text:
    SUBSCRIPTION FOR ROAD IMPROVEMENT.
    [Circuit Court of Lucas County.]
    Philip Hassenzahl et al v. William Bevins.
    Decided, April, 1902.

      Road — Built Under the Two Mile Assessment Act — Subscription by One Whose Lands are Benefited — But are Beyond the Jurisdiction of the Commissioners — Do Not Lack Mutuality After the Work is Done — And Can Be Enforced.

    1. The necessity and utility of a road improvement depend in a measure upon its cost, and if the county commissioners can reduce the cost by accepting subscriptions from property owners beyond their jurisdiction, whose lands will be benefited by the improvement, they are justified in taking such subscriptions into consideration in deciding the question of utility.
    2. The promise of such a subscriber to pay does not lack mutuality after the commissioners have made the improvement.
    3. When, therefore, a road built under the two-mile assessment law is carried to the state line in consideration of property owners over the line whose property is benefited, subscribing a specified amount toward the cost of the improvement, such subscriptions are collectable at law, in a suit by the commissioners after the work has been completed.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This is a proceeding in error from the court of common pleas of this county. In the court below a general demurrer to an amended petition was sustained, and the plaintiffs not desiring to plead further, judgment was entered dismissing the same. To that judgment they prosecute error here. The plaintiffs below and in this court are the county commissioners of Lucas county.

The suit is upon an alleged undertaking by the defendant, William Bevins, to contribute toward the expenses of constructing a certain macadamized road, or the macadamizing or improving of a certain road under the two mile assessment law (Sections 4831, Revised Statutes, et seq.) It appears from the averments of the petition that in the improvement of a certain public road called Lewis avenue, extending from the city limits at a certain point to the state line between the states of Ohio and Michigan, a distance of perhaps two miles and a half from West Toledo, northeasterly to the state line between the state of Ohio and Michigan, was petitioned for under this statute; that the viewers, who were required under the statute to report whether in their opinion the improvement was a necessity, reported to the commissioners that it was not enough of a necessity to justify extending it to the Michigan line at the expense of landowners in Ohio or in Lucas county; but that if the owners of lands in Michigan whose lands would be especially benefited by the improvement would contribute $1,500 toward the expense, then the improvement might be deemed of sufficient necessity to justify the expense falling upon the property owners in this county. Now the commissioners are required to say whether or not the road petitioned for is of public utility, or whether public utility requires the improvement, and the commissioners were unwilling to find that public utility required the improvement at the sole expense of property owners in Lucas county. Perhaps they were not authorized to so find, except upon a report by the viewers in fa.vor of the road, finding that it was a necessity.

At all events, in pursuance of this recommendation of the viewers, the commissioners and all persons interested in the improvement got together and it was arranged and agreed between them that if the property owners in Michigan would pay $1,500 toward the improvement, it would be carried forward; otherwise, it would not. It was perhaps contemplated that it would be carried forward to within about half a mile of the Michigan line in the event the Michigan parties did not contribute. Certain persons interested agreed that they would procure contributions from Michigan property owners, whose property was especially benefited, to the amount of $1,500, and that they themselves would be bound for this $1,500, and it appears that thereupon they took agreements or promises to pay from the parties in Michigan, one of whom was Mr. Bevins, who owned a piece of lánd close to the state line and cornering upon this proposed improvement, to pay certain amounts towards the cost and expense on this improvement, the promise of Mr. Bevins being to pay $100. When these promised contributions amounted to $1,500, the viewers reported that they found that the improvement was a necessity, and the commissioners then found that public utility required the improvement, and they proceeded to follow the directions of the statute and to make the improvement.

Now this suit is against Mr. Bevins upon his promise to pay $100 toward this improvement. His promise was not made directly to the commissioners; but it is conceded on all hands that the arrangement amounted practically to an agreement that Bevins should pay the commissioners of Lucas county $100 toward this improvement. The amended petition so sets it up and it will be so considered.

Counsel for defendant in error urges, and his contention was sustained by the court of common pleas, that this agreement can not be enforced for several reasons: (1) He says it is without consideration; (2) That it lacks mutuality, that is to say, it was not enforceable against the commissioners, therefore, it can not be enforced against him, which is only another phase or branch of the question of consideration; and, (3) He urges with great earnestness as has chief ground of defense that the commissioners being unauthorized, either expressly or by necessary implication, to enter into a contract of this kind, and it being against public policy, that, therefore, it can not be enforced.

We find no express authority in the statute for the commissioners to enter into a contract or arrangement of this character. Neither do we find that it is given by clear implication of law, that is to say, that it is such an act as may be necessary to carry out the powers expressly conferred upon the commissioners or to enable the commissioners to perform the duties expressly enjoined upon them.

But if it be conceded that the commissioners had none of these powers, still we think it does not follow that the board can not enforce this contract. We think that there are other principles that have application and influence in a ease where a contract has been fully performed upon the one side and the party resisting performance upon his part has received and is enjoying the fruits of the performance of the other party.

Before going to that I will say briefly that it is not apparent to us that this contract is without consideration. It seems to us very clear that it is supported by a good and valuable consideration ; that is to say, relying upon the averments of the amended petition, which sets forth that these lands owned by the defendant were outside of the jurisdictional limits of the commissioners and could not be reached or affected by any assessment that they might make, but that they were lying contiguous to this improvement; that the improvement was a special benefit to these lands; and it was on that account the defendant made his promise to contribute toward the cost of the improvement. We think that that states a valuable consideration.

As to the contention that there is a want of mutuality, because the contract, while executory, could not be found against the commissioners because they could not be compelled by Mr. Bevins or others in Michigan to build the road, we are of the opinion that that defense or objection can not be interposed by Mr. Bevins, after performance by the commissioners. I will read a paragraph on this subject from Parsons on Contracts (6th Ed.), page 447:

“A promise is a good consideration for a promise. And it is so previous to performance and without performance. As if one promises to become a partner in a firm, and another promises to receive him into the firm, both of these promises are binding, each being a sufficient consideration for the other. So a promise by a seller to refund in ease of deficiency in the thing sold is a good consideration for a promise to pay for any excess therein. If one promises to teach a certain trade, this is a consideration for a promise to remain with the party a certain length of time to learn, and serve him during that time; but, without such promise to teach, the promise to remain and serve, though it be made in expectation of instruction is void. The reason of this is, that a. promise is not a, good consideration for a, promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement.
“This has been doubted, from the seeming want of mutuality in many cases of contract. As where one promises to see another paid, if he will sell goods to a third person; or promises to give up a certain sum if another will deliver up certain documents or securities, or if he will forbear a demand, or suspend legal proceedings or the like. Here it is said that the party making the promise is bound, while the other party is at liberty to do anything or nothing. But this is a mistake. The party making the promise is bound to nothing until the promisee within a reasonable time engages to do, or else begins to do, the thing which is the condition of the first promise.
“Until such engagement or such doing, the promisor may withdraw his promise, because there is no mutuality, and, therefore, no consideration for it. But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise with entire mutuality of obligation. So, if the promisee begins to do the thing, in a way which binds him to complete it, here is also a mutuality of obligation. But if without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a completed consideration; and the original promise to do something, if the other party would do something, is a continuing promise until that other party does the thing required of him.”

Applying these principles, we think it can not be said the contract lacks mutuality, in the sense that the term mutuality is used here, after there has been full performance upon the one side.

, It is suggested that the commissioners are not only without authority to sue upon this undertaking, but that there is no direction in the statute as to the use or disposition that shall or may be made of the funds, after they are recovered, if there should be a recovery, and that, for this reason, there arises an objection to the commissioners going forward with the suit; the inference being, we take it, that if they recover, there being no other place to put the money, they might put it in their own pockets. But Section 845, Revised Statutes, provides that:

“The board of commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judica.ture, and of bringing, maintaining and defending all suits * * * and the money so recovered in any case shall be by them paid into the treasury of the county, and they shall take the treasurer’s receipt therefor and file the same with the auditor of the county.”

Now we come to the consideration of the question which has been most argued by counsel, and to which the most attention has been given in their respective briefs; and that is, whether, admitting that the commissioners are without express authority to enter into this contract; admitting that they may not have sufficient authority, express or implied, so that they could enforce the contract, if entirely executory, and that it can not be enforced against them, the promise of the persons who agreed to contribute to this improvement may be enforced, since the commissioners have performed and since the parties promising enjoy the benefits which they sought, and on account of which they made the promise.

"We can not find that there is anything immoral in the promise on the part of the commissioners to carry forward this improvement, if certain contributions are made by others than those who can be required to contribute. Neither can we find that entering into an arrangement of this character is expressly prohibited; and these facts should be born in mind in considering the authorities bearing upon the right of public officers to enforce contracts that they are not in the first instance authorized to enter into. There are certain contracts, which are expressly prohibited, or which are immoral, and clearly against public policy, that are therefore absolutely void. This we do not think was a contract of that character.

It is said that if this improvement was a public necessity, the viewers were bound to say so, and if it was not a public necessity, they were bound to say so, and the question of whether or not it was a public necessity was not to be determined, or their decision upon that question was not to be influenced, by promises of the parties who could not be compelled to contribute toward the cost of the improvement.

