author: Marvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Oct. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ,
    MELVILLE F. MASSEY v. MARY F. STIMMEL.

      Alimony — Not to be awarded against non-resident defendant, although he has property within the state — -
    In a divorce proceeding, alimony can not be, awarded where the domicile of the defendant is in another state and service of process is only obtained by publication, except where he appear and submit himself to the jurisdiction of the court; and this is so although the defendant has property within the state.
    Appeal from the Court of Common Pleas of Cuyahoga county,

      [*Decision of Dellenbaugh, J., in court of common pleas, reported in 5 Nisi Frius Reports, 29.]

   Marvin, J.

The plaintiff, Massey, sets out in his Detition. that on the 9th day of June, 1883, the defendant, who for some years previous and up to that time-had been his wife, procured a divorce from him in the court of common pleas of this county; that the decree entered by the court in that action included an order that there should be paid to the wife the sum of five hundred dollars as alimony; that at the time such decree was made he was a non-resident of this state and was a resident of the state of New York; that no service was had upon him, and that the judgment was a fraud upon him, and he says that the defendant in this action will, unless prevented by an order of this court, cause certain property of his, situated in Erie county of this state, to be sold to satisfy that award of five hundred dollars alimony, and prays that she may be enjoined from so doing.

A demurrer was filed to this petition, the ground of which is that the petition is based upon the fact that the decree was obtained by fraud, and that there was no allegation that the suit was brought within the time provided by law after the discovery of the fraud.

We do not understand that this petition is based upon “fraud”, in the sense in which it is used in the argument by counsel who filed the demurrer, or in the sense in which it is used in the statute.

The ground upon which it is said that the decree, or the order for the payment of five hundred dollars alimony can not be sustained, is that the court was without jurisdiction to decree alimony, and that, in that sense, only, was any “fraud” perpetrated. We think that this is clearly a correct statement of the effect of the petition. It is not that kind of a fraud which authorizes the setting aside of the judgment under this statute, which is set out in the petition,' and the demurrer is, therefore, overruled.

"This brings us to the question: Did the. court haye jurisdiction to enter the order that alimony be paid?

The determination of this question determines the case.

The evidence establishes, as we think, that the plaintiff in this action, at the time of the filing of the petition for divorce, and during all the time of the pendency of that suit, was a resident of the state of New York. He says so; nobody denies it; his brother says it; and we think there is no question that he was a resident of New York; and, indeed, the defendant here — the plaintiff in that action —obtained service, if any was obtained, by publishing noticeina newspaper describing him as “residing in the state of New York,” and caused a copy of the summons to be mailed to him in New York.

And that raises the question as to whether the court here had any jurisdiction over a resident of the state of New York to award alimony against him where no personal service was obtained upon him in the state of Ohio. There was a publication in a newspaper of general circulation in this county for six consecutive weeks apprising this plaintiff, the defendant in that action, that his wife had sued him for divorce and alimony. And it is certain that very shortly after the decree was entered this plaintiff knew, not only that his wife had obtained a decree for divorce, but- that the court had awarded her alimony in the sum of- five hundred dollars. This the plaintiff admits,and exhibits a newspaper clipping sent to him by his brother shortly after the divorce was obtained, announcing the decree for divorce and alimony.

There is a conflict in the testimony as to whether the plaintiff saw the defendant after such divorce was obtained and before the bringing of the present suit; and as to this it is hardly possible to avoid the conclusion that somebody committed deliberate perjury on the trial of this case. The plaintiff says that he did not see his wife from the time he went^toJNeWjYork some months before the suit for divorce was brought, until after the bringing of the present suit. Defendant says that he called at her house on more than one occasion,and talked with her with reference to the education of their son, and that he.took the son with him from her house to visit the theatre; but as we view the case, it is indifferent which of these statements is correct.

The authorities are uniform that the courts may obtain jurisdiction to decree divorce where, under certain circumstances, the service upon defendant is not personal, but only constructive. The plaintiff being a resident, of the state in which the divorce is sought, is entitled to have his' or her marital status fixed by the decree of the court in which the law authorized the suit for divorce to be brought.

It follows, of course, that where the court decrees a divorce to a citizen of its own state,thereby fixing the marital status of such citizen, it necessarily fixes the marital status of the consort of such citizen whether a citizen of its own state or not; and this, not because of its jurisdiction over the non-resident, but because,in the exercise of its jurisdiction over the citizen of its own state, the result necessarily is that the status of the non-resident is fixed by the same decree. If the resident husband or wife residing in this state ceases to be the husband or wife of the non-resident, such non-resident thereby ceases to be ihe husband or wife of the citizen of this state.

But an order upon the defendant in a divorce case to pay alimony is a judgment in personam, and the court is without jurisdiction to render such judgment where only constructive service is had upon the defendant.

It does not necessarily follow that, because the court has jurisdiction to decree a divorce where no personal service is had upon the defendant,that it has jurisdiction to“award ali-' mony.

