text:
    NOTICE TO CORPORATION OF CONTRACT OF EMPLOYMENT.
    [Circuit Court of Lucas County.]
    James Paul v. Caldwell Furnace Foundry Co.
    Decided, March 11, 1905.

      Corporation — Re-organisation of, under Laws of Different State — Notice to President of Contract of Employment — Ratification of Contract.

    1. Notice to the president of a corporation concerning a matter within the scope of his authority is notice to the corporation.
    2. Where a corporation enters into a contract of employment, and shortly thereafter a new corporation is organized under the laws of a different state, and this new company takes over the business and property of the old company, and retains the same officers, and permits the party with whom the contract of employment was made to proceed with his work for several months, the knowledge of the president as to the term of the contract becomes the knowledge of the new company, and its action in continuing the other party to the contract in its employment is a ratification of the contract.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought by Paul against the furnace company to recover nearly $1,000 damages which he claims he has sustained on account of a breach of contract for Paul’s services. At the conclusion of the plaintiff’s evidence the court below directed a verdict in favor of defendant. Judgment was entered in due course and reversal is sought here.

There were various grounds upon which the court of common pleas sustained the motion to direct a verdict; but upon the motion for a new trial the action of the court in overruling the motion was based upon one ground' — that no contract had been entered into between plaintiff and defendant — and-that is the ground relied upon in this court by defendant in error to sustain this judgment and none, other need be mentioned in this opinion. The claim is made that the company with which Paul contracted went out of existence before he entered upon his duties, and that the company for which he performed the duties and from which he is claiming this money, never made a contract with him, had no privity with him, and are not liable to him. The contract was in writing, was executed on March 14, 1902, and is signed, “The Caldwell Furnace Foundry Company, by James W. Caldwell, President.”

The testimony shows that two days before this contract was made, a corporation of this same name organized under the laws of West Virginia and elected directors. They were incorporated on March 12, but did not organize until about two weeks later, March 29, when they elected a board of directors and officers. The original company, the one in existence when this contract was made, was organized under the laws of West Virginia. The other company seems to have been incorporated originally under the laws of West Virginia, but on March 29 this West Virginia corporation became a New Jersey corporation and these officers and directors were elected for that corporation, retaining the old name of the West Virginia corporation, the same officers and the same president.

All of the property of the West Virginia corporation was taken over by the New Jersey corporation; they went through the form, as one of the officers testifies, of a sale of the property of the West Virginia corporation to the New Jersey corporation. The West Virginia corporation went out of existence, at least so far as owning any property was concerned or having any visible existence, and the New Jersey corporation took its place. The reason for this change, apparently, was, that they preferred to do business under the laws of the state of New Jersey instead of those of West Virginia. As I have said Caldwell still remained president; the same name was retained and the same business carried on at the same place — the only change made was, that they were organized under the laws of New Jersey instead of AVest Virginia. '

Paul had made this contract on March 14, fifteen days before this reorganization occurred. The contract was, that he was to have $1,700 a year as managing salesman of this concern, which was engaged in the manufacture’ and sale of heating and ventilating apparatus, but besides this $1,700 per year, to be paid monthly, he was to have certain commissions based upon the amount of sales of the company, and a certain amount of the stock of the company. He went to work under the contract April 1, the day after the reorganization of the company. He had no knowledge nor notice of this reorganization during all the time that he remained in the employ of this company. He was hired for one year.

On November 12, 1902, about six months after his contract commenced, he was discharged, without any ground except that they did not need him any more. He had been paid his salary monthly, $141.66, by this reorganized company. The commissions were not due and payable until at the end of the year. His duties were the same as specified in this contract. He went about the country here and there. A lot of correspondence is put in evidence to show what communications were made and as to the new company. Caldwell had full knowledge of this contract and signed it, and he remained president of the company" until July, 1902, when he was succeeded by a man named Sutton, who called Paul into the office and told him that he desired him to remain with the company and perform the same services/ except that he wanted him to go out on the road more than had been his habit previously; his pay continued, and he was paid under Sutton’s directions up until November, when he was discharged.

Caldwell testifies that he employed this man. He says there was no resolution of the board of directors to this effect but that he had full authority in the matter — he was in fact general manager as well as president of the company and appears to have had full authority to manage the company.

The claim is, that the New Jersey corporation never employed Mr. Paul; that the notice and knowledge of Mr. Caldwell of the making of this contract having accrued or been given before he became president of the new corporation, that that would not be notice to the new corporation — that they would not be bound by this contract.

We think this claim is untenable; that there was evidence here strongly tending to show that the new corporation had notice and knowledge of this contract. It is claimed by the plaintiff in error that they adopted it and ratified it and are bound by it the same as though they had signed it; and under the evidence as it is now in the record it seems to us that this is correct. The only way in which knowledge can come to a corporation, ordinarily, is through its agents and officers. In order to give notice to such a corporation it is not necessary to have a meeting of its board- of directors in regular session and notify them by writing or parol; but'notice to a president of a corporation, acting within the scope of his authority and in accordance with his duties, is notice to the corporation. As is said in Cook on Corporations:

“ It is well settled- that a corporation is not chargeable with knowledge of facts merely because those facts were known to its incorporators, or stockholders, or clerk. But the corporation has notice of facts which come to the knowledge of its officers or agents while engaged in the business of the corporation, provided those facts pertain to that branch of the corporate business over which the particular officer or agent has some control. ’ ’

And Thompson on Corporations:

“The most comprehensive rule with reference to this subject which can be stated is, that notice communicated to, or knowledge acquired by, the officers or agents of corporations, when acting in their official capacity or within the scope of their agency, becomes notice to, or knowledge of, the corporation, for all judicial purposes.”

Now that Mr. Caldwell had notice of this contract when he was acting as president of the West Virginia corporation — of a contract that he made and signed — is clear. That he had notice of it after he became president of his New Jersey corporation— actual notice — is clear; and according to the testimony, it was within his power to employ men or discharge them under the new corporation. He was the manager of the company, and wo think notice to him of the contract after he became president of the new corporation would be notice to the company. The change in the corporation was only a change in the state undej; which it was incorporated; there was no other reason given for it than as Mr. Caldwell says: “Why we changed our company from West Virginia laws to New Jersey laws — a New Jersey corporation — and transferred all tbe property and the business and everything we had over from the one corporation to the other; quit doing business under West Virginia laws and commenced under New Jersey laws that day.” In speaking of his successor, Mr. Sutton, as to what Paul did, he is asked: “Did he act for the corporation after the change was made?” And he answers: “I think he commenced his employment after the change was made; my recollection is he commenced April 1, but I am not sure about it. If he went to work before, he continued right along, but I think his actual work commenced April 1, or about that time.” The new company was incorporated on March 29. And he is asked: “You knew of his being paid, did you?” And he answered: “All of our help was paid.” “Who had the entire management of the New Jersey corporation after that time?’’ Answer: “I had the management of it, both corporations, the old and the new,' under the board of directors.” And he was asked: ' “ITow long did you continue to manage the affairs of the new corporation?” An-' swer: “Until July 3, 1902.” That is when Sutton went in. Then, on the next page of the record, he is asked this: “Was there any resolution of the board of directors pertaining to that contract passed before you executed it?” A. “No, sir, it came within my authority to make sales, and all that sort of thing. ’ ’

To permit the New Jersey corporation to escape liability under this contract, it seems to us, would be working a fraud upon Mr. Paul. They retained him in their employ; they recognized', adopted and ratified his contract so far as they could do so without saying that to Paul in so many words. They paid him. He-did his work and nothing was said' — no notice was given to him that any change was made. He had no knowledge nor notice of the reorganization, and they are to be presumed to know that —and they had no reason to suspect that he knew anything about any change in the corporation. To permit them to “take over,” as they say, and go through the formalities of taking all of the property of every kind and description of the old corporation and assume no liability under such a contract as that, clearly can not be sustained. We think the evidence tended strongly to show, and so far as this record shows, it did show that the New Jersey corporation acknowledged and ratified this contract.

Seney, Johnson & Seney, for defendant in error.

The judgment of the court of common pleas, in our opinion, was erroneous, and will therefore be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    CONVEYANCE OF LAND BY PARENT TO CHILD.
    [Circuit Court of Mahoning County.]
    Samuel A. Cowden v. Hugh T. Cowden et al.
    Decided, October Term, 1905.

      Deed of Gift — Advancement—Deed of Purchase — Title—Consideration —Presumption—Grantor and Grantee — Ancestral Property — Parol Evidence.

    1. As between parent and child a deed of gift from the former is presumed to be made by way of an advancement, and the burden is upon the latter to show the contrary.
    2. When the consideration stated in a deed for land made by a father to a daughter is' one dollar, the daughter takes the land as purchaser, and parol evidence is not admissible to show that the consideration was not paid, and that,in fact the consideration was natural love and affection.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   This action is for the partition of real estate; and the question in dispute between the parties relates to the title of twenty-five-acres of land sought to be aparted.

April 17, 1888, Samuel M. Cowden, now deceased, his wife joining with him, executed and delivered to his daughter, Julia C. Lawrence, a.deed in fee simple with covenants of general warranty for the twenty-five acres. The consideration expressed in the' deed is “one dollar and other considerations herein expressed. ’ ’ And written upon the margin of the deed is ‘ ‘ Second consideration,” “the use of a certain lane to get to the residue of the real estate of the grantor.” This so-called second consideration is of no importance in the determination of the questions involved, and we dismiss it without further comment.

