text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    NATHAN PLAUT v. MARTIN MARKS.

      Partnership —■ One partner buying interest of other — Mistalee as to, assets of firm — Recovery of share of loss from former co-partner. —
    Where one of two partners purchases from the other partner his interest in the partnership property and assets, including his interest in certain claims specifically mentioned, and pays for the same, and at the time of said purchase a part of said claims had in fact been paid to an employe of the partnership and embezzled by him, without the knowledge of either of said parties, the partner so purchasing and paying therefor, may recover from the other partner the share he had therein, (in this case one-half,) as they were, by their partnership agreement, to share the profits and losses equally. And the fact that the purchasing partner had recovered from the employe a part of the amount so embezzled by him, would not prevent a recovery of the one-half of the balance.
    Error to the Superior Court of Cincinnati.
   Smith, J.

The question presented to us is, whether the Superior Court erred in sustaining a demurrer, filed by'Marks, the plaintiff below, to the answer filed by the defendant below to the plaintiff’s petition.

The petition averred, in substance, that on and before November 27, 1893, the plaintiff and defendant were partners in the shoe business under the firm name of Plaut & Marks, and on the day named they agreed in writing to put an end to their partnership on or before January 1, 1894; that an inventory should be taken of all of the assets of the partnership and the debts, credits and liabilities thereof, so as to find the interest of each of the partners in the partnership on or before December 15, 1893; that when this was done, Plaut should name a figure valuing the business as a whole, which should be the basis at which he would buy the interest of Marks therein, or sell his own interest in the business to Marks. That within four days after the receipt of the proposition, Marks should either buy the business on the terms stated therein, or failing to do so should sell his interest to Plaut upon the conditions named. The party selling was in proper form to vest the title to all the partnership property and assets in the purchaser on his complying with the terms on his part. On November 30, 1893, such an inventory was taken, showing what purported to be an account of all the assets, debts, credits and liabilities of the partnership, and particularly an itemized statement of the sums shown by the books to be due from each and every person indebted to the partnership..

On December 11, 1893, Plaut made a written proposition to Marks, valuing the whole business, after deducting all liabilities, at $74,437.94, Marks’ interest, $24,681.52; Plants’ interest, $49,756.42; total, $74,437.94; and thereupon offered to purchase the interest of Marks therein for said sum of $24,681.52, on certain terms, or sell his interest for $49,756.42, on certain terms — stating that the proposition was based on the state of their respective accounts, and the firm’s inventory of November 30, 1893.

This proposition was at once accepted by Marks, who elected to purchase the interest of Plaut on the terms named, and he paid the purchase price and received the title to and possession of the assets of the partnership, “all upon the basis and on the faith of the inventory and itemized statements of the outstandings due said firm, But in said statement of sums due said partnership, the accounts from the following named persons were, by mistake, put down in the following amounts respectively in excess of what was really due from them, to-wit:’’ Here follow fifteen names with various sums, amounting in all to $1,606.43. These sums, it is alleged, had, without the knowledge of either plaintiff or defendant, been collected by an employe of said partnership, and by him embezzled. Subsequently said employe paid back $40.25.

After this transaction, plaintiff discovered the embezzlements and the mistake in the inventory and itemized statement. He recovered $1,104.68 of the amount so embezzled, leaving a deficit of $461.50 on said accounts mistakenly supposed to be outstanding, but really paid when he made the purchase aforesaid of defendant. By the terms of the partnership, plaintiff bore and shared losses and profits equally. Plaintiff has demanded one-half of said sum of $461.50, viz: $230.75, but defendant refuses to pay the same or any part thereof. Wherefore he prays judgment against defendant for said sum of $230.75, with interest thereon.

The answer of the defendant in substance was, that from 1887 up to the time of the sale by plaintiff to defendant of his interest in the partnership,, they had been co-partners in said business, and that one o'f the articles of their partnership was to the effect that on or about the 1st of January of each year, during its continuance, a full written 'inventory or account of all the partnership assets should be taken, and of all their indebtedness and of such accounts as are usually taken in such business, and that the same or an abstract thereof should be entered upon their books, and signed by the partners, and the same was to be conclusive upon them, and that it further provided that the partnership might be dissolved, and that the agreement mentioned in the plaintiff’s petition provided for an inventory of the kind mentioned in the partnership agreement, and when made it was signed by the parties, and not objected to by either; that said last inventory did not contain a list of suspended debts included in former inventories, amounting to a large sum, a large portion of which was collectible, and that some of it has since been collected by plaintiff; that many accounts due the firm were not mentioned as of any value in the last one made preparatory to the dissolution; that part of this was collectible, and a part thereof has been collected by plaintiff, and that a few other assets of the firm did not appear on said inventory. That the valuation so made in said inventory, after deducting debts and liabilities, was $86,437.94, and no other inventory was taken than that of November 30, 1893. That the proposition submitted by defendant to plaintiff, valued the partnership as a whole, after deducting liabilities at $74,437.94, or $12,000 less than the amount of the inventory, and omitting all estimate of the value of the items and matters mentioned in paragraph two, of the answer; and the proposition was accepted by plaintiff, wherefore he prays to go hence without day.

A general demurrer was filed to this answer, and sustained by the court, and defendant excepted, and not wishing to further plead, judgment was rendered for plaintiff for the amount claimed, and the reversal of said judgment is now sought by plaintiff in error.

He now makes the claim that the demurrer filed searched the record, and that the petition of the plaintiff does not show a good cause of action against him.

We are of the opinion that it does. The allegations of the petition, (not denied, and therefore admitted), were that an-inventory was made by the partners, of the debts due to the partnership, which included sundry accounts supposed by them to be due from various persons amounting to $1,606.-43, and that the proposition of sale made and accepted, was based on the state of their respective accounts, and the inventory so made, and that the purchase-price was paid on the basis and on the faith of said inventory and itemized statements of the outstandings due the firm, when in fact there was no such debts due to the firm, for the reason that before that time, they had been collected by an employe of the firm without the knowledge of either of the members of the partnership, and had been embezzled.

Here was a mutual mistake of both of the parties to the contract as to a material fact in regard to the subject-matter thereof. It is in fact a representation as to the existence of certain claims, attempted to be transferred by one of the late partners to the other, when in fact no such claims were then in existence. It is the settled rule of the law, as we understand, that in such case, if the agreed price has been paid by the purchaser, it may be recovered back. As where one attempts to sell a horse, or a stock of goods, supposed by the contracting parties to be in existence, but which in fact is not, the price paid therefor must' be returned. The following authorities, we think, support this doctrine: 17 Ohio, 385; 2 Simon & Stewart, 454; 20 Wend, 174; 45 Ohio St. 436; 87 Ill., 177; 144 N. Y. 486; 44 Minn. 273, and 158 Mass. 60.

And the fact that afterwards the plaintiff was able by process of law or otherwise, to collect from the person who unlawfully appropriated the money collected by him, on such claims, a part thereof, thereby reducing the amount of his claim against his late partner, does not at all operate to prevent him from recovering in this case the one-half of the amount of such accounts still uncollected, The petition then, in our judgment,' stated a good cause of action against the defendant.