But we think that there is some discretion vested in the viewers who a.re called upon to say whether this will be a public necessity, and that some discretion is vested in the commissioners to say whether or not it will be of public utility, that these terms are somewhat flexible, and are not to be regarded with the strictness contended for by counsel for defendant in error. The public necessity or public utility may depend somewhat upon the cost of the thing, and the real question is whether the improvement is of sufficient use and benefit to the parties who will be called upon to pay for it to justify its being constructed; whether it is of sufficient public necessity and public utility to justify laying the cost of it upon the property within two miles of the improvement; and if this cost or expense can be reduced by other contributions, we think that is a fair and proper matter for the commissioners to take into consideration in passing upon the question of the public utility; and that these contributions are not such as may be said to influence the officers improperly in the discharge of their official duty. "We think it is a proper influence, and proper to be considered by the commissioners.

There is one case in point, and but one, so far as we can find, in support of the contention of counsel for defendant in error, and that he has cited, to-wit, the case of Commissioners v. Jones, Breese (Ill.), 237. The gist of it is given in the syllabus:

“An agreement to pay the County Commissioners of Randolph County a certain sum of money provided they will build a court house on a particular lot, is not binding for want of mutuality, although they do build the court house on the lot designated, tile obligation to pay and to build not being reciprocal.
“A promise to pay the county commissioners to do an act which they are required to do by law is against public policy, and, therefore, void.
“The county commissioners of a county have no power to contract only as a court.”

In that case the act required them to build a court house, although the act did not require them to build the court house in any particular location or upon any particular lot; the promise to pay was what induced them to build the court house upon a particular lot. Now that was held to have been lacking in mutuality, in disregard of and against public policy, and, therefore, void.

We are not satisfied with the reasoning or conclusions of the learned judge who announced the opinion, and we think it is against the weight of authority; indeed, we find numerous authorities in support of the other doctrine, and this, as I have said, is the only authority running in this way. The opinion was by Justice Smith. The court was composed of four judges, Wilson, Brown, Lockwood and Smith. Wilson concurs in the decision; but says his opinion is founded upon a single objection "that it does not appear that the contract upon which suit is brought, was entered into by the county commissioners as a court; it is only in that character they are capable of contracting.” So he does not concur in the opinion as to the contract being against public policy and lacking mutuality. It is said that Justice Lockwood gave no opinion; we presume Justice Brown concurred. It is quite an old decision, having been announced in 1827.

Counsel for plaintiff in error did not seem to get hold of the line of decisions on this question which sustain his contention; but we have discovered a number. Some of them are mentioned in 1 Dillon Municipal Corporations (4th Ed.), 458. In this section the author has this to say upon this subject:

"So, a promise to pay a public corporation, or its agents, a premium for doing their duty is illegal and void; and a contract will not be sustained which tends to restrain or control the unbiased judgment of public officers. But a promise by individuals to pay a portion of the expenses of public improvements does not necessarily fall within this principle, and such promise is not void as being against public policy; and if the promisors have a peculiar and local interest in the improvement, their promise is not void for want of consideration, and may be enforced against them.”

A number of authorities are cited, some of which I desire to refer to briefly, the first being the case of Townsend v. Hoyle, 20 Conn., 1. Reading from the syllabus:

"Where sundry proprietors of lots fronting on a strip of land, which have been thrown open and occupied as a highway or street in the city of N. II., to a small part of which G claimed a subsisting and exclusive title signed a writing addressed to the city authorities, requesting them to lay out such street according to law, and assess the damages, which the applicants thereby agreed to pay to the city treasurer; and this request having been complied with, A, describing himself as city treasurer, brought an action, founded on the writing, to recover such damages, it was held that, as the promise was neither made with A nor on his account the action was not sustainable.” (Not as to A.).
“Where it was urged, as a further ground of defense to such action, that the undertaking of the defendants was void, for want of consideration, and as being against the policy of the law, it was held, that as the defendant had a peculiar and local interest in the granting of their request beyond that which they had in common with other citizens, they might legally bind themselves to indemnify the city.”

Then, on page 6, Judge Ellsworth says:

“Then as to consideration. The defendants are not only-benefited in common with other citizens, but obviously they had a peculiar and local interest, and well might obligate themselves to indemnify the city for assuming the burthens and responsibilities of a new public highway.
“This is all the determination the case calls for; but we must not be considered as assenting to the proposition, that a promise by individuals to pay a part of the expenses of public improvements, ordered by public authority, is of course illegal and void. We think the amount of a public burthen, or the cost to the public of an improvement, may properly enough enter into the question of expediency or necessity. A canal, a railroad, a bridge, a new street, a public square, or a sewer is called for. If made in one way, or in one place, it will be much better for the public, though more expensive; but individuals, especially benefited, stand ready, by giving their land, their money, or their labor, to meet the extra expense. Will these promises be void, as being without consideration or against public policy? We think not. ’ ’

To the same effect is a ease in Springfield v. Harris, 107 Mass., 532; another in Stilson v. Lawrence County Commissioners, 52 Ind., 213; another, State v. Johnson, 52 Ind., 197. The ease at page 197 contains a very full discussion of the question, and cites a great many authorities. It will not be profitable to read these now, but we . call especial attention to it as being a satisfactory case. Among others cited there is Commissioners of Canal Fund, v. Perry, 5 Ohio, 56, 57, 58. It is there held that “undertakings by written subscription to contribute money or other property, in aid of public works, are valid contracts that may be enforced in courts of justice.” In that ease there was a statute authorizing such contributions, so that the court was enabled to say and did say that the subscription they were called upon to examine did not rest alone upon the general principle that such contracts were enforceable and were not against public policy, but the court expressly approved of the general principle. The decision is by Judge Wright. In the first paragraph of the opinion he uses this language:

“The first question claiming our attention in this case is: Whether the sub'^iption paper, upon which the suit is founded, affords a legal foifhdation for the action ? It has been repeatedly decided in this state and elsewhere, that promises to pay money for the erection of school and court houses, churches and bridges would, the work being undertaken or done, sustain the action of assumpsit. A moral obligation is sufficient to support an action on an express promise.” Citing cases in Massachusetts.

These authorities we think fully sustain the position of counsel for plaintiff in error. We are not given the benefit'of the opinion of the court below; there seems to have been no formal opinion, and it is apparent that the court below did not have before him these authorities to which I have just referred.

The judgment of the court below upon the demurrer will be reversed and the cause remanded to be proceeded with according to law.


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE UNDER. A LLOYDS POLICY.
    [Circuit Court of Cuyahoga County.]
    Perrysburg & Toledo Transportation Co. v. J. C. Gilchrist.
    Decided, March 20, 1902.

      Insurance — Provisions as to Suit in a Lloyds Policy — May Be Brought Against Individual Members — Service on General Manager in New < YorTe — Charge of Court.

    1. The provision of a Lloyds policy of insurance that “no action shall he brought to enforce the provisions of this policy, except against the general manager as attorney in fact and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder,” is valid and binding.
    2. But notwithstanding the provision that suit must he brought against such general manager as attorney in fact, an action may he maintained against the individual members of the association where the association has ceased to do business, and has no assets, and the attorney in fact who issued the policy has resigned, and his place has not been filled, and no service could therefore be had upon such officer.
    S. A charge to a jury as to the legality of service of summons under the code of New York is erroneous, where words “dwelling house and residence” are used without distinguishing between a dwelling house or residence which the defendant owns and one in which he resides.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on error.
   The parties here are as they were in the court below. The plaintiff is a, corporation and was the owner of the steam propeller “Idler,” which was insured against loss or damage by fire under policy No. 30003, issued at the office of the Niagara Fire & Marine Underwriters of Buffalo, New York; and this was an association, the policy being 'what is known as Lloyd’s policy. It. was issued on behalf of the defendant and fourteen other natural persons. It was written by Henry S. McFall; and by the terms of the policy, each of said fifteen underwriters insured said propeller against loss or damage by fire for the term of one year from August 20,1895, at noon, to August 20, 1896, at noon. About January 12, 1896, said steam propeller was destroyed by fire. Plaintiff claims to have given proper notice and proofs of loss, but it is claimed that demand for payment was refused.

One of the provisions of the policy reads:

“No action shall be brought to enforce the provisions of this policy except against the general manager as attorney in fact, and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought as fixing his individual responsibility hereunder. ’ ’

' At the time the policy was issued and the propeller “Idler” destroyed, Henry S. McFall was attorney in fact for each and all of the underwriters.

On the pa.rt of the plaintiff in error it is claimed that the clause quoted is void and of no binding effect as determining upon whom suit should be brought in case of loss, and as each individual underwriter is liable for one-fifteenth of the whole amount insured against, suit may be brought and maintained against each. That question was passed upon by this court in the case between these same parties upon the same policy, Gilchrist v. Transportation Co., 21 C. C., 19, and we there held that this clause of the policy was not void, but binding, and we adhere to that.

It is further claimed on the part of the plaintiff in error that said Henry S. McFall resigned from his position as general manager and attorney in fact of the Niagara, Fire & Marine Underwriters and the several underwriters in said association, and that his resignation was accepted in March, 1896. The fire occurred in January, and suit was brought in June, 1897. Under the terms of the policy suit should be commenced in one year after the proofs of loss had been made.