At tbe time of tbe execution of tbe deed, the grantor and his wife had several children, who are still living, and the grantee had a husband and two children, who are also still living.

The claim of the plaintiff and the other brothers and sisters of Mrs. Lawrence is that this deed was made as an advancement upon the part of the father to his daughter, and that she should account in this action for this twenty-five acres in the division or sale of the residue of the real estate, which is about two hundred and ninety acres.

The claims of Mrs. Lawrence are:

First. That it was not an advancement, never so intended, but on the contrary was an absolute gift upon the part of the father to her.

Second. That the consideration expressed in the deed was a valuable one, and that her title came by purchase, and that, therefore, the other heirs have no interest in the twenty-five acres.

We do not propose to review the evidence, as the conclusion at which we have arrived makes it unnecessary except to say that we are not informed whether or not the one dollar was paid, there being no evidence upon that question.

If we treat this deed as a deed of gift made upon the consideration of love and affection, the first question that arises is, upon whom does the burden of proof rest to show whether it was an advancement or not?

In the American & English Encyclopedia of Law, Volume 1. pages 765 and 766, the text reads:

“A voluntary conveyance of land from father to child, expressed in the deed to be in consideration of love and affection, is presumed to be an advancement. The same is true of a conveyance to the child by an outside party, the consideration being paid by the father. But this presumption is rebuttable. ’ ’

The text is supported by many authorities, and while there are some decisions to the contrary, the doctrine of the text seems to be the better holding.

In the case of Tremper et al v. Barton et al, 18 Ohio Reports, 418, the syllabus reads;

“Where a father purchases and pays for land and directs the conveyance to be made to one of his children, the presumption of law is that it is intended as an advancement; but this presumption may be rebutted by proof. ’5

Although at that time the .syllabus was not the law of the case, it is supported by the opinion of Chief Justice Hitchcock, who does not declare it to be a “presumption of law” as stated in the syllabus, but a presumption of fact.

It will be observed, however, that the consideration of this deed does not purport to be for natural love and affection, but for one dollar. Although natural justice to all the children would seem to dictate that the property of the father should be divided equally among them, yet we are fully persuaded from the evidence that he intended Mrs. Lawrence to have the twenty-five acre tract in addition to what she would be entitled to at his death, dying intestate.

The next question is: What effect shall be given to a deed of this -character from a father to a daughter that expresses a consideration of one dollar? Is it a deed of gift, or does the grantee take the land by purchase? If a deed of purchase, then no question of “advancement” is involved.

A conveyance upon a valuable consideration, as between the parties and their representatives, makes the conveyance one of purchase, while a deed of gift from an ancestor creates a different estate in the grantee. In the latter case, the land is ancestral property subject to a certain line of descent; in the former it is not ancestral property, and the line of descent is different by statute.

In this case, if it is a deed of gift, in the event of the death of Mrs. Lawrence and the two children before the death of the husband, then the tract of land would go to the husband for life, the remainder to her heirs; if a deed of purchase, the land would go to the husband and his heirs absolutely.

What character of title, then, does a mere nominal consideration of one dollar expressed in the deed, as between the pai’ties and their representatives, create in the absence of fraud and where the rights of third parties are not involved,

There is great contrariety of decisions in the different states upon this section. In Hatch v. Straight, 3 Conn., 31 (8 American Decisions, 152), it was held:

“A deed from a parent to a child in consideration of love and affection is presumed to be, an advancement, Though this presumption may be rebutted, yet in a deed of lands from a father to a son, in consideration of love and affection, and the further consideration expressed of five dollars, will not be sufficient to rebut the presumption. ’ ’

Chief Justice TIosmer, in the opinion, says:

“This brings me to the principal question in the case, which is, whether anything appears to rebut the presumption of an advancement. The deed to Henry A. Straight is expressed to be ‘in consideration of love and affection, and of five dollars.’ It would be ascribing too much importance to this nominal consideration to consider it as repelling the proof of advanced portion. The principle of equity on this construction would be almost as much violated as if the consideration had been purely voluntary. Had the sum received by the grantor been a cent merely, it would be serious trifling to contend that the nature and effect of the provision was changed by it. Between this sum and five dollars, the four hundredth part in value of the property conveyed, there is no material difference. ’ ’

In the case of Meeker v. Meeker, 16 Conn., 383, it was held:

“When a deed made by a father to his son expressed a consideration of two thousand dollars, parol evidence was admissible to show that no money was really paid but that the deed was made as an advancement to the son.” Devlin on Deeds, Section 829.

On the other hand it is stated in Devlin on Deeds, Section 810:

“The recital in the deed that pecuniary consideration has been paid so far as the legal effect of the conveyance as a deed of bargain and sale is concerned, is conclusive. By this is meant simply the effect of the deed aside from any question of fraud.”

The text in this section is also supported by many decisions and one that is curious would be interested in noticing the directly opposed decisions in the different states.

With the law so differently settled in the different states the inquiry naturally is, what is the law of this state upon the question or has it been determined at all?

We are not unmindful of the decisions in this state that a deed absolute upon its face may be shown to be a mortgage, or that a grantee holds the property upon an express trust; but this is put expressly upon the ground that it would be fraud in equity for the grantee to claim otherwise. In the case of Mathews et al v. Leaman et al, 24 O. S., 615, which is the leading case upon the question, Judge White, in the opinion, says :

“Our statute of fraud omits the seventh, eighth and ninth sections in relation to trusts contained in the English statute. We do not deem it necessary now to consider the effect of such omission. The fourth section of our statute is taken from the third section of the English statute, and in terms has reference to the assigning or granting of legal interests.
“The fifth section of our statute corresponds with the fourth section of the English statute, and prohibits the bringing of actions in the cases specified. Although equitable rights and suits in equity are not named, courts of equity equally with courts of law are bound by the statute, in so far as it is applicable to the peculiar jurisdiction exercised by those courts.
“Fraud, and in the absence of any other adequate remedy, is one of the principal grounds' of equity jurisdiction; and the doctrines of courts of equity, in regard to trusts, grow largely out of fraud expressed or implied.”

It is said, “fraud in equity is an exception to every rule”; and the principle has often been announced by courts of equity, that the statute of frauds was not made to cover fraud.

In the present case, the trust does not arise on the mere agreement, but on the conveyance of the property for which the trust assumed was the sole consideration. The trust is not raised so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust. Page v. Page, 8 N. H., 194; Tif. & B. Tr., 189. As said by Bell, J., in Morey v. Herrick, 18 Penn. St., 128:

“The attempted denial of the confidence is such a fraud as will operate to convert the purchaser into a trustee ex malificio. ’'

The result of the rule does not apply in a case of this character. This is a case where it is proposed to change the express and absolute provisions of the deed, and not a case to prevent a fraud from being perpetrated by the vendee, occupying a position of confidence.

There is no question of fraud involved in the case. The vendor stamped upon the deed by the stipulation of the receipt of one dollar that it was a bargain and sale, a deed of purchase and not a deed of gift, and the grantee so accepted it. To permit it now to be changed or modified as proposed by parol would be to change and contradict the deed, and not to enforce a rule .preventing the vendee from committing a fraud* by holding that which in good conscience she is not entitled to.

However, is the direct question we have under consideration an open one in this state? If not, then it is useless to take further time to discuss it; and we are of opinion that it is not an open one.

In the case of Brown v. Whaley et al, 58 O. S., 654, it is held:

“A deed of real estate from a.father and mother to their daughter ‘in consideration of our love and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter, and in further consideration of one dollar to us in hand paid by our said daughter’ is not a deed of gift, and the title acquired under such deed comes to the daughter, not by deed of gift but by purchase.”

Chief Justice Burket, in the opinion, after setting forth that under our statute, providing, as to deeds of gifts, “regard is had to the title, which means the legal title and not an equitable title,” says:

“Looking now at the deed in question in this case, and having regard to the legal title, uninfluenced by equity, did the title come to Cinderella by deed of gift or by purchase. The deed says, that the consideration was love and affection for the daughter. If this was all, it would clearly be a deed of gift. But the deed further recites, that it is in consideration of the dutiful obedience and faithful services to us of our said daughter, and in further consideration of one dollar, to us in hand paid by our said daughter. Standing alone, these considerations of obedience, services and one dollar, would clearly make the title one by purchase. How, then, shall it be solved when the considerations are thus mixed? The title came either by deed of gift or purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says, that to make ancestral property — title by deed of gift — there must be no other consideration than that of blood. Here there are other and additional consideration, and therefore the title came not by deed of gift. As the title came not by deed of gift, it came by purchase, and at the death of Cinderella passed to and vested in her husband, the plaintiff in error, in fee.
‘ ‘ The dutiful obedience and faithful services of the daughter may have been rendered under such circumstances as to create no legal obligation against her father .to pay for the same even though of great value to him; yet when he voluntarily recognized their value by making them the consideration, in part at least, for the conveyance of a tract of land, he could not after the contract, as evidenced by the deed, was executed, and the deed delivered, annul the same by pleading that he was not legally bound to compensate her. He might well have interposed such plea while the matter was executory, but after being fully executed, such plea can avail nothing. What he could .not do while living, his heirs can not do after his death. They stand in his shoes.
“Moreover, the consideration of one dollar alone is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contradistinguished from a good consideration.”

