court and the overruling of a motion for a new trial, and by taking a bill of exceptions containing all the evidence and those rulings. We think the trial court erred in those rulings, and this judgment will also be reversed with costs and remanded for a new trial.

M. G. Heintz, for plaintiff in error.

Dan. Wilson, for defendant in error.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    CLEMENS HELLEBUSH v. J. P. ERDHOUSE et al.

      Action to set aside cancellation of mortgage — Former decree when no bar to action.

    An action was brough by H. against E., who had executed to him a mortgage on certain real estate, and against the building association, which had subsequently taken a mortgage from E. on the same land, to set aside a cancellation of the mortgage held by H. on the ground that such cancellation had been procured by the fraudulent acts and representations of E. and the building association. To this action P. was also made a defendant, as claiming some interest in the land, but which the petition averred was subject to the rights of H., the plaintiff. All fraud was denied by the answers of all of the defendants, and P. in addition, alleged and averred that after the cancellation of the mortgage of H., he had in good faith, bought the land from E. subject to the building association mortgage for full value, and was the absolute owner thereof, subject to said last mortgage. On the trial of said action a final decree was entered, dismissing the petition as against all of the defendants.
    Held, that such judgment or decree does not operate as a bar to the prosecution of an action subsequently brought by H. against E. & P., averring that the deed made by E. to P. for said land was made and received with the intent to defraud the creditors of E. The two actions.were entirely separate and distinct. The is- . sues therein were wholly different, and the relief sought was not the same.
    Appeal|from the Court of Common Pleas of Hamilton. County.
   Smith, J.

We state our conclusions in this case briefly.

In the first place, we are of the opinion that the judgment of the circuit court in 1887, in the case of Hellebush v. Erdhouse, the Building Association and the defendant, John A. Poll, was not a bar to the prosecution of this case. The same question was argued and presented to us once before, and the same conclusion arrived at, and after hearing the evidence in the case, and an additional argument, we have not seen cause to change the opinion then expressed.

• The first named action was one brought 'by Hellebush, against Erdhouse and the Building Association, to set aside the cancellation of a mortgage which had been executed to him on a certain tract of land then owned by Erdhouse, and which cancellation had been obtained, as he claimed, by the fraudulent conduct of Erdhouse and the Building Association, and he prayed that his lien be restored as against Erdhouse and the Building Association, which had after the cancellation of the ^Hellebush mortgage, taken from Erdhouse a mortgage on the premises for $5,200.

To this action Poll was also made defendant' — the averment against him being, that he claimed some interest in the property, but that it was subject to plaintiff’s rights, and calling upon him to set up his claim.

■J By their answers Erdhouse and the Building Association denied all of the fraud charged, and asserted the validity of the mortgage given to the Building Association. Erdhouse also denied that Hellebush had any valid claims against him, or any lien on the land by virtue of his mortgage; but it may be said that in the court of common pleas in that case, the question whether Erdhouse did owe Hellebush anything on the claim which had been secured by the mortgage was first tried, and it was determined and adjudged that he did still owe thereon about $3,300, but all other questions were reserved for further hearing. Erdhouse did not appeal from this finding, and it is a finality as to the amount. Poll, by his answer, averred that after the cancellation of the Hellebush mortgage, he, in good faith, had bought the land in question from Erdhouse subject to the Building Association mortgage, for full value, and claimed to be the absolute owner of the property subject to the Building Association mortgage, and denying all of the allegations of the petition not admitted by him. There was no reply by plaintiff to this answer. After a decree in the common pleas, the case was appealed to this court, and in 1887, a decree was therein entered as follows: “This cause came on to be heard upon the petition of the plaintiff, the answer of the defendant, The Third Ward Building Association, the original and amended answer of John A. Poll, the answer of John P. Erdhouse, a defendant herein, and the evidence, and was argued by counsel. On consideration whereof, and being fully satisfied, the court do find that the plaintiff has failed to maintain the issue on his part against the defendants, or against any of them.” The petition was thereupon dismissed at the plaintiff’s costs.

More than four years after the conveyance of this land to Poll by Erdhouse, the petition in this case was filed by Hellebush, against Erdhouse, Poll and the grantee of Poll, averrmg that at the time of the conveyance to Poll, Erdhouse was largely indebted to him, and was insolvent, and that the deed so made to Poll by Erdhouse, was made with the intent to hinder and delay the'creditors of Erdhouse, and was fraudulent on the part of Erdhouse and Poll, and that the grantee of Poll knew this when he took his deed, and that he, Hellebush, had not discovered this fraud until less than four years before the filing of the petition in this case.

In his answer to this petition, Poll pleaded that the decision in the former case, was a bar to any recovery against him in this case by Hellebush. Second, he denied the allegation of the plaintjff that he did not. discover the fraud until less than four years before the filing of the petition; and third, he denied all fraud in the making of said deed, and averred that it was a purchase by him in good faith and for-' a full consideration.

It seems to us to be clear that these two actions were entirely separate and distinct — -the claims made in each were wholly different. In the first, the issues, and it may be said the only issues were, whether the cancellation of the Hellebush mortgage had been obtained by the fraudulent conduct ofjErdhouse and the Building Association; and if so, whether Poll knew of this when he purchased from Erdhouse. If the cancellation of the mortgage had been fraudulently obtained by the association and Erdhouse, Hellebush as against them, would have been entitled to have his mortgage take precedence of that of the Building Association, or he might have been subrogated perhaps to so much of the Building Association claim as would equal his debt, or he be placed in its position with his claim. But his mortgage, unless this was done, could not be good as against Poll if he bought in good faith without notice of the fraud, and therefore it was that evidence in the first case as to the dealings of Erdhouse and Poll, and what he paid for the land, was admissible, and as we find, from the evidence in this case, was in fact offered in the first case. But under the pleadings in the case it could not have been offered to show that the deed from Erdhouse to Poll was made with intent to hinder and delay the creditors of Erdhouse, for no such issue was made, and two such claims could not have been asserted properly in the same petition; it would have (been a misjoinder of causes of action. The question therefore, whether the deed was made to defraud the creditors of Erdhouse, was not in issue; and the only effect that can properly be given to the judgment of the circuit court was, thatjthe cancellation of the Erdhouse mortgage to Hellebush was not procured by the fraud of the Building Association and Erdhouse (and this would have ended the case), and that Poll, when he took his deed, had no notice of any fraud, if it were committed.

