author: SULLIVAN, J. DUSTIN, J.

text:
    GAS COMPANIES —INJUNCTION —MUNICIPAL CORPORATIONS.
    [Clark (2nd) Circuit Court,
    May 17, 1907.]
    Wilson, Sullivan and Dustin, JJ.

      Springfield (City) v. Springfield Gas Company.
    1. Power of City Solicitor to Enjoin Public Service Corporation from Violating its Obligations to City and Inhabitants Notwithstanding Ordinance.
    A city solicitor has authority under Sec. 1777 Rev. Stat., to institute suit, in the name of the municipality to enjoin a public service corporation from violating its obligations to the city and its inhabitants. Such an. action will lie, ■ notwithstanding the corporation is acting under color of an ordinance, if the provision of the ordinance complained of is in excess of the power of council to grant.
    2. Natural Gas Company Compelled to Furnish Gas for Illuminating Purposes Although Grant Excludes Such Use.
    A municipality is without authority to prescribe by ordinance that a commodity acquired by its inhabitants shall not be used for any purpose that is not dangerous or injurious; hence, a provision in an ordinance--embodying a grant to a natural gas company, that gas shall not be furnished for illuminating purposes, but only for heating and .power, is void, and the company may be compelled to either furnish gas for-illuminating purposes or abandon its rights in the streets.
    3. Provision Requiring Notice before Turning Natural Gas into Artificial. Gas Pipes Reasonable.
    A provision requiring notice to a natural gas company before a consumer may turn natural gas into artificial gas pipes is reasonable in view of increased pressure and danger; but the piping being in suitable and. safe condition- therefor the consumer is entitled to immediate service. Dustin, J.
    4. Artificial Gas Company upon Absorption of Natural Gas Company Estopped to Assert Invalid Limitations against the Latter.
    An artificial gas company having purchased and absorbed a competing-natural gas company is estopped to restore and continue an invalid limitation of rights prescribed by ordinance against the latter. Dustin,. J.
    [Syllabus approved by the court.]
    Appeal from Clark common pleas court.
    S. L. Tatum, city solicitor, for plaintiff:
    The consumer’s property rights. Northwestern O. Nat. Gas Co. v. ZTilery, 68 Ohio St. 259 [67 N. E. Rep. 494] ; Thornton, Oil & Gas. Secs. 10, 12, 18, 19, 350, 351, 352, 353, 384, 542, 559, 604, 615, 743; Emerson v. Commonwealth, 108 Pa. St. Ill; State v. Oil, Gas <& Min. Co. 120 Ind. 575 [22 N. E. Rep. 778; 6 L. R. A. 579]; Woods v. People,, 222 111. 293 [78 N. E. Rep. 607; 7 L. R. A. (N. S.) 520; 113 Am. St. Rep. 415] ; Commonwealth v. Shaw, 86 Mass. (4 Allen) 308 [81 Am. Dec. 706]; Columbus (City) v. Gas Co. 76 Ohio St. 309 [81 N. E. Rep. 440]; Zanesville v. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; Columbus Gas. Light & C. Co. v. Columbus, 50 Ohio St. 65 [33 N. E. Rep. 292; 19 L. R. A. 510; 40 Am. St. Rep. 648]; Gas-light Co. v. Zanesville, 47 Ohio St. 35 [23 N. E. Rep. 60]; Zanesville v. Gaslight Co. 47 Ohio St. 1 [23 N. E. Rep. 55]; State v. Gas Light & C. Co. 34 Ohio St. 572 [32 Am. Rep. 390]; Cincinnati, II. & I). Uy. v. Bowling Green, 57 Ohio St. 336 [49 N. E. Rep. 121; 41 L. R. A. 422] ; Munn v. Illinois, 94 U. S. 113 [24 L. Ed. 77]; Schmeer v. Gas Light Co. 147 N. Y. 529 [42 N. E. Rep. 202; 30 L. R. A. 653]; Shepard v. Gas Light Co. 6 Wis. 526; Baily v. Gas-Fuel Co. 193 Pa. St. 175 [44 Atl. Rep. 251]; Richmond Nat. Gas Co. v. Clawson, 155 Ind. 659 [58 N. E. Rep. 1049; 51 L. R. A. 744]; Cállen v. Electric Light Co. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 It. R. A. 782]; State v. Pipe Line Co. 61 Ohio St. 520 [56 N. E. Rep. 464]; Tod v. Wick Bros. 36. Ohio St. 370; Bank of Toledo v. Toledo, 1 Ohio St. 622; 1 Blaekstone, Commentaries 129, 138.
    The policy of the state. State v. Gas Light & C. Co. 18 Ohio St. 262; Townsend v. Circleville, 78 Ohio St. 122 [84 N. E. Rep. 792; 16 L. R. A. (N. S.) 914]; Ravenna v. Railway, 45 Ohio St. 118 [12 N. E. Rep. 445]; Bloom v. Xenia, 32 Ohio St. 461; Circleville Light & P. Co. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 436]; Gale v. Kalamazoo, 23 Mich. 344 [9 Am. Rep. 80]; Columbus Gas Light & C. Co. v. Columbus, 50 Ohio St. 65 [33 N. E. Rep. 292; 19 L. R. A. 510; 40 Am. St. Rep. 648] ; Columbus v. Heating & Light Co. 16 Dec. 311; Kumler y. Cincinnati, 8 Dec. Re. 161 (6 Bull. 82) ; Kumler v. Silsb.ee, 38 Ohio St. 445; State y. Boyce, 43 Ohio St. 46 [1 N. E. Rep'. 217]; Louisville Trust Co. v. Cincinnati, 10 O. F. D. 112 [76 Fed. Rep. 296; 22 C. C. A. 334]; Columbus (City) v. Gas Co. 76 Ohio St. 309 [81 N. E. Rep. 440]; Zanesville v. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664].
    Unreasonableness and monopoly. 1 Thompson, Corporations Secs. 1010, 1024; Dillon, Mun. Corp. Secs. 311, 312, 319, 322; Smith, Mun. Corp. Secs. 525, 527; Abbott, Mun. Corp. Secs. 536, 537, 545, 547; McQuillan, Mun. Ord. Secs. 19, 181, 194; Thornton, Oil & Gas Sec. 537; Marietta v. Fearing. 4 Ohio 427; Markle v. Akron (Town Council) , 14 Ohio 586; Collins v. Hatch, 18 Ohio 523 [51 Am. Dec. 465]; Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.

      The charter limitation. Circleville Light & P. Go. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 436]; Coe v. Railway, 10 Ohio St. 372 [75 Am. Dec. 518]; Columbus {City) v. Gas Co. 76 Ohio St. 309 [81 N. E. Rep. 440].
    The ordinance limitation. State v. Traction Co. 10 Circ. Dec. 212 (18 R. 490), affirmed,. States. Traction Co. 64 Ohio St. 272 [60 N. E. Rep. 291].
    The meter applications. Cincinnati, H. & D. Ry. v. Bowling Green, 57 Ohio St. 336 [49 N. E. Rep. 121; 41 D. R. A. 422]; State v. Railway, 47 Ohio St. 130 [23 N. E. Rep. 928; 7 L. R. A. 319]; State v. Telephone Co. 36 Ohio St. 296 [38 Am. Rep. 583]; Thornton, Oil & Gas-Sec. 526; Gibbs v. Gas Co. 130 U. S. 396 [9 Sup. Ct. Rep. 553; 32 L, Ed. 979]; Thomas v. Railway, 101 U. S. 83 [25 L. Ed. 950].
    Grounds of estoppel. Circleville Light & P. Co. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 436]; Columbus {City) v. Gas Co. 76 Ohio St. 309 [81 N. E. Rep. 440].
    The city’s right of action. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; State v. Bowers, 26 O. C. C. 326 (4 N. S. 345), affirmed, Bowers v. State, 70 Ohio St. 423; Dorgan v. Columbus, 12 Dee. 121; Fergus v. Columbus {City), 8 Dec. 290 (6 N. P. 82) ; Elyria v. Railway, 12 Dec. 609; Rogers v. Railway, 12 Dec. 136; Eorstman v. Railway, 13 Dec. 670 (1 N. S. 25) ; Gas-Light Co. v. Zanesville, 47 Ohio St. 35 [23 N. E. Rep. 60]; Chillicothe v. Gas & Fuel Co. 11 Dee. 24 (8 N. P. 88) ; Logam Nat. Gas éa F. Co. v. Chillicothe, 65 Ohio St. 186 [62 N. E. Rep. 122]; Cincinnati v. Railway, 16 Dee. 220 (3 N. S. 489); Interurban Ry. <& Term. Co. v. Cincinnati, 75 Ohio St. 196 [79 N. E. Rep. 240] ; Saxton v. Seiberling, 48 Ohio St. 554 [29 N. E. Rep. 179]; Piqua v. Zimmerlin, 35 Ohio St. 507.
    Martin & Martin, for defendant:
    The city council has the right in granting a franchise for the use of its streets to prescribe the limitations and conditions under which said streets shall be used by a public service corporation. Toledo v. Gas Co. 3 Circ. Dec. 273 (5 R. 557) ; Kumler v. Silsbee, 38 Ohio St. 445.
    There was no condition that the Natural Gas Company should not exercise its corporate powers. State v. Railway, 24 O. C. C. 609 (IN. S. 145) ; Citizens’ St. Ry. v. Railway, 64 Fed. Rep. 647; Sims v. Rail-* way, 37 Ohio St. 556; State v. Gas Co. 37 Ohio St. 45; 2 Abbott, Mun. Corp. See. 565, citing Eazlehurst v. Baltimore, 37 Md. 199; Booth, St. Rys. Sec. 16; Forman v. Railway, 40 La. Ann. 446 [4 So. Rep. 246]; Hinchman v. Railway, 17 N. J. Bq. (2 Green) 75 [86 Am. Dee. 252]; Hogencamp v. Railway, 17 N..J. Bq. (2 Green) 83; Cooley, Const. Lim. 253; State v. Traction Co. 10 Circ. Dec. 212 (18 R. 490); State v. Traction Co. 64 Ohio St. 272 [60 N. E. Rep. 291].
    If the original contract was not binding as ultra vires, then there can be no contract to enforce. Toledo v. Gas Co. 3 Circ. Dec. 273 (5 R. 557).
    Power to amend and impose new obligations. People v. Railway, 118 111. 113 [7 N. B. Rep. 116]; Electric Ry. v. Grand Rapids, 84 Mich. 257 [47 N. W. Rep. 567]; Langdon v. New York, 93 N. Y. 129; Asheville St. Ry. v. Asheville, 109 N. C. 688 [14 S. E. Rep. 316]; Rio Grande Ry. v. Brownsville, 45 Tex. 88; Hudson Tel. Co. v. Jersey City, 49 N. J. Law 303 [8 Atl. Rep. 123; 60 Am. Rep. 619]; New Orleans v. Telephone & Tel. Co. 40 La. Ann. 41 [3 So. Rep. 533].
    The contract is nonseverable. Piqua v. Zimmerlin, 35 Ohio St. 507; McQuillin, Mun. Ord. See. 295; 1 Page, Contracts Sec. 509; Thornton, Oil & Gas Sec. 478; Findlay Gaslight Co. v. Findlay, 1 Circ. Dec. 463 (2 R. 237).; Kentucky Heating Co. v. Gas Co. 23 Ky. L. Rep. 730 [63 S. W. Rep. 751],
    Gas belongs to the consumer. Philadelphia Co. v. Park Bros. 138 Pa. St. 346 [22 Atl. Rep. 86]; Johnston’s Appeal, 7 Atl. Rep. 167 (Pa.).
    The municipality has control of its streets and can direct their uses. Lake Shore & M. S. Ry. v. Elyria, 7 Circ. Dee. 312 (14 R. 48); Hamilton & Elec. Trans. Co. v. Hamilton, 4 Dec. 10 (1 N. P. 366) ; Millcreek Val. St. Ry. v. St. Bernard, 11 Dee. 454 (8 N. P. 288).
    Heat and power act. Kumler v. Cincinnati, 6 Dec. Re. 1018 (9 Am. L. Rec. 547); Kumler v. Silsbee, 38 Ohio St. 445.
    The above “heat and power act” includes natural gas, as determined by the courts. Toledo v. Gas Co. 3 Circ. Dec. 273 (5 R. 557).
    Presumption in favor of the validity of statute or ordinance. Lehman v. McBride, 15 Ohio St. 573; Burt v. Rattle, 31 Ohio St. 116; Moerder v. Fremont, 10 Circ. Dec. 501 (19 R. 394); Circleville Light & P. Co. v. Gas Co. 69 Ohio St. 269 [69 N. E. Rep. 436].
    A municipal corporation cannot permit a public service corporation to exercise a power which it has not expressly granted. State v. Taylor, 55 Ohio St. 61 [44 N. E. Rep. 513].
    How may a municipal corporation contract. Bloom v. Xenia, 32 •Ohio St. 461; Lima Gas Co. v. Lima, 2 Circ. Dec. 396 (4 R. 22).