In the case of Groves et al v. Groves, 65 O. S., 442, it was held:

“Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol that in fact the title came by deed of gift, and thereby changed the line of descent.”

In this ease the deed was from a father to his son. It recited as the consideration the sum of $9,165, and acknowledged receipt of the same; but in fact no consideration whatever was paid, and the deed was a mere gift from the father to the son. The heirs proposed to show that fact by parol, but the court held it could not be done.

In the opinion, Judge Burket, says:

“In this ease the deed.expresses a money consideration, and the title is, therefore, on the face of the deed a title by puchase. The brother and sister of the grantee now seek to change the character so impressed upon the title by the grantor and grantee, and to impress a new character thereon, that of a deed of gift. They stand as heirs, and seek to take by inheritance. They pay nothing, and are what are known in such eases as volunteers. They are, therefore, bound by the acts of their ancestors in relation to the property which they seek to inherit. ‘The general rule is that all parties to a deed are bound by the recitals therein, and they operate as an estoppel, and bind both parties and privies in blood, in estate and in law. ’ 4 Kent, 523.
‘ ‘ The same was held by this court in Patterson v. Lamson, 45 Ohio St., 77. The character- so impressed upon the title by the parties to the deed adheres to that title, becomes a part of the inheritance, and the heirs are bound thereby; and they can not take from the title a character which, it has, nor give to it a character which it has not. To do so would be to vary and contradict the deed by parol, and this can not be done. It has often been held in this state, and elsewhere, that when a valuable consideration is expressed in a deed, it is not competent to show by parol that the deed is founded upon a good consideration; and that when a good consideration is expressed it can not be shown by parol that the consideration was a valuable one. Vail v. McMillan, 17 Ohio St., 617; Burrage v. Beardsley, 16 Ohio, 438; Steele v. Worthington, 2 Ohio, 182; Walker’s American Law, 445.
“But while it is true that the nature of the consideration, whether good or valuable, can not be changed by parol, it is equally true that a different consideration from that expressed may be shown, if not inconsistent with, or repugnant to, the expressed consideration. Thus it may be shown in favor of creditors, that a deed founded upon an expressed valuable consideration was in fact without any consideration, and therefore liable to be set aside. And a deed founded upon a good consideration only, will usually be set aside in favor of previous creditors; but this is a very different thing from proving a good consideration when a valuable one is expressed, and thereby changing the line of descent. ’ ’

This surely should be the true construction. As a question of first intention, it would seem as if there could not be two opinions when the controversy is between the parties or their privies. The changing of the consideration from a valuable one to a good one, or from a good consideration to a valuable one, in this state, changes the character of the estate entirely; it changes the line of descent of the land conveyed, which is a very important matter in the deed. Can a deed, the most solemn of written agreements, as to such an important matter be changed by parol ? If so, then why may not any written contract be changed and varied.

Murray & Koonce, for plaintiff.

B. F. West and George F. Arrel, for defendants.

A decree will be entered that Julia C. Lawrence has the absolute title to the twenty-five acres of land, and the plaintiff and other defendants, her brothers and sisters, have no interest in it whatever.


text:
    CONDITIONS PRECEDENT OR. SUBSEQUENT CONNECTED WITH A BEQUEST.
    [Circuit Court of Cuyahoga County.]
    Bertha M. Morley, Administratrix of the Estate of Thomas M. Morley, Deceased, v. N. S. Calhoun, Executor of the Estate of Harriet M. Talbot, Deceased.
    Decided, November 10, 1905.

      Perl) “Pay” Construed — Bequest of Personalty upon Condition — Does not Fail, When — Motive of Testator — Words and Phrases.

    1. The verb “pay” -usually means to satisfy in money, but it has a much wider signification and includes the ideas of satisfaction and discharge in any manner.
    2. If personal property is bequeathed upon condition, either precedent or subsequent, which becomes impossible of performance through no fault of the legatee, the legacy does not fail unless it appears that the performance of the condition was the controlling motive for mailing the bequest.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Heard on appeal.
   On the 21st day of January, 1898, Harriet M. Talbot made her will, the fourteenth item of which reads as follows:

‘ ‘ I give and bequeath to- my brother, Thomas M. Morley, one black walnut bedroom set, with mattress and pillows going with the same, and in ease he shall- pay to me or-my estate the amount of a note which I Jh-old against him, I giv-e -and bequeath m him the sum of $2,000, the same as to my other brothers, but in case said note shall not be paid either to me or my estate, then the bequest to him of said bedroom set is to be- all he or bis heirs are to receive from my estate, as the amount he nav? owes me is more than his reasonable share of my estate. ’ ’

Thereafter, on the 28th day of July, 1901, Mrs. Talbot assigned said note of $2,000, which then, with accrued interest, amounted to over $4,000, to T. D. Morley and Mrs. Lillis R. Nutting, her nephew and niece, children of her brother Thomas. The nephew paid her $200, and she acknowledged herself indebted to the niece in the sum of $200 for nursing whiph it was agreed was paid by said assignment of the note.

On the 23d day of September, 1901, the neph rw and niece, in consideration of two notes executed by their fa ther, each for the sum of $200, and one payable to each of them, acknowledged payment of said note, canceled it and delivered it to their father. The father dying, the said note for $200 was paid by the father’s estate, but the daughter’s note was never paid. ‘

Thereafter Harriet M. Talbot 'died, her will was probated, and thereupon the heirs of the brother Thomas demanded of the executor payment of the legacy of $2,000 provided for in said fourteenth item of her will. The executor refused to pay said legacy, and the matter is here on appeal for direction to said executor in the premises.

The reason assigned by the executor for his refusal to pay the legacy is that it is upon condition that the brother Thomas pay testatrix, or her estate, said note of $2,000; that the eomdition is precedent to. the vesting of the legacy, was never performed and therefore the 'heirs of Thomas M. Morley are entitled to nothing thereunder.

It may be conceded that the general rule is that a condition precedent must be literally performed before an estate can vest, and that, in the case of a devise, if a condition becomes impossible to be performed, even through the act of the testator and without the fault or laches of the devisee, the devise fails.

The plaintiff claims that the devise to them as heirs of Thomas M. Morley under the fourteenth item of the will of Harriet M. Talbot, has not failed for three reasons:

First. Because the condition was practically complied with.

It is urged with much force that when testatrix assigned said note “for value received” to the children of Thomas and they-accepted from him his notes aggregating $400 in payment of the $2,000 note, the said Thomas M. Morley thus paid said note to his sister Harriet M. Talbot, during her lifetime. .Confessedly, so far as the latter was concerned, the note was then paid; she could not thereafter maintain an action thereon, nor is it claimed that her executor now has any claim based upon said note. While the verb “pay” usually means, to satisfy in money, in ordinary usage it has a much wider signification and includes the ideas of satisfaction and discharge in any manner. Marriner v. John L. Roper Co., 112 N. C., 164.

Second. It is claimed that, as the condition might be complied with after the death of testatrix and simultaneously with the vesting of the estate, by a mere balancing of the legacy against the note, that the condition -is subsequent and not precedent, and that the law is that in the case of conditions subsequent the impossibility of the performance of the condition without fault on the part of the legatee, discharges the condition and the bequest becomes absolute.

It is conceded that such is the law, but we find it unnecessary to determine whether, in this case, we have a condition precedent -or subsequent, for we base our conclusion upon the third contention of plaintiff, which we think decisive.

Third. It is contended that the rule as to conditions precedent, as claimed by defendant, is applicable -only to devises of real estate and not to bequests of personal property, and that if personal property is bequeathed upon condition which, before the time of performance, becomes impossible to be performed, the property vests in the legatee upon the death of the testator, unless it appears that the performance of the condition was the controlling motive for the making of the bequest.

This statement of the law is supported by the -weight of authority. 2 Redfield on Wills (1st Ed.), Section 665; 1 Roper on Legacies, 753; 2 Williams on Executors, 1128; 2 Jarman- on Wills, 853; 2 Underhill on Wills, Section 489.; Gath v. Burton, 1 Beav., 478; Nunnery v. Carter, 58 N. C., 370; 78 Am. Dec., 231, and note; Burdis v. Burdis, 96 Va., 81; 70 Am. St., 825, and note 30 Am. & Eng. Enc. of Law, 801.

Chapman & Howland, for plaintiff.

Calhoun & Gxisnther, for defendant.

This modification of the harsh common law rule as to devises of real estate upon condition precedent was first adopted from the civil law by the ecclesiastical courts of England; it has been followed by courts in this country, and we believe it is based upon reason and the dictates of equity.

If Mrs. Talbot, technically, did not receive payment of her note from her brother Thomas, by assigning it to her nephew and niece, by whom it was turned over to him, she at least put it out of his power to comply strictly with the condition annexed to her legacy to him, and waived the performance of said condition. There'is nothing in the will indicating that the performance of the condition was the controlling motive for the making of the bequest. She made the bequest to Thomas because he was her brother, not for the purpose of securing the payment of the note. It is true that she says ‘ ‘ the amount he now owes me is more than his reasonable share of my estate,” and she elsewhere in her will indicates that she desires her brothers to share equally in what she might leave, but her controlling motive in making any bequest to Thomas was her love for him. Had she said nothing about the note in her will and died seized of it, the law would have applied the legacy to Thomas upon his indebtedness to the estate.