We are further of the opinion that the allegations of the answer do not make a good defense to the petition. It nowhere appears either in the petition or answer, that the contract of dissolution provided that the inventory therein provided for, when signed, was to be final and conclusive, as was the original contract as to the yearly inventories to be made under it. And there was no reason why it should. And the fact that by consent, (for no mistake is averred), certain small articles or credits were not included in the last inventory, does not affect the right of the plaintiff to recover as claimed.

The judgment will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Warren Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    CLARA H. PENCE v. CHAS. W. BLACKFORD et al.

      1. Father distributing his lands among his children — Consideration.— On the facts hereinafter stated, the contract entered into between Ephraim Blackford and his four children, was founded on a good and sufficient consideration,and might have been enforced against him.

      3. Same.— The father having subsequently executed deeds to the several children, conveying to them respectively the lands which he stipulated to convey to them (one of which was delivered by him in his life time to the grantee therein named) and the others were by him handed to another person with the express direction, and without :any qualification whatever, that he should keep them in his possession as long as the grantor lived, and as soon as he was dead that he should deliver them to the several grantees, and no other direction was afterwards given to him by the grantor, such deeds took effect in presentí, and when delivered after the death of the grantor, vested the title in the several grantees as of the date of their delivery to the person to whom they had been delivered by the grantor. And if one of the grantees died before his father, intestate and leaving issue, such issue would take as grantees.

      3. Same — Delivery of deed — What sufficient. — The delivery of the deeds by the depository in this case was a good delivery.
    Appeal from the Court of Common Pleas of Warren county.
   Smith, J.

This is an action brought by Mrs. Pence, who was a daughter of John M. Blackford, deceased, who was a son of Ephraim Blackford, deceased, but who died before his father, against the other heirs of law of Ephraim Blackford, deceasd, who died intestate. It is alleged in the petition tbat Ephraim Blackford died in 1894, and that at the time of his death he was seized in fee simple of two tracts of real estate situate in this county, — the first of which was a tract of about 75-| acres, and the second a tract of 161 40-100 acres. That he also left a personal estate, which after the payment of his debts and the costs of administration amounted to $1500. The petition then sets out the share that each of the heirs of Ephraim Blackford would have in the real estate and personal property, were it not that Charles W. Black-ford, a son, and Mrs. Duke, a daughter of Ephraim, had in the life time of the father, each received from him an advancement of $7,000, in land; and the prayer is that said real estate described may be partitioned, and said personal •estate distributed according to the rights of the parties, taking into the account the advancements so made.

These allegations are denied by some of the defendants at least, and the claim is asserted by them that at the time of his death, Ephraim Blackford was not the owner of this land decribed in the petition,and that the relief asked for should not be granted.

This claim is based on the following state of facts, which clearly appear in evidence.

On the 24th of March, 1880, Ephraim Blackford was the owner of four separate tracts of land, and he was the father of four children, all of whom were then living, viz., C. W. Blackford, Mary E. Pence, Rebecca Duke, and John M. Blackford. On that day a written contract was entered into between these four persons, by which the father sold and agreed to convey in fee simple all of bis real estate as follows: To Charles W. Blackford the home farm of 118 acres on which the said Charles then resided; to Mary E. Pence a tract of 91 acres on which she then resided; to Rebecca Duke, 160 acres in Indiana, and to John M. Blackford a farm of 75 acres, each to receive their deed therefor as a share of the estate of the father; and C. W. Blackford, in consideration of getting more lands than the other thereby agreed to pay to Rebecca Duke, $2177.77 and to John M. Blackford, $713.67 and to Mary E. Duke, $120.77, so as to make them all receive the same amount, and it was provided that the father was to receive rents for the above described lands, (except the Indiana- land), during his natural life, if he wished to claim, the same.

What was the legal effect of the contract? If it was supported by a good and sufficient consideration, our view is that by it, the father sold and bound himself to convey the real estate described, to the parties respectively, and if he failed to do so on reasonable demand, he could have been compelled by appropriate action to do. it, And the children-severally and respectively bound themselves to receive the land so contracted to be conveyed as a part of their father’s estate, and with the payments to be made by C. W. Black-ford to the other three, and which he agreed to make, such conveyances respectively were to be taken as an equal division of all of said land, and to this all of them agreed. This promise and undertaking of O. W. Blackford was binding on him and on the others who agreed to it, and made a good consideration as to the father, who thereby became bound to convey to each, his or her specific tract.

The result of this was, that each of the children immediately became the equitable owner of the tract contracted to be conveyed to him or her, subject to the right of the father to receive rent therefor during his natural life. And the father became simply the holder of the legal title in trust for the child to whom he had contracted to convey it. And if he had died with affairs in this condition, he was not then the owner of it in such sense as to entitle his heirs at law to partition it, other than according to their rights under the contract with their ancestor.

But things did not remain in this condition until the death of Ephraim Blackford." On the day the contract was signed, Ephraim Blackford executed and delivered to Mrs. Duke a deed for the land in Fountain county, Indiana. In addition to this, in the year 1882, Ephraim Blackford executed deeds in fee simple to each of his other three children, thereby conveying to them,respectively, the lands which he had sold and agreed to convey to them respectively. They were not actually delivered by him to the several grantees personally, in his life time; but on the day of their execution, Mr. Blackford handed them to W. P. Peebles, Esq, who had drawn them and the original contract, with the express direction, and without any qualification whatever, that he should keep them in his possession as long as he, Ephraim Blackford, lived, and as soon as he was dead, that Peebles should deliver them to the parties to whom they belonged, and the grantor, during the residue of his life, made no other direction in regard thereto and never again spoke to Peebles on the subject.

What was the effect of this? Did the delivery of the deeds under these circumstances, so operate as to transfer the title to the several grantees of the lands described in these respective deeds, so that, (at least), when they were delivered to them or some one for them, after the death of the grantor, they operated as deeds in presentí, and vested the title in the several grantees as of the date of the delivery of them to Peebles? We are of the opinion that under the law such was the case. We have not had the opportunity to examine carefully the various authorities cited and quoted to some extent by counsel in the able presentation of the case made by them, but it seemed clear to us that the great weight of them was, that where a deed was delivered by one person to another, to be delivered to the grantees absolutely, on the happening of an event which must certainly occur, and not coupled with any condition to be performed by the grantee named therein or by any other person, and where no right is reserved to the grantor to alter the arrangement, that the deed is operative, and takes effect in presentí, and that on the death of the grantor, the grantee is entitled to receive the same, and may enforce the delivery, and that the knowledge or consent of the grantee to the arrangement is not essential or necessary.

But it is unnecessary that we should go so far in this case. The deeds were made in pursuance of a contract made between these parties. Ephraim Blackford was bound to execute them, and did so, and left them with Esquire Peebles to 'be delivered at a time named. By his own act the title passed out of him, and it ought to be presumed that the grantees consented to an act, beneficial to them, and done in pursuance of a contract to which they were all parties.

But aside from this, we think the deeds were accepted by the several grantees. The deed to C. W. Blackford was in fact delivered to him by Peebles after the death of Ephraim, and it is conceded by plaintiff that his title to the lands then became absolute, and there is no claim that the tract conveyed to him is subject to partition, nor that of Mrs. Duke, the deed for which was delivered to her in the life time of the father.