In the. second place we are satisfied from the evidence submitted that Hellebush did not discover the fraud alleged in this case until less than four years before filing his petition, and therefore that the statute of limitations did not run against him.

The next question is, whether it is shown by the evidence, that the conveyance in question by Erdhouse to Poll, was fraudulent in fact, as having been made with the intent on the part of both grantor and grantee, to hinder, delay or defraud the creditors of Edrhouse. or whether it was conveyed to Poll partly in consideration of a debt he held against Erdhouse, and of his promise to assume and pay the debt of Erdhouse to a third person,or on a secret trust that he would, after the payment of the amount due to himself, hold the property for the benefit of the wife of Erdhouse. There was evidence offered tending to prove all of these matters, and if it was shown that either of these things was so, it would be the duty of the court to declare the transaction a fraudulent one, and set aside the deed or hold it to be an "assignment for the benefit of all of the creditors of Erdhouse.

• As to this we may say, that in our judgment it is clearly shown by the evidence, that the conveyance in question is not such as should be allowed to stand. In tho first place, we think it is clear that Poll did not have a valid claim against Erdhouse, for anything like the amount he claims,at the making of the deed in question, or in such sum as, with his assumption of the Building Association mortgage and the Gtraman debt, equalled the consideration price for the land, $10,000. We are^impressed with the truth of the claim, that one of the objects of the conveyance was to put the title in such shape that it could not be reached by the creditors of Erdhouse, and that after his claim and assumption were paid, if anything was left, it was to be for the benefit of Mrs. Erdhouse. But if there was doubt as to this, we think that his assumption and'agreement to pay the Graman debt, under the circumstances disclosed by him in his evidence in the trial in the court of common pleas, and not shown to be otherwise on the trial in this court, brings the transaction clearly within the adjudications of our Supreme Court, as to such secret trust making the deed operate as an assignment for the benefit of all of the creditors of Erdhouse, and such will be the holding of the court in this case, and the decree can be entered accordingly, and a copy thereof certified to the probate court, that proper steps may be taken in pursuance of the provisions of sec. 6344, Rev. Stat.

Wm. A.. & L. A. Hicks, and Kramer & Kramer for plaintiff.

Healy & Braman, and A. J. Cunningham, for defendant.


text:
    (First Circuit—Butler Co., O., Circuit Court
    October Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    THE STATE Ex. Rel. SHEPHERD v. FRANK DUERR, Auditor.

      Board of Education — Establishment of several special school districts at one time requires seperate vote for each by yeas and nays.

    1. The attempted establishment by a board of education of a township, of four special school districts, in the mode and manner, and under the circumstances hereinafter stated, was against public policy, and therefore illegal. There being four separate and distinct petitions — each one asking for the establishment of a different special district, they could not be granted by one and the same vote, after a refusal by the board to vote separately on each proposition.
    2. Where one of said special districts so attempted to be authorized, afterwards attempted to organize as such under the forms of law, and a board of education for such alleged special district was elected, and proceeded to levy a tax on the property in such district for school purposes, and applied to the auditor of said county to place the same on the duplicate for collection, which was refused, and said auditor having already placed upon the duplicate a levy made by the board of education of the township, on all of the property in said township, for school purposes, ^the court will not, by mandamus, require him to do so.
    Mandamus.
   Smith, J.

We are of the opinion that in this case, and the two other cases against the same defendant, which were submitted with it, the writ asked for should [be refused, and the petitions dismissed. And upon the ground that the special school districts, which it is claimed were established by the Board of Education of Union township, Butler county, Ohio, on August 27, 1894, were in fact never legally established by it, and that the attempted action in the manner in which it was done, was against public policy, and therefore void.

The facts briefly stated were these: Pour separate and distinct petitions had been presented to the Board of Education at the same meeting. Each prayed for the establishment of a special schooUdistrict, and the territory sought to be included in each of said special school districts prayed for, was attempted to be described in the several petitions; that is, it was sought by one of the petitions, to have sub-school district No. 2, changed to a special school district No. 2. By another, to have sub-district No. 4, changed to special district No. 4. By another to have sub-district No. 6, changed to a special district No. 6, and by the fourth to have sub-district No. 9, changed to a special district No. 9.

There were at this time seven sub-school districts in Union township, viz. Nos. 2, 3, 4, 6, 7, 8 and 9, and at the meeting of the board in question, each sub-district was represented by one member. After the presentation of the petitions Mr. Schoenberger, the member from No. 9, moved that the prayer of the petitions be granted, and that special school districts Nos. 2, 4, 6 and 9 be established in the-stead, of the sub-districts of the same numbers, and this motion was seconded, whereupon Mr. Hughes, a member of the board from district No. 8, moved to amend the pending motion so that the vote be taken separately on each petition. This amendment was seconded, and the vote taken on the motion to amend, the sub-districts being called by their numbers, and those representing sub-districts Nos. 3, 7 and 8 voted for the amendment, and those representing sub-districts Nos. 2, 4, 6 and 9, voted against it, and the amendment was therefore lost. Thereupon a vote was taken on the original motion, and the districts being again called by numbers, those members representing sub-districts Nos. 2, 4, 6 and 9 voted in favor of it, and those representing sub-districts Nos. 3, 7 and 8 voted against it. The names of those so voting nowhere appear on the record, the clerk having entered the votes by sub-districts.

•It would seem that the provisions of sec. 3982, Rev. Stat., which make it obligatory that in certain cases therein mentioned ‘'the clerk shall publicly call the roll of all the members cpmposing the board and enter on the record required to be kept, the names of those voting ‘aye,’ and the names of those voting ‘no,’ and if a majority of all the members of the board vote ‘aye,’ the president shall declare the motion carried,” do not apply in terms to a vote upon the question of the establishment of a special district. It perhaps would fall under the following clause of the section, which provides that ‘‘upon any motion or resolution any member may demand the yeas and nays, and thereupon the clerk shall call the roll, and record the names of those voting ‘aye’ and those voting ‘no.’” In this case it does not appear that any member demanded the yeas and nays on either of those motions, and the president did not declare the original motion carried.

It further appears that John Burch, a member of the board from sub-district No. 2, voted for the motion establishing the four special districts. At the next meeting of the board' Burch appeared, and requested that the vote of his sub-district on the original proposition be changed from yea to nay if it would not affect the action of the board as to the other districts, and it may be that some action of this kind was attempted. But manifestly it could have no effect if it had been done. The vote as cast was correctly recorded, and the board had no right to change it,or make its record state an untruth.