It is said that, thereafter, that is, after the resignation of McFall, the association, made up of these several underwriters, had no attorney ih fact or general manager, had no assets, was out of business; that this clause is not necessarily to be complied with, but the attorney in fact and general manager, having resigned and withdrawn, there being no such officer, the party whose property is burned might bring his action against each of the several underwriters for a, proportionate-share of the loss.

This was also passed upon by this court in the former hearing. It was said in argument that it was not necessary to pass upon it; that what was said was not necessary to the decision of the case, but we. adhere to what wa.s said in the case before, when it was here upon this proposition. The language used is:

“Where the attorney is also an underwriter, this clause of the policy is valid and not contrary to public policy; but, notwithstanding this, if it be shown that the company had ceased its business, that it had no assets of any kind, that the attorney in fact had resigned and his place had not been filled so that service could not be had upon such attorney in fact, then we think the action could be maintained against any one of the underwriters. ’ ’

We still adhere to that. It would be an extraordinary thing to say that suit should be brought against the attorney in fact, there being no attorney in fact. Each of the underwriters undertook to be responsible for one-fifteenth part of the policy. The attorney in fact can not be found, or has ceased to be such. It would be difficult to determine what should be done if suit can not be brought against each of the several underwriters.

It is further claimed on the part of the plaintiff in error that McFall left Buffalo in 1896; that his whereabouts were unknown; that he not only left there, but cease^to reside there, had no place of residence there, and that service could not be had upon him in the county.of Erie, in the state of New York, and that, therefore, the suit may be brought against the individual underwriters.

There was introduced in evidence in the ease Section 425, also 426 of the code of procedure of the state of New York, as bearing upon the case as to whether summons could be served to bind McFall and those whom he represented. Without reading the provision, that where one has left the county of his residence and can not be found, that a copy of the summons may be left at the residence of the defendant with a person of proper age, if, upon proper application, an authorization can be obtained. And evidence was introduced in this case, upon the question of whether McFall still had a place of residence in Buffalo. The court charged the jury upon this as follows:

‘ ‘ I furthermore say to you, gentlemen of the jury, as a matter of law, if you find from the evidence thaat Iienry S. McFall, at the time of the delivery of the policy to the plaintiff and at the time the loss occurred, was the general manager and attorney in fact of the defendant, and for a period of twelve months next after the fire had a residence or dwelling house in the city of Buffalo, New York, then the plaintiff was under obligation to commence its action against the said McFall as attorney in fact of' the defendant and can not recover in this action, and your verdict will be for the defendant. ’ ’

As applicable to the point now being discussed, the language complained of is: “ If you find from the evidence that Henry S. McFall * * * for a period of twelve months next after the fire had a residence or dwelling house in the city of Buffalo” — the language of the statute being “If he has a place of residence in the county, service ma,y be had by leaving summons at such place of residence.”

It is said that this language ought not to have been used, because it authorizes service not authorized by the statute; and, on the other hand, it is said that the dwelling house and place of residence must be one and the same thing, although the language is: “If you find from the evidence that Henry S. McFall had a residence or dwelling house in the city of Buffalo. ’ ’

In the record, on page 495, in the charge, the court said:

“And if you further find that the said Henry S. McFall did not have either a residence or dwelling house in Buffalo for a period of twelve months from the date of said fire, January 12, 1896, then plaintiff will be entitled to recover,” etc.

We think there was error in the charge in this regard. This last clause was misleading. If we are right in holding that the language of the statute which provides for service of summons at one’s place of residence, does not come within the language, “had a residence.or dwelling house,” we think the jury might very well come to the conclusion that inasmuch as this man owned a dwelling house or residence in Buffalo, though he did not live there, that if he owned the dwelling house in that city, though rented out, summons could be served there.

The use of the words, ‘ ‘ or dwelling house, ’ ’ would imply that.

Again, in the charge, “If you find he had either a residence or dwelling house,” this was calculated to mislead the jury.

But it is said it does not make any difference whether you could serve him or not, because of the provision of the policy. But we hold that that provision of the policy-would not prevent one from bringing suit against the individual underwriters if service could not be made upon the attorney in fact.

The court erred, as we hold, in its charge to the jury in what has already been read, and also in giving the following:

“And I furthermore say to you, that in case you find from the evidence that Henry S. McFall, at the time of the delivery of the policy to the plaintiff, and at the time of the fire was general manager and attorney in fact of the underwriters whose names are appended to the policy; no action on the part of McFall in resigning, or attempting to resign, and no action on the part of the defendant accepting said resignation, would abrogate that clause of the policy wherein it is provided that no action shall be brought to enforce the provisions of the policy, except against the general manager as attorney in fact, but the plaintiff had the right, and was under obligation to bring its action against McFall according to the provisions of the contract, and the defendant be estopped to deny the right of the plaintiff to so bring its action.”

K. M. Lee, for plaintiff in error.

Goulder, Holding & Hasten, for defendant in error.

This is in direct conflict with what was said by this court before, and the case is reversed for these errors in the charge of the court.

There were some requests made involving practically the same propositions, which were refused, and, to the extent that they did involve the exact propositions, these or their equivalent should have been given. Requests numbered four and eight should have been given in the words or substance as the court was requested to give them, and it follows, therefore, that for these errors the judgment of the court below is reversed and the cause remanded to the court of common pleas for a new trial.


text:
    BENEFICIAL ASSOCIATIONS.
    [Circuit Court of Cuyahoga County.]
    Court Forest City No. 10, Foresters of America, v. Robert Rennie.
    Decided, July 24, 1903.
    Sic7c Benefits — Reduction of by Proceedings Regularly Conducted— Rights of Members Receiving Benefits at the Time the Reduction is Made — Where There is no Affirmative Provision as to Change in By-Laws.

    The rights of a member of a beneficial association, with reference to the drawing of sick benefits, are to be determined by the by-laws of the association as they stood at the time his sickness began; and a by-law adopted subsequent to the beginning of such sickness, which reduces the beefits to be paid, is without effect as to such member.

      Marvin, J.; Laubie, J., and Winch, J., concur.
    Error to the court of common pleas.
   Suit was brought by Robert Rennie, hereinafter spoken of as plaintiff, against the plaintiff in error, hereinafter spoken of as defendant.

The defendant is a corporation organized under the laws of Ohio as a beneficial association, and conducts its business in pursuance of its constitution and by-laws.

The plaintiff was a member of the defendant association and became sick while a member in good standing, and brought his suit to recover sick benefits.

A jury was waived and a trial had to the court upon an agreed statement of facts. The result of the trial was a finding and judgment in favor of the plaintiff. By proper proceedings the case is here for review upon error; a bill of exceptions is filed with the petition in error setting forth all the evidence introduced at the trial, and such evidence consists solely of said agreed statement of facts. Said agreed statement of facts is in the following words:

“It is agreed that the facts in this case are as follows:
“Defendant is a corporation duly incorporated under the laws of Ohio.
“Plaintiff, Robert Rennie, became a member of defendant lodge in the year of 1876, and paid his dues therein regularly until May, 1900, but at that time ceased to pay dues, and is still in good standing by reason of the following by-laws. Section 12, page 18:
“ ‘If a member not in arrears should be taken sick, he can not become delinquent while sick, or be deprived of his weekly benefits, but his dues shall be deducted from his benefits. But no unfinaneial member shall be entitled to benefits. ’
“That on or about the — day of--, 1883, he became disabled by sickness and commenced to draw sick benefits. That his sickness continued from that time up to the' time of the commencement of this suit, and that he is a helpless invalid, unable to pursue any business avocation, and confined to a wheel chair for means for locomotion.
“That he drew sick benefits from about the--day of--, 1883, until the 22d day of February, 1900.
“That the defendant lodge then refused and continues to refuse to pay any sick benefits to the plaintiff.
“That at the time plaintiff commenced to draw sick benefits he did so under Article IV, Section 1 of the by-laws, which reads as follows:
“ ‘Each member of this court who shall be disabled by sickness or injury to his person from following any business avocation (provided such sickness or injury shall not have been occasioned by his own improper conduct), and who shall have been a member thereof, by initiation for six months, or upon clearance for three months, shall be entitled to benefits as follows: Five dollars ($5.00) per week for sixteen weeks, two dollars and fifty cents ($2.50) for the succeeding sixteen weeks and one dollar ($1.00) per week as long as the sickness continues, provided,’ etc.
“That on April 19, 1899, the above by-law was amended in accordance with the provisions of Article X, Section 2 of the by-laws which reads as follows:
“ ‘No alterations, additions or amendments to these laws shall be made unless written notice thereof be given at the meeting of court previous to being acted upon, which shall be a summons meeting, and then concurred in by a vote of three-fourths of the members present. Provided, however, that nothing herein shall prevent a suspension of the rules for immediate purposes, by a four-fifths vote of the members present at any regular meeting.’
“That the said amended by-law is now known as Article VI, Section 1, and reads as follows:
“ ‘Each member of this court who shall be disabled by sickness or injury to his person, from following any business avocation (provided such sickness or injury shall not have been occasioned by his own improper conduct), and who shall have been a member thereof for six months, shall be entitled to benefits as follows: $2.50 for the first week of sickness, then $5.00 per week for the next twelve weeks; then if his sickness still continues he shall receive $2.50 for the next thirteen weeks, then all benefits shall cease for said sickness; provided,’ etc.
“That said amended by-law was confirmed by the executive committee of the grand court of Ohio, and became effective on or about the 9% day of December, 1899.
“That the plaintiff has exhausted his remedies in the lodge tribunals, and has conducted nine appeals, in accordance with Article 18, Section 21 (e) of the constitution and general laws of the Foresters of xYmerica, which reads as follows:
“ ‘A member .shall not resort to the civil courts for redress for an alleged injury until he has exhausted every means of appeal in the order. The penalty of non-compliance with this law shall be expulsion from the order.’
“That plaintiff prevailed in but one of said appeals, the fourth or fifth, and was defeated in all the rest; and that the delay in commencing suit herein was owing to the time necessarily occupied in prosecuting said appeals.
“That plaintiff is entitled to amount asked for in his bill of particulars, unless his rights are barred by the passage of said by-law known as Article VI, Section 1, above given, and all questions herein are waived save the question as to whether said passage of said by-law deprives plantiff of further rights to sick benefits by reason of said disability.”