I quote from section 933 of the vol. 2 of Black on Di«. vorce:

“A decree in divorce is in rem and, therefore, justified by jurisdiction over the res alone, only in so far as it affects the marital status. If it goes further than this, and assumes to adjudicate matters collateral or incidental to the dissolution of the marriage, the proceeding becomes one in person-am, and no personal liability can be imposed upon the defendant unless there is jurisdiction of his person acquired by proper service of process. All the cases which recognize the jurisdiction of the state to determine the marital status of its own citizens, although one of the parties lives in another state, limit the exercise of it to the dissolution of the marriage. The decree in such cases affects only the status of the marriage relation. To go one step further, and say the guilty party who is a non-resident, and, therefore, beyond the process of this court, shall not marry again, is quite another thing.”

Without reading further in that connection, I read from the same section again:

“On the same principle, when the defendant in divorce, is a non-resident and is not personally served with the process within the state, or has not voluntarily submitted himself to the jurisdiction of the court, a decree awarding alimony has no extra-territorial validity, for, to that extent, it is purely a personal judgment.”

It may, however, be said that for the defendant here to seek to subject the property of the plaintiff situated in this state to the payment of the decree for alimony, is not to claim that the award of alimony'is to háve “extra-territorial validity”, because no effort is made to subject property to the payment of this decree which is beyond the jurisdiction of the court

The case of Bunnell v. Bunnell, found in the 25 Federal Reporter" beginning on page 214, is a case decided in the U. S. circuit court for the eastern district of Michigan in 1885 by Judge Brown,now a Justice of the Supreme Court of the United States, and it seems to meet this question. The syllabus reads:

“A state statute permitted its courts, in suits for divorce, to award alimony, and to sequestrate the property of the defendant within the jurisdiction, and appropriate the same to the payment of alimony. Held, that this statute did not apply where the defendant was called into court by publication, and that a decree for alimony against a defendant not personally served with process, was void for want of jurisdiction.”

I quote again from the opinion on page ‘216:

“That the decree in the.divorce suit, in so far as it purported to be a personal decree against the defendant for alimony and costs, is void, can admit of nc doubt. In the absence of personal service upon the defendant within the jurisdiction of the court, no court has power to render a judgment in personam whic.h can be the subject of an action or the basis of an execution. To render a valid judgment, a court must obtain jurisdiction either of the person or property of the defendant within its jurisdiction. If jurisdiction of the person be obtained by personal service of process, the judgment will be valid the world over. If jurisdicton be obtained by seizure of property, the judgment will be valid only as it respects that property, and within the jurisdiction of the court rendering it.

Again I read from the same opinion,on page 217:

“The distinction between cases where jurisdiction is acquired by a seizure of the res at the same time the suit is begun, and those wherein a personal judgment against a party not served with process it attempted to be enforced against property within reach of the court, is clearly stated in Pennoyer v. Neff, 95 U. S., 714, In that case,one Mitchell brought suit against the defendant, Neff, and, failing to obtain service against him within the state, called him into court by publication under a statute of Oregon, which provided that in case service of a summons could not be made and defendant could not be found within the state, the court might order service to be made by publication of the summons. Judgment having been obtained and levied upon' the property of the defendant within the state, the property was sold upon execution by the sheriff, and bid in by the plaintiff,-Pennoyer. The court held that the judg. ment,' being personal in its character, was without validity, and did. not authorize the salq of the property in controversy. The plaintiff assumed the position that where the defendant has property within the state, it is immaterial whether it is in the first instance brought under control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of the demands against the owner, or the demand be first established in a personal action, and the property of the nonresident be afterwards seized and sold on execution. But the court-held that the jurisdiction of the court to inquire into and determine the obligations of the defendant was only incidental to its jurisdiction over the property. Its jurisdiction in that, respect could not be made to depend upon facts to ' be ascertained after it had triefi the cause and rendered the judgment. ‘If-the judgment be previously void, it will not be valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it.’ ‘The judgment, if void, when rendered, will always remain void. ’ ”

Section 9, of the 2nd Vol. of Bishop on Marriage, Divorce and Separation, reads:

“Alimony. — It exists only by judicial decree. Therefore, by all opinions, it cannot be validly awarded in a mere ex parte divorce suit in rem, where the non-appearing defendant’s domicile is in another state. If he dwells in the same state, u statute may, according to the Indiana case, authorize a decree for alimony against him on constructive notice. If in another state it can not; except when he appears and submits to the jurisdiction, then it can.’’

From these authorities^ which we believe to be in harmony with the authorities generally on the same subject, we hold that the court of common, pleas in which the divorce suit was tried, was without jurisdiction to award alimony, and that the plaintiff in this action is entitled to an orde enjoining the defendant from proceeding to subject his property to the payment of such alimony.

C. E. Pennewell, Phinney & Merrill, Attorneys for Plaintiff in Error.

Frank A. Beecher, Attorney for Defendant in Error.