      Effect of contract made contrary to law. Buchanan Bridge Co. v.. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372],
    Where there is an express contract there can be no implied one.. Buchanan Bridge Co. v. Campbell. 60 Ohio St. 406 [54 N. E. Rep. 372]; Wellston {City) v. Morgan,-65 Ohio St. 219 [62 N. E. Rep. 127].
    Power to use natural gas for heat, and to use it for light, two distinct and separate corporate and contract powers. Baily v. Gas-Fuel Co. 193 Pa. St. 175 [44 Atl. Rep. 251]; Emerson v. Commonwealth, 108-Pa. St. Ill; Philadelphia v. Park Bros., 138 Pa. St. 346 [22 Atl. Rep. 86]; Kentucky Heating Co. v. Gas Co. 23 Ky. L. Rep. 730 [63 S. W. Rep. 751]; Richmond Nat. Gas Co. v. Clawson, 155 Ind. 659 [58 N. E. Rep. 1049; 51 L. R. A. 744].
    Usage cannot in this ease create a contract. People’s Gaslight &■ C. Co. v. Hale, 94 111. App. 406.

      Affirmed, no op., Springfield Gas Co. v. Springfield, 81 Ohio St. 537.

   SULLIVAN, J.

This case comes into this court on appeal. It is pending on a general demurrer to the petition, and also on a motion to dissolve the temporary restraining order. They present the same questions. Each admits the averments of the petition.

The demurrer was sustained by the court below, and the city not desiring to amend, its petition was dismissed, and a judgment entered against it for costs, from which judgment the city took an appeal.

The thorough and extensive briefs prepared and presented by the-respective counsel show great and well directed industry, and have relieved the court, in its consideration of the case, from a great deal of labor. How far the authorities of other states cited are dependent upon the statutes of those states, where they are in apparent conflict with those of the courts of our own state, not having access to those statutes,, we are not able to determine. However, we are of the opinion that those of our own state fully support the conclusion we have reached upon this-demurrer.

Counsel for defendant contend, first, that the city solicitor has not the authority to institute this action in the name of the city.

We will not read the petition, but simply state the substance of it. It sets forth that the plaintiff is a municipal corporation, classed as a city; that the defendant is a corporation organized under the laws of Ohio; that it was incorporated under the name of Lhe Springfield Gas?Light & Coke Company. A copy of its charter is attached to the petition. That in pursuance of the powers granted by said charter, it; erected gas works, laid its mains and other pipes in the streets and al-leys of the city, and upon the completion of the same began to deliver to the city and its inhabitants artificial gas manufactured by it, and ever since said date and now is manufacturing and selling artificial gas to the city and its inhabitants; that on January 21, 1906, its charter was amended; a copy of the amendment is also attached to the petition.

The charter before this amendment authorized the defendant to manufacture and sell artificial gas only. By the amendment it is authorized to sell and deliver gas to the city .and the inhabitants thereof, no matter how produced.

On June 4, 1889, the council of the city, by ordinance, granted to the Springfield Natural Gas Company, a corporation organized under the laws of Ohio, the right to lay and maintain, in the streets and alléys of the city, pipes for the purpose of conveying through the same and supplying the city and its inhabitants with natural or produced gas-for heating, fuel and power purposes only. A copy of the ordinance is attached to the petition.

Some time in the year 1896 or 1897, the exact date the city is unable to state, the defendant acquired by purchase or otherwise all the property of the Springfield Natural Gas Company, including its pipes, appliances and franchises, and ever since, and is now, the owner of and in the exercise and enjoyment of the privileges and franchises granted said natural gas company by the city.

At the time of granting said franchise to the said natural gas company, the city, by ordinance, fixed the price of natural gas to be paid by the consumer at ten cents per thousand cubic feet, and the price of artificial gas was $1.50 per thousand cubic feet.

The city claims, and so avers, that its council had no authority to limit the use of natural gas to that of heat, fuel and power, when the use of it for illumination was one of its legitimate and recognized uses,. supplying as safe, as good, and cheaper light than artificial gas. That the limitation was in contravention of the rights and interests of the people of the city, and in derogation of the right to use one’s property for such purposes as one chooses.

The city then avers that the natural gas company did not regard the limitation, and in evéry instance, where a purchaser of natural gas used it for illuminating purposes, the company offered no objection, but furnished it for such purpose and accepted pay therefor; and that now-natural gas is being furnished to a number of inhabitants of said city, and used by them for illuminating purposes. And this was done, and -is being done, under the charter of the natural gas company, and with the knowledge of the city and its officers, and was done with the knowledge of the natural gas company, and also of the defendant; that with the knowledge that natural gas was being supplied to customers for illuminating purposes, and in good faith relying upon the supply for such purposes being continued, many inhabitants of said city, at great ■expense, have equipped their residences with appliances for the use of natural gas for such purposes; that on May 14, 1906, council of said ■city passed an ordinance fixing the price of natural gas at twenty-five ■cents per thousand cubic feet, for the period of three years after that ■date; that by virtue of all the foregoing facts, a contract has resulted between the city and the defendant, whereby the defendant is legally Sound to supply the city and its inhabitants with natural gas for illuminating purposes, as well as those of heating, fuel and power; that the city is the owner of a certain piece of property, described in its petition, fully equipped for the use of natural gas for lighting purposes; that a number of the city’s inhabitants have equipped their respective properties for the like use of natural gas, and are now using the same for such purpose, and that the defendant threatens to and will, unless restrained, in every one of said properties disconnect the appliances necessary and in use for the utilization of natural gas for lighting pur.poses — and the defendant threatens and, unless restrained, if the city and. its inhabitants persist in the use of natural gas for illuminating purposes, will not supply either with natural gas for any purpose — and the city therefore prays that it may have a temporary restraining order preventing the defendant from executing any or all of said threatened wrongs, and that it may have a perpetual injunction against the defendant, and for all other and further relief in equity, to which it may be entitled upon proof of the facts set forth in its petition.

' The question as to whether, under Sec. 1777 Rev. Stat., the city solicitor is authorized to institute this action, is one we think of not much difficulty. The claim here is that the defendant is violating its obligations to the city and its inhabitants, and its duty to the public, arising out of the facts averred herein, as to the respective easements granted to it and the natural gas company by the city, and that the defendant should either be compelled to discharge its obligation and its duty to the public, or its rights and privileges granted by said easements should be forfeited.

Said section authorizes the city solicitor to bring suit in the name of the city for such purposes. By said section, the city solicitor is also .authorized to bring suit in the name of the municipality, challenging any act of its council where it is in excess or an abuse of its corporate power.

It is claimed that Sec. 1 of the ordinance, passed June 4, 1889, is void; that the limitation fixed by that section of the ordinance upon the use of natural gas was an act in excess of the city’s corporate power.

In either or both cases we think the city solicitor is clearly authorized by Sec. 1777 Rev. Stat. to bring suit in the name of the corporation.

The facts set forth in the petition, being admitted by the demurrer, do they make it legally incumbent upon the defendant to supply the city, and such of its inhabitants as may desire it, natural gas for illuminating purposes?

The legislature has expressly provided that corporations organized for the purpose of lighting municipalities, etc., may supply natural gas for such purposes; that such corporations shall have the power of eminent domain. They belong to the class known as public service corporations. Their property is “devoted to a use in which the public have an interest and to the extent of that interest must submit to be controlled by the public for the common good so long as such use is maintained.” Munn v. Illinois, 94 U. S. 113 [24 L. Ed. 77].

Although authorized by the legislature to occupy the streets and alleys of a city or village, yet the terms and conditions upon which a corporation may do this are to be fixed by the latter. The municipality fixes the price to be charged for the gas, etc., furnished. The city could not grant to the Springfield Gas Light & Coke Company the exclusive use of its streets and alleys to lay its pipes to furnish artificial gas for lighting purposes; neither could it grant to the natural gas company the exclusive use of the streets and alleys to supply natural gas for heat, fuel and power. This latter company could have had included in its charter express corporate authority to supply the city of Springfield and its inhabitants with natural gas for illuminating purposes. ' It is not apparent how the state could have had any interest in omitting or withholding such power. We think it could not have been suggested by state authority.

The effect of the omission or the withholding of such corporate authority was the creation of a monopoly in the Springfield Gas Light & Coke Company to furnish gas to the city and its inhabitants for lighting purposes. The petition avers that the use of natural gas for light was just as safe, gives just as good light as the artificial gas, and was and is much cheaper. The effect therefore was to destroy competition and prevent the public from availing itself of- the cheaper commodity; and notwithstanding the charter of the natural gas company did not include' authority to furnish natural gas for illuminating purposes, it could still do so. Circleville Light & P. Co. v. Gas Co. 69 Ohio St. 259 [69 N. E. Rep. 432]; Circleville Light & P. Co. v. Gas Co. 24 O. C. C. 684 (1 N. S. 526).

The company could; we think, contract with the city and its inhabitants to supply both with natural gas for such purpose. It seems to have understood this to be its right, and hence at' the time it sold and transferred all of its property, including its franchises in the streets and alleys of the city, it was and had theretofore been furnishing, natural gas for such purpose. This was generally known by those in control of both companies.

The defendant, acquiring by purchase all the rights, privileges and franchises of the natural gas company in the city’s streets and alleys, for the conveyance and sale of natural gas to the city and its inhabitants, and continuing in the use of said streets and alleys for such purpose, its obligation to the city and its inhabitants is the same as that of the natural gas company. The latter became legally bound to continue to supply those with whom it had contracted to furnish the gas for -light, so long as it exercised its easement in the streets and alleys. It could not discriminate between any of the inhabitants, by furnishing to some and refusing others, and therefore would be bound to furnish it for light to all who desired it, complying -with the requisites of the company and paying for the gas. In our opinion, the same obligation rests upon the defendant.

Under the rule that one has the right to make such use of his property as one may choose, such use not being unlawful nor injurious to the person or property of others, the purchaser of natural gas, after the commodity became his property, may use it. for lighting his premises upon a compliance with the company’s method for its deliverance.

A municipality has not the authority to prescribe by ordinance that its inhabitants shall not use property acquired for any purpose, neither dangerous nor injurious.