It will be seen that the only question here to be considered is as to the effect of the amendment to the by-laws enacted April 19th, 1899. If the plaintiff is bound by this by-law, the judgment of the court below was erroneous; if he is not so bound, then the judgment was right.

The sickness of the plaintiff, on account of which he claims to recover, came upon him in 1883 and has continued ever since; this was something like sixteen years before this by-law was amended. Ac the by-law stood in the beginning of this sickness, the plaintiff was entitled to receive from the defendant five dollars per week for sixteen weeks, $2.50 per week for the' succeeding sixteen weeks, and $1.00 per week from that time on until the termination of such sickness. He did receive the $5.00 per week and the $2.50 per week for the entire time provided for in this by-law, and $1.00 per week up to the time when the amendment was made. Of course, if he is bound by this amendment, he is entitled to nothing more, as the time provided for in the amended by-law has long since elapsed.

The right to make and bind its members by the amended bylaw is claimed on the part of the defendant by reason of Article X, Section 2 of the by-laws, which was in force at the time the plaintiff became a member of the association, which is as follows:

“No alterations, additions or amendments to these laws shall be made unless written notice thereof be given,” etc.

It will be noticed that there is no affirmative provision here that the by-laws may be amended; that they may be amended is implied from the language used, the provision being simply that they can not be amended except by pursuing the course pointed out by this law.

When the plaintiff became a member of the association he, of course, bound himself to be governed by the constitution and by-laws of the association. Did this bind him to be governed by the amended by-law passed after his right to draw benefits because of sickness accrued? The answer to this question is by no means free from doubt. Numerous eases are found in the reports in which it has been held that where there is a by-law of such an association as this, affirmatively providing for amendments to the by-laws, a member is bound by such amendment even though made after the right to draw sick benefits accrued.

In Stohr v. San Francisco Musical Fund Society, 82 Cal., 557, this language is used in the first clause of the syllabus:

“A by-law of a mutual benefit corporation which provides for the payment of a weekly sum to members in case of sickness (without specifying how long such payment shall continue) may be changed after sickness has commenced, so as to limit the period such payments shall continue after such change, but not so as to effect payments which have become due before the change. ’ ’

The second clause of the syllabus reads:

“The foregoing does not depend upon an express power-to change reserved by the by-laws. The contract resulting from the by-laws will be construed with respect to existing statutes authorizing a change, which statutes will be held to enter into and form a part of the contract. ”

One of the defenses set up in the ease last named was that a change had been made in the by-laws altering the amount to be paid to the beneficiary, and that such change was authorized by a by-law in force at the time the plaintiff became a member of the association. Another defense made was that this change had been made in the by-law as to the amount to be paid to the beneficiary, without showing any by-law authorizing such change to be made. But the court say, as shown by the last clause of the syllabus hereinbefore quoted, that the change in the by-law as to the amount of benefits could as well have been made without as with the by-law expressly conferring the right to make such amendment.

Section 3630, R. S. 0., provides, in express terms, that the constitution and by-laws of such associations may be changed or amended, so that the reasoning of the California court, if followed by us, would result in our holding that it is a matter of indifference whether there is any affirmative provision in the by-law of the defendant for their amendment or not. There is, however, an intimation that if the time- for which benefits are to be paid is fixed by a by-law existing when such sickness begins, the change therafter made could not affect the beneficiary. This intimation is shown by the words in parentheses quoted in the first clause of the syllabus. Those words are:

“Without specifying how long such payments shall continue.”

The case under consideration by the California court was one in which it was provided that a member “in case of sickness or accident by which he is incapacitated from following his profession, be entitled * * * to receive the sum of ten dollars per week, to take effect from the day of such notice.”

This differs from the case now under consideration in that in the present ease the by-law as it existed when the sickness began provided for payment during the continuance of such sickness.

In the California case it is said by the court, on page 561 of the opinion:

“Now, under the contract, nothing was due before the sickness took place. Benefits do not accrue for future sickness. The right of the plaintiff to benefits for future sickness is not different in its nature from the right of the well members to benefits for future sickness. In the one case, the members have a right to future payment in case they become side; in the other, the plaintiff has a right to future payments in case he continues sick. And if there was no power to change the by-law in the one case, there was no power to change it in the other, which is equivalent to saying that there was no power to change it at all. * * *
‘ ‘ It might perhaps be argued that the foregoing would apply, even if the by-law under consideration had specified that the weekly payments were to continue as long as the sickness continued. But it does not so specify. The time during which the payments were to continue is left indefinite. The substance of the contract is, in our opinion, that in ease of sickness the member is to receive weekly payments for an indefinite period of sickness, subject to the power of the defendant to change the provision authorizing such payments, so far as future payments are concerned.”

As already said, the intimation is very strong, that if the provision of the by-law in force at the time .the sickness began had provided that the payment should be made so long as such sickness continued, the result would have been different. It is, perhaps, not quite clear why the .result would have been different, because the reasoning is that there was no vested right in the beneficiary to have payments made while the sickness continued, more than there would be a vested right in a member to have payments made in case he should become sick. However, in the present case, we might hold that the plaintiff was entitled to recover, without holding contrary to this California case. There are cases, however, which seem to go further than the California case, notably that of Fugure v. Mutual Society of St. Joseph, 16 Ver., 362. In this ease, suit was brought by the widow of a deceased member; the provision of the by-laws in force when the decedent became a member provided for a payment of twenty-five cents per day to the widow of a deceased member as long as she remained a widow; there was also a by-law then in force authorizing changes to be made in the by-laws. In January, 1869, the husband of the plaintiff died, he being then a member of the association in good standing. Six months thereafter the by-laws were amended, so as to provide that the aggregate amount to be paid to any widow under the twenty-five cent per day rule, should be two hundred dollars; this sum had been paid to the widow, and it was held that she was bound by the amended by-law and could recover nothing more. The reasoning in this ease does not seem to us to be sound. "When the husband died the rights of the widow under the contract as it then stood became fixed, and to permit the association to reduce the amount to be paid by the adoption of a by-law was to permit it to repudiate an obligation already incurred and fixed by the death of the husband.

Many eases are cited to us in support of the position taken by the defendant, which more fully commend themselves to our judgment than the former ease referred to. See Bowie v. Grand Lodge No. 34, Pac. R., 103. On the other hand, cases are not wanting in support of the position of the plaintiff that no bylaw can be passed after the sickness begins, by reason of which the beneficiary is entitled to payments which can affect his right to payment during the continuance of such sickness.

The case of Becker v. Berlin Beneficial Society, 144 Pa. St., 232, is directly in point, and the reasoning of the court commends itself to us. In speaking of the amendment made to the by-laws of the association by which the amount to be paid to the beneficiary was reduced, this language is used on page 235:

“This was certainly an easy mode of relieving the society from an obligation, and, if successful, will doubtless be followed by other similar associations. The difficulty in the way of this convenient mode of paying debts is that it is repudiation, pure and simple. The argument that the plaintiff, being a member of the society, is bound by the by-law, does not meet the difficulty. It may be a good by-law as to future eases, but at the time it was passed the plaintiff was something more than a member. He was a creditor whose rights had previously attached, and those rights can not be swept away by such a scheme as this by-law. ’ ’

See, also, Starling v. Supreme Council, 108 Mich., 440; Northwest Benevolent Association, etc., v. Warner, 24 Ill. App., 357; Wist v. Grand Lodge, etc., 22 Or., 271.

As already said, the answer to the question involved in this case is by no means free from doubt. This is apparent from the authorities already cited, showing that the courts of last resort in different states have made different answers to the question, and whichever answer is given, the result, when it is worked out, may be such as to work an apparent injustice in a given case.

If the by-laws of an association like the defendant may be amended so as to reduce the amount of sick benefits which will be paid to one who after such amendment shall become sick, and can not be so amended as to reduce the benefits to be paid to one who is already. sick at the time such amendment is made, the situation may be this: That A becomes sick on the 14th day of a given month; on the 15th day of that month the amendment is made reducing the benefits to be paid to a sick member below what they were fixed at by the law in force on the 14th; on the 16th' of the same month B becomes sick. Now to say that A shall receive a larger payment on account of sick benefits than B, seems to work an injustice upon B or else to be granting a special favor to A; and yet there is this difference: That when A’s sickness began, the event had happened which fixed a right in A to at once receive something from the association; that something was the sick benefit provided by the by-law then in force, and in the case at bar was to continue so long as the sickness continued, while in the case of B the event which fixed an indebtedness from the association to him did not occur at the time when the higher payment was that provided by the law. It would seem that this distinction is such as to give a right in A not possessed by B. When the by-law was passed, A’s rights had been fixed by his becoming sick, and fixed under the old bylaw. When B became sick his rights were fixed, and fixed under the new by-law.