Judgment will be entered accordingly.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    (Third Circuit — Auglaize Co. Circuit Court
    November Term, 1897.)
    Before Day, Price and Norris, JJ.
    M. J. MOONEY, Administrator of the Estate of Agnes Watters, Deceased, v. THE VILLAGE OF ST. MARY’S, OHIO.

      Defect in bridge in municipal corporation — Liability for injury—
    Where the proper authorities of a municipal corporation, after knowl edge of the existence of a dangerous hole in a street bridge over a stream or canal within the corporate limits, permit the same to remain open without guards or signals to warn pedestrians of the danger, they neglect a duty imposed by sec.2640,Revised Statutes, and the corporation is liable in damages to any one, who, being without fault, is injured by falling into such unguarded place; and this is so, notwithstanding the provisions of secs. 860, 4936 and 4938, Revised Statutes., which make it the duty of the county commissioners to construct and keep such bridges in repair.
    Error to the Court of Common Pleas of Auglaize county*)
   Price, J.

The plaintiff in error was plaintiff in the court below in an action to recover damages from the defendant, The Vil] lageof St. Mary’s,for negligence which caused the death of Agnes Walters, the plaintiff’s intestate.

The facts shown in the record disclose, that on or about the 30 day of June, 1895, a large woolen mill or factory in said village, and which stood near the east end of a public bridge on one of the principal streets, and which spans the Miami and Erie Canal, was destroyed by fire, and that the fire was in some manner so communicated to the north side o£ the bridge constructedjandjsetjjapartjfor pedestrians, that a hole was burned in the same not'far from its east end. The hole was about ten feetjong^east and west, and almost the full width of this sidewalk. The ¡village authorities placed temporary barriers about the open space made by the fire, but it is claimed- by the plaintiffjjthey were insufficient in character and fastenings to properly guard the place and warn persons traveling the street of the presence of danger, and that in the night of the 25th of July of that year, the decedent, while lawfully passing overjthe canal and in the use of the sidewalk on the bridge, without fault on her part and not knowing the existence of the hole, walked into it and fell to the hard bed of the canal, and]thereby sustained fatal injuries.

The plaintiff alleges, that it was the duty of the village to keep the bridge, including the part used by pedestrians, in repair and safe condition for use, and in neglecting to do so, and in neglecting to place and maintain proper guards about the place of danger while the same existed there, it became liable for the injuries sustained.

Inasmuch as the defendant contends, in part, that the petition states no cause of action, we here re-state its averments wherein the negligence of the village is charged:

“The sidewalk referred to and the bridge connected therewith, on the 25th day of July, 1895, and for a long time prior thereto, were placed there for the use of pedestrians and the general public, lawfully walking on or across said bridge, which sidewalk was under the supervision and care of the defendant, whose duty it was to keep the same in safe repair. That upon and fora period of about thirty days prior to the 25th day of July, 1895, the sidewalk upon the north side of said bridge and near the east end thereof, was out of repair, there being a dangerous hole in and thrbugh said sidewalk of some ten feet in length and of the full width of the same; and that the sidewalk where said dangerous hole existed, extended over the Miami & Erie Oanal about fifteen feet above the bed of the canal,and that defendant had notice of said dangerous hole soon after it was made, and attempted to place safe-guards and obstructions around and about said hole to prevent accidents and injuries to persons passing along and upon said sidewalk, but that due and owing to the negligence and want of care of defendant, said dangerous hole in said sidewalk upon the night of said 25th day' of July, 1895, was without safe-guards or obstructions, and was by defendant, upon said night allowed to remain open, exposed and without danger-lights or guards.”

It is next averred, that the decedent, while attempting to cross the bridge at night, accidently stepped into the place of danger and fell to the earth below, and was thereby killed.

First. The village, by answer, denied that it had the care and supervision of the bridge and sidewalk, and denied all allegations of negligence made against it.

Second. As a further defense, it is alleged in the answer, that the bridge and sidewalk mentioned, were a part of the street, and which street is also a state and county road, and had been so for many years prior to the death of plaintiff’s intestate; and that the village had not been at any time entitled to receive any part of the bridge fund of the county, and that it had received no part of said fund, and that the duty to repair and maintain the bridge devolved upon the county commissioners.

Third. The defendant also charges that the fall and death of decedent were caused by her own negligence.

The reply admits that the village had never received any part of the county bridge fund, and that the bridge and street were part of a state and county road as claimed in the answer, and denied that the deceased was negligent.

At the close of the plaintiff’s testimony, the court directed a verdict for the defendant, and rendered judgment accordingly.

The case is here on error to reverse the judgment, and it has been ably argued by counsel for the parties.

It is admitted in the pleadings, and it is a fact conceded in the evidence, that the bridge in question spans the Miami & Erie Canal, and is part of the street running east and west in the village, and. that the street is at that point laid on a long established state and county road; that it was constructed by the county commissioners, and that the village was not entitled to and received no part of the bridge fund levied on property within the same.