Finally, we are not disposed to give to the word “pay” the technical and strict meaning claimed for it by the executor of the estate of Harriet M. Talbot. It was manifestly the intention of Mrs. Talbot, as expressed in her will, if her brother Thomas was indebted to her at the time of her death to forgive $2,000 of his debt, and if he was not then indebted to her, to bequeath to him the sum of $2,000.

As neither he nor his estate owed testatrix anything at the time of her death, we think the bequest should be paid, and the prayer of the petition is granted.


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    ALLOWANCE TO EXECUTOR. FOR SUCCESSFUL DEFENSE OF WILL.
    [Circuit Court of Hamilton County.]
    William J. Weir et al v. Eliza Weir, Executrix.
    Decided, January 10, 1906.

      Wills — When Expense Incurred in Defense of — May be Charged Against Estate — Casting the Burden upon a Legatee — Executor— In Dual Capacity.

    1. WtLetlier an executor can be allowed credit in bis account for expenses incurred in tbe successful defense of -the will depends upon tbe circumstances of eacb particular case.
    2. In a case where tbe attack on tbe will was chiefly due to the fact that a large special bequest was made to tbe executor, such an allowance is not permissible, the hardship cast upon the legatee in making the defense against an attack which was perhaps not justified being only one of the burdens incident to the acquisition and ownership of property.
    Jelke, J.; Swing, J., and Gieeen, J., concur.
   This cause comes into this court on error to an order of the court of common pleas adjusting the account of Elizabeth Weir, executrix, under the will of her mother, Elizabeth Weir, deceased, and a determination of the propriety of certain charges therein for counsel fees paid in the administration of said estate, particularly as -to the item of twelve hundred dollars ($1,200) allowed to said executrix as having been paid to her lawyers for the successful defense in an action to contest the will of the testatrix, Elizabeth Weir, deceased.

No question is here made as to the value of counsel’s services or the amount allowed in payment thereof, but it is contended that no allowance can properly be made to the executrix in this case for defending the will. In 7 O. S., at page 143, The Executors of Andrews, deceased, v. His Administrators, the syllabus is as follows:

“An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.
“The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense. ’ ’

This case was cited and approved in the case of McArthur v. Scott, in the 113th U. S., 399.

It is contended that the converse of the above rule must be true, and that when the will is. sustained the executrix is entitled in settling her account to charge the estate with the expense of maintaining such defense. This proposition so contended for is not universally true. It may or may not be true, dependent upon the circumstances of each particular case. While an executor is not bound to assume the defense of a contest of the will, he may do so, and where done in a disinterested effort to maintain the will and preserve the trust therein created and to effectuate the intention of the testator as declared in what is found truly to be his last will and testament, a court of chancery may allow the executor credit in his account for his expenses incurred in defending such will. This would be particularly true where the legatees or beneficiaries under the will were children, or were so numerous or so distantly removed that they could not well assume the burden of defense individually on their own accounts, but said defense could better be made for all interested and taking under the will by a common representative in the person of the executor.

Does the case at bar present circumstances where the executrix could ,or should, at the expense of the estate, assume the defense of the will. It is true that the will was sustained. An examination of the will and the subsequent contest, however, discloses that the special objection to such will and the item which invited attack was a special legacy of twelve thousand dollars left to the said Elizabeth Weir, who was also made executrix. Had the executor named in said will been some trust company, or' some disinterested stranger, would not such stranger executor have felt that the burden of sustaining this will should fall upon and be borne by the legatee especially interested in having said will sustained? On the other hand, it may well be said that the intention of the testatrix, as expressed in said will, having been vindicated, the legatee should receive the legacy therein provided without being mulcted for the expense of defending an attack which proved futile and apparently was not justified. But is this not one of the burdens incident to the acquisition and ownership of any and all property? Would not this objection lie just as well in the mouth of any successful defendant whose property rights had been assailed? The case at bar has another element; that the executrix is likewise the legatee whose legacy invited the attack. Chancery always insists that where a trustee’s duty or the interest of the trust estate is being balanced against the private individual interests of such trustee, the individual interest is to yield, and all doubts and uncertain charges are to be resolved in favor of the trust estate. If Elizabeth Weir, executrix, had abandoned the will contest, which she had a right to do under the law, would not Elizabeth Weir, legatee, have taken it up and have made in her own interest exactly the same defense and have employed the same counsel and have incurred the same expenses as was done herein? Is there not an element of inequity in Elizabeth Weir defending her legacy and receiving the same in its entirety with the expense of this defense charged to the heirs at law or the residuary legatees under the will? We have no doubt that counsel fully earned the fee of twelve hundred dollars and are glad that its payment is not dependent upon a determination of this question, and that it is merely a question as to whether it should come out of the general estate or out of Elizabeth Weir’s legacy.

W. A. Hicks, for plaintiff in error.

' Dempsey, Mallon $ Vordenherg and Prescott Smith, contra.

We are of opinion that the equities in this ease required that this fee should be paid by Elizabeth Weir, individually, and out of her special legacy. The court below erred in permitting her to charge the same in her account to the estate, and the judgment is reversed. There being no dispute as to the facts, and this determination turning purely on a question of law, judgment may be had in this court in conformity with the above conclusion.


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    POWER OF COURT OVER SENTENCE AFTER TERM.
    [Circuit Court of Franklin County.]
    Frank Schaefer v. State of Ohio.

    Decided, December, 1905.

      Criminal Law — Judicial Discretion — In Suspending or Revolting Suspension of Sentence — Not Impaired by Passing of Term.

    In the absence of statutory enactments to the contrary, the power of a police judge to revoke the suspension of a sentence on his own motion, continues after the term in which it was pronounced.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.

      C. D. Saviers, for plaintiff in error.

      J. M. Builer, for defendant in error.
    Error to Franklin County Common Pleas Court.

         Affirming In Re Clara Lee, 3 N. P. — N. ¡3., 533.

   It has been established in Ohio that a court may, in indefinite terms, suspend the execution of a sentence in a criminal case (State v. Allen, 68 Ohio St., 516). We think it follows that the same judge may revoke the' suspension, on his own motion, at any time even after term.

But even if the conditional suspension can not extend beyond the term, the sentence is not thereby invalidated and can be carried into execution at any time.

The views of Judge Dillon on this question, in the Lee case, seem to us to be sound.

The judgment of the common pleas court is therefore affirmed.


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    DAMAGES TO RIPARIAN OWNER CAUSED BY THE WASH FROM MINES.
    [Circuit Court of Perry County.]
    The Upson Coal & Mining Company v. John E. Williams.
    Decided, November 29, 1905.

      Damages — Measure of where Land, is Injured or Its Value Destroyed —Liability for Trespass — Where Various Parties have Contributed Thereto — Verdict Dividing the Damages among Trespassers — Can Not be Required, When — Mines and Mining — Injury from Wash , from Mines — Bpecies of Appropriation — Loss of Rental Value— Permanent Depreciation — Evidence—Charge of Court.

    1. The measure of damages to a riparian owner, caused by the wash from mines poured into the stream above him, is the difference in the value of the land before and after the injury occurred, and not the depreciated rental value from the date of the occurence of the injury; and it is consequently competent for a plaintiff in such a case to prove the nature and extent of the injuries complained of and the amount of loss sustained.
    2. Where such injury is caused by the action of several mine owners acting independently, and in an action against one of them there is no effort to prove the amount contributed by the other mines to the injury, or to show the jury the actual injury for which the defendant alone is responsible, the jury can not be required to divide the amount of the injury equally among them, and return a verdict against the defendant for only its aliquot part thereof.
    3. The presumption obtains that the jury understood the charge of the court and applied it correctly; and where a jury find in a case involving a species of appropriation that the plaintiff’s land was substantially taken from him, it is consonant with right and justice for the court to charge and the jury to award interest on the amount of damages assessed in his favor, at least from the time he demanded redress.
    Taggart, J.; Norris, J. (of tbe Third Circuit sitting in place of Donahue, J.), and McCarty, J., concur.
   John E. Williams brought his action against the Upson Coal & Mining Company to recover for damages to his farm, in the court of common pleas of the county. Tie sets forth in his petition that the stream which flows through the same furnished an abundance of good water for Ms stock and farm; that tbe channel thereof was of sufficient capacity to carry the water without inundating the adjoining fields; that the defendant was the owner and operating mines located some distance above and on a stream or ravine that found its outlet through plaintiff’s lands; that the slack and refuse of the mines were so placed that in times of rains or freshets this slack and refuse was carried down and filled the channel of the stream through Ms lands, and caused it to overflow and deposit this refuse on his lands, and to such an extent as to destroy many acres of his farm. That in consequence the water became foul and unfit for use. For the injuries complained of he asks damages in the sum of two thousand dollars.

The only defenses in the answer of the defendant, that it is necessary to refer to, are the “first” and “third.” The “first” is a general denial. In the “third” the defendant, after averring that if coal slack and refuse was deposited on plaintiff’s lands, within the time mentioned, the same did not come from defendant’s mines, but the same was washed into the stream flowing through plaintiff’s land, by its tributaries. That there are oh said tributaries eight mines, each of which acting for itself contributed to causing said slack to find its way into said stream on plaintiff’s lands. It is not necessary to refer more particularly to the pleadings herein. A verdict was returned for the sum of $1,017.95, in favor of the plaintiff. Judgment was entered on the verdict, and proceedings in error are now prosecuted to reverse this judgment.

i„ The first error complained of by plaintiff in error is the adtaission of evidence. The following fairly exhibits the evidence which was admitted and which it is claimed was erroneous and prejudicial.