This court held, in the case of State v. Traction Co. 10 Circ. Dec. 212 (18 R. 490), that where a city grants permission to a street railway company to construct its road in its streets, it may not do so upon the condition that the company does not exercise one of its corporate powers, and therefore a condition or regulation that the company shall not carry freight, is void. This judgment was afterwards affirmed by the Supreme Court, State v. Traction Co. 64 Ohio St. 272 [60 N. E. Rep. 291].

If a city ordinance containing such regulation is void, for the want of power in the city to exact such a condition, it follows, we think, that an ordinance limiting the use of a commodity, such as natural gas, conceded to be safe and available for illuminating purposes, to that of fuel, heat and power, is void also for the same reason. If the city cannot in the one case, for the lack of power, require the corporation to contract away the right to exercise one of its corporate powers, it would certainly be without power in the other case to deprive the city and its inhabitants, by ordinance, of a common right.

We are therefore of the opinion that Sec. 1 of the ordinance passed on June 4, 1889, in so far as it limits the use of natural gas to that of fuel, heat and power, is void.

It is contended by counsel for the defendant that the remedy here sought, being that of specific performance, that upon the facts stated in the petition, such a decree could not be executed. The prayer of the petition is in the alternative, and if the facts stated should be fully sustained by competent testimony, a court of equity would have no difficulty in discovering a remedy to correct the evil.

We are, therefore, of the opinion that neither the demurrer nor motion are well taken, and the same are therefore overruled, at the cost of the defendant.

Dustin and Wilson, JJ., concur.

Demurrer to Answer.

DUSTIN, J.

Upon a review of the arguments and citations of counsel, we have reached the following conclusions:

First. A municipality cannot limit a franchise granted by the state except where it would prove dangerous or injurious to the city or its inhabitants.

Second. The amended franchise acquired by the defendant since its purchase of the Natural Gas Company allowed it to sell natural gas for illuminating purposes.

Third. The exclusion by ordinance, of the right of the Natural Gas Company, to sell natural gas for illuminating purposes, when the same would be beneficial, practical and safe, is invalid because inimical to the best interests of the people, and of the Natural Gas Company, itself, and hence against public policy.

The city council has no power to legislate except for the public welfare; and attempted legislation exclusively for private interests is void to the extent of such favoring clauses and restrictions, and the courts have the right to so decide. State v. Robins, 71 Ohio St. 273-291 [73 N. E. Rep. 470; 69 L. R. A. 427].

Fourth. Such limitations are also monopolistic in tendency, and therefore invalid.

Fifth. Walla-Walla v. Water Co. 172 U. S. 1 [19 Sup. Ct. Rep. 77; 43 L. Ed. 341], and similar eases do not hold to the contrary. They simply forbid the impairment by a municipality of a contract with a public service corporation.

In the case at bar, the contract of the Natural Gas Company with the city is not impaired by this construction, it is enlarged. It is only the competing company that is injured, and it is estopped to complain; nor can it, by the purchase and absorption of its competitor, restore and continue the limitation or rights which would redound only to the benefit of the purchaser.

Sixth. This construction does not make a contract by implication between the city and the gas company. It eliminates the invalid restrictions of the express contract and allows the ordinance' so excised to stand.

Seventh. The enforced contracts between the gas company and its customers containing the above restrictions are, to that extent, unreasonable and nonenforceable.

The provision requiring notice to the company before a consumer may turn natural gas into artificial pipes, is reasonable, in view of the increased pressure and danger, but where the piping is in suitable condition to convey the natural gas in safety, the consumer is entitled to have the same turned in at once.

The demurrer to the answer will be sustained.

Wilson and Sullivan, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ERROR — RECORD.
    [Van Wert (3d) Circuit Court,
    November Term, 1904.]
    Hurin, Donnelly and Kinder, JJ.
    York-Ridge Oil Co. v. W. O. Innis et al.
    Filing Agreed Statement of Facts Does not Make it Part of the Record.
    The mere filing of an agreed statement of facts in the trial court does not make it a part of the record, nor does a reference in the bill of exceptions to an agreed statement of facts as having been offered in evidence and as bearing the file marks of the trial court without further identification or being attached to the bill of exceptions.
    Error to the eommon pleas court of Van Wert county.
    E. G. Guthery, H. G. Richie and C. .0. Richie, for plaintiff in error.
    O. S. Brumback and Saltzgaber, Hoke & Osborn, for defendants in error:
    Counsel for defendants in error cited in support of the proposition that an agreed statement of facts, although filed in a case, is not an “original” paper. Garner v. White, 23 Ohio St. 192; Young v. State, 23 Ohio St. 577; Montgomery v. State, 4 Circ. Dec. 199 (12 R. 679); Brock v. State, 12 Circ. Dec. 467 (22 R. 364); Clev. & E. Elec. By. v. Hunter, 12 Circ. Dec. 769 (10 N. S. 564); State v. Spiegel, 25 O. C. C. 552 (4 N. S. 255).
    Not even when copied in the record by the clerk. Sleet v. Williams, 21 Ohio St. 82; Goldsmith v. State, 30 Ohio St. 208; Schultz v. State, 32 Ohio St. 276.
    A deposition on file, but not attached to the bill of exceptions, is not a part of the record. Hicks v. Person, 19 Ohio 426.
    An agreed statement of facts must be made a part of the record by bill of exceptions. Bank of Virginia v. Bank, 16 Ohio 170; Clarke v. Lane Seminary (Tr.), 6 Dec. Re. 863 (8 Am. L. Rec. 488).
   PER CURIAM.

' The document which purports to contain and to be an agreed statement of facts in this case, does not become part of the record by being filed in the trial court. The reference to it in the bill of exceptions, as having been offered in evidence and declaring that it is a part of the record, and that it bears the file marks of the common pleas court with the date of the filing, without further identification and without being physically attached to the bill of exceptions, does not make it a part of the bill, or a part of the record. The bill of exceptions showing that such an agreed statement of facts was received in evidence, but the same not being a part of the record and not being made a part of the bill of exceptions, it conclusively appears that the bill of exceptions does not contain all the evidence, and this court is precluded from reviewing the ease upon the weight of the evidence.

The assignments of error in the petition in error are all dependent upon the facts as found from consideration of the evidence. This being the situation, this court is without power to review, and so must of necessity affirm the judgment.

The judgment is affirmed at the cost of plaintiff in error without penalty. Judgment for costs, execution awarded, and case remanded for execution.


author: ALLREAD, J.

text:
    CONTRACTS — MINES AND MINING.
    [Franklin (2nd) Circuit Court,
    February 1, 1910.]

    Sullivan, Dustin and Allread, JJ.
    New Pittsburg Coal Co. v. New York Coal Co.
    1. Construction of Terms of Mining Contract.
    A coal mining contract, after providing that the second party should mine and remove a specified annual minimum quantity of lump coal and pay a royalty thereon to the first party at the rate of ten cents per ton, also provided that in. case the second party shall neglect or fail from any cause, except as thereinafter provided, to mine and remove the specified minimum he should, at the end of each year, account for and pay to the first party such portion of the royalty per ton that would then be due had the specified minimum tonnage been actually mined and removed. These provisions of the contract were followed by the following exceptions: “In case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.” Held:
    (a) The covenants to mine and remove a minimum tonnage and to pay a minimum royalty, were not absolute;
    (b) The clause, “or any other cause beyond the control of the second party,” should not be limited by the rules noscitur a sociis or ejusilem generis to either temporary causes and disturbances interfering with the mining and removal of the coal, or to causes kindred to or of the same class as those specifically enumerated, but should be construed in its popular acceptation so as to embrace any other cause beyond the control of the second party not attributable to its fault.
    (c) The word “impossible,” as used in said contract, does not mean absolute impossibility, but should be construed in a business sense; and the mining and removing of the minimum tonnage is “impossible” when it appears that on account of causes and natural disturbances not attributable to the fault of the second party, it cannot be mined and removed without resorting to unreasonable or extraordinary expense or the employment of unusual and extraordinary means.
    (d) In determining the question whether or not the second party was prevented by “causes beyond its control” from mining and removing the minimum tonnage evidence is competent which tends to show the tonnage capacity of the different mines, the physical condition of the property, the refusal of the miners to work in any of the mines and the cause thereof, the ability of the second party to mine the minimum tonnage, the condition of the unmined area, any strike in any of the mines affected hy the contract, and the expense incurred or means employed in an effort to produce the minimum; and the question of impossibility of mining and removing the minimum tonnage under the saving clause of the lease in case of doubt or conflict in the evidence is one of fact to be submitted to the jury.
    ■(e) Retention of possession by the second party without mining and removing the minimum tonnage, if impossible from causes beyond its control, is not sufficient to render it liable for. the minimum royalty.
    (f) The burden of proof is upon the second party to show that it was prevented from mining and removing the minimum tonnage on account of causes beyond its control.
    3. Practical Construction Placed upon Contract and Acquiesced in, Considered.
    Evidence showing the practical construction which either party has placed upon a coal mining contract and the acquiescence therein by the other party, may be considered for the purpose of aiding in its proper construction.
    [Syllabus by the court.]
    Error to Franklin common pleas court.
    Arnold, Morton & Irvine, Q. R. Lane and R. J. Odell, for plaintiff: in error.
    Addison, Sinks & Babcock; Booth, Keating, Peters & Pomerene, and F. K. Pendleton, for defendant in error.
   ALLREAD, J.

The action in the court below was brought by the New York Coal ■Company against the New Pittsburgh Coal Company to recover the balance of the minimum royalty after deducting the amount of coal •actually mined for thé years ending June 30, 1903, 1904, 1905, and for the months of July, August and September of the year 1905, under a lease executed by the New York Coal Company in the year 1894, to Hobert Stalter, and assigned successively with the consent of the New York Coal Company to the Stalter Coal Company and the New Pittsburg Coal Company, the latter being the lessee during the period •of liability. The plaintiff below recovered a verdict and judgment for the full amount claimed, to wit; $14,396.14. This judgment is sought to be reviewed by proceedings in error in this court.

It is admitted by the answer that the lessee was operating the mines covered by the lease during the period for which recovery is-sought, and in a previous answer it was admitted that the lessee was in possession during the period named. It is not very material’ whether we accept the qualified admission of’ the last answer or that of the-former answer. The liability must be determined by the written contract. The rental contract, by its terms, continues “until all the coal has been removed from the said aforementioned property as herein provided,” and stipulates that the minimum royalty shall be in force “until all the coal in, upon or under said land has been fully and entirely removed therefrom, including all pillars supports and stumps, which shall be withdrawn and taken out.”

The lessee being in possession and operating the mines during the period of alleged liability, it may be taken as conceded for the purposes, of the present case that the lease was still in operation and effect. Whether the lessee might not have abandoned the premises when the coal was so far exhausted as to be incapable of practical operation is. not involved in the present case. The whole contract must, therefore, be read and construed to determine the rental or royalty liability, as-applied to the state of facts presented here in connection with the defense offered in the court below.

It may be noted incidentally that the lease was of the right and privilege to prospect for and mine coal, and to remove timber for mining purposes; otherwise the possession remained in the lessor. Clauses and covenants are found providing for economical operation of the coal mine so as to yield the greatest possible amount of coal, and a royalty for all coal removed, together with a minimum liability. There is a further proviso for an increase in the royalty according to the current rate in the Hocking Valley. The clause which is specially involved is. that relating to the agreement of the lessee to pay the minimum, and the exception, which is as follows:

“And if said second party (lessee) shall neglect or fail from any cause except as hereinafter provided to so mine and remove the said minimum of thirty thousand tons between July 1, 1894, and July 1, 1895, or said minimum of sixty thousand tons during each and every year thereafter, or said minimum of thirty-five hundred tons during any month thereafter, he shall' at the end of such year or month account for and pay to the first party such portion of the royalty per ton aforesaid that would then be due if said number of tons had been actually so mined and removed.