It is claimed by the defendant that under the law and according to such facts, it was and is not responsible for the condition of the bridge or the consequences set out in the petition; and we are informed by counsel, that the court below entertained this view, and therefore directed the verdict for defendant.

It is an old statute which makes it the duty of county commissioners to construct and keep in repair all necessary bridges. It dates prior to the revision of Swan & Critchfield, and is now found in sec. 860 of the Revised Statutes, which reads:

“The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads * * * except only such bridges as are wholly in such cities and villages as by law have the right to demand and do receive part of the bridge fund levied upon property within the same. ’ ’

And we refer to sec. 4936, Revised Statutes, which is:

“The commissioners of any county through which any canal or feeder of a canal of this state passes, except such as are built by incorporated companies, shall, at the cost of such county, keep in good repair all bridges, where any state or county road crosses such canals.’’

Also see sec. 4938 to same effect. It seems very clear from these sections, that the duty to maintain and keep in repair the bridge mentioned in this case rested upon the county commissioners, and we know that prior to the amendment of sec. 845,Revised Statutes, made in 1894, there was no remedy against county commissioners for neglect to keep such bridges.in repair and safe condition. It seems the¡re was no remedy for their negligence. See Board of Commissioners v. Mighels, 7 Ohio St. Rep., 110.

But the amendment now provides a remedy for such neglect of official duty.. Vol. 91 O. L., 142,

But it is claimed for plaintiff in error that, notwithstanding the above legislation, there is such care and supervision of the streets, alleys, bridges, etc., enjoined upon cities and villages by another section of the statute, that a right of .action exists against the village of St. Mary’s in this case, and the sec. 2640 provides:

“The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”

This also, is an old statute. We trace it back as far as an amendment made March 18th, 1859. See 56, O. L., 57, where the section assumed almost its present form as sec. 2640 — 'but it related to cities.

In 1869 the municipal code was adopted,and the old section, was carried into it as sec. 439- (See 66 O. L., 222.)

By. this revision and codification, the rule was extended to cities and villages alike.

By reason of sec. 2640, it is claimed, and, we think, with much reason, that while it was the duty of the county commissioners to construct and keep such bridges in repair, there is a certain degree of care, supervision and control vested in the village council. We have seen that the two classes of legislation — for the commissioners and the council —are of many years standing. If there is any difference, the rule of conduct prescribed in sec. 2640 out-ranks the other in age. Hence it is that the sections should be construed together. Such is the view taken by our supreme court in State ex rel. v. Commissioners, 49 Ohio St., 304, where it is said:

“The duty here imposed is'a part of the general duty to construct and keep in repair all necessary bridges over streams and public canals on all state and county roads imposed on county commissioners by sec. 860, Revised Statutes, and became necessary as a limitation of sec. 2640, Revised Statutes, giving to cities and villages the supervision and control of all public highways and bridges within their corporate limits, and requiring them‘to keep the same in repair and free from nuisance.’ .These sections all relate to the same subject, and must be construed together. As an effect of these provisions, it became the duty of county commissioners to construct and keep in repair all bridges on the public highways of the county, except such bridges as are within cities and villages that have- the right to demand and receive a portion of the bridge fund.”

• Applying the law to the case at bar, we are of opinion that it was not the duty of the village to repair the bridge where it had been burned, as that work was imposed upon the county commissioners.

It does not follow, however, that this fact relieves the .village of the care, control and supervision of the bridge.

There is no conflict of duties between the commissioners and municipal authorities. The former have the control of the bridge fund, and hence-their duty to construct and repair. The latter have no control of the bridge fund, and therefore are not required to either construct or repair. But they do “have the care, supervision and control of all public highways, streets, * * * sidewalks, grounds and bridges within the corporation, and shall cause the same to be kept open * * and free from nuisance. ” And either or both may now be liable for neglect of duties imposed by law.

What were its duties in the case before us?

Several days prior to the fatal injury, fire had burned away a portion of the sidewalk, part of the bridge ten feet in length and the full width of the walk. This made it a place of great danger of which the village had prompt and full knowledge. It undertook to discharge its duty by placing obstructions and barriers about the hole to keep people away from it. It is alleged, and there is evidence in the record tending to prove, that these barriers were not fastened to any permanent object, but were loose and easily removed or thrown down; and the evidence tends also to prove that the village authorities had relaxed their care on the day and night of the injury, so that the barriers were not in place, and that there were no danger signals there to warn pedestrians of the place of danger. We think it is the duty of the village authorities to either temporarily cover the hole, or protect from it by barriers and signals, and to maintain the same in safe condition until the commissioners — 'the proper party — could be notified and make the necessary repairs. Such is the kind of care, supervision and control of the streets and bridges contemplated in sec, 2640. Otherwise it would be of no practical use or benefit, It is a reasonable rule of conduct. This bridge was upon the main thoroughfare of the town, and on each side of it were stores and other places of business. It was in almost constant use, and the village owed it to its citizens, of whom the deceased was one, to safe-guard the scene of danger until repairs could be made. To do so, would be the exercise of the ordinary police power and regulation which is coextensive with the corporate limits; and to neglect so plain a duty would be such negligence as would make the village liable where there is no other element in the case to defeat recovery

It has been repeatedly held in Ohio, that where one having a contract with the village or city for the construction of a sewer or other public improvement, with the knowledge of the municipal authorities, negligently leaves open an excavation, or places a dangerous obstruction in the street., without guards or signals, where person or property is injured thereby, the city or village may be held primarily liable, although it was the duty and even the agreement of the contractor to properly guard the place to prevent injury. A full consideration of the proposition with cases cited may be found in case of City of Zanesville v. Fawnman, 53 Ohio St., 605.