At all events, Nos. 4, 6 and 9 acted as if the special districts had been legally established, and went on to organize under the statute, elected a board of education and other officers in each, and levied a tax for school purposes in these several districts,and demanded that the auditor of the county levy the same, which he refused to do. The board of education of the township claiming that the action was illegal, also applied to the auditor to place upon the duplicate a tax levied by them on all of the seven sub-districts as they stood before the action of August 27, which he did. Sub-district No. 2 never, in fact, was organized into a special district.

As we have before stated, we are of the opinion that the action by which the majority of the members of the Board of Education of Union township, attempted to change those four sub-districts into four special districts, was illegal, and therefore did not accomplish their purpose. It is manifest that there were four separate and distinct propositions submitted to the board for its action, and not one embracing four. A separate petition and proceeding in each case was absolutely necessary, for each petition must be signed by freeholders residing in the territory sought to be embraced in the proposed special district. There can be no claim, we think, that in a case like this, where it was proposed that four of the seven sub-districts, subject to the control of the Board of Education of the township (and each represented by one person), should be changed into special districts, that justice and fairness would not require, that the vote on each of the separate and distinct propositions should ,be separately taken, at.least if such request be made by any member of the body called on to vote on the propositions. So far as we are aware the right to have this done, is secured to any member by the rules or practice of legislative or other bodies exercising functions like these.boards do. In this particular case, where it certainly in fairness should have been granted, it was refused by the votes of the four persons who represented • the districts desiring the change, the other three votes being in favor of .the division.

We are willing to concede that there is no statute law of the state, which expressly, for bids boards of education, in. cases of this kind, from including in one vote, several .distinct and independent propositions. But this, we think, does not concede that such action is therefore legal. On the contrary, we think, the case comes clearly within the principle of the decision of the Supreme Court in the case of Campbell v. Cincinnati, 49 Ohio St. 463. In that case it was expressly held that a separate suspension of the statutory rule (requiring ordinances to be read on three different days) as to each ordinance was requisite to its final passage, by the council of a city. And that a separate vote was requisite as to each ordinance on its final passage, in order that such passage might be legal.

The Supreme Court, in. the opinion announced by Judge Dickman, say: “The statute does not, in express words,Require the vote on dispensing with the rule, or on the final passage, to be taken separately on each ordinance, yet the obvious design of the law might be defeated if the vote were, not thus taken.” And further say that .in the passage,,of such ordinances, “.the property owner is entitled to the undivided judgment off the council upon an -ordinance -that would so materially affect his interests.” And it is further, said, “several ordinances should not be declared passe'dfat the same time and upon the same and a single vote of council, but every ordinance should require for its passage a separate and distinct yea and nay vote. A contrary mode of legislation should be discouraged as opposed to public policy, and inimical to the public interests. The combination of several ordinances for passage on one and the-same vote, will too often gain the support of those who disapprove of one or more of them, but who expect in return to insure support for such of the measures as they favor. ”

Millikin, Shots & Millikin, and Morey, Andrews & Morey', for the relators.

A. F. Hume, and Israel Williams, for defendants.

This, we understand, places the invalidity of the ordinances in controversy in that case on the ground that the manner in which they were passed was not in conflict with any express provision of statute law; but on the ground that the manner in which it was done was against public policy. The same reasons exist in the cases before us, as in the Campbell case, and with even greater force.

It is urged that the auditor is a ministerial officer, and the persons claiming to be the boards of education of these alleged special districts, are at least officers de facto, and that the auditor is not to be permitted to question their right, but must act in the matter of these levies as directed by them. We think that this is not the case. It would seem that in the levy of taxes he is something more than a ministerial officer. But whether this be so or not, we are of the opinion that when by writ of mandamus he is called upon to perform a certain act, and refuses to do it, and it appears to the court, called on to compel him to act, that the relators have no right to have the act done, he will not be required to do it. This doctrine was laid down by this court in Ohio ex rel. v. Ratterman, 3 C. C. Rep. 626. The petitions will all be dismissed at the costs of the defendants, but as the cases were heard together, we suppose the relators in each of the three cases should pay- one-third thereof.


author: Swing, J.

text:
    First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    THE CITY OF CINCINNATI ex rel. WILLIAM M. AMPT, a taxpayer v. THE CITY OF CINCINNATI, AUGUST HERMANN, JOHN FREY, GEORGE T. STERRITT and JOHN B. WASHBURN, as the Board of Adminitsration; D. W. BROWN, auditor, and HENRY M. ZIEGLER, treasurer.

      Water Works — Powers of Board of Administration of Cincinnati— Appointment of three expert engineers to investigate etc. as to condition of water, sufficiency of present ivater works, plans for new water tvorks, etc.

    Appeal from the Court of Common Pleas of Hamilton County.
   Swing, J.

This was an action brought in the name of the city of Cincinnati on the relation of William M. Ampt, a taxpayer, against the city of Cincinnati and others, the city solicitor of said city having declined to bring the suit, to have declared void the appointment of John W. Hill, Samuel Whinery and George H. Benzenberg, who had heretofore been appointed by the Board of Administration of said city, as engineers, in connection with -the water works of said city. And also to enjoin said Board of Administration and the auditor and treasurer of said city from paying the salaries and expenses of said engineers.

On the 21st day of December, 1895, the Board of Administration of said city, passed the following preamble and resolution :