“It is hereby understood and agreed by and between the parties hereto that in case and so long as it shall be impossible to mine and remove said amount by reason of strikes, lockouts, fires, floods or any other cause beyond the control of the second party, lack of transportation facilities excepted, the said minimum shall not apply.”

We think that this lease, so far as the royalty or rental is concerned, may be held to be a royalty contract, with a reservation of dead rent as a spur to diligence and to secure to the lessor the largest possible returns. The royalty feature of the contract is predominant. The extreme care in providing for the economical operation of the mine, the supervision and control of the lessor’s engineer in mining operations, and the provision for the increase of the royalty from time to time up to the general current rate in the Hocking Yalley, indicate that the central idea of the contracting parties was the payment of the tonnage royalty and the provision for dead rent was to secure the lessor against neglect or lack of diligence on the part of the lessee.

Counsel have been diligent in the citation of cases involving mining leases. These cases are by no means in harmony, but from them may be deduced a principle of construction supported at least by the weight of authorities that were a minimum royalty or dead rent is reserved without exception, the lessee is bound, except in cases where there is no minable coal or where it has become exhausted. Where merely the quantity of minable coal or the expense of mining is involved, the courts do not as a general rule relieve the lessee from his agreement as to the minimum, so that we think it may be taken here as an established proposition that if there had not been inserted an exception in favor of the lessee in the leasing contract, its liability for the minimum could not be successfully assailed.

We are, therefore, brought to a reading and construction of the exception or saving clause in favor of the lessee. The defense set forth in the answer and offered upon the trial consists of a showing that by reason of the exhaustion of the coal in the main mine upon what is known as the west hill and of the small mine upon the east part of the east hill, and by reason of the dangerous natural formation of the roof of the coal mine in the main part of the east hill, and of the refusal of the workmen to operate the east hill, the lessee was prevented from mining the minimum or a greater quantity of coal during the period of liability than was actually mined and paid for. The question, therefore, is whether this defense so stated in substance is within the saving clause of the rental contract.

The learned judge of the trial court limited the clause “Or any other cause beyond the control of the second party” by the well-known principle of noscitur a sociis and ejusdem generis, and was of the opinion that the specific causes related to temporary disturbances, and-that, therefore, “any other cause” must be one similar to those specifically named. The view so taken is not without plausibility, and support, but upon careful examination of the authorities in connection with the scope of this lease, we are inclined to a more liberal and broader interpretation. The doctrine of ejusdem generis is never an absolute rule of construction, but a mere suggestion in connection with the scope of the instrument to be interpreted. We may as fairly invoke the doctrine of expressio unius est exclusio alierius, and hold that the one exception excluded all others, but the central idea of the construction of a written contract is to apply all the aids and suggestions’ of the rules of construction toward the ascertainment of the intent of the-parties which is to control. Now, having in view the main scope of this contract as heretofore expressed, the saving clause, we think, should' be literally construed to effectuate the apparent intention of the parties so as to hold the lessee to a high degree of diligence, but not absolutely. The exception, therefore, “any other cause beyond the control of the second party” should be construed in its popular acceptation,, and held to save the lessee as against the failure to mine the minimum for any other cause beyond his control or not arising in, or attributable to, his fault. Such construction accomplishes the manifest. intention of the parties; secures a high degree of diligence; furthers the economical operation of the mines until the coal is finally exhausted; and-relieves the lessee from consequences beyond his control. The view of the court is not without authority.

In the recent case of Wilson v. Coal Co. 134 Ia. 594 [112 N. W. Rep. 89], and finally decided in 119 N. W. Rep. 604, where the mining-lease in controversy provided for a minimum liability, with a saving clause in case the lessees “are prevented from taking out said coal on account of any matters that they cannot avoid, then they shall not be-required to take out any certain amount of coal or pay for any amount not taken out,” it was held that the lessees were relieved from the minimum where, by reason of faults in the coal deposits, the mine-could not be profitably operated.

Weaver, C. J., in the opinion-holds:

“The saving clause of the lease, by which the lessee was to be relieved from the payment of royalty if prevented from taking out. coal on account of matters which it could not avoid, must- be given a reasonable construction. ’ ’

It is true in this case there were no specific causes named, and, therefore, the doctrine of ejusdem generis may not be said to be involved, but the decision sustains the view that the saving clause in the lease is to be reasonably construed and applied to any condition that prevents the profitable mining of the coal.

In the case of Givens v. Coal Co. 60 S. W. Rep. 304 (Ky.), a mining lease was under consideration in which a minimum was stipulated for, with the provision excusing the minimum when the lessee was prevented therefrom “by any accident or casualties, without fault on his part, or by accident or circumstances not under his control.” And the saving clause was applied in favor of the lessee where the coal mined was so inferior as to make it unsalable in the market.

The ease of Robinson v. Kistler, 62 W. Va. 489 [59 S. E. Rep. 505], involved a mining lease providing for a minimum royalty with an exception in favor of the lessee “in ease of strikes, accidents or any cause of stoppage of transportation over which the second party (lessee) has no control, and he is" disabled or prohibited thereby from mining or shipping coal from the said mine, then the minimum royalty as above specified is to be suspended for the period of such,disability;” and this, exception was construed to include lack of cars.

The opinion, however, sheds light upon the construction of the general words “any cause beyond control,” etc., in which is found the following:

“The words of a contract will be given a reasonable construction, if possible, rather than an unreasonable one. * * * These words, ‘over which the second party has no control,’ are simply another way we have of saying, almost every day in making contracts, ‘for which-the second party is not to blame,’ or ‘without the fault of the party of the second part.’ -The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation.”

In the case of Bannan v. Graeff, 186 Pa. St. 648 [40 Atl. Rep. 805], where the mining lease provided for a minimum to be mined and paid-for by the lessee, “unless prevented from doing so by an unavoidable accident or occurrence beyond their control,” it was held that" the exhaustion of the coal or other physical conditions so that the available- or workable coal was exhausted, relieved the lessee.

.A number of cases are cited by counsel for defendant in error,, but in all the eases cited, save one, there was an absolute stipulation for the minimum, and no saving clause in favor of the lessee, the only exception being the ease of Berwind-White Coal Min. Co. v. Martin, 124 Fed. Rep. 313 [60 C. C. A. 27], decided by the circuit court of appeals, and in which a writ of review was denied by the Supreme Court of the United States, Berwind-White Coal Min. Co. v. Martin, 191 U. S. 569 [24 Sup. Ct. Rep. 841; 48 L. Ed. 306]. The only report of the case is, therefore, found in the circuit court of appeals.

The majority opinion in this case refers to the minimum clause in the contract in connection with the statement that the mining operation had been abandoned during the first year, and holds the lessee liable for the minimum during the years stipulated for in the lease. No grounds of abandonment are stated in the prevailing opinion. So far as that opinion is concerned, the lessees appeared to have abandoned the lease without any cause and expected to defeat the royalty upon the ground that all the coal was still in place in the mine. This defense was not sustained, and the minimum liability was enforced.

In the dissenting opinion, however, the saving clause is set out and relied upon to support the dissent. In the statement of facts found in the dissenting opinion, it appears that the lessees, after mining some coal the first year and prospecting in the vein and finding troubles and faults which indicated to them that the mine was not profitable, abandoned the lease. The lessors thereupon took possession, and about the end of the first year, after exploring the veins, found the existence of profitable coal, and so notified the lessees, insisting upon their complying with their lease. The statement of facts even in the dissenting opinion does not bring the case within the exception for the reason that ample minable coal existed in the lease, but the lessees had not gone to the trouble of sufficiently exploring the vein so as to discover it. The failure, therefore, to mine was due, in some measure, to the fault of the lessees.

While the authority of a decision of the Supreme Court of the United States would be sufficient to override the cases heretofore cited, still it does not sufficiently appear that the Supreme Court of the United States or even the circuit court of appeals passed upon a case where the controlling facts are similar to the case at bar.

Another feature of this case which adds to the preponderance in favor of the construction given is that it accords with that of the parties during the period for which the action is brought. The operation of the mines was under the direction in a measure of the engineer of the lessor and it does not' appear that he ever objected to the manner in which the mines were worked or that the company ever made any claim during that period to the enforcement of the minimum clause. While the course of the lessor cannot be said to be an estoppel, yet it operates favorably to the lessee in the construction of the lease.

It is urged that the lessee, being in possession and relieved from the minimum, might hold possession for an indefinite time, and use the property in connection with other mining properties and prevent the lessor from operating it. This argument would be most persuasive if the court were making a new contract, but it is a sufficient reply to say that we are only construing reasonably and in harmony with the intention of the parties a contract already made.

We are, therefore, of the opinion that the defendant below should have been permitted to show the tonnage capacity of the mines in the west hill and in the east part of the east hill, if any were still being operated, during the period named, when operated by the most efficient machinery in general use or that approved by the engineer in charge and when operated up to the full capacity, both as to machinery and available men, and to show the physical condition of the mines in the east hill, the objection of the workmen to operating therein, and the ability of the lessees to mine coal therefrom, as well as the prospect in the unmined area, as affecting the possibility of putting out the minimum provided for in the lease. Also it was proper to show, as reflecting to that extent, any general strike, in all the mines affected by this contract. ■ Assuming that the defendant could produce the testimony proposed in its defense, we think it is a question for the jury to decide as to the impossibility of mining the minimum amount arising from any cause beyond the control of the lessee.

The word “impossible” as used in the contract must be construed in a business sense, and would relieve the lessee from the minimum where, by reason of causes beyond his control, the minimum could not be mined without resorting to unreasonable or extraordinary expense, or the employment of unusual and extraordinary means.

For the refusal of the trial court to admit the evidence of the character stated proposed by the defendant below in its defense, the judgment is reversed.

The defendant in the court- below objected to the ruling of the trial court upon the burden of proof as to the exception or saving clause. In the amended petition the plaintiff negatived the conditions required by the exception or saving clause. This was put in issue by the general denial. The form of the pleading, however, is not controlling. In the case of the Scioto Fire Brick Co. v. Pond, 38 Ohio St. 65, and Cook v. Andrews, 36 Ohio St. 174, 178, it was held that the burden was upon the defendant to prove the exception. It is contended, however, that the facts here are different, inasmuch as the lessor had inspectors and engineers in charge of the work. We think, however, that the provisions of this lease in that respect do not call for a contrary decision. While the lessor had engineers supervising the work, yet the lessee was bound under the contract to explore for coal in the unmined area. He, therefore, had the means of knowing whether minable coal could be-found, and to shift the burden of proof to the plaintiff would require it not only to be familiar with the workings of the coal mine where in operation, but to explore in the unmined sections. Williams, J., in the-case of. Moody v. Insurance Co. 52 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699], amply sustains the ruling of the trial court as to burden of proof, and this is not affected by Germania Fire Ins. Co. v. Werner, 76 Ohio St. 543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891]. There was, therefore, no error prejudicial to the defendant below in the rulings of the court, up to the opening of the defendant’s case.

The judgment will, therefore, be reversed for the reasons stated in the opinion, and the cause remanded for a new trial.

Sullivan and Dustin, JJ., concur.


author: SWING, J.

text:
    ADVERSE POSSESSION — DEDICATION.
    [Hamilton (1st) Circuit Court,
    November 23, 1907.]
    Swing, Giffen and Smith, JJ.