‘ ‘ Q. Now, tell us what was the fair reasonable market value of your land as it was, up until the 4th day of February, 1898 ?
“A. Well, it was worth in my opinion about $2,100, the whole thing.
“Q. Now, Mr. Williams, tell us what in your opinion was the fair reasonable market value of that Same land at the time you commenced this action (February 4th, 1902) ?
“A. Well, I can not say that it was worth more than $700,
“By Mr. Jones: I move that the answers fixing values be excluded from the record, for the reason that they are not consistent with the rule of the measure of damages.
“ (Motion overruled by the court, to which ruling of the court the defendant at the time excepted.) ”

The same exception is taken in other places in the record, to tliis class of testimony.

The claim of counsel for plaintiff in error is that the true rule of the measure of damages is not the difference in the market value before the injuries, and the market value after the injuries have been sustained. But the recovery is limited to the rental value of the property for the period between said two dates.

The same question is made in the request to charge the jury. Request No. 5, which was refused, is as follows:

‘ ‘ The court says to you that it is not the rule for the measure of damages in this case to take the value of the land just before February 4th, 1898, and its value just after February 4th, 1902, and find the difference in these values, as the amount that plaintiff should recover; but the true rule for the measure of such damages is the rental value of the injured land for the period between said two dates.”

That the plaintiff is entitled to recover in this kind of a case, for the class of injuries complained of, we have the authority of the case of The Columbus & Hocking Coal and Iron Company v. Tucker, 48 Ohio State, 41.

But this case does not instruct us to the true rule of the amount of recovery. It is not stated whether the plaintiff is is entitled to recover, as if the land was taken by an appropriation proceeding, should the proof .show that the injury was permanent, and the plaintiff shows that he is deprived of any use of the land, and consequent injury to the remainder of his lands ; or, whether the plaintiff, not being deprived of the title of any portion of his lands, but only the beneficial use of some, of his land, can only recover for the loss of the use of the lands, or the fair rental. If the former is the correct rule, then the admission of the evidence was right, and the refusal to charge was proper. If the latter is the rule then thd trial court was in error in both respects. There is proof in the record tending to show that the injury to plaintiff’s property is permanent; that he is permanently deprived of the use and enjoyment of a portion of his lands. The following are some of the authorities which point out the distinction between a recovery of the rental value, and the permanent injury or difference in values:

“In an action to recover damages by the overflow of land, whereby the owner of the land has been deprived of its lose, the measure of damages is the fair rental value of the land.” City of Chicago v. Huerbein, 85 Ills., 594; see Spilman v. Navigation Co., 74 N. C., 675.
“If the overflow caused permanent injury to the premises, such injury may also be considered in connection with the rental value.” South Bend v. Baster, 67 Ind., 228; Willey v. Hunter, 57 Vt., 479.
“In an action to recover damages for the unlawful excavation and removal of soil from the premises of - plaintiff, the measure of damages is the diminution of the value of the property and not the cost of refilling.” Kant v. St. Paul Railroad, 22 Minn., 118.
“Where injury is done to property, the measure of damages is not the cost of restoring it to its original condition, where such cost may exceed its value or the actual damage sustained by its owner.” Harvey v. Mining Co., 1 Nev., 538; 90 Am. Dec., 510.
“The true measure of damages in cases of permanent injury to the soil is the difference between the value of the land immediately before the injury, and its value immediately after.” Railway Co. v. Hoyrelt, 67 Tex., 685.
“In an action for damages to real property testimony is admissible to show the exact character of the injury suffered— whether of a permanent or irreparable nature or of the sort susceptible of repair,-so that the property may be restored to its original condition. If the testimony shows the former to be the nature of the injury, the measure of damages is the difference in value of the property before and after the injury. If an injury susceptible” of repair has been done, the measure of the damages is the reasonable cost of restoration, plus the reasonable compensation for any loss of the use of the property between the times of injury and restoration, unless such cost o’f restoration exceeds the difference in values of the property before and after the injury, in which ease the difference in values becomes the measure.” City of Cincinnati v. Wright, 2 N. P. — N. S., 53; B. Stroth Brewing Co. v. Schmitt, 1 C. C.— N. S., 177.

It was contended on behalf of the plaintiff, that the injury to his land was permanent and that much of his land was rendered useless and destroyed for any useful purpose. This was denied by the defendant, and testimony was addressed to their respective claims. The court gave the jury the following instructions respecting this branch of the ease:

“If you find from the evidence that the plaintiff is entitled to recover, then you should go further and ascertain from the evidence if you can, whether the injury to plaintiff’s premises is permanent and irreparable, or of a sort susceptible of repair, so that the property may be restored to .its original condition; and if you believe from the evidence that the injury is permanent and irreparable, then the true measure of damages for the permanent injury is the difference in values of the property before and after the injury.
“But if you believe from the evidence that the injury to plaintiff’s property is of a sort susceptible of repair, so that the property may be restored to its original condition, then the true measure of damages is the reasonable cost of restoration of the property to its original condition, plus a reasonable compensation for any loss of use of the property during the time actually and necessarily required to repair the injury and restore the land to its original condition.
“But if you believe from the evidence, that the reasonable cost of restoring the premises to their original condition would exceed the difference in value of the property before and after the injury, then in that case the difference in values of the injury becomes the true measure of plaintiff’s damage.”

We think, from the authorities cited and^ others to which attention might be called, that the court stated the rules substantially correct. If so, it vas material on behalf^of the plaintiff to show the nature and extent of the injuries complained of, and the amount of loss sustained. We hold, therefore, that this class of testimony, was properly admitted, and the instruction asked by the defendant was properly refused.

The defendant in the “third” defense of its answer alleges that if injury was caused by coal slack and refuse from coal mines to plaintiff’s land, that then at least eight mines besides the mine of the defendant, each one of said mines acting for itself and independent of the others, contributed toward said damage to plaintiff’s land; that in any event said defendant is not liable for more than one-ninth of any such damage since February 4th, 1898.

At the close of the testimony the defendant requested the court to give to the jury a series of _ instructions, all of which were refused. We have regarded these instructions as separate requests or such of them as can be so regarded. The following are requests Nos. 1, 2, 3.

First Request. “In case the jury should find from the evidence that the lands of plaintiff described in the petition herein, have been damaged by coal slack and coal refuse, from the mines of defendant any time after February 4, 1898, and before February 4, 1902, the court instructs you that the true rule of the measure of such damages is the plaintiff’s loss of the use of said premises for said period, being the rental value of the same, provided the entire use is destroyed, but in case it is only partially destroyed then it is your duty to ascertain what has been the amount of loss sustained by said plaintiff caused by the descent from defendant’s mine of such refuse upon said premises.”
Second Request. “Should the jury find from the evidence that the lands of plaintiff from February 4, 1898, to February 4, 1902, have been damaged by the descent of coal slack and coal refuse upon them from the several mines located and operated on Monday Creek and Shawnee Run, and their tributaries, then the court instructs you to ascertain from the evidence, the number of mines acting independently and each for itself, contributed to cause said injury to plaintiff’s land, and the court further says to you. that in the absence of proof as to what part of the damages was caused by defendant’s mine, the law infers that all the mines contributing to said injury contributed equally. ’ ’
Third Request. “In view of the foregoing rules of the law which the court gives you, it will be your duty to ascertain from the evidence whether plaintiff’s lands set out in this petition were damaged by the descent of coal slack and coal refuse from February 4, 1898, to February 1, 1902, from the mines located and operated on Shawnee Run and Monday Creek, and their tributaries, and if so damaged you will find from the evidence the amount of such damage by the rule of damage the court has already given, and then divide said sum, the amount of such damages, into as many parts as the number of mines that contributed to produce said injury and damages, and the quotient will be the damage that said defendant caused. ’ ’

We do not think this series of requests or either of them embody the law in this case. Our attention is directed to the cases reported in the 33 Am. Rep., pages 523 and 566, and also to the extensive note in 30 Am. St., page 555, and other cases, to the effect, that in a suit at law one mine owner is not liable for the injury inflicted by another mine acting separately and wholly independent, to- a riparian owner whose lands may have been injured by the descent of slack and mine refuse from the mines.

It is urged that this trespass falls within the rule of trespassing animals owned by different persons wherein it is announced that each owner is liable for the acts of his own animals and not liable for the injuries of all the animals.

An examination of the authorities cited in the American State Report distinctly hold, that the mine owners may be jointly restrained from continuing the acts which occasion, .the injury. The cases do not disclose whether there is any thing in the procedure in the states of Pennsylvania and Colorado which would limit the remedy to a bill in equity enjoining and restraining the act which caused the injury. But it would seem that justice at least requires that' the wrong of an innocent sufferer shall be redressed without reference to the character of the action prosecuted under our reformed procedure.

Besides the principle involved is not of universal acceptation.

The Supreme Court of Indiana in the case of Brady v. Ball, 14 Ind., 317, followed the rule adopted by the trial court in this ease in his charge to the jury.