“Whereas, Various medical and other organizations, as well as men scienced in public hygiene, have repeatedly called the attention of the Board of Administration to the unsatisfactory sanitary condition of our present public water supply, and,
“Whereas, It is the desire of this board to remedy this condition by means which shall be practical and effective, and which may tend to raise the, standard of our public health with reference to water-borne diseases,'as high as that of any other city in the world; and,
“Whereas, In order that this condition maybe remedied, and that the water works of this city may be properly managed, conducted and cotrolled in a safe, economical and efficient manner, and the citizens of this city may be furnished a sufficient and reliable supply of water, it will be necessary in the near future to enlarge and extend the present works; and,
“Whereas, the principal features necessary for the enlargement and extension of the present works will be the construction of a system for the purification of the water to be furnished, and the introduction of modern, improved pumping machinery; and,
“Whereas, It is the opinion of this board that the main pumping station cannot be continued in its present location much longer without an ever-increasing risk of failure to maintain a sufficient and reliable supply of water for the city, as it grows in population from year to year; and, ;
“ Wheresas,In the opinion of this board, the present location'is too limited in space to admit of the introduction of modern, economic pumping machinery, or for the addition of a plant for the proper purification of water before it is delivered to the mains; and,
‘tWhereas, During the past thirty years, numerous investigations and reports on this subject have been made by the engineers, trustees and water commissions appointed by acts of the legislature, water trustees, council and other authorized authorities; and,
“Whereas, A careful review of the history of the various attempts and failures to carryout such a project during that time, to enlarge and extend the present pumping station, and to remove same to a more suitable location, thus securing more liberal space for the erection and operation of putuping machinery and other adjuncts of modern works of public water supply, cannot fail to impress any one with the immediate necessity for the same; and, ... ,
“Whereas, Such necessity for the enlargement and extension of the present works has never been successfully denied, but owing to the cost entailed thereby has been .evaded¡.by the substitution of something less than the better judgment of the various commissions,committees and engineers deemed essential; and,
“Whereas, One of the most potent and plausible objections made in the past against the enlargement and extension of the present works has been the imperfect plans upon which these efforts have been based, thereby furnishing a basis for the claim that a large amount of money was to be expended in an enterprise at once indistinct as to plan, and uncertain as to cost; and,
“Whereas, In order that this objection may be removed, it is the opinion of this board that the enlargement and extension of the present works should be considered from the starting point, from carefully prepared plans and estimates made by experienced and skillful engineers in this class of work, covering the manner, method and time, as well as the cost thereof; and that if the plans proposed will produce the results anticipated at such cost as will commend them to the people, the construction should be proceeded with as vigorously as possible; and,
“Whereas. It may at first be regarded as inexpedient in the light of past experience in the same direction, to engage in any further investigations with reference to plans and estimates of cost for the enlargement and extension of the present works, yet considering the constant rapid advance of information upon sources of water supply, methods for the purification of polluted waters in large volumes, and thé'enlarged demands for water which will be made by the people as the city grows in territory and population under the operation of the annexation law, and especially in view of the material changes in the cost of all items of water works construction during the interval which has elapsed since the last report on this subject was submitted, it is deemed and declared advisable and necessary for the proper management and conduct of the water department, that the question involved be submitted to competent engineers in order that the subject of the. enlargement and extension of the present works may be reviewed in all its respects; therefore be it
“Resolved; that competent engineers be appointed by this board to investigate and report upon the subject of enlarging and extending the present water works of the city; such engineers to proceed with such investigation having in view an enlarged capacity of works, combined with a quality of water which will satisfy the requirements of the most advanced hygienic regulations for potable water, said plans to be developed upon lines which will conform to the modern requirements for economic and convenient operation, durability and practical utility as a whole, as well as in detail, and to be submitted with full details as to manner, method of construction, time to be occupied in such'construction, as well as its costs, and the capacity and quality of water to be furnished, and cost of operating after construction; and be it further;
“Resolved, That said engineers be directed 'to investigate and report upon sources of supply other than the Ohio river, which may, in their opinion, be capable of meeting the requirements of the city in quantity and quality, and which may be regarded as practical sources for the present and future needs of the city, and worthy of consideration by this board; and be it further
“Resolved, that John W. Hill, of Cincinnati, Ohio, Samuel Whinery, of Cincinnati, Ohio, and George H. Benzenberg, of Milwaukee, Wisconsin, be, and they are, hereby appointed as such engineers, and that they be directed to submit the results of their investigations and their report in full for the consideration of this board, not later than March 20, 1896, and be it further
“Resolved, That the expenses of such investigation and report be, and the same are hereby declared to be necessary for the proper management, conduct and control of the water department in a safe, economical and efficient manner in the future’’

And afterwards, said board, acting in accordance with the same, employed said John W. Hill, Samuel Whinery, and George H. Benzenberg as expert engineers, to make the investigations and report to said board their conclusions as therein indicated. This employment and action by the board is claimed to be without authority of law. All the sections of the statutes which apply to the management an control of the water works by said board, and which bear on the scope of their powers,must be considered in determining the question here presented.

Section 2211 of the Revised Statutes provides that “the board may employ such superintendents, engineers, clerks, laborers and other persons as it may deem necessary in the execution of its duties, and fix their salaries and compensation; but the salaries of such superintendents, clerks and engineers as are appointed for a definite time, shall be fixed within limits prescribed by the common council; and any of such persons may be removed by the board at any time.”

Section 2212 provides, “The board shall have all the powers which, in other cities, are vested in the trustees of the water works, the board of improvements, the commissioners of sewers, the park commissioners,” etc.

Section 2409 provides, “The trustees shall receive a fixed salary to be determined by the council, and the trustees of the board shall manage, conduct and control the works, furnish supplies of water, coiled water rents, and appoint all necessary officers and agents and :is ¡.he term of office, and the amount of salary of each officer and agent as appointed.”

Section 2410 provides, “The trustees shall be authorized to make such by-laws and regulations as they may deem necessary for the safe, economical,and efficient management and protection of the water works.”

Section 2411 provides, “For the purpose of' paying the expenses of conducting and managing the water works, the trustees or board shall have power to assess and collect from time to time, a water rent of sufficient amount, in such manner as they may deem most equitable, upon all tenements and premises supplied with water.”

Section 2412 provides, “If there is any surplus after paying the expenses of conducting and managing the water works, and the repair of the same, such surplus may be applied to the enlargement or extension of the works or of the reservoirs, the payment of the interest of any loan made for their construction, or for the creation of a sinking fund for the liquidation of the debt.” *

Section 2415 provides, “The trustees orJ>oard shall be authorized to make contracts for the building of machinery, water works, buildings, reservoirs, and the eiiargement and repair thereof, and the manufacture and layingvdown of pipe, and the furnishing and supplying with connections all necessary fire hydrants for fire department purposes, and keeping the same in repair, and for all other necessary purposes to the full and efficient management and construction of water works.”

Section 2435 provides, “Except as otherwise provided in this title, the board of public works in cities of the first grade of the first class, shall not hereafter be permitted to create any debt for the prosecution of work upon the water works beyond the yearly net income of the water works, nor make any contract in any year that cannot be met and paid from the income of the water works for the year; and all debts created in violation of these provisions shall be absolutely void.”