We would hold, therefore, that, if there is no other question in the case which defeats recovery,the trial court erred in directing the verdict for defendant.

But we* have another branch of the case in which it is charged in the answer and fairly supported in the testimony, that decedent was guilty of contributory negligence, without which no injury would have occurred. And the presumption of this negligence arises on the plaintiff’s evidence,and is not explained or rebutted.

The size of the opening burned in the sidewalk we have already noticed. The burning of the mills had caused this about thirty days before,and the effects had become somewhat notorious in the village. Quite an accumulation of warped iron and other debris from the mili was near the east entrance to the bridge — the sidewalk part of it. It could not be reached from the west because of a caving in of the earth. The scales east of the entrance a few feet,and which formed part of the street sidewalk,had been burned out — making a break in the walk on that side near the bridge. The steps from the street sidewalk on that side, and which were used to get upon the bridge level, had also been burned — that the perpendicular height there was near twenty inches, so that it required something of an effort to reach the place of danger for all of these reasons.

There was an electric light, if not on center of the bridge, not far from it, and elevated about fifteen feet above bridge. Mrs. Terrell,one of the ladies who was behind deceased,said it was as light there (where the hole was) as electricity -could make it. The light shone brightly on the bridge. Mr. Seasholes,from his window about 200 feet east of the bridge, by this light,saw deceased on the walk. He saw her stand and look for a moment, and then disappear.

G. A. Layton, D. F. Mooney, and Armstrong & Johnson, for Plaintiff in Error.

Solicitor J. T. Sohoonover, and J. H. Goelce, for Defendant in Error.

Another witness said,she looked,and then walked on. All others avoided that part of the bridge. It was with some extra steps and inconvenience that she reached the fatal place. She was not in the exercise of ordinary care and prudence. The facts, about which there is no dispute, clearly established her negligence,

For this reason alone, we affirm the judgment.


author: King, J.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    Jan’y. Term, 1898.)
    Before King, Haynes & Parker, J.J.
    HATTIE C. BOEHM v. C. W. YANQUELL et al.

      Contract — Misunderstanding between parties—
    When an alleged agreement was entered into by an honest misunderstanding and through a mutual mistake of the parties, there is no legal contract, and the remedy is to set it aside, and not to enforce it.
   King, J.

An action was brought in the common pleas court by C. W. Yanquell to recover against Fred. M. and Hattie <3. Boehm the sum of 1900.00, with interest from June 2.8, 1893, claimed to.be due the plaintiff as the balance of the purchase price of certain real estate.. The real estate in question was a mill and the land on which it is situated, and about 1878 this mill property was owned by one Jacob Boehm, since deceased. In 1878 he sold an undivided one-half of the mill property to Yanquell for a consideration of $4050, of which consideration the purchaser paid $900.00 shortly after the purchase, and the balance, $3150, he did not pay; this was evidenced by five promissory notes of $630.00 each,and these notes were secured by mortgage upon the undivided half.

In March, 1893, Jacob Boehm died, and Yanquell, who then owed these notes, proposed to sell to the heirs of Jacob his undivided half of the mill, and it is claimed in the case that the proposition he made in that respect was accepted by the Boehms,and later,in June, 1893, the transfer was made. The consideration for the transfer is in dispute.

Yanquell claims that he proposed to convey his interest in the real estate for the amount which he had' paid, $4050, and this sum was to be paid by a surender of the notes at their face value, $3150, disregarding the interest accrued, and a payment to him of $900.00 in cash. He made his proposition to Fred. Boehm. He claims that it was agreed that Fred, should convey his proposition to his sister Hattie, who lived six or seven miles away; that some time after he made the proposition Fred, returned and signified that his sister would accept it; that nothing more was said about it until the 26th day of June, when the parties met in the office of Judge Stickney at Norwalk to prepare the papers, and a deed was there drawn up which recites in the consideration clause,that “in consideration of the payment of $4050, paid by Hattie C. Boehm to Fred. M. Boehm, the receipt whereof is acknowledged, the grantor does convey, etc.”; that the deed so made was executed by him and his wife and accepted and received by the defendants; that they turned over to him the notes in question, but did not pay him the $900.00, and he brings this action to recover that sum.

There are several objections to the charge of the court and to the refusal to give certain requests, and the claim is urged that the verdict and judgment is not supported by sufficient evidence.