In the' case of Wilbur v. Hubbard, 35 Barb., 303, the court says that in cases of trespassing animals belonging to different persons, and it is impossible to show the exact injury done by each, the jury have the right to find that the larger and more powerful animals did the most damage.

Even the case cited by counsel for plaintiff in error does not support the requests as made.

In an action by a land owner against an upper owner to recover for the pollution of a natural stream and for injury arising from a deposit of debris on his land, the tipper owner may prove that another tipper owner contributed to the injury independent of his own acts, and thus limit the'amount of recovery against himself for the actual injury inflicted by him. Coal Company v. Hamilton, 100 Alabama, 252; same case, 46 Am. St., 48.

It will be noted that the “third” defense simply pleads the facts of their being eight other mines contributing to the injury, if any, and further claims that the defendant is liable for only a certain aliquot part of the damages, to-wit, the one-ninth part.

The requests are along the same line. There was no effort made by the defendant to prove the amount that the other mines contributed to the injury, or to show to the jury the actual injury for which the defendant alone was responsible. The extent of the operations of the defendant’s mine were partially disclosed on cross-examination of some of the defendant’s witnesses. But the defendant remained content, after proving that there were eight other mines which probably did add to the volume of debris east on plaintiff’s lands. This would have been sufficient if the position of counsel in this court is correct, and he had taken the same position in the court of common pleas. ,

There was no request by counsel to the court to instruct the jury that there could be no recovery for the injuries inflicted by the other mines, or that the recovery was limited to the actual injury- inflicted by the defendant, but the requests proceeded on the idea that the jury shall ascertain the amount of recovery and then divide this amount so ascertained by the number contributing to the injury and the quotient should be the amount to be returned'by the jury as their verdict.

We find no authority thus stating the rule. If the defendant claimed that there could be no recovery under the rule involved, such instructions should have been- requested,and a general exception to the charge is not sufficient. Railway v. Ritter, 67 O. S., 53-64.

But the principle contended for by counsel for plaintiff, in error has not received the approval of the courts of this state. In the case of Boyd v. Watt, 27 O. S., 259, at page 269, the Supreme Court sanctions the following as a correct statement of the law:

“It is the fact that they all united in the wrongful act, or set on foot, or put in motion the agency by which it was committed that renders them jointly liable to the person injured.
“Persons who co-operate in an act directly causing injury aré jointly liable for its consequences, if they act in concert, or unite in causing a single injury, even though acting independently of each other.”

The instructions of the trial judge clearly followed the rules ■ laid down in this ease and we think they are applicable and correctly given in his charge to the jury. The requests as asked were properly refused.

The trial judge in his charge gave the following:

“If you find from the evidence that the plaintiff is entitled to recover in this action, he is entitled to receive such a sum as will fairly and reasonably compensate him fully for the damages that the evidence shows that he has sustained (by reason of the acts of the defendant, not exceeding, however, the amount asked for in the petition) under the rules given you in these instructions, with interest thereon from the daté of the filing of plaintiff’s petition.”

At the hearing of a motion for a new trial, the defendant produced the foreman of the jury and offered to prove by him that the amount of the recovery for actual damages sustained by the plaintiff as found by the jury was $850, and that the remainder of the verdict as returned, to-wit, $167.95, was interest. An objection being made the court excluded this evidence and the plaintiff in error complains of this action, by the ,c'ourt.

We are of the opinion that, the exclusion of this testimony, ffven if erroneous, was not prejudicial. The presumption obtains that the jury understood the charge and applied it. Blashfield’s Instructions to Juries, Sec. 376; Davis v. The State, 25 Ohio State, 369.

J. B. Jones, for plaintiff in error.

T. D. Price and Donohue & Spencer, for defendant in error.

There was no necessity for making this proof. If the charge as given to the jury, as to interest, was wrong, the question is saved to the defendant by the exception to the charge.

In the authorities cited herein will be found the grounds of recovery in this class of eases. Where the injury is permanent the courts say that it is a species of appropriation, in that it deprives the owner of all beneficial use of his land. If the plaintiff was deprived of his property, if his property was substantially taken from him, it would seem consonant with right and justice that he should have interest at least from the time he demanded redress. And we think the courts even accorded him more than this.

The charge is justified in the following cases: Cincinnati v. Whetstone, 47 O. S., 196; Railroad v. Cobb, 35 O. S., 94; Railroad v. Schultz, 43 O. S., 270-275.

Finding no error in the record' to the prejudice of the plaintiff in error, the judgment of the court of common pleas will be affirmed at the cost of the plaintiff in error. Judgment for costs, cause remanded for execution; exceptions on behalf of plaintiff in error will be entered.


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    PAYMENT BY A WORTHLESS ORDER.
    [Circuit Court oí Ottawa County.]
    J. Weller Co. v. Washington Gordon & Co.

    Decided, January, 1903.

      Payment — Where made by a Worthless Order, Chech or Other Paper— Not Absolute, Unless• — Burden of Proof as to Aeeeptanee — Return of Worthless Paper not Necessary — Presumption as to Written Contract.

    1. The giving of an order, check or other paper in payment of a debt, and its acceptance in due course of business, does not constitute absolute payment In the event the paper proves worthless, unless it clearly appears that the paper was accepted in satisfaction and without regard to its proving to be of the value for which it is accepted; and the burden is upon the party making the payment to show that it was thus accepted.
    2. Where, in awarding, a contract for the construction of a factory, the owners specify that the contractor shall accept in part payment an order on a citizens’ committee for a sum supposed to have been subscribed to secure the location of the factory at that place, and the contractor marks the letter embodying the contract “accepted,” but' it afterward develops that no citizens’ committee was appointed and no money was raised, the order can not be considered as absolute payment, and the tender back of the order not a prerequisite to the bringing of suit for the amount due thereon.
    Hull, J.; Haynes, J., and Parker, J., concur.
    •Error to the Court of Common Pleas of Ottawa County.

      Affirmed without report, The J. Weller Co. v. Washington Cordon et al, 70 O. S., 489.

   The defendant in error was the plaintiff below and brought its action against the J. Weller Company, to recover $700, with interest, which it claimed the J. Weller Company owed it, as a balance due for furnishing the material and constructing a certain building in the. village of Oak Harbor, Ottawa county. The contract was made by correspondence, and is set forth in the petition. The answer admits the correspondence as set forth in the petition; but avers that the $700 was fully paid.by transferring to Gordon & Company a certain order for $700 on‘the “citizens committee,” so called, of Oak Plarbor. That order was given by the J. Weller Company to Washington Gordon & Company; and the question in the ease is whether it was accepted under the contract, by Gordon & Company, as payment of $700, or whether that was only conditional, and payment not having been.made of the order and there being no funds wherewith to pay it, whether Gordon & Company had the right to sue for and recover the $700. There are also some questions made in the case as to the admission of evidence, and especially as to the admission of some evidence which, it is claimed, varied the terms of the written contract between the parties.

. It appears from the record that the J. Weller Company, in the year 1898, had built a building, and were carrying on business in Oak Harbor. They were conducting a pickling factory, and, in 1899, they contemplated building a canning factory and desired the citizens of Oak ITarber to contribute toward that enterprise, and a meeting was held at which were present several citizens, just how many does not appear, and one of the members of the J. Weller Company was also present, and one of the firm, Mr. Kilmer, of Gordon & Company. Mr. Weller stated at the meeting that they would build a canning factory if the citizens would contribute $700 toward it. No formal action was taken, but several, or some at least, of those present stated that the sum would be raised, one saying, “We will raise the amount; there will be no doubt about it;” another, “We will raise it.” Similar expressions were used by others, and a committee was appointed to solicit subscriptions.

Soon after that Gordon & Company solicited'from the Weller Company the contract for building the building and made a bid for it along with others, and the correspondence then occurred between the parties which constitutes the contract in this case. Gordon & Company wrote to the J. Weller Company, as follows, under date of May 12, 1899:

“Oak Harbor, Ohio, May 12, 1899.
“The J. Weller Company, Cincinnati, Ohio.
“Gentlemen: We will furnish the lumber for canning factory, as per bill submitted by you, for $975. We will furnish lumber for erecting building complete as per your letter of April 29, for $1,054.60, and will erect same for you, furnishing everything necessary according to plans, for $415. Respectfully submitted,
“W. Gordon & Co.”
On the following day, May 13, the J. Weller Co. answered that letter, as follows:
“Cincinnati, Ohio, May 13, 1898.
Messrs. W. Gordon & Co., Oak Harbor, Ohio.
Gentlemen: Tour letter of the twelfth received with proposition to furnish the lumber and erect building for canning factory at Oak Harbor, Ohio, according to the plans furnished you, to-wit, at $1,469.60, the lumber furnished to be of' Norway pine, and flooring to the building to be two-inch pine, floor for the second floor to be one-inch yellow pine. The sliding doors you can make all one solid seven-foot .sliding doors on good substantial barn rollers, the lumber to be of good merchantable quality and the work to be done in good workmanship manner; we are to furnish windows and skylights for the building and you are to put them in the building. You are to furnish the sheeting for the building and porches, and we are to put the gravel pitch roof on same. The foundation or piers for the building must be set in the ground below the frost level, say two and one-third feet, and to be not'less than two feet square at the base and to project above the level of the ground; we prefer the piers would come up level Avith the floor of the building, if you can do so. The building is to be completed by July 1, 1899, unless providential circumstances beyond your control should interfere, and sooner if you can possibly do so, for every day after July 1, you are to pay us $15 per day until the building is completed; we say this as Ave must have the building done by this time, in order to get our machinery set up in place.
“The citizens of Oak Harbor are to contribute $700 toward this factory, and we will give you an order on this committee for the $700 and in addition we will pay you the balance of the $1,469.60, which will be $769.60, in cash as soon as the building is completed. You are to board up space under the main part of building and to erect out-house for the use of employes.
“Yours truly,
“The J. Weller Co., J. Weller, Pres.”
This letter was marked “accepted,” or had stamped upon it the word “accepted,” and that >vas signed by Gordon & Company, thus making the contract complete. The building was constructed according to the contract, and after that the J. Weller Company sent Gordon & Company a check for $769.60, and also this order:
“Cincinnati, Ohio, August 7, 1899. “The Citizens’Committee oe Oak Harbor, Ohio, Oak Harbor, Ohio. -
“Gentlemen: You will please pay to Messrs. Gordon & Company the sum of $700, the amount pledged by your committee on completion of the canning factory and greatly oblige,
“The J. Weller Co., J. Weller, Pres.”
“Dictated J. W.