Edward David, for plaintiff in error.

Harold Remington, for defendant in error.

Perhaps an equally and possibly more troublesome case might be this (to reason this out entirely logically): A becomes sick. The by-law in force at the time he becomes sick gives him the larger sick benefit. Thereafter an amendment is passed in pursuance of the statute of this state and in pursuance of the bylaws of the association. Such amendment is passed reducing the amount. Now to say that if he continues sick, no matter how long that sickness may continue, he shall receive the larger amount, but that if he gets well and remains well three days and again becomes sick, he shall receive the lesser amount provided by the amendment, affords a case, as already said, by no means free from doubt.

The opinion of Judge Harmon of the Superior Court of Cincinnati, in the case of Pellazzino v. The German Catholic Society, reported in the 16th Law Bull., 27, seems to us to be sound. And we hold that the plaintiff’s rights are to be determined by the by-law as it existed at the time his sickness began, and the judgment of the court of common pleas is affirmed.


text:
    SPECIAL BENEFITS RESULTING FROM STREET IMPROVEMENTS.
    [Circuit Court of Lucas County.]
    Joseph L. Yost, Treasurer, v. Toledo & Ohio Central Railway Co.
    Decided, 1902.

      jStreet — Improvement of — Special Benefits Resulting Therefrom — Assessment in Excess of Benefits — Separate Parcels With Differing Benefits Belonging to Same Owner — Estoppel—Injunction—Burden of Proof.

    1. The fact that installments of a street improvement assessment have been paid for a number of years without objection, does not estop an abutting property owner from interposing the defense that the amount assessed was in excess of the special benefits resulting to the property, where it is shown that the improvement was made without notice to the abutting owner or knowledge on his part.
    2. The burden of proof in such a case rests upon the abutter to establish that the assessment exceeded the special benefits resulting to his property.
    3. Where the abutter owns property on both sides of the street improved, and the testimony is to the effect that the installments already paid on the assessment equal the benefits as to one parcel but that the benefits exceed the full assessment levied against the other parcel, an injunction will lie against the collection of further installments against the first parcel, but not as to the second parcel.
    4. In such a case each party will be required to pay his own costs.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on appeal.
   This case comes into this court by way of appeal. It is an action by the treasurer to recover certain taxes and assessments. The question presented to us for consideration and decision relates to certain assessments levied upon the property of the railroad company on account of the cost and expense of paving Bridge street, running along the premises in East Toledo, extending from Front street in East Toledo to the Cherry street bridge, the part of it running between a certain tract of land belonging to the railroad company, constituting the western approach to the bridge. This street’ improvement was made in 1891,‘ and the assessment was levied by ordinance passed upon January 4, 1892. The assessment upon the property abutting upon the improvement was made by the foot front rule, and part of the cost of the improvement was assessed upon the street railroad which traverses this street; the remainder was assessed one-half upon the general tax duplicate of the city and one-half on the property abutting on either side of the street according to the foot frontage, and this made the amount of the assessment upon the abutting property about $5.00 per foot front.

No objection to this assessment appears to have been made by the defendant railroad company at the time it was made; and the assessment which was spread over a period of years (the years 1892 to 1901, inclusive), have been paid from time to time by the railroad company without objection, until it came to the assessment of 1899, when it declined to pay further, upon the ground that it had already paid as much as the special benefits accruing to its property, that is to say, an amount equal to the special benefits.

At the last term of this court we decided, upon certain facts then presented, that the railroad company had not received such notice of this proposed improvement and assessment, and such steps had not been taken with its knowledge, or it had not participated in the carrying forward of the improvement in such way as to preclude it from interposing this defense. In other words, that it was not absolutely bound or estopped; but we also held that, under the circumstances, the burden of proof rested upon the railroad company to establish that the assessment exceeded the special benefit accruing to its property, and upon that question the issue was made up, the evidence submitted, and the case presented at this session of the court.

The property of the railroad company consists of two parcels. It appears to have been so described in the proceedings for the improvement and assessment, and is distinctly so described in the petition of the treasurer in this ease, in which he attempts to collect the assessment, and we think that the circumstances justify or indeed require that it shall be considered by us in this case as two distinct tracts, one of the tracts lying upon the north side of Bridge street, the other upon the south side. The tract upon the north side -has a frontage upon the street of 868.84 feet. The total amount of the assessment upon this tract was $4,264.77; of this amount there has been paid by the company $3,189.31, leaving a balance unpaid of $1,075.45. The frontage of the tract upon the south side is 740.10 feet. The total assessment upon that was $3,641.21; of this there has been paid $2,-722.99, leaving a balance unpaid of $918.22.

It will be seen that substantially three-fourths of the assessments have been paid on each side, in the neighborhood of $3.75 per foot. I have not figured this out closely, but it amounts to about that. Now the property upon the south side has been somewhat improved. In a state of nature both tracts were under water; they constituted part of the shallow waters of the Maumee river upon the eastern side of that river, and improvements have from time to time encroached upon the river, and the river has been filled in. Upon the south side the railroad company has filled in its track for some distance. It is conceded that about 500 feet of this 741.10 feet upon the south side is filled in, and the company is, and at the time of the making of this improvement was, utilizing it for its freight depot and yards, its passenger depot and tracks, etc.

These properties have a frontage also upon the river. Extending out beyond these limits indicated by the foot frontage upon the street, they have a right to erect docks. The railroad has not availed itself of its river frontage by building any docks, or by otherwise utilizing the property. It is said by witnesses that ultimately, as the city grows, in all probability the property will be useful and valuable on account of its river frontage and its dock privileges on the north side. However, there has been no filling in of this shallow part of the river, and so far as present utility is concerned, or any present use that is made of the property, it is practically waste swamp land. The water over it is not deep enough for navigation, and it is rather too deep for other lines of business.

It is said, however, by witnesses, that the property has been improved generally, that is to say, its value has been increased, and that this increase has been somewhat special in its character by reason of this improvement, notwithstanding the fact that the part upon the north side is not at present utilized. As to the extent of this benefit the witnesses differ widely. It is apparent that it is somewhat speculative; that is, it depends upon the growth of the city and the future use that may be made of the property; at present the street improvement is really of no use to the property. But, as I have said, witnesses say that it has increased its value, its market value, and we are not prepared to say that this is not a special benefit that may be considered and form the basis of a special assessment. But we are of the opinion, taking the testimony of all the witnesses into consideration, that the railroad company has alredy paid upon the tract upon the north side of the river fully up to the amount of the special benefit accruing thereto from this improvement; that the special benefit was not equal to the whole cost of the improvement or that part of the cost assessed upon this property; and that the amount paid, about $3.75 per foot, is fully as much as the property was specially benefited, so that the defense as to that will be sustained.

I believe there is a prayer for an injunction, and that will be granted.

As to the tract upon the south side, we are of the opinion, from the testimony of the witnesses, that the 500 feet which has been filled in and utilized, as I have stated, has been specially benefited much more than the $5.00 per foot assessed upon the property. In our judgment a fair consideration of the evidence warrants us in saying it has been benefited $10 per foot for the 500 feet, and that would amount to $5,000, which is much more than was assessed upon the whole frontage of 740.10 feet. As before stated, we are not asked to subdivide, and do not feel authorized to subdivide these tracts, and we consider them as entireties. The sum of $3,641.21 was assessed upon this tract, $2,722.99 has been paid and $918.22 remains to be paid.

¥e are of the opinion that the railroad company has failed to establish that the total amount of the assessment upon the tract lying upon the south side of Bridge street exceeds the special benefit accruing thereto from the improvement; and, therefore, its defense as to that tract is not sustained. The decree as to that tract will be in favor of the plaintiff.

And in view of the fact that the parties each prevail as to one of the tracts, as to practically half of the controversy, the costs will be divided and judgment for part of the costs shall go against each party. Each party shall pay its own costs.


text:
    LIABILITY OF LANDLORD FOR. MONEY LOST AT GAMING.
    [Circuit Court of Hancock County.]
    Belle B. Trout v. William Marvin.

    Decided, December Term, 1902.

      Gaming — And Liability of the Landlord for Money Lost — Reversal of Judgment Against Sim as Winner — Not Res Judicata as to Lien on the Property for the Winnings — Judgment Against the Winners Conclusive as to What — As to What Not Conclusive — Reputation of the Premises — -Statute of Limitations — Judgment as Evidence in Subsequent Suit.