Section 2229 provides, “The revenue of the water works shall be expended by the board, and contracts for water works purposes shall be made by it only, and from said revenues, the board shall pay the interest on any bonds heretofore or hereafter issued by the city for water works purposes, after the expenditure of the amount raised by the current levy of taxes to pay interest upon such bonds.”

Section 2229a provides, “That in any city of the first grade of the first class, should it be deemed necessary for the board of public works of said city to provide new pumping engines for water works purposes, and the requisite amount of money to pay for the same shall not be in the proper funds applicable to such uses, the said board may nevertheless contract for the building and furnishing of such necessary engines at a cost not exceeding one hunderd and fifty thousand dollars, provided, however, that'the cost of the same shall be fully paid within said limits out of the ordinary revenue of said water works arising from the future earnings thereof.”

Section 2229b provides, “That in any city of the first grade of the first class, should it be deemed necessary by the board of public affairs of said city, to provide new pumping engines for water works purposes, and the requisite amount' of money to pay for the same shall not be in the proper funds applicable to such uses, the said board may nevertheless contract for the building and furnishing of the necessary engines at a cost not exceeding one hundred and sixty thous- and dollars; provided, however, that the cost of the same shall be fully paid within said limits out of the ordinary revenue of said water works arising from the future earnings thereof. ’ ’

And in connection with all of these provisions must be considered what is commonly called “The Worthington Law,” namely section 2699, which provides, “In cities of the first grade of the first class, no ordinance or other order for the expenditure of money shall be passed by the city council, or a board, officer or commissioner having control over the moneys of the city, without stating specifically in such ordinance or order, the items of expense to be met under it; and no such ordinance or order shall take effect until the auditor of the city shall certify to the city council that there is money in the treasury specially set apart to meet such expenditure; and all expenditures greater than the amount specified in such ordinance or order shall be absolutely void, and no party whatever shall have any claim or demand against the city therefor.”

These sections clearly apply to the general control, management and development of the water works when established. If new water works are to be established for the city of Cincinnati, then the law of 1892 (89th O. L. p. 299) must be considered, for it clearly contemplates new works, and a possible expenditure of six millions of dollars for their construction. This law is too lengthy to be nere set out in full, but the first provision of the law is as follows:

“That whenever in any city of the first grade of the first class, the board having charge of the water works of such city, shall by a resolution passed by the majority of the members thereof, declare the necessity of a large and material improvement in the water works of such city, and that it is expedient to provide additional improvements and.equipments for such water works, there shall be a board of trustees, to be known as the commissioners of the water works, composed of four citizens, thereon, not more than two of whom shall belong to the same political party, to be appointed by the mayor of such city; upon the passage of such resolution it shall be certified by said board to the mayor, and it shall be his duty thereafter to make such appointments. ’

These provisions of the statute set forth the general powers of the board as to the management of] the existing water works, and their power as to new ones when satisfied as to their necessity.

Before considering these provisions of the statute, it might be well to consider the relation that the water works bears to the city and its people, its nature, its scope and its interests, and the probable way in which it can be managed for the protection and the best interests of the people, for it must be first borne in mind that the water works are not to be run in the interests of those who manage and control it, but for the interest of the people who have created it, and whose interest require continuance. A pure and abundant supply of water is now and has always been the greatest and most difficult problem confronting municipalities. No large city can exist or ever has existed without extensive provisions as to water. Ancient cities probably devoted relatively more attention to it than modern cities, although its present use and consumption is proportionately greater, and modern medical science has demonstrated the greater necessity for pure and uncontaminated water, in order to preserve the health of the community. Considering this, the court must take judicial notice of the city of Cincinnati, its water works and its past history. The reservoir’s supply has always been, and it is now quite limited, so that at no time can there be a large reserve supply of water; thus, it is necessary that the pumps should constantly be at work to keep up the limited reserve. In the next place, it is located on a river which has a greater range of rise and fall than any river in the world, at times so great as to endanger the successful working of the pumping engines. Again, every gallon of water used has to be pumped to a great heighth, and the most powerful engines are required. Now, when it is considered how absolutely essential water is to the health of every inhabitant of the city, and therefore to the life of the city itself, it must be apparent to every one, that the management of the water works, calls for the most able, careful and far-seeing supervision; and in the event of any accident or emergency, those in control must have power to act at once, and to any extent required, to preserve and maintain the works in working condition. Therefore, we could hardly expect that the Worthington law, which prohibits the expenditure of money which is not in the treasury, to apply in its entirety to the water works. If it did, and the pumping engine should become disabled, or destroyed, by any accident, and there was no money in the treasury to meet such an emergency (and it is not likely that there would be) the city would be in a helpless condition possibly for months. Therefore, we find, that after the flood of 1884, when the water works was seriously confronted with disaster, the legislature passed section 2229a above referred to, by which the board was authorized to enter into a contract for pumping engines in excess of the amount in the treasury to the extent of one hundred and fifty thousand dollars $150,000).; and again, this was afterwards increased by section 2229b to the extent of one hundred and sixty thousand dollars ($160,000).

Section 2229, above referred to, provides that the board shall expend the revenues, and make all contracts, any pay interest on the bonds, and section 2435 clearly authorizes the board to make contracts for work upon the water works to the extent of the yearly income of the water works, whether the money is in the treasury or not; and section 2409 says “the board shall manage, conduct and control the water works, and appoint all necessary officers and agents.”

These provisions clearly show that the legislature intended to invest in the board full power to manage and control the water works, to the end that their efficiency may be maintained untrammeled as is the case in other branches of city government.

In the action of the board in the present instance, has the board gone outside of its powers ?

We think not; the action being one in which the public is deeply interested, the board, in the foregoing preamble and resolutions, saw fit to make their action a public record, and to set forth at great length the necessity for their action, and what it was proposed should be done by the engineers. In brief, it might be stated, that the board having learned from medical and other sources, that the present supply of water is impure and unwholesome, and knowing, from their own knowledge, that the present capacity of the water works is inadequate to the present and future needs of the rapidly growing city, and not being themselves expert water works engineers, they have employed these expert engineers, and instructed them to go over the whole problem of supplying Cincinnati with a pure and abundant supply of water, in order that the board can act intelligently in trying to remedy the present defects. If such investigation should show that there is no better location for water works than the present one, and the engineers can point out how they can be improved, and such improvements can be made at an expense not to exceed the income from the water works, then it would seem that a wise and far-seeing management would make the improvements in this way, without saddling on the tax-payers an additional burden. If, on the other hand, the expert engineers should conclude that the present works never can be made to supply the need of the city for a pure and adequate water supply, and can point out where and how it can be done, then the board could intelligently act, if they saw fit, under the act of 1892, supra, and send such a communication to the mayor, declaring the necessity for new works . — and their duty would then be fully and intelligently discharged.