After receiving this order, Gordon & Company, through its officers, undertook to collect it. The testimony shows that there was no citizens committee that had any funds in its hands for the satisfaction of this order. The only committee appointed was one to solicit .subscriptions, and subscriptions for a portion of the $700 were made, but no money had ever been turned over to the committee. Mr. Kilmer, of Gordon & Company, called on Mr. Gradolph, the mayor, who was chairman of the citizens meeting, but was unable to ascertain from him, or in any other way, that there was any such fund. As a matter of fact, there was at that time no money, no fund of any kind or in any amount, out of which to satisfy this order. The evidence does show that there was a deposit in a bank, at some time, of fifty dollars — twenty-five dollars deposited by the mayor and twenty-five dollars by someone else which was payable, according to the testimony, to the order of the cashier of the bank, but nothing could be collected on the order. Gordon & Company, being unable to collect it, or any part of it, brought this suit, and, in the court below recovered a verdict and judgment for $700, with interest.

It is claimed by the plaintiff in error that under this state of facts Washington Gordon & Company accepted this order in payment'and full satisfaction of the $700; that no recovery can be had. In the trial of the case, Mr. Kilmer testified over the objection of the J. Weller Company that at the time the J. Weller Company’s letter was accepted,'Mr. Kilmer said to Mr. Weller that they wanted them to collect this order; that if it became known in Oak Harbor that such a contract as this had been made, it would be very difficult to collect this money, and that Weller promised to collect it. This testimony was objected to by the defendant and exceptions taken to its admission.

We are inclined to the opinion that this testimony ought not to have been admitted; that the contract, as claimed by the defendants, was contained in the correspondence; that this talk that occurred between Mr. Kilmer and Mr. Weller, whatever it was, occurred before the proposition from the Weller Co. had been accepted; and that, therefore, it could not be shown. Whatever the contract was, whatever the parties agreed upon is presumed and conclusively presumed to have been embodied in the written contract, and the parties must stand or fall by that. In our judgment the testimony should have been excluded.

This brings us to a consideration of the question as to whether under the written contract, made as stated in the pleadings, this order was accepted as a payment of the $700, or was conditioned upon the $700 being paid, or there being some fund with which to pay, upon presentation of the order by Gordon & Company. It is claimed by the plaintiff in error that this order was accepted as absolute payment and satisfaction of the amount.

The giving of an order or check or other paper writing under such circumstances is not absolute payment, as we understand it, unless it is shown that it was understood and agreed by the parties to be accepted as payment. It is true -that a party may agree to accept a check or a draft or an order in payment of a debt, or as a consideration for work or for goods, and if he does so, he is bound by it, as he would be in any other case of exchange or barter. But unless it is understood that it is accepted as payment, it does not extinguish the debt unless the draft or check or order, or whatever the paper may be, is paid; the party accepting it is bound to present it for payment and use ordinary diligence to collect it. So that the question here is, whether under this written contract, the court should hold that this order was accepted as payment. There'are some cases in this state that are in point upon this question. The case of Tafl v. Wildman, 15 Ohio, 123, is one. This was a case where a piece of land was sold for $800, $400 in cash and the balance in certificates of discharge from the army, which entitled the holder to a certain amount of land. It turned out that the certificates were void. The court say in the syllabus:

“To rescind the contract and recover back the consideration, a thing received in payment of no value need not be returned to the defendant.
“If A sell land to B to receive payments in cash and certificates of discharge from the army, assigned to A, he may sue for the original consideration quoad hoc those certificates.”

One point made in the case at bar is that the plaintiff could not recover without returning the order that had been given. The case of Taft v. Wildman, supra, seems to determine the question that if the order was in fact worthless, it need not be returned before the suit is brought. In the case referred to, the trial court charged the jury, as appears in the statement of the case, that

““ * * if these certificates were supposed by the parties at the time they were assigned, to convey lands or to transfer a right to. obtain lands, that the defendant in error was entitled to recover, inasmuch as the assignment of the certificates was made void by the laws of the United States, and vested no interest in him; and the rule of damages in that event would be $400, the amount of which the certificates were estimated by the parties, with the interest thereon; but if the certificates were received by the defendant in error under an agreement that he should take them at his own risk, whether they were of value or not, he was not entitled to recover.”

This was assigned as error in the Supreme Court and the court held that there was no error in that instruction to the jury. The court say in the opinion on page 129:

“The law is: If C receive of D a thing represented to be valuable, and which C supposes is so, in payment of a debt, but which is in fact of no value, C may sue on the original demand for the consideration, as if no payment, had been made, and quoad hoc treat the thing received as no payment. This transaction was not a barter, however, or exchange of property, as presented in the record, but the sale of a farm, to be paid in cash, and certificates which would entitle the vendor to other lands, and as this part of the consideration failed, the court did not err, in our opinion, in saying a recovery might be had under the limitations and restrictions set out in the bill of exceptions. ’ ’

In the case of Fleig v. Sleet, 43 Ohio St., 53, a check of one bank upon another was given in payment, and turned out to be worthless. The court says in the syllabus:

“To pay for a bill of goods, the buyer sent to the seller a check, drawn by one bank upon another, indorsed by the buyer to whose order the check was payable, and the seller, on receiving it, sent back the buyer a receipt acknowledging payment of the bill. At the time of sending the check by the buyer, and the receipt by the seller, it was supposed by the buyer and seller that it was good, but in fact there were no funds of the drawer in the hands of the drawee subject to the payment of the check at the time it was drawn or afterwards. Held: That in an action on an account for goods sold and delivered, a plea of payment can not be maintained on the facts above stated. ’1

And the court say on page 55:

“Neither is there any doubt as to the fact that the parties agreed that the transfer of the check was in payment of the account. The sole question is, was the agreement tinder the circumstances set forth a valid contract, whereby the former relations of debtor and creditor, on account of goods sold and delivered, was in law extinguished?
“It is not controverted that where a debtor makes and delivers a check to his creditor in payment of an account, upon a bank where the debtor has neither funds nor credit, it is not a payment of the account, although the creditor receives it as such. In such case there is no satisfaction of the indebtedness; such check is valueless. * * *
“Is there any difference in effect between the case put and one where the debtor indorses to his creditor a worthless check drawn by a third person who has no funds subject to its payment? We think not. In the hands of the debtor before indorsement it was without value. From the act of indorsement a similar representation is implied, on the faith of which it is taken as payment by the creditor. Between the debtor and creditor there is an accord, but no satisfaction. In law it is like payment in counterfeit money or broken bank bills. The claim thus intended to be paid remains a subsisting cause of action. ’ ’

In 18 Am. & Eng. Enc. Law (1 Ed.), 167, the general law is laid down and a large number of authorities cited to sustain it, as follows:

“A cheque, draft or promissory note of a debtor or of a third party, if not itself paid, does, not constitute a payment, unless received by the creditor under an express agreement to accept it as an absolute payment.”

In Benjamin on Sales, Sections 729 and 730, we find this language :

“The intention to take a bill in absolute payment for goods sold must be clearly shown, and not deducted from ambiguous expressions, such as that the bill was taken ‘in payment’ for the goods, or in ‘discharge’ of the price. Lord Kenyon said in Stedmcm v. Gooch that ‘the law is clear that if in payment of a debt the creditor is content to take a bill or note payable at a future day, he can not legally commence an action on his original debt until such bill or note becomes payable and default is made in the payment; but if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer in his hands and who therefore refuses to accept it, in such case he may consider it as waste paper, and resort to his original demand and sue the debtor; and this dictum was quoted by Tindal, C. J., in Maillard v. Duke of Argyle, to show that the word ‘payment’ does not necessarily mean payment in satisfaction and discharge.
“730. The authorities in support of the rule that in the absence of stipulation to the contrary the negotiable security is only considered to be a conditional payment, defeasible on the dishonor of the security, need not be reviewed, as there is no conflict on the point.
“The payment is absolute on the delivery of the bill, and takes effect from that date, but is defeated by the happening of the condition, i. e., non-payment at maturity.”

The law seems to be well settled in this state and elsewhere that the burden is upon the one claiming payment of this kind to show, and show clearly, that such a paper was accepted in absolute payment and discharge of the debt; otherwise it will be held, as Benjamin says, “a conditional payment, defeasible on the dishonor” of the check, bill, order or whatever it may be.