      Sophia Drucker v. Home City (Vil.).
    1. Conveyance of Lands Dedicated as Street Thirty Tears before Village Incorporated Revokes Dedication.
    No dedication of a village street can take place before the incorporation of the village. Hence, when an attempt is made to dedicate property for a street, but before the creation of the village the dedication conveys the-property to another by deed in the usual form, such conveyance amount» to a revocation of the dedication.
    2. Title by Adverse Possession Sustained by Probabilities.
    Title by adverse possession as against a municipal corporation, obtains-where the probabilities as to the situation bear out the positive testimony of the plaintiff asserting such possession.

      Appeal from Hamilton common pleas court.
    The plaintiff brings suit to quiet title to a strip of land claimed liy the defendant village as a street. The village contends that certain streets within the territory of which a part of the village is now formed were dedicated by the owner of the lands in 1849, some thirty years before the incorporation of the village of Home City. The plaintiff built a fence across one of these streets and for many years used the space fenced in for garden purposes.
    Albert Bettinger, for plaintiff:
    Cited and commented upon the following authorities: Winslow v. Cincinnati, 9 Dec. 89 (6 N. P. 47) ; Fulton (Vil.) v. Mehrenfeld, 8 Ohio St. 440; 9 Am. & Eng. Enc. 78; Lockland (Vil.) v. Smiley, 26 Ohio St. 94; Burback v. Schweinler, 56 Wis. 386 [14 N. W. Rep. 449] ; Barclay v. Howell,'31 U. S. (6 Pet.) 498 [8 L. Ed. 477]; Masterson v. Munr'o, 105 Cal. 431 [38 Pac. Rep. 1106; 45 Am. St. Rep. 57]; Rutherford v. Tracy, 48 Mo. 325 [8 Am. Rep. 104]; Wisby v. Bonte, 19 Ohio St. 238; Armstrong v. St. Marys (Vil.), 11 Circ. Dec. 453 (21 R. 16) ; Kelly Nail &■ Iron Co. v. Furnace-Co. 46 Ohio St. 544 [22 N. E. Rep. 639; 5 L. R. A. 652]; Fox v. Hart, 11 Ohio 414; Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472), affirmed, Toledo v. Mott, 60 Ohio St. 601; Seese v. Maumee (Vil.), 28 O. C. C. 768 (7 N. S. 497); Ellicott v. Pearl, 35 U. S. (10 Pet.) 412 [9 L. Ed. 475]; Humphries v. Huffman, 33 Ohio St. 395; Ewing v. Burnet, 36 U. S. (11 Pet.) 41 [9 L. Ed. 624]; Booth v. Small, 25 Iowa 177; Brooks v. Bruyn, 24 111. 372; Johnson v. Thomas, 23 App. D. C. 141; McCreery v. Ever ding, 44 Cal. 246; Bartholomew v. Edwards, 1 Houst. (Del.) 17; Dickenson v. Bales, 59 Kans. 224 [52 Pac. Rep. 447]; Butler v. Drake, 62 Minn. 229 [64 N. W. Rep. 559]; Henry v. Henry, 122 Mich. 6 [80 N. W. Rep. 800]; Murray v. Hudson, 65 Mich. 670 [32 N. W. Rep. 889]; Twohig v. Learner, 48 Neb. 247 [67 N. W. Rep. 152]; Illinois Steel Co. v. Bilot, Í09 Wis. 418 [84 N. W. Rep. 855; 85 N. W. Rep. 402 ; 83 Am. St. Rep. 905]; Lantry v. Parker, 37 Neb. 353 [85 N. W. Rep. 962],
    J. B. Matson and Sayler & Sayler, for defendant:
    Cited and commented upon the following authorities: Lockland (Vil.) v. Smiley, 26 Ohio St. 94; Walworth v. Collinwood, 4 Circ. Dec. 503 (8 R. 477) ; Fulton (Vil.) v. Mehrenfeld, 8 Ohio St. 440; Cincinnati v. White, 31 H. S. (6 Pet.) 431 [8 L. Ed. 452]; Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. Rep. 983]; Rowan v. Portland, 47 Ky. (8 B. Mon.) 232; Wickliffe v. Lexington, 50 Ky. (11 B. Mon.) 155; Alves v; Henderson, 55 Ky. (16 B. Mon.) 131; Burback v. Schweinler, 56 Wis. 386 [14 N. W. Bep. 449]; Barclay v. Howell, 31 U. S. (6 Pet.) 498 [8 L. Ed. 477]; Rutherford v. Tracy, 48 Mo. 325 [8 Am. Bep. 104]; Masterson v. Munro, 105 Cal. 431 [38 Pac. Bep. 1106; 45 Am. St. Bep. 57]; Grogan v. Hayward, 4 Fed. Bep. 161; Parker v. St. Paul, 47 Minn. 317 [50 N. W. Bep. 247] ; State v. Leaver, 62 Wis. 387 [22 N. W. Bep. 576]; Bartlett v. Bangor, 67 Me. 460; Shea v. Ottumwa, 67 Iowa 39 [24 N. W. Bep. 582]; Lake View v. LeBahn, 120 111. 92 [9 N. E. Bep. 269]; Reüly v. Racine (City), 51 Wis. 526 [8 N. W. Bep. 417]; Sullivan v. Columbus, 12 Dec. 651; Derby v. Ailing, 40 Conn. 410; Henshaw v. Hunting, 67 Mass. (1 Gray) 203; Giffen v. Olathe (City), 44 Kan. 342 [24 Pac. Bep. 470]; Meier v. Railway, 16 Ore. 500 [19 Pac. Bep. 610; 1 L. B. A. 856]; Oswald v. Grenet, 22 Tex. 94; Mott v. Toledo, 7 Cire. Dec. 216 (17 B. 472), affirmed, Toledo v. Mott, 60 Ohio St. 601; Seese v. Maumee (Vil.), 28 O. C. C. 768 (7 N. S. 497) ; Hildreth v. Googins, 91 Me. 227 [39 Atl. Bep. 550].

      Affirmed, no op., Home City (Vil.) v. Drucker, 81 Ohio St. 507.

   SWING, J.

We are of the opinion that the plaintiff is entitled to the relief sought on two grounds:

1. She has title to the premises through deeds from the Cincinnati Building Association. The dedication of the building association could not have taken effect before the creation of the village of Home City in 1879. There was no grantee in existence to take, and of course there could have been no acceptance until after the creation of the village. Long before this, to wit, in 1860, the building association deeded away this property, and therefore under the decision in the case of Lockland v. Smiley, 26 Ohio St. 94, the conveyance operated as a revocation as to the property conveyed.

‘2. She is entitled to recover as owner by reason of adverse possession for more than twenty-one years under a claim of right. Title by adverse possession in Ohio is as good against a corporation as against an individual, the only difference being in the character of the proof required. Mott v. Toledo, 7 Circ. Dec. 216 (17 R. 472), affirmed, without opinion, Toledo v. Mott, 60 Ohio St. 601.

The evidence here was conflicting, as it generally is when witnesses are testifying to facts which existed twenty years before. All the witnesses seemed to be honest and fair and disinterested, but we feel bound to think that the witnesses for the plaintiff had the best opportunity to observe the conditions that existed there, especially the Crosses, and not only this but it would seem very unreasonable that Drueker should have maintained a fence around only a portion of her garden at the point where she did. It would seem that a fence was necessary to protect her garden, which she planted yearly on the ground in question. Without a fence she could not hope to raise a crop, and all the witnesses agree that she raised crops yearly on this property, and there was no evidence that any of her crops were ever injured by animals or otherwise.

We feel therefore that the probabilities as to the situation bear out the positive evidence of the plaintiff.

Decree accordingly.

Giffen and Smith, JJ., concur.


author: GIFFEN, J.

text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    July 17, 1909.]
    Giffen, Swing and Smith, JJ.
    German-American Ins. Co. v. John McBee et al.
    1. Owner’s Insurable Interest in Foundation of Building Totally Destroyed by Fire Cannot be Considered in Settling Loss.
    Section 3691 Rev. Stat., excluding cellar and foundation walls in settling insurance losses, notwithstanding the policy includes them as part of a building, is intended to prevent confusion and uncertainty resulting from considering the foundation as part of the building and to give full effect to Sec. 3643,- fixing payment in case of “total loss” of a building the insurable value of which is fixed by insurer’s agent at the time of issuance or renewal of the policy thereon. Hence, consideration of the •owner’s insurable interest in the foundation of a building of which there has been a total loss under a policy including foundation as part of the building is an unwarranted evasion of the statute.
    2. In Case of “Total Loss” of Building Failure to Qualify Definition of Term not Erroneous.
    Where it is undisputed that the loss was total, a failure on the part of the court to qualify the definition of “total loss” in the charge to the jury does not constitute error; and where the building exclusive of the foundation is a total loss, a disagreement as to the amount of the loss is unimportant and the necessity for an appraisement does not exist.
    3. Instruction that Vacancy of Building at Issuance of Policy Need not be Considered by Jury.
    A charge that the jury need not consider whether or not the property was vacant at the time the policy was applied for and issued is not erroneous under the provisions of Section 3643, particularly when the evidence is undisputed that the agent of the company had knowledge of such vacancy.
    Error to Hamilton common pleas court.
    R. L. Black and J. W. Mooney, for plaintiff in error.
    J. T. Harrison, for defendant in error.
   GIFFEN, J.

It may be conceded that the owner of a building has an insurable interest in the foundation upon which it rests; but if as. in this case the description in the policy of insurance includes it as a part of the building, it cannot be so considered in settling losses. The purpose of Sec. 3691 Rev. Stat., was to prevent the confusion- and uncertainty arising by treating the foundation as a part of the building and to give full effect to See. 3643 Rev. Stat. in case of total loss of the building.

The illustration suggested by counsel for plaintiff in error of a policy of insurance upon dwelling house and furniture therein contained is not in point, as the furniture is not included as a part of the building, nor is there any statutory regulation of such a case except See. 3643 Rev. Stat., which would still require the insurer’s agent to fix the insurable value of the building at the time the policy .is applied for.

The construction of this section contended for would permit the insurer to defeat its operation in all cases by simply using -the form of policy here sued on.

It is practically undisputed that the loss of the buildings was total, and the error of the court in not qualifying the definition of “total loss” as requested by counsel at the conclusion of the general charge was not prejudicial. So, likewise, if the foundation be considered not a part of the buildings, the exclusion and admission of certain evidence set forth in the brief were without prejudice. It follows also that there was no error in refusing to submit to the jury interrogatories Nos. 1, 3 and 4.

The charge of the court that the jury need not consider whether the property was vacant at the time the policy was applied for and issued was proper under Sec. 3643 Rev. Stat., as well as the undisputed evidence that the agent of the company had actual knowledge of such vacancy. The demurrer to the amendment to the second defense alleging a proportionate liability for the cash value of the dwelling house at the time of the fire was properly sustained, although a motion to strike out would have been more appropriate. Queen Insurance Co. v. Leslie, 47 Ohio St. 409 [24 N. E. Rep. 1072; 9 L. R. A. 45].

The special instructions refused by the court were requested upon the theory that the foundation was specially insured, and thereby a disagreement as to the amount of loss, and necessity for an appraisement arose; but if the buildings, exclusive of foundation, were a total loss, the disagreement was unimportant and a necessity for appraisement did not exist. Ohage v. Insurance Co. 82 Minn. 426 [85 N. W. Rep. 212].

We find no prejudicial error and the judgment will be affirmed.