Wm. M. Ampt, for plaintiff.

Fred Hertenstein, corporation counsel, for defendants.

We think their action is clearly within the purview of the law, and in our judgment, it was a wise, necessary and proper thing to do.


author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Scribner, Haynes and King, JJ.
    The KOHLER BRICK COMPANY v. The NORTHWESTERN OHIO NATURAL GAS COMPANY.
    A Natural Gas Co. having taken the contract to put in natural gas to a brick kiln, had a regulator set up in a building besides the kiln, by one of its workmen. The workman having finished his part of the job, told the Brick Co. that it was ready to turn on the gas, which, thereupon, was done by the Brick Co. without any other permission and authority from or knowledge of the Gas Co. There was, however, a defect in the valve of the regulator, whereby much gas escaped, and when one of the employes of the Brick Co. entered the building where the regulator was placed with alighted torch, an explosion took place, and the building and other property was burned, for which the Brick Co. brought suit for damages against the Gas Co. The Gas Co. denied liability, claiming negligence on the part of the plaintiff in turning on the gas without authority to do so, and asked damages on its part against the Brick Co. for S300 worth of its tools, etc., which were in the building and also destroyed by the fire. It appeared that the treasurer of the Brick Co. the same afternoon — whether before or after the fgas was turned on does not clearly appear — went to the office of the Gas Co. and inquired when the gas would be turned on, and was then informed that the'Gas Co, had a special officer who alone was authorized to turn on the gas, who, however, that afternoon was absent, but who would attend to it in the morning,' and the treasurer of the Brick Co. was told that' there was a defect in the regulator and'that he should notvturn on the gas; thei' • gas however Was not turned off. - Held: ■,

      1. The jury must determine from the evidence whether the plaintiff was authorized to turn on the gas, taking into account the duties of the workman from whom such authority was claimed.

      % If' the plaintiff "turned orTthe gas without authority from defendant, and any of its officers or agents; had been warned not to, or, if it had turned it on, and the plaintiff, before the lire, was notified that it would not be safe, and still continued to use it, defendant is not liable.
    3. The defendant is only called upon to meet the charges of negligence named in the petition. There is no allegation that the defendant was required to explain the use of this apparatus, or was not negligent in not doing so.
    4. While from the mere fact that the workman of defendant put in the regulator, the jury may not assume that ■ he had authority to bind the defendant by any directions or statements as to turning on the gas, they should take into account, in determining what his authority was, the nature of his work, and the duties he had to perform and was there performing for the defendant. From the fact alone that he was there foiTthe ■ purpose of putting in the regulator, the jury would not be justified in finding .that he was authorized to turn the gas on or to say that everything was ready to turn the gas on.
    Error to the Circuit Court of Lucas county.
   King, J.

This is a'proceeding to reverse the judgment of the court of common pleas. The Kohler Brick Company brought an action in that court against The Northwestern Natural Gas Company, to recover damages sustained by it by reason of the burning of its works — or some portion of its improvements — in a brick yard. In its petition it alleged that it made an arrangement with the defendant company by which the defendant was to furnish it with gas; and, among other things, that there was upon the premises a regulator-house, in which the defendant company had placed a contrivance known as'a regulator; and it alleged that they had oh this % guage, designed to show the pressure of the gas, and an escape-valve used for the purpose of allowing gas to escape whenever' the pressure became too high; and that it bécame tbe duty of the defendant to put in an escape-tube running from the escape-valve out of the regulator house, for the purpose of carrying out of said house into the open air any escaping gas. Plaintiff alleges that as a duty, and says that on the 18th of August, 1892, the plaintiff having been notified that it could, when it pleased, turn on the gas,it did so; and that at that time there was no escape-pipe running from the escape-valve out of the regulator house, and that the plaintiff was ignorant of the necessity for any such tube, but relying upon the statements of the defendant and its agents, had turned on the gas and lighted its fires; that in the performance of his duties, one of its employes' went, at one time, to this house carrying a lighted torch; that the gas was so escaping as to ignite and cause an explosion, which set fire to the structure and burned it up, and that the fire was caused wholly by the negligence of defendant in constructing its said regulator and appliances, and particularly in not putting on an escape-pipe to carry off the gas. That is the principal item of negligence relied on.

The defendant, in its answer, denied all these allegations of negligence. It further alleged that the plaintiff turned on the gas and lighted its fires without any authority so to do, or any permission from the defendant, and that in so doing it-was guilty of negligence; and that also, in the management of it after it was turned on, to-wit: by going into this house with a lighted torch, it was guilty of negligence by which it occasioned the loss ®f which it complains, and setting up these facts, by the way of a counter-claim, it alleges that they had property there, to the value of $300, which, on account of this fire, was destroyed, and it asks a judgment for that amount therefor.

The reply to this denied all the affirmative allegations of the answer; and on this the issues of the case went to trial;considerable evidence was heard, and the jury returned a verdict in favor of the defendant for the amount of its damages, which, is found to be a little more than $300; and that is what the plaintiff here seeks,to have set aside.

The complaint is made, that the court erred in the course of the trial in the admission of testimony on behalf of defendant and in refusing to admit testimony offered by the plaintiff, and in submitting to the jury certain requests asked by the defendant; and also that the verdict and judgment in favor of the defendant is not sustained by the evidence. The allegation in the motion for a new trial, as well as in the pe: tition in error, is, that the verdict is not sustained by the evidence; but no claim is made on argument, that if a verdict had been rendered generally for the defendant, without any assessment,of damages in its favor, that it would ask to reverse on the ground that it is not sustained by the evidence; and I might say, here, that we are of the opinion that such a verdict would be sustained by the evidence in this case.

The first thing which I will notice is the objections to the testimony: there are but two or three of them, and the first that I find is on page 84 of the record.

A witness called for defendant, by the name if Joseph Hogaii, was asked:

“Q. Do you know of any reason why the valve should be put in there and left open all the time, never closed?”