The evidence in this case shows that after the citizens meeting was held, no funds were, in fact, ever collected, except, possibly $50, to which I have referred, which was deposited in the bank; it does not appear that any formal action was taken at-this citizens meeting. Several citizens said “no doubt the fund could be raised; Mr. Weller could go on and erect the building,” etc., and such expressions were used at the meeting as are often used at meetings of that kind. When it became apparent that the building was to be constructed, the citizens evidently lost interest in the enterprise, so far as subscribing the $700 or any part thereof was concerned, and when Gordon & Company, having agreed to take the order, as they might take a check, note or draft, did take it and went out and undertook to collect it, they were unable to do so, there being no such fund, no committee of that kind and no way in which the order could be realized upon.

Now it will be observed that in this letter from the J. Weller Company to Gordon & Company they say that “the citizens of Oak Harbor are to contribute $700 towards this factory, and we will give you an order on the committee for the $700, and in addition we will pay you in cash the balance of the $1,469.60.” They say to Gordon & Co. in substance and effect that the citizens of Oak Harbor will contribute this amount, and we will turn that over to you by virtue of an order or through the medium of an order which we will give you and you can collect it; instead of it being paid to us, it may be paid to you; the balance we will pay you in cash. They do not say in their letter, “You are to accept this order in payment of the balance of the $700,” or “in discharge of the balance.” They speak of this order as they might of any other chose in action, of a draft or check. They might have said, “We will pay you $769 in cash and we will give you a draft that we have, or a check on such a bank for the balance,” if it had been a draft, as it might have been, and it turned out that the bank was broken, or there was no money there to pay the debt, this would not have constituted payment. There is nothing, it seems to us, in this contract, or in the surrounding circumstances to show that the agreement on the part of Gordon & Company was that they would accept this order in full payment of this amount of money and discharge this indebtedness. The burden was upon the J. Weller Company to show this. Gordon & Company, after receiving the order, did all they could reasonably do toward collecting it, and it is undisputed that there was nothing with which to pay the order.

It is said that Gordon & Company knew of the facts and circumstances as well as the J. Weller Company; that one of the firm was present at this meeting. It is true that one of the firm was there as a citizen of Oak Harbor and took some part in the meeting. But the fact that a member of the firm of Gordon & Company had this knowledge as to this meeting and What was done, would not vary the contract, this written contract that was made, or be sufficient to show that Gordon & Company accepted this order in payment of this debt. The rule seems to be thoroughly established that nothing will pay a debt except money or something of value — its equivalent in value; that worthless papers, worthless checks) notes, orders or drafts will not pay debts, unless the parties have expressly agreed and it clearly appears that they have agreed that they will take such paper at their own risk, and in payment of the debt.

We think that the court ought to have excluded the oral testimony as to what was said before the signing of this acceptance, and that the court went farther than it should have gone in submitting to the jury the construction of the contract; it seems to us, the contract being in writing, that it was the duty of the court to construct it. But the jury reached a correct conclusion and construed the contract properly, so that plaintiff in error was not prejudiced.

We have gone through the record with care, and there is nothing in all the testimony that was offered as to what occurred at the time the contract was made or the order was given to Gordon & Company that shows that they accepted the order in payment of this debt or in discharge of it. We think that they took the order as they might have taken other paper or evidence of indebtedness as a medium of getting their pay, and if it had been paid it would have satisfied the amount that it called for. Being worthless it did not satisfy it; and being of no value they were not called upon to return it or offer to return it before this suit was commenced.

Scott Stahl and Charles Graves, for plaintiff in error.

Judge Kettey and William Gordon, for defendant in error.

With this view of the ease it is not necessary for us to discuss the objections that were made to the charge of the court or any other question in the case. The verdict of the jury was correct and the judgment was right. Therefore the judgment of the court of common pleas will be affirmed.


text:
    DETERMINATION OF OWNERSHIP OP A FUND»
    [Circuit Court of Hamilton County.]
    Hadley et al v. Ellis & Company et al.
    Decided, January 11, 1906.

      Parties — Necessary to an Action — To Determine Ownership of a Fund —Gist of the Proceeding — Service of Summons Quashed as to One of the P'arties-^Judgment on Pleadings — Error.
    Where in a suit involving ownership of a fund, the debtor admits that the amount in question is due, but a controversy exists aá to the division to be made of the fund, and one of the parties to this controversy is dismissed from the action on motion to quash service of summons, it is error for the court to thereafter give judgment on the pleadings.
    Swing, J. • Jelke, J., and Gifeen, J., concur.
   This action is here on error to the judgment of the court of common pleas of this county. In that court Ellis & Company brought an action, alleging in substance that it had entered into a contract with Hadley and others, Commissioners of Washington County, Ohio, for the building of a court house at Marietta, Ohio, and that the work was completed. The petition further alleges that it sublet certain portions of the work to the Paige Concrete Fire Proofing Company, who in turn sublet to the Ransome Concrete Company, who in turn sublet certain parts to the Champion Iron Works. That the said Champion Iron Works have filed with the Auditor of Washington County a mechanics’ lien for the sum of $2,368 for work and material: furnished by it in the construction of said court house.

The plaintiff alleges that there is only due by it to the Ran-some Company the sum of $1,613.97, leaving a balance due it of $754.03. It asks that all the defendants may be made parties, and the rights of the several parties to said fund may be determined.

The parties to the action are the Ransome Company, the Champion Iron Company (of Kenton, Ohio), and the Commissioners of Washington County.

'The Commissioners of Washington County filed an answer in which they allege that the Champion Iron Works had filed a mechanic’s lien in a proper way, claiming that there was due it the sum of $2,368; that it had notified the plaintiff and the Ransome Company of the filing of the same,, and thát both parties had disputed the claim, and that it had therefore retained said sum out of the amount due the plaintiff on its contract; that it still held said sum and was willing to pay it to whomsoever the court might find entitled to it, or to pay it into the hands of the court, if so ordered, and asked to be protected. The commissioners further set up that an action was pending in Washington county between said several parties as to said sum of $2,368.

The Ransome Company filed an answer admitting the allegations of the petition as to matters between it and the plaintiff.

The Champion Iron Works filed a motion to quash the service of summons on it, which on hearing, the court sustained, and the Champion Iron Works, therefore, are now out of the ease.

After this, the court on motion of the plaintiff for judgment on the pleadings, rendered judgment against the commissioners for the sum of $754.03, as claimed in the petition.

Was the court justified in rendering such a judgment?

The petition and answers disclose this state of facts: A contract for the building of the court house; its completion; a balance due on the same of $2,368; of this sum the plaintiff claimed $754.03, and the Ransome Company $1,613.97, both plaintiff and the Ransome Company agreeing to this; the Champion Iron Works claiming it all, and Washington county, by its commissioners, admitting it owed this amount on the contract, and asserting that the other parties all claimed it ■and were disputing each other’s claims, and saying that it stood ready to pay the sum to whom the court should find entitled to it. The Champion Iron Works goes out of the case.

A glance at the pleadings shows that in order to determine the rights of the parties claiming this fund, the Champion Iron Works was a necessary party. In fact, according to the pleadings, the claim of the Champion Iron Works was the only controversy in the case, and was the matter upon which the court could be called upon to pass. It was the gist of the action and was the only ground upon which it was possible to bring the Commissioners of Washington County to this forum. If it had not been for the claim filed according to law by the Champion Iron Works, the same would have been paid to Ellis & Company. There was no controversy between- Ellis & Company and the commissioners. There was nothing to try or adjudicate between them, but there was a question between the Champion Iron Works and the plaintiff, and the Ransome Company, and by reason of that fact, the Commissioners of Washington County were necessary and proper parties, not in an adversary character, but in order to render complete and necessary justice; in other words, having admitted the debt due to some of those claiming it, the court having found who was rightfully entitled to the same, could direct the commissioners to whom it should be paid.

Without determining the only question raised, viz., who of these three parties is entitled to this fund, the court rendered judgment on the pleadings against the commissioners, and in favor of the plaintiff. We are unable to find anything in the pleadings which authorizes such judgment.

It is apparent from the pleadings, that after the Champion Iron Works got out of this action, that it might maintain an action in an other forum and there have determined the very question which the petition in this ease sought to have determined, viz., who, as between plaintiff, the Champion Iron Works, and the Ransome Company, was entitled to this fund, admitted to be due by the commissioners; and any judgment rendered in this action would be no bar to any judgment rendered by. the court in the action instituted by the Champion Iron Works. And the record discloses that this is just what was done. For the Champion Iron Works brought an action, making all the parties in this action defendants, and had determined in that action that it was entitled, to the whole amount of this fund, to-wit, $2,368, together with interest. The result must be, if the judgment in this case stands, that the Commissioners of Washington County will have to pay the money twice, and this through no fault of theirs; instead of being equitable, this would be inequitable.

Wm. H. Sheldon, Prosecuting Attorney, for plaintiff in error.

Louis J. Dolle, Harper & Allen and Brenan & Middleswarb, contra.

We think the court of common pleas was in error in rendering judgment in favor of the plaintiff and against the commissioners, and this is shown by the pleadings, whether the court considered the amendment to the answer of the commissioners or not, for the reason that when the Champion Iron Works went out of the ease, it left nothing to be determined against the commissioners.