Swing and Smith, JJ., concur.


author: WILDMAN, J.

text:
    LIMITATION OF ACTIONS — MORTGAGES.
    [Lucas (6th) Circuit Court,
    February 27, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Ella Felt Lowe, Exrx. v. Sumner D. Felt et al.
    1. Bar of Statute of Limitations Saved from Running by Three Methods.
    Either one of the three methods, prescribed by Sec. 4992 Rev. Stat., for keeping claims alive, payment, promise of payment or acknowledgment thereof, complies with the saving clause of the statute and is adequate to prevent its running. Hence, payment of a sum of money within fifteen years after the maturing of a note secured by mortgage, is sufficient to constitute an acknowledgment of an existing liability.

      2. Payments to Prevent Operation of Bar of Limitation of Actions.
    A nephew having an interest in a mortgage upon his uncle’s lands, transferring his interest therein to his brother by written assignment, recognizes the existence and validity of the mortgage and note secured thereby; and having obtained within a month thereafter a warranty deed of the mortgaged premises in which he subsequently grants back a life estate to the uncle in pursuance of a family arrangement to leave him in possession undisturbed during his life, cannot assert that payments made by him and endorsed upon the note did not operate to keep the mortgage alive after the uncle’s death.
    3. Payments on or Acknowledgments of Mortgage Debt Operating to Preserve Lien though Debt Barred. ,
    Payments on or acknowledgments of a debt secured by mortgage, by the owner of an equity of redemption may operate to keep the mortgage lien alive as against the statute of limitations although a right of action on the debt against the original debtor may be barred.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    Fallng & Eppstein, for plaintiff:
    The establishment of a trust in lands by parol. Paddock v. Adams, 56 Ohio St. 242 [46 N. E. Rep. 1068]; Fleming v. Donahoe, 5 Ohio 255; Harvey v. Gardner, 41 Ohio St. 642; Bettman v. Hunt, 9 Dee. Re. 396 (12 Bull. 286).
    A mortgage is a specialty upon which the statutory period of limitation is fifteen years. Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842']; Bradfield v. Hale, 67 Ohio St. 316 [65 N. E. Rep. 1008]; Hall v. Bradfield, 12 Circ. Dec. 339 (21 R. 184).
    Payment and acknowledgment. Irwin v. Longworth, 20 Ohio 581; McKelvey, Evidence See. 275; Risley v. Wightman, 13 Hun. 163; United States Tr. Go. v. Stanton, 76 Hun. 32 [27 N. Y. Supp. 614]; Hearman,. In re, 45 N. Y. 177 [19 N. Y. Supp. 539]; 1 Ad. & Ell. 102; Hathaway v. Haskell, 26 Mass. (9 Pick.) 42; Hawley v. Griswold, 42 Barb. (N. Y.) 18.; 19 Am. & Eng. Ene. Law 328; Peabody v. North, 161 Mass. 525 [37 N. E. Rep. 744]; McKeon v. Byington, 70 Conn. 429 [39 Atl. Rep. 853]; Stancell v. Burgwyn, 124 N. C. 69 [32 S. E. Rep. 378]; Erpelding v. Ludwig, 39 Minn. 518 [40 N. W. Rep. 829]; State Nat. Bank v. Ear-' ris, 96 N. C. 118 [1 S. E. Rep. 459] : Itoseboom v. Billington, 17 Johns. (N. Y.) 182; Oughterson v. Clark, 65 Hun. 624 [20 N. Y. Supp. 381]; Bead v. Hurd, 7 Wend. (N. Y.) 408; Butcher v. Hixton, 4 Leigh. (Va.) 519; Coffin v. Secor, 40 Ohio St. 637 [48 Am. Rep. 689]; Drouilliard v. Wilson, 1 Dec. Re. 555 (10 W. L. J. 385); 4 Ad. & Ell. 71; 11 Am. & Eng. Enc. Law 926, 934; Dickenson v. McDermott, 13 Tex. 248; Merritt v. Horne, 5 Ohio St. 307 [67 Am. Dec. 298].
    Mortgage is a demand founded upon executory contract. McQuade v. Rosecrans, 36 Ohio St. 442; Evans v. Beaver, 2 Cire. Dec. 28 (3 R. 47), affirmed, Evans v. Beaver, 50 Ohio St. 190 [33 N. E. Rep. 643; 40 Am. St. Rep. 666].
    By whom payment must be made to bar running of the statute. Dater v. Bruner, 8 Dec. Re. 699 (9 Bull. 220); Bank v. Piatt, 5 Ohio 540; Justice v. Phi, 10 Ohio St. 170; Wilson v. Giddings, 28 Ohio St. 554; 1 Nash, PI. & Pr. (4 ed.) 724; Fisher v. Mossman, 11 Ohio St. 42; Long-worth v. Taylor, 13 Dec. Re. 755 (2 C. S. C. 39); Morrison v. Martin, 10 Dec. Re. 738 (23 Bull. 246); Gary v. May, 16 Ohio 66; Fisher v. Mossman, 11 Ohio St. 42; Kulp v. Kulp, 51 Kan. 341 [32 Pac. Rep. 1118; 21 L. R. A. 550]; David v. Fauble, 29 O. C. C. 495 (9 N. S. 263) ; Allen v. Everly, 24 Ohio St. 97; Bissell v. Jaudon, 16 Ohio St. 498; Hall v. Bradfield, 12 Giro. Dec. 339 (21 R. 184); Daily v. Smith, 14 Ohio St. 396 [84 Am. Dec. 385]; Murdock v. Waterman, 145 N. Y. 55 [39 N. E. Rep. 829; 27 L. R. A. 418]; Lawton v. Adams, 7 Cire. Dec. 129 (13 R. 233) ; 12 L. R. Eq. 51; 11 House of L. 115; 1 De G. & J.; 25 Cyc. 1392; Tuttle v. Armstead, 55 Conn. 175 [22 Atl. Rep. 677],
    Laches. Gault v. Columbus, 13 Dec. 575 (1 N. S. 201); Lloyd v. Telephone Co. 1.8 Dec. 809 (5 N. S. 279) ; Crawford v. Madigan, 13 Dee. 494; Joyce v. Dauntz, 55 Ohio St. 538 [45 N. E. Rep. 900]; Pomeroy, Eq. Jur. See. 798; Sheldon, Subrogation Secs. 49, 50, 51, 54; Warner v. York, 15 Cire. Dec. 310 (1 N. S. 73); Jones, Mortgages Sec. 869.
    Rights against railroad company. 19 Am. & Eng. Enc. Law 31.5.
    Interest. 25 Cyc. 1373; 8 Bing. 309; Fisk v. Stewart, 24 Minn. 97; Conwell v. Buchanan, 7 Blaekf. (Ind.) 537; Barron v. Kennedy, 17 Cal. 574; Sigourney v. Drury, 14 Pick. (Mass.) 387; Huntington v. Chesmore, 60 Yt. 566; Roosevelt v. Mark, 6 Johns. Ch. (N. Y.) 266.
    Indorsement of payment on note. 1 Ad. & Ell. 102; Hathaway v. Haskell, 26 Mass. (9 Pick.) 42; Hawley v. Griswold, 42 Barb. (N. Y.) 18; Roseboom v. Billington, 17 Johns. (N. Y.) 182; Read v. Hurd, 1
      Wend. (N. Y.) 408; 45 Marr. 578; Butcher v. Hixton, 4 Leigh. (Va.)-519.
    Supplemental citations. 25 Cve. 1380; 6 Cyc. of Ev. 338; MeGinty v. Henderson, 41 La. Ann. 382 [6 So. Rep. 658]; Buss v. Cunningham, 16 S. W. Rep. 446 (Tex.); Hollister v. York, 59 Yt. 1 [9 Atl. Rep. 2]; Cleveland v. Harrison, 15 Wis. 670; Murdock v. Robinson,, 71 Hun. 320 [25 N. Y. Supp. 120]; McGehee v. Blackwell, 28 Ark. 27;, Hubbard v. Clark, 7 Atl. Rep. 26 (N. J.); Haines v. Watts, 53 N. J. Law 455 [21 Atl. Rep. 1032]; Townsend v. Ingersoll, 43 How. Pr. 276;, Conrad v. Archer, 7 N. Y. St. Rep. 646.
    Sumner Felt and A. P. McKee, Esq., for defendant.
   WILDMAN, J.

In the ease of Ella Felt Lowe, as executrix of the estate of Clinton-H. Felt, deceased, against Sumner D. Felt and others, the transactions, with reference to certain real estate have had such a history as might, justify the court in spending some time in reviewing the facts presented, not only by the pleadings, but by the evidence which has been submitted to us, the case being one appealed to this court from the court of common pleas.

Mrs. Lowe, as executrix of the estate of Clinton Felt, her deceased-husband, brings suit to foreclose a mortgage upon certain real estate,.the title to which is in Sumner D. Felt, one of the defendants.

In the year 1870, one Milo Felt, an uncle of the present parties, Mrs. Lowe and Sumner Felt, and Alice M., his wife, executed a note- and mortgage, to one Dorman Felt who was the father of Clinton and Sumner and a Mrs. Bostwick. At his death the note and mortgage-passed to the sons and the daughter, Mrs. Bostwick, and by subsequent release became the property of Clinton; and upon Clinton’s death, by his will, it becomes the property of Ella Lowe, as executrix. The question upon foreclosure, and the sole question, is whether the right to proceed upon the mortgage against the land has been barred by lapse of time under our statute of limitations.

The mortgage and note were due November 1, 1871, at which time a right of action accrued and the statute began to run. The note was. made payable to Dorman Felt or bearer, and to secure its payment the-mortgage was given upon the land which is now sought to be subjected, a farm of some 160 acres situated near Monclova, in this county. At' the time of the giving of the mortgage, the title in fee was in the wife of Milo, Alice-M. Felt. Upon her death in 1883 the equity of redemption passed to Milo S. Felt, her husband.

Two transactions occurred in the year 1885 which may or may not have had any special reference to each other. After the death, of Dorman Felt, the father of Clinton and Sumner, by written assignment on August 10, 1885, Sumner transferred his interest in the mortgage and note to his brother Clinton. There can be no question that at that time, and by that transaction, he recognized the existence and validity of the note and mortgage. A little more than a month later and in the same year, he obtained, by warranty deed, the title to the real estate from his uncle Milo, who, as I have stated, had succeeded to the interest of Alice Felt, his wife. There is no claim that Sumner was a purchaser without knowledge of the existence of the lien upon the land, or the existence of the debt, and manifestly a claim of that kind would be idle in view of the fact that he had by writing expressly assigned an interest in the note and mortgage, only a little more than a month prior to his obtaining the conveyance from his uncle Milo of the real estate.

But a period of more than fifteen years has elapsed from the time of the maturity of the note, and indeed from the time of the acknowledgment of the note by the assignment to Clinton, before the beginning of the present suit, and the question arises whether certain subsequent transactions between the parties interested have operated to keep the mortgage alive.

A conveyance was made back from Sumner to his uncle Milo, by which the possession of the property was to remain with Milo during his lifetime, and it did so remain. His possession of the property was not disturbed, and without any consideration of oral evidence it might be assumed that the family relation had operated upon the minds of all parties to induce them to leave Milo in the undisturbed possession of the property as a home during his life. Both Sumner and Clinton may be assumed to have had the natural affection which nephews would have for their uncle, and their disposition to leave him in the control of the property seems to have been shared and the plan or purpose to ■have been carried out in like spirit by the widow of Clinton, after his death.