That was objected to by plaintiff and overruled, and he stated in answer to that question: “A. It is put there to be used; if it wasn’t put there you wouldn’t need to use it at all, but it is put there for the purpose of using it.” An agent of the plaintiff, Mr. Gorman, had testified that an agent of defendant had said, in describing the operation of these works, that this valve was to be left open all the time, and never was'to be closed. Mr. Gorman was inquired of whether, he .told him that, and he- said he never did-.". Then this question was asked, as to whether, there was any necessity 'for leaving .itiopen.all the time, ánd he was permitted to answer. We think that that was not error; that they had a right to ask him the reason of putting in these valves because he was called as a witness on that very subject; he could describe their use, and what they were for. He not only denied that he had told defendant’s agent that that valve was not to be used at all, but testified to its use, or want of use, or necessity of use.

On pages 164 and 165 of the bill of exceptions, plaintiff, in rebuttal, called a witness by the name of John R. Boice, who testifies that he is engaged in the manufacture of brick, and had been for many years, in the city of Toledo; that he still had yards located in this city, and that he ran them in the burning of his brick with natural gas. On page 154, he was asked this question: ‘‘Q. During your experience with these regulators since you have used them from the Northwestern Natural Gas Company, I will ask you who has turned on or off what is called the high pressure valve?” That was objected to and the objection sustained. Another question similar to that, is asked of the same witness on page 165: ”Q. I will ask you what has been your custom?” Meaning, with respect to that question. And, on page 178, another witness is called — Frank Blandón- — -who had something to do with the City Natural Gas Works, and he is inquired of what the custom or rule or regulation was between the city and its customers as to who managed and controlled and turned on and off the gas located on the premises of the consumers. That was objected to, and sustained. There was a dispute among the witnesses as to whether instructions had been given to the defendant company to turn on this gas. It is claimed on the part of the plaintiffs that they were instructed to turn it on whenever they were ready. It was claimed by the defendant Company that no such instructions had been given. And there is also evidence tending to show that-they were instructed not to turn it on until certain repairs were made. Then it was claimed by defendant that there was a custom which authorized it regardless of instructions, to turn it on. But we do not think that this evidence rises to the dignity of establishing a custom. Mr. Boice was only asked to state what the agreement, rule or arrangement had been with reference to his own yard.- As to the city inspector, he was asked to state what the' rule, was as between the city and its consumers. It is clear that these parties could contract upon this point or subject; and if the Gas Company authorized the Brick Company to turn the gas on or off at the regulator, it was justified in so doing; and, if defendant was instructed not to 'touch it, and it did so, that would be evidence of negligence. We do not think it can be governed by a custom, but by a contract, express or implied' — either by express agreement between the parties, or by direction of the authorized agents of the company. The apparatus itself, it is said, belonged to the Gas Company, which located it there for a certain use. If it had not finished it, if it was not' ready for use, certainly the person who was to acquire and use the gas would not have any implied warrant, at least, to open or close these valves until they had been turned over to him; and if they had been turned over to him, then he would have that right.

I come now, before passing upon the requests to charge, to the question of the weight of the evidence. It is claimed that the judgment in favor of the defendant should not be sustained, but that it should be set aside. The history of the transaction, briefly stated, is about this: An arrangement was made,in the summer of 1892 to turn gas into these works. They had previously used natural gas, perhaps from some other company — and an arrangement was made with The Northwestern Company and, about the 14th or 15th of August they went there and put a regulator into a small building which had been erected upon the premises by the Brick Company for that purpose, and had been used for that purpose previously. They worked there on Saturday of one week, and again on Monday, and perhaps Tuesday. The principal workman engaged in putting in the regulator testifies that it was his duty — that that was his employment— to put in the regulator, and that he was there both Saturday and Monday; and it is claimed by the plaintiff that some time before he left there he told the managing agent of the plaintiff company, Mr. Gorman, that the valve was all right, and that they could turn on the gas whenever they got ready to go to work, and that Gorman said they would be ready in a day or two. This .Mr. Hogan denies. He testifies that before he finished his work, on the last day he was there, he ascertained, by testing the pipes, that there was a leak in the high pressure valve of the regulator in the house; and he also testifies that he went away from the premises of the plaintiff company without saying anything about that leak— that seems to be clear from his testimony. If the case rested there, it would occur to the court that his action in that respect, after he had learned of this defect, in not informing the plaintiff about it, would be such negligence as the defendant would have been responsible for — would be such negligence as contributed to the loss which the defendant company sustained by reason of this fire, so far as to prevent them from recovery of anything^on account of it, and that regardless of the question of the amount or degree of the plaintiff’s negligence. But this is not all the evidence. This man, as I have said, was charged with the sole duty of putting in these regulators. He had no control whatever, as is proved by the record, over the gas, or of the management of the gas, or the directions as to the use of the gas — how to use it or when to use it, or when it should be turned on, or when it should be turned off. On Thursday, about one or two o’clock, the plaintiff Company turned on this gas and burned with it during the afternoon of Thursday. About eight o’clock in the evening one of the employes who was around there at that time, finding that there seemed to be too much gas, or too great a pressure, went to the house in which was situated the regulator, with a lighted torch, and opened the door to go in, and there was an instant explosion the shock of which was sufficient to throw him backwards and ignite the gas, and spread the fire which destroyed all the property that was destroyed that night. It appears from the record that the Gas Company had no knowledge that the gas had been turned on to- this kiln before the fire, except that of one of its employes who was there in the afternoon, and of whom I will speak later. Between twelve and one o’clock on Thursday — -and whether before or after the gas had been turned into the brick yard it is not clear — -Mr. Gorman , who held the position of treasurer for the company, went to the office of the Northwestern Natural Gas Company, and, according to the testimony of one witness — Mr. Mack — -inquired, as soon as he came in, when they were going to turn the gas on. Mr. Mack was the bookkeeper; but he was temporarily (in the noon hour) in charge of the office. Mr. Mack told him that the gas was not ready to turn on — that there was some defect in the regulator, and that it must not be turned on until that defect was fixed, and that he must not turn it on any way, because nobody had any authority to turn on the gas except Mr. Daly, the superintendent, who was then out of the city, and would not return until that night. To some extent, that conversation is corroborated by L. J. Lewis, who was also present, and who heard it. He was an employe in the office, whose particular duties related to meters. An employe by the name of Hackett — who was a repairer of telegraph wires, —came in while they were talking about it, and he corroborates, substantially, that conversation. All three testified that Malone was told that there was a defect in this regulator; that the gas must not be turned on, and that Mr. Daly had the charge of turning it on; and Mr. Malone said, in a laughing sort of a way, that if they did not turn it on he should, and went away.; but, before he went away he asked Mr. Haekett, who was the telegraph man, to take a ride with him, and they drove out to the works, and there found that the gas was turned on, and was burning. Haekett says-that he was looking at it perhaps an hour, and they were talking about it. He says that they approached the regulator house, and a strong odor of natural gas was plainly discernible, and that he said to Mr. Gorman. “This place smells as bad as a gas field; you fellows better look out.” Mr. Gorman made no particular reply, except that while they were there he asked the witness if he would go and look at it and see whether it was all right. Haekett said, “No. I don’t know anything about gas. If you'ask me some questions about telegraph wires, I can tell you, but I know nothing about gas.” After standing there awhile Malone finished his business, and they drove back to the city,, and Haekett went with him, That evening between six and seven o’clock, Mr. Malone went up to meet Mr. Daly, who-had returned from Sandusky that afternoon. Mr. Daly was the superintendent of the company — and he said to Mr Daly that there was a very bad leak at the Kohler Brick Company’s works on South street. Mr. Daly testifies as follows on this subject after saying to Malone: “We will attend to it in the morning.”