As to the deeds to the other two tracts, it is claimed the facts are different in this: J. M. Blackford died several years before his father, leaving a widow and four children, one of whom was the plaintiff, Mrs. Pence, and two of whom at least were minors at the death of Ephraim Blackford. Mrs. Pence, one of the children of the grantor, also died before her father, leaving one child and heir at law surviving her, Mrs. Johnson, After the death of Ephraim Blackford, Mr. Peebles, through his son, Arthur, undertook to carry out the instructions he had received from Mr. Black-ford. As we recollect the testimony, the deed to John M. Blackford was handed to his widow and the mother of his children and heirs at law, and it thus came into the hands of Mrs Pence, the plaintiff, and her husband, and was brought by the latter to the Recorder’s office, and filed for record. The deed to Mrs. Pence, as I recollect, was given to Mrs. Johnson, the only heir at law of her mother, Mrs. Pence, and was placed on record.

We do not esteem it essential to the validity of a deed left by one with another to be delivered to a third person on the happening of an event, certain to happen, as on the death of the grantor, that the grantee should survive the grantor. If it is a deed in fee simple, and the grantor dies intestate, the heirs will take under it what the ancestor would have taken had he survived the grantor, as the heirs at law of the grantee and the delivery to them by the depositary will be sufficient. What was done in this case will be sufficient as the placing of the deed on record was a substantial acceptance by the heirs of the grantee, and being beneficial to them, their acceptance will be presumed. — ■ On the whole case, and on the several grounds named, we think the plaintiff has failed to maintain her action, and her petition will be dismissed as to any part of the land, except that which was given to her father, J. M. Blackford, deceased, as to which she is entitled to a partition.

E. E. Crocicett and J. Kelly O’Neal, attorneys for plantiff.

Milton Clark and Arthur F. Peebles, attorneys for defendant.


text:
    (First Circuit—Warren Co., O., Circuit Court
    Oct. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    PERRY W. MAXWELL v. CHAS. H. GRIFTNER.
    When a tenant may, and may not dispute the title of his landlord. — Where an answer to a petition sets up a good defense, and no reply is filed thereto, it is error for the court, at the trial, to admit evidence over the objection of the defendant, to prove that the allegations of such defense are untrue.
    Error to the Court of- Common Pleas of Warren county.
   Smith, J.

On the principle of law, so clearly stated in Judge Swan’s Treatise, pages 547 and 548, we think, the defendant below, Mr. Maxwell, was absolutely precluded from showing as a defense to the action, that when his lessor leased to him the premises in controversy, he had no title to the same, and that he, the defendant, afterwards acquired from the state of Ohio, the right to use so much of the premises as was included within the limits of the basin, it being also shown that the state had at the time defendant leased it from the plaintiff, the same title that it afterwards asserted. The general rule, as stated in Swan, is, “that if the plaintiff proves that the defendant went into possession of the premises as his tenant, it will be no defense, nor ought the defendant be'permitted to prove, that the plaintiff had no title. If the tenant has procured a good title from a stranger, he cannot set it up as against his landlord. A tenant is not permitted to dispute the title under which he himself is in possession. He may however show that he did not enter under, or that in fact he is not the tenant of the plaintiff, or that his landlord’s title expired after the making of the lease, or had been transfered by saje on execution or by operation of law”. We think it clear on the evidence submitted,that the defendant showed no defense to the claim of the plaintiff, so far as the basin tract is concerned.

Lot No. 1 stands on different grounds. This also was leased by plaintiff or his grantor to Maxwell, and rent therefor paid by him to Griftner. But the allegations of the answer as to this tract are, that on the 20th of January, 1891, (which was after he leased the property), the whole of this lot was legally sold by the county treasurer for delinquent taxes thereon, and'was bought by one VanHorne, who assigned all his rights to the defendant, and on March 17, 1894, the premises not having been redeemed, the auditor of Warren county, Ohio, duly and legally made, a deed to him therefor, by virtue of which defendant is the owner of said lot in fee simple, and is entitled to, and is in full possession thereof, and that plaintiff has no title to the lot or to the possession thereof.

Such a defense, if maintained, is a good one, as is clearly stated in the authority before cited. In this case the allegations of this answer were not controverted by a reply, and were therefore admitted, and on the pleadings the defendant would have been entitled to a judgment in his favor as to this lot.

At the trial the defendant offered no evidence as to this defense in chief, though in plaintiff’s evidence in chief he had called defendant aspiis witness, and had him testify as to his tax deed for this lot. In his rebutting evidence, over the objeción and exception of defendant, evidence was offered as to this tax sale, with the view of showing that it was invalid. We think on the state of the pleadings, no issue having been raised as to this, this evidence was incompetent, and should not have been admitted. If the defendant ‘had opened the door by offering evidence on this point, this would have been a waiver, and the court might properly have heard evidence by the plaintiff on the same subject, but he did not do so.

J. D. Miller and J. A. Runyan, attorneys for plaintiff in, error.

Patrióle Qaynor, attorney for defendant in error.

There was a verdict for $16 in favor of plaintiff, for the mesne profits of the two tracts of land sued for; there was no division of this sum, so much for one and so much for the other. If there had been, we would have affirmed the judgment as to the basin lot, and will do so now, if plaintiff will remit this amount. As to the other lot, for the reason assigned, we feel constrained to reverse it, though we are of the opinion that if the evidence in the record as to the tax title were legally there, and was the only evidence on the subject, we would affirm the judgment of the common pleas as to this part of the property also, for the description of the land sold, on the duplicate, was not sufficient, and the evidence does not show such compliance with the provisions of the law, as would make the tax deed by the auditor a good one.

We submit these views for the consideration of counsel, and think it probable that they can agree as to what disposition should be made of the case. If they cannot, we will direct as to this. The judgment should reserve the right of Maxwell after the surrender of the possession of the basin property, to assert his title claimed under the state, and the right, (of the tax deed is held invalid), to assert his claim for . the amount paid for taxes, penalty, etc.


author: Marvin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    THE SLOSS MARBLEHEAD LIME CO. v. L. P. & J. A. SMITH.

      1. Right of action accrues when party to a contract repudiates it— A suit brought April 20, 1893, on a contract for delivery of stone during the year 1893 is not prematurely brought, where it is alleged that the defendant “disregarding its promise and agreement in that behalf * * * wholly refuses and declines to fulfill and perform its agreement. ”

      2. Power of an officer of a corporation to bind it by admissions.— Admissions made by an officer of a corporation, after a transaction, to one not connected with the transaction, when the corporation is not called upon to say something, will not bind the corporation.

      3. To recover special damages they must be plead.- — There was no allegation in the pleadings that the plaintiff in error knew that contract sued upon was made in reference to a contract which defendant in error had with the United States government, and the admission of evidence as to what his arrangements with the government were, was erroneous.
    Error to Court of Common Pleas of Cuyahoga County.
   Marvin, J.