There appears upon the mortgage under date of August 31, 1886, a credit of $20, and another of like amount on October 1, 1895. A claim is urged upon us in behalf of Sumner that these credits, while made by his consent, were not evidence of real payments made — that they were mere forms designed to protect the possession of their uncle Milo, in view of the possibility of some other outstanding claim wresting the property from him. This mortgage was a first mortgage, and by keeping it alive he would be protected in the possession of the property when otherwise he might be dispossessed. That is the contention of Sumner Felt, the principal defendant here, as we understand it. He says that these endorsements made upon the paper were merely formal as between him and the holder of the mortgage, and were not to operate to keep the mortgage alive after the death of Milo. "We cannot, however, so look at those transactions. "We do not think that the competent evidence taken as a whole indicates this. There is nothing in any of the written evidence to indicate that there was any intention that the mortgage should remain alive merely until the death of Milo, and that then it should become eo instanti barred by lapse of time. The written assignment of his interest in the mortgage made in 1885 to his brother Sumner recognized its validity as a security for the existing debt. The correspondence between the parties, the letters, all indicate the same thing.

The deposition of Sumner has been taken to disprove the inference which might be drawn from these writings, and his evidence so far as it relates to transactions after the death of . his brother Clinton, is competent. "We do not deem it competent as to the transactions occurring before that death, except in so far as it may be made so in rebuttal of evidence as to particular transactions with regard to which evidence was offered on the other side. I do not care to go over these letters in detail. I might, however, in passing, refer to one written after the death of his uncle Milo, in which he substantially recognized the mortgage. Perhaps standing alone, this letter would not be such a written acknowledgment as is essential under the statute to take the ca$e out of the statute of limitations. Nor is it an express promise to pay, but we think that it is very persuasive evidence to show that he did not understand that the mortgage was to expire with the death of Milo. He substantially says in the letter: — I will not attempt to repeat its precise phraseology, and will not now look for it in this voluminous bundle of papers before me — that by reason of his business matters he is unable at present to take care of the mortgage, but that he will see her, Mrs. Lowe, or Mrs. Felt perhaps, at a time later with regard to it. It would seem that, if he were right in his contention that those endorsements on the paper were signed only to protect the interests of Milo, now after the death of Milo, when called upon to pay the indebtedness which was a lien upon his land, he would at once have asserted this claim which he now urges before this court. The letter, together with his other correspondence in which he consents to the endorsements upon the paper, are sufficient, we think, under the statute to keep the mortgage alive.

The claim for a personal judgment against the estate of Alice Felt is probably barred by lapse of time, and the same would be true as-against Milo Felt, who joined with her in the making of the evidences of the original indebtedness. It may be altogether true that the time has expired within which any suit could be brought by the executrix,of Clinton Felt to recover a personal judgment against any representative of the estate of Alice or Milo. But it does not follow that the failing of the right to sue upon the original personal claim drags down with it the right to foreclose a lien upon the real estate. In reference to adjudications bearing upon the question of a written acknowledgment as affecting the right to sue after a lapse of the time fixed by the statute of limitations to bar a claim, Judge Kinkade has opened before me Coffin v. Secor, 40 Ohio St. 637, which reports very briefly a case which went to the Supreme Court from this county, and in which a somewhat similar acknowledgment to that embodied in the letter written by Sumner Felt after the death of Milo was held by the Supreme Court to be sufficient to keep the claim alive. We have found other cases in which a mere reference to the mortgage, reciting its existence as a lien upon the property, was held a sufficient acknowledgment, and some other cases where the party had indicated by his written acknowledgment his knowledge of the existence of the mortgage and his view that it was still in effect. There is no magic in the words. We cannot tie parties to precise words, and say that a certain form of acknowledgment must be adopted, for the statute has not prescribed, any form. Any written acknowledgment' of an existing liability or any promise to pay signed by the party who is sought to be held is sufficient under the statute, and we do not see how a party could in any way have more clearly indicated his belief that this was a valid claim against the land which he owned than has been evinced by Sumner Felt in this case in the whole course of the transactions.

As to the endorsement of August 31, 1886, even if it does not evidence an actual payment, the writing signed by Sumner Felt at that time in the way amounted to an acknowledgment of the existing debt. The statute (Sec. 4992 Rev. Stat.) provides three methods by which the claim may be kept alive, one is payment, another a promise ’ of payment, and the third, an acknowledgment. Either one of these three, standing alone and without the others, if it fully complies with this saving section in the statute of limitations, is adequate to keep the claim alive. Now as to this one of August 31, 1886, which was less than fifteen years after the maturing of the note in November, 1871, we think that it was a sufficient acknowledgment of an existing liability.

On October 1, 1895, and after the death of Clinton Felt, there was a transaction between Sumner and his sister-in-law, the present plaintiff or widow of Clinton, which resulted in another endorsement of $20 upon the paper, and this endorsement was within the statutory period of limitations prior to the beginning of the suit. Our Supreme Court in one case has used certain language which might upon a hasty examination convey the impression that if a note is barred by lapse of time, the mortgage must necessarily be also barred by lapse of the same time; but while this is true in a general way, it is only because the statute of limitations applicable to mortgages happens to be the same statute of limitations as to notes. The Supreme Court has expressly held that where a mortgage is given to secure an' account, which is barred in six years, the statute of limitations applicable to the mortgage is still the fifteen-year one. In other words, if a mortgage is given to secure an account, the right to sue upon the account terminates at the end of six years, but the mortgage continues to run for the residue ■of the entire period of fifteen years, which is the statutory limitation upon a contract under seal or a specialty such as a mortgage.

Referring again to this endorsement of October 1, 1895, and the testimony of the parties, and in this matter that of Sumner is competent .as well as that of the others, we have sufficient to indicate to our minds that Sumner Felt did perform some services either to the widow, his sister-in-law, or to her son. Really, it was perhaps at the request of the son or upon conversation with the son, but she accepted the benefit of it, and upon arrangement between them, compensation to the amount of $20 was agreed to, and it was expressly arranged that it should be endorsed upon this paper. His claim is that it was only for the purpose of keeping the mortgage alive during the lifetime of Milo, but we think that the evidence does not indicate that she had such an understanding of the matter. On the contrary, we think that it is clearly indicated in her letters to him, that she was insisting that he make some endorsement in writing, and when they turned the charge for services upon the note, that she was all the time insisting upon his consent to make that endorsement for the very purpose of keeping it alive. She was relying upon this claim.

It is our judgment that the lien of the mortgages has not been lost by lapse of time. Decree will be entered for its foreclosure.


author: TAGGART, J.

text:
    ERROR — STREET RAILWAYS.
    [Richland (5th) Circuit Court,
    September 8, 1908.]
    Craine, Taggart and Donahue, JJ.

      Ohio Central Traction Co. v. H. Walter Mateer.
    Í. Attempting to Board an Interurban Car in Motion Precludes Recovery for Injuries by Prospective Passenger.
    Injuries received by one intending to become a passenger on, and while attempting to board, an interurban car in motion and before the car is stopped, are the result of contributory negligence on the part of such prospective passenger; hence, no recovery therefor* can be had, especially, if the jerking motion complained of was caused by slippery rails while the motorman was attempting to stop the car, the motorman not knowing, or by the exercise of ordinary care not having knowledge that such passenger was attempting to get on the car.
    2. Reversal of Judgment for Overruling Motion to Direct Verdict at Close of Plaintiff’s Case, Defendant having Introduced Evidence, is Erroneous.
    Where a motion to direct a verdict at close of plaintiff’s evidence is-overruled, and the defendant then introduces evidence, it is error for the reviewing court to reverse the judgment for failure to direct verdict; but the court must look to all the evidence to determine whether a case, is made to justify submission to. the jury; if on remand it appears that the verdict is not sustained by evidence of plaintiff or defendant, judgment will be reversed.
    [Syllabus approved by the court.]
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiff in error:
    Cited and commented upon the following authorities: Hunterson v. Traction Co. 205 Pa. St. 568 [55 Atl. Rep. 543] ; 1 Moore, Facts Sec. 421; Schmidt v. Railway, 66 N. J. L. 424 [49 Atl. Rep. 438] ; Powelson v. Traction Co. 204 Pa. St. 474 [54 Atl. Rep. 282]; Bacoii v. Railway, 143 Pa. St. 14 [21 Atl. Rep. 1002]; Pennsylvania Ry. v. Aspell, 23 Pa. St. 147 [62 Am. Dec. 323]; Harvey y. Railway, 116 Mass. 269; Murphy v. Railway, 71 N. J. Law 5 [58 Atl. Rep. 1018]; Hunter v. Railway, 112 N. Y. 371 [19 N. E. Rep. 820; 2 L. R. A. 832;. 8 Am. St. Rep. 752]; Denny v. Railway, 132 N. C. 340 [43 S. E. Rep.. 847]; Gordon v. Railway, 132 N. C. 565 [44 S. E. Rep. 25]; Pope v. Railway, 113 111. App. 503; Nathan v. Railway, 91 N. Y. Supp. 35;. Monroe v. Radhvay, 79 App. Div. 587 [80 N. Y. Supp. 177] ; Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571]; Ashtabula Rapid-