The plaintiff sought below to hold Hattie Boehm upon the claim that Fred. Boehm acted in the transaction as her agent, and the case was submitted to the jury upon that theory, and the jury instructed that they must find from the evidence that she had authorized her brother Fred, to act for her in the transaction. The plaintiff did not claim to have had any conference or conversation with Hattie or in her presence until the parties met to draw up the deed. On that occasion the plaintiff claims that Mr. Stickney prepared a deed; that he read or started to read the deed, and said that he had left the consideration blank, and inquired what sum should be put in; that plaintiff responded and said that he should put in the full amount, and thereupon he wrote in $4050 as the consideration, and the deed was then signed. The plaintiff does not say that Hattie said anything about it except by her silence to consent that the consideration clause should be filled out as suggested by the plaintiff. It is also claimed in argument that Hattie received the deed, had it put upon record, and that afterwards, perhaps after this action was commenced, she and her brother sold the property and received the proceeds of the sale, and that from this a ratification may be presumed.

We think the record is entirely barren of evidence tending to show that Hattie Boehm either authorized her brother to act for her as her agent,or that she at any time or in any manner assented to the proposition which the plaintiff claims he made for the purchase of this property, and we think that the acceptance of the deed and the benefits therefrom by Hattie Boehm do not amount to a ratification of the contract which the plaintiff claims was made and which the defendants deny, and that because of this, the verdict and judgment is unsupported by evidence against Hattie Boehm. We-also think in that condition of the record that the court should have given the seventh request made by the defendants, which was refused,to-wit: “There is no evidence in this case tending to prove that Fred.M. Boehm had any authority as the agent of Hattie Boehm, to make such an agreement with the plaintiff as issued upon in this action.” This is enough to say about the case as far as Hattie Boehm is concerned. So far as Fred, is concerned, some further observation should be made.

I have referred to the claim the plaintiff makes as to the transaction in Judge Stickney’s office. On the part of Fred, he testifies in his own behalf that the proposition made by the plaintiff was that he would convey his interest in the property if the parties interested would surrender to him the five notes which they held as a part of the estate of Jacob Boehm, deceased. Fred, says that he carried that proposition at the plaintiff’s request to his sister and to their mother, who was likewise interested in the estate, and who are the only ones interested, and they agreed to the' surrender of the notes and that the plaintiff’s interest in the mill should be conveyed to Hattie and Fred.; that hs notified the plaintiff of their acceptance, and they met on the day above named at Judge Stickney’s office. Fred., Hattie, and their mother all testify that Judge Stickney in referring to the consideration clause, said he had not filled it out, but that any sum would answer, a dollar or a thousand dollars or the amount in the old deed which he had before him and from which he had procured the description he inserted in the new- deed; that no one made any reply, and Judge Stickney again inquired if they had any preference, saying that it made no difference what was inserted in that clause, and that the plaintiff then spoke up and said that be might as well put in the amount in the old deed, and that this accounts for writing in the sum of $4050.

The testimony of Judge Stickney,taken at a former trial, was offered on this trial. He testifies that he was consulted by both Fred. Boehm and Yanquell some days before the 26th of June, about drawing up these papers,and that Yanquell had furnished him with his deed from Jacob Boehm, and he had written a new deed some days before the 26th; that he understood from both parties that the Boehm family was to cancel the notes and mortgage and deliver them up to Yanquell as the consideration for the property; that he wrote all of the deed except the consideration clause; that he began to read it when the parties were there upon the 26th, and when he reached the blank he said “here is a space to be filled in with the amount,” but nobody said anything. /‘I said how much shall I put in? Nobody said anything, and I then remarked, you can put in one dollar, as the only point is to re-convey the title — you can put in one dollar or twenty dollars or a thousand dollars, or if you choose, you can put in the old price stated, in the deed which would be $4050; but none said anything about it for a moment. Finally Mr. Yanquell speaks up to me and says, well, it will look better, I guess, and you had better put in the last sum — $4050. I then inserted the amount and that is the way that amount became inserted.” He further testifies that after the papers were executed and delivered, the parties all left the office, but soon after Mr. Yanquell returned, closed the door behind him and said to him, “Stickney, I want to ask you a question; I am satisfied with all this business, but I want to ask you a question.” I says, “What is it, Mr. Yanquell”? He says, “Can’t I collect this $900 off from the estate of Boehm, now?” Says I, “Under the circumstances you can't collect it, for you have simply gone, under the transaction, and paid the debt that you owed to Mr. Boehm by cancelling the claim you had; but if you have made a contract with Fred.,or with anybody that is responsible — have got a responsible contract — you can enforce that contract; I don’t know whether you have or not”, but under the other circumstances, I said^to him, ‘‘you can’t collect the $900.” Mr. Stickney testifies to some other conversation with Yanquell then, and^the parties separated. On the way home Fred. Boehm went to the train with Yanquell,and Yanquell made some inquiry as to when Fred, would pay the $900.00. There is a dispute about what took place there. It is conceded, however, that Fred, said nothing indicating that he either understood what Yanquell wanted or whether he was going to pay it. The same afternoon at the mill Yanquell made his claim more specific, and Fred.then told him¡that he didn’t owe him any $900.00, and was not going to pay anything. There is other evidence in the record but it is hardly’jknaterial enough to justify reciting. '