This case comes here upon a petition in error filed by the The Sloss Marblehead Lime Co. Suit was brought in the court of common pleas by L. P. & J. A. Smith. The petition in substanee recites that the plaintiff complains of the defendant, The Sloss Marblehead Lime Co.,and says that it is a corporation, organized and existing under the laws of this state, and carrying on the quarrying business and the manufacturing and selling of stone; that on or about March 1, 1893, the defendant agreed with the plaintiffs to furnish and provide plaintiffs with 5,000 cords of pier stone — so-called — and did then and there sell to plaintiffs the said 5,-000 cords of stone, to be delivered during the year 1893 at defendant’s dock at Marblehead f. o. b. vessels, at the rate of $1.75 per cord. But disregarding its promise and agreement in that behalf, the defendant, although requested by the plaintiffs, wholly refuses and declines to fulfill and perform its agreement aforesaid.

That raises the first question in the case, viz., as to whether suit was prematurely brought, the allegations of the petition being as stated, and the petition having been filed on the 20th day of April, 1893. It is urged that the contract sued upon is for a delivery of stone during the year 1893; that a suit brought on the 20th day of April, 1893, is prematurely brought, because it is said that during all of the year 1893, or during all that part of the year when navigation would be open to take stone from Marblehead, the defendant below had, under its contract, the right to deliver stone.

The allegations of the petition, so far as the breach of the contract is concerned, are that the defendant, disregarding its promise and agreement in that behalf, although requested by the plaintiffs, wholly refuses and declines to fulfill and perform its agreement aforesaid. Now, it is urged on the part of the defendant in error that there is a sufficient allegation that the contract has been broken and repudiated by The Sloss Marblehead Lime Oo., and that therefore suit might be brought without waiting during all the summer of 1893 to ascertain whether the company would perform its part of the contract and deliver the stone.

It has been held by our Supreme Court in a number of cases, that a declaration or notice, on the part of one who has obligated himself to do a particular thing to the party to whom he has made the promise that he repudiates it and will not carry out the provisions and terms of that promise, is a breach of the contract for which suit may be brought at once. That has not only been decided in our own state, but numerous authorities outside of Ohio are to the same effect. A case in our own state, James v. Allen County, 44 Ohio St. 226, is a suit brought by one who had been émployed by another to work during a given time. The plaintiff was discharged from his employment before he had completed the work to be done under it — -that of superintending the erection of a court house at Lima — he having been employed by the month. At the end of two months he brought suit for two months’ pay, his contract being that he should be paid monthly. Later he brought another suit for breach of contract, and the court held that he should have brought his entire suit in the first instance, and brought suit for the breach of contract; that having been discharged from his employment, the contract was broken, and he need not wait until the expiration of the period of his employment.

The case of Stephenson v. Repp, 47 Ohio St. 551, is a suit where one sold a half interest in an engine for which he was to receive $800, and he was to have received in payment for it a note to be due in one year. The party who purchased refused to give the note, and he brought the suit for the value of that interest in the engine which he sold. The court held that suit was not prematurely brought; although if the contract had been carried out, the money would not have been due for a considerable time after the suit was brought, yet as the party had refused to carry out the contract, suit could be brought for the breach of that contract, and brought without waiting till the money would have been due upon the contract if it had been carried out.

So we think the allegations of the petition are such as to warrant the bringing of the suit ,at the time it was brought, and that there was no error in holding as against a demurrer that there was a sufficient allegation of the breach of the contract.

The next think to which I call attention which is complained of as error, is as to the admissions said to have been made by Sol Sloss to a man named Stein, as to whether the contract was ever made between The Sloss Marblehead Lime Co. and the Smiths in reference to the stone spoken of in the petition. There was a controversy in this case as to whether any contract had been entered into between The Sloss Marblehead Lime Co. and the Smiths for the sale of this stone.

It was admitted on te trial of this case that Sol Sloss was the general manager and secretary of this corporation, and it was with him, if with anybody, that the contrac]; was made for the stone. This man Stein was upon the witness stand, and was asked and permitted to answer questions as to what Sol Sloss had said to him as to whether he had contracted to furnish stone to the Smiths. Stein was in no way interested in this controversy. He was talking of buying stone from The Marblehead Lime Co., and whatever was said to him was not in connection with the contract with the Smiths, but said to one wholly outside, who had nothing whatever to do with the Smith contract. He testified that Sloss said to him that he was to furnish stone for the Smiths for the pier to be built at the lake front here. The answering of questions on that subject by Stein was objected to, and the objections overruled and exceptions taken. It is urged that the same rule should be applied to a corporation that should be applied to a natural person, that admissions made by a corporation can be made only by is officers and agents; and that since admissions made by a natural person might be used in evidence against him, admissions made by the officer of a corporation, especially by the general manager of the corporation, may be used in evidence against such corporation. We are cited to Thompson’s Commentaries on the Law of Corporations, section 4915, as sustaining that proposition. That section reads as follows: “As stated by a learned writer upon agency, ‘the rule of responsibility, upon the part of the principal for declarations and representations by an agent in matters pertaining to his agency, ’ applies with peculiar force to corporations, for the reason that such principals can speak only through the medium of agents. Obviously then, the corporation, as principal, can be approached only through its agents after a transaction is past. For this reason, the rule that declarations of an agent are admissible only when made contemporaneously with the transactions; or ‘in regard to a transaction then depending, is not strictly applied in the case of corporations’ What follows is a quotation from a decision of the Supreme Court of Massachusetts, and is, as we think, not an authority which sustains the proposition by any means that admissions made by the officer of a corporation, whatever may be his authority to make contracts — and made after the transaction, to one not connected in any way with the transaction, are admissible; and the authorities cited in support of the section which I have read, none of them go so far as to make those declarations admissible. The subject is fully discussed in section 726 of Cook on Stocks and Stockholders and Corporation Laws. There the proposition is laid down that admissions made by the officers of corporations who are authorized to act for the corporation, will bind the corporations themselves, though made after the transaction.

A large number of authorities are cited under the section which I have mentioned, and these authorities, most of them, I have examined. In 4 Wis. 20, is cited the case of an insurance company against Carpenter, who brought suit for loss by fire, on a policy. The company setup that proofs of loss, such as were required by the terms of the policy, had not been made. Carpenter offered to show that the secretary of thve company had admitted to him in a letter that he had received part of the proofs; and the court held-that was competent, and for the very good reason that it was in connection with the very matter under consideration, and .a part of that matter, and that there would be no other way; the secretary was the person to whom the proofs of loss were to be addressed, and that his admission that he received them would, of course, bind the corporation. The case in 116 Mass., McGinnis v. The Adriatic Mills, is a case where a superintendent of mills had admitted to McGinnis, who brought suit because the mills kept up and maintained a nuisance, that it was a nuisance which they were maintaining. He admitted it when McGinnis was conversing with him on this subject, and they were discussing the matter as to what should be done. That was held to be admissible. But in every one of the cases that I have been able to find, admissions of the officers have been allowed to be given in evidence only when given in connection with the subject-matter upon which the admissions were being made, and in connection with somebody and at a time when the (corporation was called upon to say something.

In this case the corporation was not called upon to say anything as to the arrangement which it had with the Smiths, and it seems clear to us that the corporation could not be bound by something Sloss said to Stein about what kind of a contract they had with the Smiths. We think this was error to the prejudice of the defendant below, and the plaintiff in error.

We have found no authorities in our own state, which show that admissions made by any of 'the officers of a corporation to one not connected with the transaction can bind the corporation.