    1. The test as to whether causes of action should be consolidated may be made at any time in any court where the causes are pending and a motion for consolidation is made.
    2. Whether a consolidation should he granted will depend upon the issues as they appear at the time the motion is made, and the further question whether prejudice will arise from the fact that any evidence will be made competent as a defense by the consolidation, which would be incompetent on the trial of the cases or either of them separately..
    3. The fact that in a former suit the question was tried whether the landlord was the winner of the money lost at gaming, did not necessarily involve the question whether the gaming was carried on in his property and with his knowledge, and therefore does not act as a bar under the rule (10 O. S., 45) that the particular controversy sought to be precluded was necessarily tried and determined.
    4. In an independent action brought against a landlord to charge his property with the lien of a judgment against his lessees for money lost in gaming carried on in property belonging to him, the statute of limitations does not begin to run until the rendition of the judgment against the lessees.
    5. Under the issues joined in such a case the plaintiff must prove the rendition of the judgment, and that the premises were leased by the defendant to the parties against whom the judgment was rendered for the purpose of gambling or gaming, or with his knowledge-they were so used, and that the money sought to be recovered was lost in said premises; and the burden of proof as to all these facts is on the plaintiff.
    6. Knowledge on the part of the defendant landlord that the premises were used for the purposes of gaming may be proved by evidence that the fact of their being so used was a matter generally known and talked about and of common reputation in the community where he resided.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.
    Heard on appeal.

       Affirmed by the Supreme Court, without report, March 15, 1904.

   These cases are submitted together:

First. On motion oi defendant to consolidate the two cases, to-wit, cause No. 965 with cause No. 966 in this court, under Section 5120, Revised Statutes of Ohio.

Second. On the merits presented in the pleadings and evidence.

Considering the questions in this order, case No. 965 was commenced in the common pleas court of this county, being case No. 11,689, on March 7, 1896; case No. 966 was commenced in said court March 9, 1897, being case No. 12,311.

The petitions are substantially alike, excepting as to the time and the amounts of the respective judgments set forth therein. The time of the recovery of the judgment in case No. 965 covered a period of time from March 20, 1893, to March 19, 1894, and is a judgment in favor of the plaintiff herein, and against James Clifford and Jacob Gossman for $3,473 damages, and $143.97 costs of suit. The judgment declared on in case No. 966 was recovered in case No. 12,311, in said court, against the same defendants, and covered a period of time from March 19, 1894, to June 19, 1894, and was rendered at the September Term, 1896, of said court, and for the sum of $1,300 damages, and $11.23 costs of suit.

There are other material allegations common to both petitions, which may be summarized as follows: That the defendant, William Marvin, was, at the time the actions were commenced, and still is, the owner of the real estate described in the petitions; that during all the period of time from March 20, 1893, to March 19, 1894, as well as from March 19, 1894, to June 19, 1894, said Clifford and Jacob Gossman occupied certain rooms in said premises of said William Marvin; and during all of said times they were engaged in carrying on the business of gaming and gambling for money, in violation of law; that during all of said periods of time the defendant knowingly permitted said rooms and premises to be so occupied and used by said Clifford and Gossman for such gaming purposes.

That said original actions, to-wit, causes No. 11,689 and 12,311, were brought by said plaintiff, pursuant to Section 4273, Revised Statutes, against Clifford, Gossman and said William Marvin, for money staked and bet by one Frank H. Trout, husband of plaintiff, with said parties named, in certain gaming transactions; that such proceedings were duly and legally had in said actions, that the said judgments, hereinbefore mentioned, were rendered in favor of plaintiff and against said Clifford and Gossman, and which judgments are still in full force against said Clifford and Gossman, unreversed, and no part of either of said judgments has ever been paid.

That said games on which said moneys were staked, bet and lost, and for which said judments were recovered, were played within the period of time hereinbefore mentioned, at and in the rooms and building of defendant, he knowingly permitting the same to be occupied and used by said Clifford and Gossman for such gaming purposes.

The prayer of plaintiff’s petition is for a decree declaring said judgments a lien on said premises, and for an order for the sale thereof to satisfy said judgments, interest and costs.

The defendant filed an answer in each case, setting up two defenses in the first case, and three in the second. In the first defense in each case he admits his ownership of the premises described in the petitions; that the same were occupied by Clifford and Gossman during the period stated in the petition; that plaintiff recovered judgments against Clifford and Gossman at the times and for the amounts stated in the petition. All other and further allegations of the petition are denied, and he specially denies that he knowingly permitted said rooms and property to be used by said Clifford and Gossman for gambling purposes, and if said premises were so occupied and used by them, he had no knowledge thereof, and in no manner consented thereto.

As a second defense in case No. 966, the judgment in cause No. 11,689 is plead as a bar to said action, or cause of action, set forth in case No. 966, wherein this plaintiff was plaintiff, and this defendant and others were defendants, being the same cause of action mentioned in the petition in case No. 11,689, wherein (in said cause number 11,689) the plaintiff undertook to recover from this defendant, William Marvin, the same sum of money which she seeks to recover in said action No. 966; that the plaintiff failed in said action to recover against this defendant for the reason she neglected or intentionally omitted in her petition in said action to allege against this defendant any facts showing his liability under the provisions of the statute; so that said action No. 11,689 is a bar to the maintenance of this action, to-wit, said action No. 966.

As further defense to the petition, and by way of amendment to the original answer, and as a second defense to the first suit, and as a third defense to the second, the defendant avers that plaintiff’s causes of action were barred by the statute of limitations at the time she commenced her actions herein.

By reply plaintiff puts in issue the matters set forth in- the second and third defenses of the answers.

Upon the issues thus joined the causes were tried in the common pleas court of this, Hancock county, March 14, 1902, resulting in a decree and judgment in favor of the plaintiff in each case; from which judgments and decrees appeals were taken to this court, and the causes have been submitted to this court:

First. On a motion to consolidate said actions, namely, cause No. 965 with cause No. 966, under Section 5120, Revised Statutes.

This section provides that:

“When two or more actions are pending in the same court, the defendant may, on motion, and notice to the adverse party, require him to show cause why the same shall not be consolidated; and if it appear that, at the time the motion is made, the actions could have been joined, and if the court, or a judge thereof, find that they ought to be joined, the several actions shall be consolidated.”

It is important to know at what time the actions should or could be joined. Does it refer to the time the actions are commenced, or to the time the motion for consolidation is made? In the case at bar the motion was made after the causes came into this court and were pending herein on appeal.

From the language of the statute (Section 5120) it would seem the question as to consolidation of these cases is to be tested by the status of the causes in this court. “If it appear that, at the time the motion is made, the actions could have been joined, * * * the several actions shall be consolidated.” We assume for the present that the test is to be made from the status of the cases in the circuit court, and not where the actions were originally_ brought in the common pleas.

The object of consolidation is to save costs, and prevent'multiplicity of suits; it is regarded always with favor, and never denied, when it is. clear the parties are the same, and the- causes of action are identical.

'Whether the causes of action are identical or not must be confounded with the object of the suits. The object or the relief sought in these suits is the same, namely, to subject the same real estate of defendant to sale to satisfy different judgments against the same parties but rendered at different times.

The causes of action in the two suits are clearly not identical as to the time of their accruing. When case No. 965 was commenced the judgment in cause No. 966 had not yet been recovered, and could not have been joined with the cause of action, to-wit, the judgment set forth in cause No. 965.

It is very clear, therefore, if the right to consolidate is fixed and to be determined at the time the first action was commenced, these actions could not have been consolidated, as the cause in No. 966 had not accrued at the time the first action was brought. Hence the two actions, or causes of action, could not have been joined when the first suit was commenced. This perhaps will furnish a sufficient reason why the tests of consolidation are to be made, not when the suits are commenced, but at any time thereafter, in any court, where the causes are pending for trial, and a motion is made for their consolidation.

We are inclined to this view, namely, that the right to consolidate actions is to be determined by the court in which they are pending according to the issues as they appear at the time the motion is filed. Keeping in view the purpose of Section 5120, Revised Statutes, is the saving of costs to the party, it would follow that if any evidence were made competent as a defense by the consolidation, which would be incompetent on the trial of the eases, or either of them separately, the consolidation in such case might be prejudicial. To illustrate, in cause No. 965 there is no plea in bar to the plaintiff’s right of action, by reason of the alleged former adjudication against her, in favor of the defendant, while in case No. 966 such a defense is plead. In the last case, No. 966, the record in ease No. 11,689 would be competent evidence for the defendant, but not so in case No. 965, as no defense of a former adjudication has. been plead.

Without pursuing the discussion further, we are of opinion that the motion to consolidate should be and is overruled.

Second. We will consider the cases together, not as identical or consolidated, but for convenience, as the main questions in each, both as to law and fact, are substantially the same.

• The first question to which attention will be directed is the plea in bar set up in case No. 966, of the alleged former adjudication in cause No. 11,689, wherein it is averred that the plaintiff’s cause of action, in case No. 966, was decided against her, and in favor of the defendant, William Marvin. A like defense is not plead in cause No. 965.

To determine the merits of this defense, it will be necessary to look into the pleadings in case No. 11,689, in the common pleas.

The object of the suit, ease No. 11,689, was to hold the defendants, Clifford, Gossman and William Marvin, liable as winners of money lost at gaming under Section 4270, Revised Statutes. It is alleged that Marvin was the owner of the property where the gaming was carried on, and where the money was lost. Such proceedings were had in the action, that the judgment recovered against Clifford, Gossman and Marvin, was reversed as to Marvin. The judgment recovered against Clifford and Gossman, in case No. 11,689, for money won by them at gaming, and which remains in full force and unreversed, a lien on the property of the defendant Marvin, wherein the gaming was carried on with his knowlegde.