      Trans. Co. v. Holmes, 67 Ohio St. 153 [65 N.- E. Rep. 877]: Timmons v. Railway, 6 Ohio St. 105; Cincinnati, L. & A. Elec. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637] ; Baltimore & O. Ry. v. Johnson, 71 Ohio St. 475; 1 Fetter, Car. Pass. 595, Sec. 228; Schepers v. Railway, 126 Mo. 665 [29 S. W. Rep. 712]; Baltimore Trac. Co. v. State, 78 Md. 409 [28 Atl. Rep. 397]; Stager v. Railway, 119 Pa. St. 70 [12 Atl. Rep. 821]; Basch v. Railway. 40 111. App. 583; Gordon v. Railway, 175 Mass. 181 [55 N. E. Rep. 990] ; Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. E. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980] ; Picard v. Railway, 147 Pa. St. 195 [23 Atl. Rep. 566],
    Brucker & Cummins, for defendant in error:
    Motion to direct a verdict. Union Pacific Ry. v. Daniels, 152 U. S. 684 [14 Sup. Ct. Rep. 756; 38 L. Ed. 597]; Runkte v. Burnham, 153 U. S. 216 [14 Sup. Ct. Rep. 837; 38 L. Ed. 694]; Columbia & P. S. Ry. v. Hawthorne, 144 U. S. 202 [12 Sup. Ct. Rep. 591; 36 L. Ed. 405]; Gramd Trunk Ry. v. Cummings, 106 U. S. 700 [1 Sup. Ct. Rep. 493; 27 L. Ed. 266]; Accident Ins. Co. v. Crandal, 120 U. S. 527 [7 Sup. Ct. Rep. 685; 30 L. Ed. 740]; Northern Pacific Ry. v. Mares, 123 U. S. 710 [8 Sup. Ct. Rep. 321; 31 L. Ed. 296]; Robertson v. Perkins, 129 U. S. 233 [9 Sup. Ct. Rep. 279; 32 L. Ed. 686] ; Northwestern Steamship Co. v. Griggs, 146 Fed. Rep. 472 [77 C. C. A. 28]; Western Union Tel. Co. v. Thorn, 64 Fed. Rep. 287 [12 C. C. A. 104]; Pike v. White, Wri. 758; Bradley v. Poole, 98 Mass. 169 [93 Am. Dec. 144]; Denver & R. G. Ry. v. Robinson, 6 Coló. App. 432 [40 Pac. Rep. 840]; Chamberlain v. Woodin. 2 Idaho 642 [23 Pac. Rep. 177]; Chicago & G. W. Ry. v. Wedel, 144 111. 9 [32 N. E. Rep. 547]; McGregory v. Prescott, 59 Mass. 67; Lynch v. Johnson, 109 Mich., 640 [67 N. W. Rep. 908]; Thompson v. Avery, 11 Utah 214 [39 Pac. Rep. 829]; Carr v. Manahan, 44 Yt. 246; Scolamd v. Scoland, 4 Wash. 118 [29 Pae. Rep. 930]; 46 Cent. Dig. Sec. 982; Paint-on v. Railway, 83 N. Y. 7; Dean v. Corbett, 51 N. Y. Super. 103; Carroll v. O’Shea, 2 Misc. 437 [21 N. Y. Supp. 956]; Illstad v. Anderson, 2 N. D. 167 [49 N. W. Rep. 659]; Lake Shore & M. S. Ry. v. Richards, 152 111. 59 [38 N. E. Rep. 773; 30 L. R. A. 33]; Totten v. Burhcms, 103 Mich. 6 [61 N. W. Rep. 58]; Noyes v. Parker, 64 Yt. 379 [24 Atl. Rep. 12]; Poling v. Railway, 38 W. Va. 645 [18 S. E. Rep. 782; 24 L. R. A. 215]; Perkins v. Thornburgh, 10 Cal. 189; Weil v. Nevitt. 18 Colo. 10 [31 Pac. Rep. 487]; Werner v. Footman, 54 Ga. 128; Maclin v. Bloom, 54 Miss. 365; Perth Amboy Mfg. Co. v. Condit, 21 N. J. L. 659; Smith v. Isaacs, 37 N. Y. Super. 3; O’Connell v. Samuel, 81 Hun 357 [30 N. Y. Supp. 889]; Cattell v. Furgusson, 3 Wash. 541 [28 Pac. Rep. 750]; Barton v. Kane, 17 Wis. 38; 48 Cent. Dig. Sec. 982; Matson v. Railway, 9 Wash. 529 [37 Pac. Rep. 707].
    Charge of the trial court. Pittsburg, C. & St. L. Ry. v. Krause, 30 Ohio St. 222; Holzenkamp v. Traction Co. 14 Dec. 586 (2 N. S. 157), affirmed, Cincinnati Trac. Co. v. Holzenkamp, 16 Dec. 673 (3 N. S. 537), affirmed, Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. B. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980]; Altemeier v. Railway, 5 Dec. 655 (4 N. P. 224) ; Carney v. Railway, 8 Dec. 587; Butler v. Railway, 121 N. Y. 112 [24 N. B. Rep. 187]; Cincinnati, H. & D. Ry. v. Nolan, 4 Circ. Dec. 409 (8 R. 347); Beach, Contrib. Neg. 186, Sec. 145; Mills v. Railway, 94 Tex. 242 [59 S. W. Rep. 874; 55 L. R. A. 497]; Wyatt v. Railway, 55 Mo. 485; Fulks v. Railway, 111 Mo. 335 [19 S. W. Rep. 818]; Schepers v. Railway, 126 Mo. 665 [29 S. W. Rep. 712]; Cousins v. Railway, 96 ‘Mich. 386 [56 N. W. Rep. 14]; Baltimore <& O. Ry. v. Kane, 69 Md. 11 [13 Atl. Rep. 387; 9 Am. St. Rep. 387; 3 Am. Neg. Cas. 689]; New York, P. & N. Ry. v. Coulbourn, 69 Md. 360 [9 Am. St. Rep. 430]; North Birmingham Ry. v. Liddicoat, 99 Ala. 545 [13 So. Rep. 18; 2 Am. Neg. Cas. 99]; Texas & Pacific Ry. v. Murphy, 46 Tex. 356 [26 Am. Rep. 272; 6 Am. Neg. Cas. 462]; Atchinson, T. & S. F. Ry. v. McCandliss, 33 Kan. 366 [6 Pac. Rep. 587; 3 Am,. Neg. Cas: 430] ; Warren v. Railway, 37 Kan. 408 [15 Pac. Rep. 601; 3 Am. Neg. Cas. 442]; Shannon v. Railway, 78 Me. 52 [2 Atl. Rep. 678; 3 Am. Neg. Cas. 585]; Johnson v. Railway, 70 Pa. St. 357; Little Rock c& Ft. S. Ry. v. Atkins, 46 Ark. 423; North Chicago St. Ry. v. Williams, 140 111. 275 [29 N. E. Rep. 672]; Omaha St. Ry. v. Martin, 48 Neb. 65 [66 N. W. Rep. ÍL007]; Ober v. Railway, 44 La. Ann. 1059 [32 Am. St. Rep. 366]; Finkeldey v. Cable Co. 114 Cal. 28 [45 Pac. Rep. 996]; Pittsburgh & L. E. Ry. v. Qongwahr, 1 O. S. U. 30 (22 Bull. 280) ; North Chicago St. Ry. v. Wiswell, 168 111. 613 [48 N. E. Rep. 407]; Central Pass. Ry. v. Rose, 15 Ky. Law 209 [22 S. W. Rep. 745]; Picard v. Railway, 147 Pa. St. 195 [23 Atl. Rep. 566]; Sahlgaard v. Railway, 48 Minn. 232 [51 N. W. Rep. I'll]; Gallagher v. Railway, 156 Mass. 157 [30 N. E. Rep. 480]; Carroll v. Transit Co. 107 Mo. 653 [17 S. W. Rep. 889]; Bacon v. Railway, 143 Pa. St. 14 [21 Atl. Rep. 1002]; Citizens’ St. Ry. v. Spafhr, 7 Ind. App. 23 [33 N. E. Rep. 446; 3 Am. Neg. Cas. 23]; Murphy v. Railway, 43 Mo. App. 342 [4 Am. Neg. Cas. 383]; Corlin v. Railway, 154 Mass. 197 [27 N. E. Rep. 1000; 3 Am. Neg. Cas. 871]; White v.
      Railway, 92 Ga. 494 [17 S. E. Rep. 672]; Briggs v. Railway, 148 Mass. 72 [19 N. E. Rep. 19; 12 Am. St. Rep. 518]; Walters v. Traction Co. 161 Pa. St. 36 [28 Atl. Rep. 941]; Austrian v. Traction Co. 19 Pa. Super. 329; Packard, v. Traction Co. 12 Circ. Dec. 822 (22 R. 578); Butler v. Railway, 121 N. Y. 112 [24 N. E. Rep. 187; 5 Am. Neg. Cas. 325]; Hunterson v. Traction Co. 205 Pa. St. 568 [55 Atl. Rep. 543]; Solomon v. Railway, 103 N. Y. 437 [9 N. E. Rep. 430; 57 Am. Rep. 760]; Hunter v. Railway, 126 N. Y. 18 [26 N. E. Rep. 958; 12 L. R. A. 429]; Cleveland City Ry. v. Oslorn, 66 Ohio St. 45 [63 N. E. Rep. 604]; Altemeire v. Railway, 5 Dee. 655 (4 N. P. 224), affirmed, Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]; Cincinnati, L. é A. Elec. St. Ry. v. Poke, 68 Ohio St. 101 [67 N. E. Rep. 161; 67 L. R. A. 637]; Conner v. Railway, 105 Ind. 62 [4 N. E. Rep. 441; 55 Am. Rep. 177; 3 Am. Neg. Cas. 181].

       Affirmed, no op., Mateer v. Traction Co. 81 Ohio St. 494.

   TAGGART, J.

The plaintiff filed his petition in the court of common pleas, alleging in substance that on October 13, 1903, the defendant operated and controlled an electric railroad, running from the city of Bucyrus to the city of Mansfield; that along its way and a few miles from Mansfield, there was a platform used by the defendant for passengers, desiring to get off and on the defendant’s cars; that on October 13, 1903, at about 7 a. m., the plaintiff went to this platform for the purpose ■of boarding one of defendant’s cars on its way to Mansfield; that when the plaintiff saw the car coming, he signaled the motorman to stop; that the motorman saw the plaintiff standing upon the platform and slackened the speed of his car,' and that when the rear end of the car reached the platform the brake was on and the car moving slowly and apparently about to stop, and that the plaintiff, believing that the car would stop, took hold of the handles on the rear of the car and was .about to step on, when the motorman so negligently and carelessly operated said car that it gave a sudden jerk and started ahead rapidly, thereby throwing the plaintiff off of the platform and on to the ground, and injured him to his damage in the sum of $10,000.

To this petition an answer was filed, practically admitting all the ■averments in the petition, excepting that it denied any negligence or carelessness on the part of the defendant or the motorman operating the car, or.that the ear was suddenly started forward or jerked, and denying that the plaintiff was injured to the extent claimed in the petition. The answer also alleges contributory negligence on the part of the plaintiff.

A reply was filed in which each and every allegation in the answer was denied. A verdict was returned in favor of the plaintiff. A motion for a new trial was overruled and judgment rendered on the verdict.

A petition in error was filed in this court, and on a former hearing: the judgment of the court of common pleas was reversed, for the reason that the court of common pleas erred in overruling the defendant’s-motion made at the close of plaintiff’s evidence to direct the jury to-return a verdict for the defendant. Thereupon error was prosecuted to the Supreme Court, Mateer v. Traction Co. 78 Ohio St. 431, which,, without opinion, reversed the circuit court and remanded the case, for the reason that this, court erred in reversing the common pleas for refusing to direct a verdict, the holding of the Supreme Court being to the effect that where a motion is overruled at the end of plaintiff’s evidence, and the defendant thereafter introduces evidence in the ease, the court must look to all the evidence in the case for the purpose of determining whether or not a case had been made, which would justify the court below in submitting it to the jury.

This case is now back to this court for the purpose of determining' whether or'not, taking all of the evidence, there was a ease made against the defendant. We have examined all of the evidence presented in the-bill of exceptions, and find no testimony offered in defendant’s behalf which supported or tended to support the allegations of plaintiff’s, petition.

. On the question of liability, practically the only difference between the plaintiff and the defendant was as to whether or not the motorman was careless and negligent in jerking the car or starting it suddenly forward whilst the plaintiff was getting on.

The testimony in behalf of the plaintiff was to the effect that the-motorman was trying to stop the car and had not succeeded in doing so, and that the car was running very slowly and that just as he was-about to step on the car and after he had taken hold of the handles of the car, the car started suddenly forward with a jerk. The testimony of defendant’s witnesses is to the effect that the car was running at probably four or five miles an hour when the plaintiff attempted to-get on it; that the rails were slippery and the motorman was doing all he could to stop the car.

If the contention of the defendant is correct, there certainly couldt be no liability, and if the contention of the plaintiff is correct, then likewise there can be no recovery. It was the duty of the defendant to stop its car to allow passengers to get on and off, and no passenger is required to get on or off a car whilst it is in motion and if a passenger attempts to get off or on a car whilst in motion, he does so at his peril.

If the plaintiff can recover, it must be by reason of the violation of some duty owing by the defendant to the plaintiff. The motorman had a right to run that car and jerk it as he pleased, so far as the plaintiff was concerned, so long as the plaintiff was not a passenger on that car. Of course if the motorman knew that the plaintiff was attempting to get on the car whilst in motion, or by the exercise of ordinary care could have known the same, or if it had been the' custom of the plaintiff to board the ear whilst in motion and the motorman knew that, then the defendant would owe the plaintiff a duty and would have to exercise such care in the operation of his car as not to injure the plaintiff.

•We think that in this case where the plaintiff having undertaken to get on the car whilst in motion, and whilst the motorman was attempting to stop the car, the plaintiff did so at his peril and cannot recover from the company for any injury sustained to him.

We think that from the pleadings and evidence in this case the verdict is not sustained by any evidence and is contrary to law, and the judgment of the court of common pleas should be reversed and the petition of the plaintiff dismissed. The journal entry may be prepared in accordance with this holding and exceptions will be noted for the plaintiff.

Donahue and Craine, JJ., concur.