The petition goes on to state after that part which I have recited, that plaintiffs are under a contract and agreement with the government of the United States to build and construct for it a pier in the city of Cleveland, 0,,„ and were compelled under the provisions of said contract to use stone in the amount of 5,000 cords; and that by reason of the failure and refusal of the defendant to perform the contract and agreement as aforesaid made with it, plaintiffs have been compelled to contract for and to purchase stone elsewhere; that they have been unable to purchase stone of the kind and character purchased of the defendant, at a price less than $2,75 per cord,and that by reason of the breach on the part of the defendant of the contract so made and entered into with the plaintiffs, plaintiffs have been compelled to expend the sum of $5,000 over and above the price agreed upon between the parties thereto, to the damage of the plaintiffs in the sum of $5,000. There was a supplemental petition, but neither in the petition, nor in the supplemental petition is there any allegation that a contract was made between The Sloss Marblehead Lime Co. and the Smiths with reference to the contract that Smith had with the government of the United States. There is no allegation that The Sloss Marblehead Lime Co. had any notice that Smith had any contract with the government of the United States to make this pier. The claim made on the trial of the case was that there was a contract made between Smith and The Sloss Marblehead Lime Co. to furnish stone that was to be used at that pier, but there is no such allegation in the petition. I do not need to cite authorities to the effect that you must plead special damages in order to recover special damages. That matter is settled in Ohio and elsewhere. The only claim that can be made in this case is that they did allege that the Smiths suffered or would suffer special damages because of the fact that they had this contract. Certainly the allegations of the petition should show, in order to recover for these special damages that were suffered because of the fact that they were unable to complete their contract with the government of the United States except at a loss of $1 per cord for the stone, that they paid $1 per cord above what they would have been compelled to pay if they had obtained the stone under their contract with the defendant. That the Marblehead Co. had some notice of that fact, and violated it with knowledge of the fact that the Smiths had this contract with the government.

We think there was error in admitting any evidence as to what arrangements the Smiths had with the government of the United States, although that is alleged in the petition, since it is not alleged that the Smiths knew anything about it. Whatever evidence was admitted on that subject we think was improper. It was objected to,and went in over the objection of The Marblehead C., and ought not to have been admitted. And so much of the charge of the court as is based upon the theory that special damages could be recovered here because of the fact that the Smiths had failed to make the money that they would have made in the contract with the government; or had lost money because of their being unable to get the stone for less than $2.75, whereas they had contracted with Marblehead Co. for $1.75, is error. The rest of the charge we find no fault with.

Ingersoll & Tolies, for plaintiff in error.

Goulder, Wing & Holding, for defendants in error.

Included in what we do find to have been given that ought not to have been given, is where the court say to the jury that they may take into account what the Smiths did pay for stone. But that is really covered by what I have already said.

The case is reversed because of error in permitting evidence as to the contract that the Smiths had with the government of the United States about the building of a pier; and admitting the testimony of Stein as to what was said to him by Sloss about the contract that hjs company had with the Smiths.


author: King, J,

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    THE CITY OF TOLEDO v. MICHAEL JACOBSON.

      Proceeding to award damages for re-grading street — Failure of city to pay or proceed with improvement for six months — Bight of property owners to allowance for attorneys’ fees and expenses.

    When a city after having passed an ordinance to re-grade a street goes into court to have awarded the damages to abutting property owners who have filed claims under Sec. 2317, Rev. Stats., and after such proceeding the city fails to pay the damages awarded and to enter into the improvement for six months, the city shall be held to have abandoned such improvemnet, and the property owners, who were defendants under the proceeding in court, may, under sec. 2260, Rev. Stat., make a motion in the court to retax the costs in the case, together with their reasonable-attorney fees and their other reasonable and proper expenses incurred in such proceeding, to be collected by execution or otherwise from the city.
    Error to the Court of Common Pleas of Lucas county.
   King, J,

This is a proceeding in error in which the judgment of the court of common pleas is sought to be reversed. As is shown by the statement of facts in this record, about the 20th of Februrary, 1893, the common council of the city of Toledo passed an ordinance for the re-grading of State street between certain points. Soon thereafter an application was made to the probate court, by the city solicitor, for the impaneling of a jury to assess damages claimed by the property owners abutting upon that portion of the said street the grade of which it was proposed to change, and a jury was called and the cases were tried, and a verdict was rendered in which damages were assessed to be paid to certain of the property owners. More than six months after that time elapsed, and the city had no further action ■ — had not undertaken to change the grade as proposed in its ordinance, nor do anything further in the case. Thereupon the property owners filed, in the probate court, a motion to re-tax the costs, claiming that right under Section 2260 as amended April 20th, 1893, and asked the court, in such re-taxation, to include therein the expenses of the property owners expended in trying the cases, including reasonable attorneys’ fees to the attorneys for the property owners. That motion was heard in the probate court, and overruled. A petition in error to that judgment was filed in the court of common pleas, and-there heard, and the action of the probate court was reversed, and the court of common pleas, proceeding to render such judgment as the probate court should have rendered, found against the city judgment for the amount of those costs and attorney’s fees. The city claims that there is no authority under the statutes, in a proceeding of this kind, to assess these costs against the city. As I have said, the motion to re-tax was based upon Section 2260 as amended in 1893, and which amendment added to the original section, which had been in force in this state for many years', substantially this: That, upon the motion of any defendant, the costs in the case should be re-taxed— that is, after the expiration of six months, “and a reasonable attorney’s fee, to be paid to the attorney of such defendant, together with any other reasonable and proper expense incurred by defendant in an amount to be then fixed by the court, shall be added to and included in such costs as part thereof, to be collected by execution or otherwise, in the same manner as though originally so taxed.’’

It is claimed that this section does not apply in this proceeding. That section is found in chapter III of the revision of the statutes of Ohio, which relates to the appropriation of property by a municipal corporation. The proceeding instituted in the probate court in this case to assess damages, was brought under section 2317 of the Revised Statutes, chapter 4 of the same division of the statutes, and relates to assessments to ' be made upon private property for public improvements, and it is claimed by the city that the previous section has no application here. In the chapter relating to assessments, is a subdivision relating to the assessment of damages; and Section"; 2315 provides that “An owner of a lot, or of land bounding or abutting upon a proposed improvement, claiming that he will sustain damages by reason of the improvement, shall within two weeks after the service or the completion of the publication of the notice mentioned in section 2304, file a claim; in writing, with the clerk of the corporation,setting for the amount of the ages claimed, together with a general description of the property with respect to which it is' claimed the injury will accrue, &c. ’ ’

Section 2316 provides that “At the expiration of the time limited for filing claims for damages, as provided in the last section, the council shall determine whether it will proceed with the proposed improvement, or not; also whether the claims for damages filed as aforesaid shall be judicially inquired into, as hereinafter provided, before commencing, or after the completion of the proposed improvement; and if it decides to proceed therewith, an ordinance for the purpose shall be passed; and where provision as to damages is not made in this chapter, the provisions in chapter three of this division shall apply to the proceeding so far as they are applicable.

Section 2317 then provides that if they conclude to assess the damages before the improvement is made, that either the mayor or the city solicitor shall make application to the court of common pleas or to a judge thereof in vacation, to. impannel a jury to assess these damages.