The defendant, by his second defense, raises the question as to whether or not said judgment in his favor is a bar to this action. We think this is settled against the defendant by the Supreme Court in the case of Trout v. Marvin, 62 Ohio St., 132. It is perhaps unnecessary to cite any other authority.

The issues tried in the former suit, as to Marvin being a winner of the money lost, did not necessarily involve the question now in dispute, namely, that the gaming in which the money was lost was carried on in defendant’s property with his knowledge.

“Where a judgment or decree is relied on by way of evidence as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.” Lessee of Lore v. Truman, 10 Ohio St., 45.

In Betts v. Starr, 5 Conn., 550, 553, Bristol, J., laid down the rule as follows:

“Where the cause or object of two actions is different, though the matter or point in dispute is the same in both, a prior judgment is no bar to a subsequent action. ’ ’

The difference between the effect of a judgment as a bar to a second action on the same demand, and its effect as an estoppel between the same parties upon a different cause of action, is clearly stated in the syllabus in the case of Cromwell v. County of Sac, 94 U. S., 351, as follows:

“The judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

The object of this action is to charge the defendant and his property with the lien of the judgment rendered against Clifford and Gossman, for gaming carried on and for money lost therein, with defendant’s knowledge.' This being the purpose and object of the action, it is not affected by the judgment rendered in his favor in the former action, wherein he was only charged with his co-defendants, as a winner in the game.

This conclusion does not necessarily determine the question as to the competency of the record in-the former suit as a matter of evidence as to what was expressly and necessarily adjudicated in the first action (Betts v. Starr, supra). Therefore, we think the record in the former suit is competent for either party in case No. 966, but not competent for defendant for the same purpose in cause No. 965, as no such defense is set up or plead in that action.

Third. Are the plaintiff’s causes of action barred by the statute of limitations?

The actions are instituted, not for the purpose of creating a lien upon the property of the defendant described in the petition, but for the purpose of identifying the property upon which liens were created or secured by the judgments in favor of the plaintiff in the actions against Clifford and Gossman, under Sections 4270, 4273, and 4275, Revised Statutes, and for the further purpose of ascertaining judicially, as against the defendant, Marvin, as owner of the property, the existence of facts upon which the statute declares such judgments to be a lien. This being the nature and object of the action, it is important to ascertain when these causes of action accrued to the plaintiff. Did they accrue to her when the causes of action accrued against Clifford and Gossman, in which the judgments were rendered, after the judgments were obtained?

We are of the opinion and hold, that these actions against the defendant, Marvin, did not accrue until the judgments were rendered against Clifford and Gossman, whose unlawful acts caused the plaintiff’s injury. •

The defendant, Marvin, as owner of the property, was not a necessary party to the actions against Clifford and Gossman. The statute, however, declares that a judgment, rendered as these judgments were, shall be a lien upon the property of the owner until paid. But as the owner was not a party, and is not a necessary party to the suits in which the judgments were obtained, such liens can not be enforced by execution, but by an independent action; and such independent action accrues against the owner when the judgments are rendered, and not before. Therefore, the statute of limitations commence to run in favor of the defendant from the rendition of these respective judgments.

Granting that Section 4983, Revised Statutes, controls in such ease, these actions are not barred. Cause No. 965 was commenced March 7, 1896, and is predicated on a judgment rendered at the March Term, 1895, of the common pleas court, to-wit, March 21, 1895; and cause No. 966 was commenced March 9, 1897, and is predicated on a judgment rendered at the September Term of said court, 1898. We find as a fact that said actions, to-wit, causes No. 965 and 966, were each duly commenced within one year from the rendition of the judgments upon which said actions are respectively predicated, and are not barred by the statute of limitations.

In support of the conclusion of law,- as to the statute of limitations plead in the third defense, the following authorities are cited: Section 4983, Revised Statutes; Cooper v. Rowley, 29 Ohio St., 547; Binder v. Finkbone, 25 Ohio St., 103; Mullen v. Peck, 49 Ohio St., 447, 460; Trout v. Marvin, 62 Ohio St., 132.

Fourth. The object of these suits, as we have seen, is to make the judgments, recovered against Clifford and Gossman for money won by them at gaming, a lien on the property of defendant, where the gaming was carried on with his knowledge. What is the legal effect of the judgments as against the defendant ?

In an action under Section 4275, Revised Statutes, to subject the premises where the gaming was carried on and the money lost to the payment of a judgment recovered against the winner for damages caused by such gaming, such judgment, when not impeached for fraud or collusion, is conclusive as to the facts; (1) That the moneys lost and winnings secured, which caused the plaintiff’s injury, were lost in gaming, and were won by the defendant in the judgment; (2) that the same were lost and won in violation of law; and (3) that the plaintiff, in consequence thereof, sustained damage to the amount of the judgment. And such judgments as to these facts are not open to dispute, by the owner of the premises, in an action brought against him under said section.

But allegations that the premises were leased by the owner to the lessees or proprietors of the business for the purpose of gambling or gaming therein, or that the same were, with his knowledge used or permitted to be used by them for that purpose, and that the money lost and won, which caused the plaintiff’s injury, was lost and won in the premises, may be put in issue by the owner; and when that is done, as to these facts, the burden of proof is on the plaintiff. Goodman v. Hailes, 59 Ohio St., 342; Binder v. Finkbone, 25 Ohio St., 103; Mullen v. Peck, 49 Ohio St., 447.

Fifth. Under the issues joined in these eases, the plaintiff must prove, in addition to the judgments against Clifford and Gossman, to subject the premises of the defendant, described in the petitions, to the payment of the lien and judgments under Section 4275, Revised Statutes: (1) That the premises were leased by the defendant, as owner thereof, to Clifford and Gossman to be used by them for the purpose of gambling and gaming; or (2) that with his knowledge he permitted them to use the premises for that purpose; and (3) that the money sought to be recovered was lost in said premises.

Considering the questions in this order, we do not think the evidence sustains the contention of plaintiff, that the premises were leased by the defendant to Clifford and Gossman for the purpose of being used by them for gambling or gaming. We do find as admitted facts, admitted by defendant’s counsel, in open court, and for the purposes of these trials:

“That between the nineteenth day of March, 1893, and the twentieth day of June, 1894, the premises described in the petitions were used for gaming purposes by Clifford and Gossman, and that they are the same premises in which the money represented by the judgments set up in the petitions is claimed to have been lost. It is also conceded that the judgments were rendered against Clifford and Gossman. It is further conceded that Clifford and Gossman occupied no other premises and conducted no gambling, during the period specified in the petitions, except in the defendant’s premises, referred to in the petitions as lot 86; and without admitting that plaintiff’s husband in fact did gamble with Clifford and Gossman, between March 19, 1883, and June 20,1894, it is admitted by counsel'for-defendant, for the purpose of this trial, that if plaintiff’s husband did so, such gambling was done in the building, and upon the premises of the defendant, described in her petition.”

With these admissions the material facts in dispute are reduced to substantially two questions:

1. Did the plaintiff’s husband gamble at Clifford and Gossman’s between March 19, 1893, and June 20, 1894? 2. Did the defendant with knowledge permit Clifford and Gossman to use said premises for the purpose of gambling ?

1. On the first issue we find, as a fact, that the plaintiff’s •husband, between the dates set forth in her petitions, did gamble with Clifford and Gossman, as alleged in her petitions, and that the moneys sought to be recovered in these actions were lost by her said husband and won by said Clifford and Gossman, and in the premises owned by the defendant, which are particularly described in her petition.

2. Did the defendant have knowledge, or could he have had knowledge, by the exercise of reasonable care and diligence, that his said premises were so used, and had been so used during all the time between March 19, 1893, and June 20, 1894, by Clifford and Gossman for the purpose of gambling contrary to law?

Mere want of caution on the part of defendant will not be sufficient to charge him with knowledge of the unlawful use of his premises. But if he knew enough, as to the purpose for which they were being used by his tenants, to put a prudent man on inquiry, it became his duty to make reasonable inquiry, and if he failed to do so, he is chargeable with notice of the unlawful use. If a party obtains knowledge or information of facts sufficient to put a reasonably prudent man upon inquiry, then the necessary inference is, that he acquired the information which constitutes actual notice. 2 Pomeroy Equity, Section 597.

The principal contention on the facts is upon the last proposition, and this contention arises mainly as to the competency of evidence offered by the plaintiff to sustain the issue on her part as to knowledge of the defendant. It being admitted that, between March 19, 1893, and June 20, 1894, that the premises described were used for gaming purposes by Clifford and Gossman, and that they are the same premises in which the money, represented by the judgments against Clifford and Gossman, was lost, for the purpose of proving the defendant’s knowledge that his premises were so used, evidence is offered to show the general reputation in the neighborhood, or in the city of Findlay, where the premises are located and the defendant lives, that said premises were kept and used by Clifford and Gossman as a gambling place.

The rule 'as to such evidence is, that to prove knowledge, of a particular fact, it is competent to show that such fact was at the time generally known and talked about in the neighborhood where the party to be charged with knowledge resided, or was a matter of common reputation in the business community where the party to be charged with knowledge lives. -1 Wharton Law of Evidence, Section 252; Adams v. State, 25 Ohio St., 584; Lee v. Kilburn, 69 Mass. (3 Gray), 594; Heywood v. Reed, 70 Mass. (4 Gray), 574; Cobleigh v. McBride, 45 Ia., 116.