Q. You may state whether he indicated where the leak was, or in what particular connection it was? A. No, sir. He did not.

Q. When you stated that you would attend to it in the morning, what, if anything, did he say then ? A. He said, “All right.”

Q. I will ask you to state whether Mr. Malone said anything to you, and if so what, about the gas having been turned on, and their burning gas? A. He said nothing whatever.

Q. What, if any, information did yon have that they were burning gas there at that time? A. I had none whatever.

Q. When did you first learn that the gas had been turned on and that they were using it? A. Not until the morning after the fire.1’

Now, Malone says that he does not remember this talk at the office, all of it. He says that he went to the office; that he went there to inquire about the meters; that one of them was registering too niuch,and he inquired about it, and they said they would fix it. He admits the conversation exactly as given by Mr. Daly, but he says it occurred on Saturday •evening. This Mr. Daly denies, as to Saturday evening, and he produces a diary in which he says he kept a correct •record'of his movements, and that shows that on Wednesday he went to Sandusky and staid there until Thursday afternoon, and returned here on the train known as No. 5, and that it was on the evening of that day that he had he conversation with Malone at his residence.

In the light of that testimony, we are not prepared to say that this verdict in behalf of the defendant is not sustained by sufficient evidence. If the jury believed these witnesses, then it seems to be clear that Mr. Malone, the treasurer of this corporation, and the man who was then interesting himself in the particular business of getting this gas turned on and the manner in which it was working, was told that there was a defect in the regulator; was told that the gas must not be turned on until that regulator was fixed; was told that it must not be turned on until Mr. Daly, the superintendent, •gave instructions to do it; and, by his own statement, it appears that he knew and told Mr. Daly himself that there was a defect from which the gas was escaping badly at these works, and that he knew it in ample time to have .turned off the gas in'the[same manner that it had been turned on, and ■could therefore have avoided the injury from the fire. So, i%the jury believed that testimony, they would be warranted in saying that this fire was caused solely by the negligence of the plaintiff, and that in consequencejof its negligence this property was destroyed,and the defendant would be entitled to recover its value.

As to the requests to charge, those complained of are two, four, five, six, seven, eight, and nine. They were submitted by the defendant and given by the court, and nearly all of them with qualifications, and the qualifications, so far as lean discern, were unnecessary. However, we think these charges were proper.

• The second requests was: “2 The defendant, in no case, can be held responsible for any use of the gas before they authorized its use, if the appliances were sufficient to prevent injury before such use.” The court said to the jury: ‘ ‘Gentlemen, that request is given the way it stands; but I will say to you that you must determine, from the evidence in the case, under the instructions of the court, whether the plaintiff, under all the circumstances of the case; was authorized; whether the use of the gas, under the circumstances of the case, was an authorized one or not; whether the plaintiff under all the circumstances of the case, taking into account the' duties of the man from whom authority was claimed — if authority was claimed for any one —you must determine from the circumstances of the case, whether in fact the use of the gas was authorized. Of course, an unauthorized use of the gas on the part of the plaintiff, if, without any authority, any right to'use the gas, the plaintiff turned the gas onto its kilns, and, as a result of so doing, the kilns were burned, and they suffered damage, they cannot recover in this action.”

That does not leave very much of the original request.

The fourth and fifth requests are:

4. If the plaintiff turned on the gas without authority from defendant and any of its officers or agents: had been warned not to, or, if it had turned it on, and the plaintiff, before the fire, was notified that it would not be safe, and still continued to use it, defendant is not liable.

5. The defendant in this case is only called upon to meet the charges of negligence named in the petition. There is no allegation that the defendant was required to explain the use of this apparatus, or was not negligent in not doing so. Nor is there any allegation that the defendant did so in a careless manner; hence there is no question for you to determine in that respect.

And the court say to the jury: “That is, in respect to negligence on the part of he Company in giving instructions, or not giving them to the plaintiff.”

6. The jury would not be justified, from the mere fact that the workman of the defendant put in the regulator, in finding that he had authority to bind the [defendant by any directions or statements that the plaintiff might turn on the gas, or that it was ready to turn on — ”

And that was the fore part of the request. The court said: * ‘ the rest of this request I will not read. I will say this, that while from the mere fact as stated in tnat part of the request read, that ‘the workman of defendant put in the regulator’, the jury may not assume that he had authority to bind the defendant by any directions or statements as to turning on the gas, they may, and should take into account, in determining what his authority' was, the nature of his work, the duties he had to perform and was there performing for the defendant. I simply charge that, from the fact alone that he was there for the purpose of putting in the regulator, the jury would not be justified in finding that he was authorized to turn the gas on, or — you might say — that everything was ready to turn the gas on. The nature of his work that he was doing, that he assumed to do, from what has been testified to in the case, must be taken into account, and the jury are informed in reference to these matters; they must determine what his authority was, from the evidence in the case.”

J. W. Cummings & Kinney & Newton foi defendant in error.

John H. Doyle, for plaintiff in error.

Now, we d® not find any error in the charge to the prejudice of the plaintiff.

We therefore affirm this judgment, and certify reasonable cause for the prosecution of the petition in error.