Section 2318 provides that the jury shall be sworn, and shall receive such instructions as are necessary for the court. If they cannot agree, they shall be discharged; but if they can agree as to a part, a judgment shall be had as to the part, and they shall be discharged as to the rest.

Section 2319 provides that the finding of the jury shall be final, and there shall be no appeal.

Section 2320 provides: “In cases in which the jury finds no damages, the costs of the inquiry shall be taxed against the claimant, and be collected on execution; and in other cases, the court shall render judgment on the verdict, and furnish the clerk of the corporation, on application, a statement of the amount of damages and costs in each case.”

This is enough of the statutes to be referred to for the purposes of this question. It will be observed that it describes how the damages are to be assessed; that a jury be called by the tribunal or court in which the proceeding is pending; that it shall be instructed according to the rules of law and the rules of damage, and they shall return a verdict, and upon that verdict, if they find against the claimant, the court shall render a judgment against him for th.e costs, to be collected on execution; and if they find damages in any other cases, the court shall render a judgment upon the verdict, and then the court will furnish the clerk of the corporation, on his application, a statement of the damages and the cost of the proceedings; and nothing further is said in relation to the subject.

There is no provision in this chapter stating whatshall.be done in case the city concludes that it would not be advisable to proceed with the improvement, after the damages have been assessed. Nor is there any provision expressly made allowing the city to abandon the improvement after it has once passed an ordinance providing for it. But it occurs to me that it was the purpose of the Legislature in passing this statute authorizing the council to proceed either before the improvement was made or afterwards, at their option, to have these damages assessed, that the city might still have the option remaining to abandon the improvement if after the damages had been assessed, the authorities had come to the conclusion that it would be inadvisable to go on with it. Various circumstances could occur, which will suggest themselves to every one, that might cause the city to take that course after it had instituted a proceeding of this character and the damages had been assessed; and it might appear clear they had been rendered under such circumstances as made them exorbitant, and that it would be inadvisable for the city to proceed; for, it must be observed, that these damages, when assessed upon a part of the improvement, must be assessed back upon the owners of the property, who are supposed to be benefited by this improvement, and therefore it would be due to those property owners who are to pay these special assessments, that an exorbitant amount of damages should not be assessed against them, and that the city should have an opportunity, after it had ascertained somewhere near what it would have to pay for the making of this improvement in the way of damages, that it might abandon its proposed improvement; but there is nothing in the statute to say when they may abandon it, or what length of time shall elapse before it shall be considered that they have abandoned it. Now, under these circumstances, it appears clear that with the provision of said section 2316, which says that where provisions for damages are not made in this chapter the provisions of chapter three shall apply so far as they are applicable, we are expected to go back and apply the provisions of chapter three to chapter four. If section 2260 were incorporated in chapter four, it would be an entirely proper provision; to-wit, that after six months have elapsed without the city having proceeded with the proposed improvement, that it shall be held to have abandoned it, and it shall be considered that they cannot further go on without the passage of a new ordinance and the institution of new proceedings; and I am satisfied that that part of the section is applicable to chapter four — that after six months they shall be held to have abandoned their idea of making an improvement. And, if one part is applicable, why not then the other ? The provision of chapter three says: “When a municipal corporation makes an appropriation of lands” — but the use of the word “land” does not change the right to have interpolated into chapter four that provision, because the subject matter of the third division was the appropriation of lands, and therefore the Legislature, in passing section 2260, would only speak of lands. But here is an appropriation of private property; not lands, but rights, of value to the property owner, and if any part of this section can be said to be applicable in proceedings for the assessment of damages, we do not see why all parts of the section should not be applicable. It would have been reasonable and entirely proper, if the Legislature had seen fit, for it to say that if the city abandoned its improvement and did not go on with it after it had entailed these costs and expenses upon the property owners in the assessment of damages, that it should then pay those costs and expenses; not only the ordinary taxable costs, but that to them should be added the personal expenses of the property owners in pressing their cases in the probate court, or whatever court the proceedings were pending in.

Chas. F. Watts, Esq., for plaintiff in error.

J. W. Cummings, for defendant in error.

The Legislature having declared that any provision of chapter three, relating to damages, is applicable in a proceeding to assess damages under this chapter, it seems to us that the provision relating to the re-taxation of costs is just as pertinent and just as applicable as any other part of that section, or any other part of chapter three, and the city having concluded not to proceed with that improvement, and six months having elapsed and they having done nothing, then it should be held that the parties who have paid attorney’s fees and costs, should have a right to come into court and have these expenses included in the bill.

We are'of the opinion that the judgment of the court of common pleas was right upon that question,-and therefore it will be affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Swing and Cox, JJ.
    THE STATE OF OHIO ex rel. FRED DREIHS v. JOHN HAGERTY, Auditor Hamilton Co., O.

      1. Fees of special constable of coroner to serve at inquest — Gertift- ■ cate of coroner subject first to allowance by county commissioners—
    The auditor of Hamilton county is not authorized by the statutes of the state, on receiving from the coroner of said county a certificate, that certain services were rendered by a special constable in serving subpoenas on witnesses to appear and testify at an inquest to be held by him, to issue a warrant upon the county treasury for the payment of the fees so certified. All such and like bills must be presented to the county commissioners for examination and allowance, and if not allowed by them, or by some other tribunal on appeal from such decision, can not be paid by the auditor.
   Smith, J.

The relator in substance avers in his petition, that on the 7th of January, 1895, he was the duly appointed and qualified clerk of the coroner of Hamilton county, Ohio, and that it was his duty to attend the said coroner at inquests held by him and to reduce to writing the testimony of witnesses, and perform such other clerical work as might be necessary for the discharge of the duties of his office. (It may also be said here that under Section 1209a, of the Rev. Stats., in this county, the coroner may appoint a clerk at a salary not to exceed $1200 per annum, whose salary is to be paid from the county treasury.) The petition further avers that aUa certain inquest held by the coroner at Lockland, in this county, on the body of a person there found dead, he being of the opinion that the emergency required it, did on August 6th, 1895, issue his certain writ of subpoena to the relator as a discreet person of said county, (a copy of which with all the indorsements and return thereon is filed with the petition), directing the relator to serve the same on the eleven •persons therein named, requiring them to appear before said coroner at Lockland on said day, to testify at said inquest, and to make due returns thereof, which he did on said August 6th. That on August 24, 1895, he received from said coroner a certificate, (a copy of which is also set out), certifying to the auditor of said'county, that the said relator was entitled to receive the sum of $18.85 for services as special constable at said'inquest held August 6th, payable out of the county treasury, on the order of the county auditor, and to said certificate was attached said original writ of subpoena, with all of the indorsements thereon. That the relator presented this certificate to the auditor, and demanded that he draw a warrant in his favor for the amount named, on the county treasury, but that he refused to do so, though required by law to do it. That the items constituting the claim of the relator are fixed by law, and that there is money in the hands of the county treasurer to the credit of the judiciary fund; not otherwise appropriated, sufficient to pay the relator’s claim. Wherefore he prays that a writ of mandamus may issue commanding him to do so.