The objective fact, namely, that Clifford and Gossman kept a gambling place in the premises of defendant being admitted, then to charge defendant with the knowledge thereof the reputation of the place may be shown to prove such knowledge.

We therefore hold that the evidence offered by plaintiff as to reputation of the place kept by Clifford and Gossman, so far as it related to the reputation in Findlay, or in the vicinity, is competent, and defendant’s objection thereto is overruled; and the motion to rule out the same is overruled; exceptions noted. The evidence on the same subject, that tended to prove reputation elsewhere than at Findlay and in the vicinity, is ruled out, and the motion for that purpose is sustained.

All other objections of defendant to the evidence of plaintiff, not specially ruled on by the court at the trial, are overruled with exceptions noted.

Poe & Poe, for plaintiff.

Phelps & David, J. A. & E. V. Bopo, E. T. Dunn and Alfred, Grater, for defendant.

The record evidence, namely, the records in original cases, in which the judgments against Clifford and Gossman were recovered, and offered by defendant to support his contention, that said plaintiff’s actions herein are barred by the judgment iii his favor in said original actions, and that such judgment is res adjudícala here, are not competent for such purpose, in behalf of defendant in cause No. 965, for the reason no such defense is made by plea in said action.

The records are competent evidence under the second defense, and the reply thereto, in cause No. 966; and the court hold that said record does not sustain defendant’s plea, and said action No. '966 is not barred or affected by the judgment rendered in favor of defendant in said former action.

From the direct evidence offered by the plaintiff, being conversations had by her with defendant, in reference to her husband losing money at gambling at Clifford and Gossman’s prior to bringing these original actions; circumstances of defendant being sued by others prior to these actions for money lost at the same place and in the same way, he taking part in the settlement of actions, where Clifford and Gossman with himself had been sued to recover money lost at gaming in these premises; and from the general reputation of the place, as being a gambling place, kept by Clifford and Gossman, we hold that the evidence is sufficient to charge defendant with actual knowledge of the purpose and use made of said premises, by his lessees, Clifford and Gossman.

' The court having sufficiently indicated its finding of fact upon the issues joined in said actions, and also its conclusions of law arising in the cases, we hold that the plaintiff is entitled to the relief prayed for in her petitions, and a decree will be entered accordingly with costs.

To which findings of fact and conclusions of law the defendant excepts.

Motion for new trial filed and overruled; twenty days allowed for finding of facts; statutory time for bill of exceptions.


text:
    DEFICIENT BILL OF EXCEPTIONS.
    [Circuit Court of Cuyahoga County.]
    Fritz Wolf v. The Cleveland City Railway Company.
    Decided, November 23, 1903.

      Direction of Verdict — Bill of Exceptions.

    A hill of exceptions that does not contain all of the evidence offered upon the trial will not he considered for the purpose of reviewing the action of the trial judge in directing a verdict for defendant at the close of plaintiff’s evidence.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.

      Hermann Preusser, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   On the trial of this case in the court below, at the close of plaintiff’s evidence, the court directed a verdict for the defendant.

Motion for new trial was made and overruled, and a certain bill of exceptions was prepared purporting to contain in narrative form the substance of the testimony of the witnesses. The trial judge refused to certify that the bill contained all the evidence produced at the trial, and it is now urged by defendant in error, which was defendant below, that because we do not have before us all the evidence produced at the trial of the case, we should not consider the bill of exceptions for the purpose of reviewing the action of the trial judge in directing a verdict.

This court has several times ruled upon the identical proposition here submitted and has uniformly held that it can not consider the bill of exceptions for the purpose of passing upon the action of the court of common pleas in withdrawing a ease from the consideration of the jury and directing a verdict for the defendant, where the bill of exceptions does not contain all the evidence offered upon the trial. Such was the ruling of this court in the case of Charles Wadsworth v. The Cleveland Electric Ry. Co., and we see no reason for departing from it.

There being no errors complained of except the direction of a verdict by the court, the judgment is affirmed.


text:
    SALE OF LIQUOR. TO MINOR BY CORPORATION.
    [Circuit Court of Lawrence County.]
    The Leo Ebert Brewing Company and Otto Ebert v. The State of Ohio.
    Decided, March 11, 1904.

      Corporation — Not Criminally Liable — For Sale of Liquor to Minor— Proof of Sale — Does Not Sustain Charge of “Furnishing.”

    1. In Ohio a corporation can not he held criminally liable, in its corporate capacity, for unlawfully furnishing to a minor to be drunk by such minor, intoxicating liquors in violation of Section 0943, Revised Statutes.
    2. Proof of unlawfully selling intoxicating liquor to a minor, etc., in violation of Section 4364-21, Revised Statutes, does not sustain a charge of unlawfully furnishing intoxicating liquor to a minor.
    Cherrington, J.; Jones, J., and Walters, J., concur.
    Error to the Court of Common Pleas, Lawrence County.
   At the October Term, 1903, of the common pleas court, this county, the defendants, plaintiffs in error here, were indicted jointly for violating Sections 4364-21 and 6943, Revised Statutes.

The indictment contained two counts, the first charging them with unlawfully selling intoxicating liquor to one Yint Lynd, a minor, knowing him to be such, etc.; the second,- with unlawfully furnishing intoxicating liquor to Yint Lynd, a minor.

Each of the defendants filed a demurrer to the indictment for general cause, both of which were overruled by the court, whereupon the ease went to trial by the court, a jury having been waived, resulting in a finding and judgment of acquittal as to both defendants on the first count and a finding and judgment of guilty on the second.

This proceeding in error is here asking for a reversal of the finding and judgment on the second count, assigning as errors the overruling of the demurrers to the indictment, and that the finding of guilty on the second count was against the manifest weight of the evidence.

The first assignment presents a very important question and one upon which this court has not before been called to decide, viz., as to whether in Ohio a corporation can be held criminally liable for the unlawful sale of intoxicating liquors in its corporate capacity.

The prosecuting attorney insisting upon the liability of the brewing company, presents an array of authorities among which are Hughes’ Criminal Law, Section 2738; 1 McClain on Criminal Law, Section 417, et seq.; 1 Bishop’s Criminal Law, 417, et seq.; 3 Greenleaf on Evidence, Section 9 and note; 86 Fed. Rep., 304, which seem to establish the principle that where a corporation in the transacting of its ordinary business performs an act which if done by a natural person would make such person guilty of a misdemeanor, it is likewise liable, and I think I may say with confidence that if there be an answer to this principle and the authorities cited, it is simply and only in the fact that there is no statute in Ohio making a corporation so liable.

“Whoever” and “person” are the words almost, if not invaluably employed in our statutes to designate the one on whom a penalty is imposed for their violation; they are synonomous in meaning and refer to natural persons, and where an artificial person is intended it is so designated in the statute, an example of which is found in Section 6949, Revised Statutes, under the head of Nuisances, in which and following sections corporations are made expressly indictable. Section 7231, Revised Statutes, provides a mode of procedure against a corporation when indicted, meaning undoubtedly where properly indicted. To say that corporations should be held criminally liable for violation of statutes in the conduct of their usual business as are natural persons, would probably be argument in favor of what might be good policy, but certainly not as to the state of the law. Corporations act through their agents, who are amenable to the law for its violaion, just as Otto Ebert in this case, who is, secretary of the brewing company, as disclosed by the record.

The State of Ohio v. Cincinnati Fertilizer Company, 24 O. S., 611, I think decisive of the question. The fertilizer company was indicted for erecting and keeping up a nuisance in Cincinnati. The common pleas sustained a demurrer to the petition. On final disposition in the Supreme Court, Judge Welch says:

O. E. Belcher, for plaintiff in error.

E. E. Corn, Prosecuting Attorney, for the State.

“We think the court below was right. Criminal laws are to be construed strictly in favor of the accused. In its primary sense the word ‘person’ means á natural person only. I know of no criminal statute in Ohio where the word has been held to apply to a corporation; nor do I know of any case where any attempt has before been made in this state to indict a corporation. We have no common law crimes in Ohio, and the whole theory and machinery of our administration of criminal law seems adapted only to the prosecution and punishment of natural persons. There is no provision of law for bringing an indicted party into court by summons or otherwise, than by actual arrest of his person; under such a state of legislation and practice the Legislature could not have intended in the use of the word ‘person’ which is found in almost every criminal law of the state, to authorize an indictment against a corporation for this particular offense without any special or further provision as to the liability of a corporation or the mode of proceeding against them.”

We are constrained to hold that the brewing company is not liable to indictment for the violation of the sections of the statute involved, and the court erred in not sustaining its demurrer to the indictment, but did not err in overruling demurrer of Otto Ebert.

Is the finding of the court on the second count against the manifest weight of the evidence, which is indisputable and all one way, and shows a straight out sale for cash? The penalty for selling is both fine and imprisonment, while the penalty for furnishing is fine or imprisonment or both, thus seeming to recognize different grades of offense. We think that furnishing in the section under consideration means any mode of providing the minor with the liquor other than by sale. The proof does not support the allegations of the second count. The judgment will be reversed. The brewing company will be discharged, and the same remanded as to Otto Ebert, to be proceeded with according to law.