The copy of the subpoena attached to the petition, shows in the body thereof that it was directed to any constable. But on the back of it is a statement signed by the coroner, that he, being of the opinion that the emergency requires it does hereby issue this writ to Fred Dreihs, a discreet person of this county, who is hereby authorized and directed to serve and return the same. The return, is quite defective in this, that it simply says he received the writ at 2 p. m., August 6, served the same upon within, by delivering a true copy thereof personally — it not being stated that he served each with a copy, one copy being charged for at $2.75.

The fees charged by the relator and certified by the coroner to the auditor for payment are as follows:

Service and return....................$ 1.25.
Copy. .............................. 2.75.
Mileage.............................. 14.85
$18.85.

Without discussing the question whether it was proper to issue such writ to the clerk of the coroner, a salaried officer, (for the majority of the court is of the opinion that, in a case of real emergency, this may be done), and whether, if done, he is entitled to the same fees as a constable for serving it, (for no point is made by the county solicitor as to these matters), we consider two questions raised by the demurrer filed to the petition which were argued to us, and on which the judgment of the court is asked viz.: First, Whether on the presentation of this certificate of the coroner to the county auditor the latter was bound to issue his warrant therefor, and if so, whether it should be drawn upon the county, or the judiciary fund.

Section 1024Rev. Stats, provides as follows: “The auditor shall issue warrants on the county treasury for all moneys payable out of the treasury”. * * * “when the proper order or voucher is presented therefor, * * * “ but he shall not issue a warrant for the payment of any claim against the county unless the same is allowed by the county commissioners, except in cases where the amount due is fixed by law, or is allowed by some other officer or tribunal authorized by law to allow the same.”

There is no allegation in this petition, that this claim against the county has ever been allowed by the county commissioners, and it is conceded by counsel, that it has never even been presented to them. It is entirely clear, we think, that the amount due the relator is not ! ‘ fixed by law. ” It is true that the statute attaches certain fees to the performance of certain duties by a constable; as so much for the service and return of a writ of subpoena, viz., twenty-five cents for one person named thereon, and for service on each additional person named therein, ten cents, and for copies of all writs, twenty-five cents each, and for mileage in serving the same, twenty-five cents for the first mile, and five cents per mile for each additional mile properly traveled by the officer in serving the same; but the amount of the bill depends in any particular case, on the mode of service, whether by copy or reading, the number of persons named in the subpoena, and' the distance properly traveled in serving the same. No one of these matters is fixed by law, and unless a bill of this kind is allowed by some other officer or tribunal authorized by law to allow the same, it is eminently proper that before the issue of the warrant by the auditor,for its payment, it should, as is expressly required by the statute, be scrutinized, and if correct be allowed by the county commissioners upon whom the law imposes the duty, in cases of this kind, of guarding and protecting the interests of the county. And although no question has been raised as to the amount of the bill of the relator, it would seem, probable that such scrutiny would require it to be very considerably reduced. For if the witnesses were served at the places designated by the directions given to the relator as their places of residence, viz., nine of them at Lockland, where the inquest was held, and two of them at Wyoming, a mile or so distant, it is difficult to see how the mileage could amount to any thing like |18.85 at the rate fixed by the law, viz., 25 cents for the first mile, and five cents for each additional one.

Nor has this claim been allowed by any other officer or tribunal authorized by law to allow the same.” There is no claim that any statute authorizes the coroner to make such a certificate to the auditor and that on receipt of the same he is to issue his warrant. But it is likened by counsel for the relator, to the certificate given by the clerk to the auditor, for the fees of jurors, grand and petit, and witnesses instate cases, on which the auditor issues his warrant. But an examination of the statutes shows that in all of these cases, this is expressly provided for. See Secs. 1302 and 5182, Rev. Stats.

When such claims as this are allowed by the county commissioners, on what fund should the order be drawn in Hamilton county? The county, or the judiciary fund? We think it should be on the former. The statute which provides for the judiciary fund, and the purposes to which, when raised, it is to be applied, (Yol. 90, Local Laws, 266) says that it is to be “ applied to the payment of the salary of the judges and other court expenses, and all other expenses incidental to the administration of justice.” * * * “including the salaries and expenses of the county solicitor and county prosecuting attorney, and county coroner and their assistants,'as provided by law.”

Miller Outccilt, attorney for relator.

Mr. Rendigs, Assistant County Solicitor, for defendant.

We think the constable who serves subpoenaes on witnesses to attend an inquest held by the coroner, is not his assistant in the light of this statute, nor is the compensation for his services a court expense or one incidental to the administration of justice; nor does the fact that the coroner authorizes his clerk to perform such duties, make him his assistant within the meaning of the statute. The writ will be refused and the petition dismissed with costs.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1893.)
    Before Scribner, Haynes and Bentley, J J.
    OLIVER P. BOWMAN et al. v. JOHN FUHER et al.
    1. In an action to recover damages for different breaches of a contract, the court should not require the plaintiff to separately state and number different causes of action based upon each separate breach.
    2. Where the common pleas court in its charge to the jury only gave separate and disconnected propositions requested by counsel for both plaintiff and defendant, with no general charge in the court’s own language so as to place the case before the jury fully and completeley, and thus enable the jury to make an intelligent application of the principles of law to the facts; held, error.
    Error to the Court of Common Pleas of Lucas County.
    This action was brought in the common pleas court by plaintiffs in error to recover $13,000 as commissions for the. sale of real estate, based upon a written contract made between the parties, wherein the defendants in error gave the plaintiffs in error (real estate dealers in Toledo, Ohio), the right to sell for them 86á acres of oil land in Wood county, the plaintiffs to have all realized thereon over and above the sum of $39,000. By the terms of the contract the right to sell was conferred upon plaintiffs for the period of ninety days, and thereafter until defendants should serve written notice of cancellation of the contract upon plaintiffs — the defendants to have the right to sell themselves, but not to place the property for sale in the hands of any other person than the plaintiffs.
    No sale was consummated within the ninety days, and immediately upon the expiration thereof written notice was served by the defendants upon the plaintiffs cancelling the contract; two days later the defendants executed a deed transferring the land to The Standard Oil Company for the sum of $52,000. Defendants claimed to have accomplished the sale themselves, independently of the plaintiffs. The claims of the plaintiffs are sufficiently set forth in the court’s opinion.
    The defendants filed a motion to require plaintiffs to separately state and number causes of action contained in the petition, claiming that the petition stated a cause of action for commission upon the contract, and two separate causes of action based upon the alleged fraud of the defendants. The motion was granted by the court below, and the plaintiffs filed an amended petition making three different causes of action, to which defendants answered, admitting the execution of the contract, but denied any liability. A judgment being rendered for the defendants upon a verdict of the jury in their favor, plaintiffs prosecuted error.
   Haynes, J.

This is a petition in error to reverse the action of the court below, wherein Oliver P. Bowman and others were plaintiffs and John Fuher et al. were defendants.

Four errors are alleged: First, that the court erred in requiring the plaintiffs to separately state and number the causes of action in the amended petition.

In the making of that order we think the court did err. Under the rules of law, there was but one contract and one agreement, and the method of setting forth the contract and the breaches thereof as adopted in the original petition, was the correct form of pleading. It belongs to that class of cases in which there is one contract,and upon which there may be assigned several breaches — in fact there are several breaches in the contract. A very instructive case in regard to pleading in that class of cases may be found in 12 Wisconsin Reports, at page 276, Fisk v. Tank and others. In that case the defendants had contracted to build a steamboat and have it completed at a certain time and in a certain manner and form. Suit was brought by the owner of the boat averring that the defendants had failed to perform their contract, setting out several particulars, and thereupon the defendants had taken exceptions to that being a proper form of pleading. Chief Justice Dixon, speaking for the court, says;

“The appellant’s application to compel the respondent to elect upon which of the claims stated in his complaint he would proceed, and to abandon the residue, was properly denied by the court. The complaint is not, as seems to have been supposed by the appellant’s counsel, either double or multifarious. It does not contain a statement of several distinct causes of action improperly blended together, or of separate injuries to different chattels, or separate demands upon different contracts, as upon two or more promissory notes,or a note and book account, or the like, but it proceeds for damages for several breaches of one contract. It is obvious that in such a case the plaintiff may, either at common law or under the code, in a single statement or count, allege as many breaches as he chooses, and when he comes to the trial, be permitted to give evidence concerning any or all of them.’’

And bearing upon the same question- — -although not so directly — is the case of Stein v. Steamboat, etc., 17 Ohio St. 472, and James v. Allen County, 44 Ohio St. 226. In obedience to the order of court, plaintiffs filed an amended petition setting forth three causes of action, and thereupon the defendants filed a motion to compel the party to elect, which one he would proceed upon. That motion was overruled by the court, and the trial was had upon the whole of the three causes of action.

We might not be willing, for the reason that the court required the filing of this amended petition alone — to reverse-the judgment of the court after the trial was had upon the three causes of action; nevertheless we think that in the action of the court there was manifest error, and that it tended to the prejudice of the defendant.

Second — Having found this, the second error stated becomes a matter of no importance.

Third- — The third assignment of error is: That the court erred in its charge to the jury.

We are of the opinion that there is error ■ in the charge ..of the court; and without going over the various matters that are stated in that charge, we will simply state the reasons for our opinion briefly.

The court in the first place, in charging the jury, simply gave certain propositions that were requested by the defendants, to the jury, with very slight modification; and, secondly, gave certain propositions requested by the plaintiffs.

There was no general charge by the court — scarcely a word in it of his own statement- — and this form of charge has been the subject of discussion in the Supreme Court, and the Supreme Court have, upon more than one occasion, declared their objections to that form of charge, and held it to be faulty.

We think further that the charges, as given by the court at the request of the plaintiffs and defendants, had a tendency to state the points at issue incorrectly before the jury, and insufficiently. The object of the attorney for the defendants was, to get the court to charge as strongly as possible that there must be a sale of the property in question by tbe plaintiffs within the time stated in the contract, very largely ignoring the peculiar circumstances that are set up in the petition, upon which the plaintiffs claim the right to recover. It is true that, as a general proposition, the expectation and understanding was that a sale was to be made within the ninety days, or within the further time within which the defendants did not give notice to terminate the contract; but he gravamen of the plaintiff’s action is this: that while the defendants had entered into a contract giving plaintiffs the exclusive right to sell the land in question within a certain time, or within a certain further time — that immediately upon the execution of the contract defendants commenced to take steps to defeat the plaintiffs in making a sale and to make the sale themselves. And it is further claimed by plaintiffs that the defendants executed a power of attorney to a third party who claimed that he sold the property, and thereupon the defendants made a statement of that claim, or alleged fact, to the plaintiffs, and requested them to desist from any further attempts to sell until the question was disposed of whether those parties bought it. It seems that in that the plaintiffs acquiesced. It is further claimed that rumors were circulated through the country that they had offered the land for $40 an acre (being less than the amount for which they were authorized to sell it), and this plaintiffs deny. It is claimed further, that the defendants refused to allow a party who was produced by the plaintiffs (on the 10th day of April- — -which was about the expiration of the ninety days specified in the contract) time to examine the abstracts and papers; that this party was ready and willing to purchase the property, at and for the price of $41,000, being in excess of the price for which they were authorized to sell, and that this party requested to see the abstracts and to have time to examine them, but that the defendants refused to give a moment of time and took up the abstracts and left the room, thereby prevented the making of a sale. It is claimed further by the plaintiffs that during this period of ninety days the defendants corresponded with persons to whom the plaintiffs had offered to sell the property and to whom plaintiffs had given information that the property was for sale, and to whom they had furnished a description of the property and maps; and that the defendants arranged with these parties to sell the property to them, but that the sale should not be consummated within the period limited by the contract. That thus the sale was not consummated until the time expired and the defendants had served notice upon the plaintiffs that they terminated the contract; and that thereupon defendants proceeded to close up the contract with the parties (customers of plaintiff) at and for the sum of $50,000.

Now, the gravamen of the pleading was, not that they had sold the land within the ninety days, themselves — that is not the question; but that during all the time that the contract was running the defendants had prevented them from making the sale, and had sold the property themselves to plaintiffs’ customers, and consummated it after the time limited in the contract had expired.

Now, in the charge of the court, undue prominence was given to the period of time to which the contract was limited, as we think; and, further, we think undue prominence was given to the question of fraud upon the part of defendants — the real question being, not one of fraud especially, but whether in fact they had prevented the plaintiffs from making t.he sale, or hindered or delayed them, and whether or not defendants had in fact during that time made a sale to plaintiffs’ customers to be consummated after the termination of the period of ninety days. We think the court should have taken these requests to charge, and examined them, and then, so far as the views of the court conformed to those propositions, he should have made the charge in his own language, giving a full and complete charge to the jury so as to put the jury in possession of all the propositions of law and their application to the facts, as would enable them to have made an intelligent application of the principles of the law to the facts. And that might have led them to a different conclusion.

Edward H. Rhodes and Clayton W. Everett, for plaintiffs. Orville 8. Brumbaclc, for defendants.

So far as the claim that the verdict was against the evidence is concerned, we do not pass.

It is said, however, by the defendant’s attorney, that the errors, if there were any in the charge of the court, or in the amendment to the pleadings, were all cured because on the facts of the case any verdict for the plaintiffs would not have been sustained — that there was no cause of action. We have only this to say with reference to that: in our judgment, in view of the testimony, under a proper charge of the court, there would have been sufficient evidence to have authorized the jury to have given a verdict for the plaintiffs for some sum, but what sum we do not state.

The judgment of the court below will be reversed, and the verdict will be set aside, and an order entered directing the court of common pleas to strike the second amended petition from the files of the court, and to proceed to a new trial of the case, or take such further proceedings therein as may be required by law.

The plaintiffs in error will recover their costs, and a special mandate will be issued to the court of common pleas to carry the execution as to costs into effect.

Note. — The defendants filed their petition in error in the Supreme Court to reverse the judgment of reversal of the circuit court, but while the case was there pending awaiting a hearing, plaintiffs had the case set down for re-trial in the common pleas court; the latter court holding that the proceedings being prosecuted in the Supreme Court did not prevent an immediate re-trial of the case in the common pleas.

Upon a re-trial in the common pleas the jury again, awarded a verdict in favor of the defendants, and the case terminated, the proceedings in the Supreme Court being dismissed without any action by that court upon the questions involved.