We have come to the conclusion that the clear weight of this evidence is with the defendant Fred.Boehm as to the contract for the sale of this land. But, if the testimony of Yanquell were believed and the testimony of Fred Boehm as to the proposition originally accepted, then there was a mistake; the minds of the parties did not meet in a valid contract, and having this idea in view, defendant asked the court to charge the jury as follows:

‘‘9. If the contract"which one party honestly and reasonably supposes he is making is essentially different from that which the other party at the same time honestly and reasonably supposes it to be, then there is a mutual mistake and no contract legally results, and the proper remedy is not to attempt to enforce the contract, but to have it set aside, and if you find such mistake of the parties to have happened in this case, your verdict|must be for the defendants.”

The court refused to give this, and to his refusal the defendanst excepted. We think in view of the evidence and the claim made by the defendants, that they were entitled to have this request given.

In view of what we have said with reference to the case of Hattie Boehm, it is unnecessary to refer to the charge of the court, considerable of which is excepted to, but is disposed of by our holding that the court should have instructed the jury directly to return a verdict in her favor. We think that the verdict is not supported by sufficient evidence as to Fred. Boehm as well as Hattie, and for the refusal of the court to give the seventh and ninth requests not given, and for error in overruling the motion for a new trial on the ground that the verdict was not supported by sufficient evidence, we reverse the judgment and remand the cause for a new trial.

G-. T. & C. H. Stewart, and A. E. Rowley, for Plaintiff in Error.

Vickery Bros., for Defendant in Error.

A question was urged upon the form of the verdict. We are satisfied the court below correctly disposed of that question, that the verdict as rendered by the jury contained sufficient to enable the court to ascertain its meaning and effect, and that a judgment was properly rendered against both defendants so far as the verdict itself is concerned.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE STATE OF OHIO ex rel. ALEXANDER BACKUS, ASSIGNEE in trust for the benefit of all the creditors of THE ABNER L. BACKUS & SON’S CO. v. IRWIN I. MILLARD, as Probate Judge of Lucas Co., Ohio,

      Order raising assignment and discharging assignee at assignee’s request — Valid until set aside in proper proceeding, or reversed on error — Mandamus, when not proper remedy—
    Where the Probate Court makes an order discharging an assignee for the benefit of creditors, at his own request and vacating the assignment, such order is binding on such assignee and on all parties having notice of such application, until set aside by proper proceeding or reversed on error. And when the assignee, after such discharge,comes into the Probate Court and asks that such order of discharge be set aside and he be permitted to continue to act as assignee, and for leave to hie an additional account and for an allowance for his expenses, which application and motion is refused by the Probate Court on the ground of want of further jurisdiction in the matter, such assignee can not petition the Circuit Court for a writ of mandamus to compel the Probate Court to entertain his said application, so long as the order of the Probate Court discharging the assignee remains in force and , unreversed.
    Mandamus.
   Haynes, J.

(Orally.)

On the 20th day of August, 1897, there was filed in this court a petition for mandamus in this case. An application was made to one of the judges of this court for an alternative writ of mandamus, which was granted in due form, and thereupon the defendant, having entered his appearance by virtue of the statute, files a demurrer to this petition, thereby raising the question whether a writ of mandamus ought to be allowed in the case. He demurs upon the ground that the court has no jurisdiction of the subject of the action, and that the petition does not state facts sufficient to constitute a cause of action.

We have listened to the arguments of counsel, and have given this matter our attention, and are unanimously of the opinion that the demurrer should be sustained; and that for reasons which I will endeavor briefly to state.

The petition.says that on the 10th day of June, 1893, relator was appointed assignee in trust for the benefit of all the creditors of said The Abner L. Backus & Son's Company, an insolvent corporation, and was duly qualified and entered upon the duties of his trust; that defendant Millard then was and still is probate judge of Lucas county, Ohio. He further says that on the 19th of August, 1893, the relator filed a paper writing in the probate court, of which the following is a copy:

“Now comes Alexander Backus, the duly appointed and qualified assignee of the Abner- L. Backus & Son’s Co., and shows to the court that the following were at the time the assignee accepted the trust, the only creditors of said assign- or, viz:”

Then it sets out quite a list of creditors, and among others it mentions Abner L. Backus, $35,093.64, and proceeds:

‘‘That since said assignment has been made, all of the creditors except those hereinafter named have been paid in full, and no liability in their favor is now existing, as is shown by the vouchers and exhibits hereto attached,and join the assignee in the request to this court that the trust may be vacated, the assignee discharged, and he and his sureties released from further liability on account of their prior existing claims. That the following named persons and firms, creditors of said assignor, to-wit: Houck & Jones, Centerville, Indiana; Vernon & Moss, Anderson, Indiana; Weckizer & Boggs, Argos, Indiana; Fowler, Harpster & Smith, Harpster, Ohio; have been notified by the assignee that he is ready and able to pay to them in full the respective amounts with interest, but they have hitherto failed to present any claim against the assignor or receive or receipt for the payment thereof to the assignee. He further shows he has paid all costs and expenses of administering the trust. Wherefore the undersigned asks that he be discharged from the further duties of his trust; thathe be allowed to deposit for the benefit of said last named creditors of The Abner L. Backus & Son’s Co. the amount now due to them, or that he be allowed to retain in his hands the said amounts due respectively to each of said creditors and give undertaking in such amounts as this court may designate until such time as they, said creditors, are willing and ready to accept payment thereof; and thereupon he may be released and discharged as such assignee; his bond heretofore filed in this court be cancelled, or make such other and further orders as the court may deem right and proper in the premises.”

To that he makes oath. On the same day, to-wit: August 9th, the probate court made an order of which the following is a copy:

In the Probate Court of Lucas county, Ohio.

Ex parte the assignment for the benefit of creditors of The Abner L. Backus & Son’s Company.

.‘‘This day came Alexander L. Backus, the duly appointed. and qualified assignee of said The Abner L. Backus & Son’s Co. and filed a statement of the credits and liabilities of said company at the date of said assignment, and submitted proof that said creditors, except those of them hereinafter named, had been paid in full; that no liability of said corporation in their favor now exists, and that they join said assignee in asking his discharge from said trust, and also that the following named creditors of said corporation, to-wit: Houck Jones, Vernon & Moss, Weckizer & Boggs, and Fowler,Harpster & Smith, have presented no claim for their respective demands, but that said assignee has in his hands sufficient funds to pay the same; that said assignee has submitted proof that it would be manifestly just and to the interest of the assignor that he be released from the further administration of said trust; and the court being now fully advised in the premises, it is hereby ordered, all of. the creditors, except those as above named, in open court consenting thereto, that said trust be vacated and the assignee released and discharged from further liabilities by reason of his trust; upon condition, however, thatsaid Alexander Bakcus file forthwith a new undertaking in the sum of $2500, payable to the state of Ohio, for the use of the unpaid creditors of said Abner L. Backus & Son's Company, conditioned that he will, on demand, pay all unliquidated claims of said corporation. And said Alexander Backus having filed said bond, which is hereby approved, he is hereby discharged from said trust as assignee of Abner L. Backus & Son’s Company; ordered that he pay the costs, taxed at $■— --.’’

It is claimed that this order is void,for the reason that all of the creditors of the Abner L. Backus & Son’s Company did not join in the petition or consent to the cancellation of the assignment. We do not come to that conclusion; nor do we think that the case cited of Garver v. Tisinger, found' in 46 Ohio St. 56, requires us-to come to that. •

The petition recites that at the time the order was made, to-wit: August 19th, 1893' — ■

“No notice of any kind, either personal, by publication or otherwise, was given the assignor The Abner L. Backus & Son’s Company of the filing or pendency of said paper writing by said relator, as such assignee, or of the time of hearing of any matter pertaining to said assignment of any nature whatever; that at the time of the making of said order by said probate court (the order of date August 9th, 1893), the said assignor, The Abner L. Backus & Son’s Company, was not present in said court, nor was any one authorized to act for it present in said court; and the said assignor, The Abner L. Bakcus & Son’s Company, did not consent to said order of August 19th, 1893, and the said assignor, The Abner L. Backus & Son’s Company, had no knowledge of said order of August 19th, 1893, until long after said order was made and entered. That at the time of the making of said order by said probate court (the order of date August 19th, 1893), the following named co-partnership firms were creditors of said assignor The Abner L. Backus & Son’s Company, in the sums set opposite their respective names, as follows: (Naming the four firms already referred to). -That neither of the above named creditors were present in said court, nor was anyone authorized to act for them or either of them present in said court at the time of making said order of date August 19th, 1893; and the said above named creditors, or either of them, did not consent to said order of August 19th, 1893, and the said above named creditors had no knowledge of said order of August 19th, 1893, until long after such order was made and entered.”

We are proceeding now upon the relation of the assignee. The assignee is asking that this order of August 19th, 1893, be treated as a nullity, and that it be declared by the probate court and recognized by this court that the assignment had not been terminated or cancelled, and to declare that he to all intents and purposes is as much the assignee today of the corporation as he was at the time the assignment was made and he accepted the trust. It will be noticed that there is in this case a very full finding that all the creditors except these four have been paid; that all of the reditors except these four have asked that the assignment be cancelled and ended; and that all the creditors except these four were present, and in open court consenting thereto, and an order was made that the trust be cancelled, and that the assignee should give bond for the use of these unpaid creditors, and that he did file such bond, and it was ordered that he be discharged.

So far as the bond is concerned, we think the true construction of this order is this: on the application simply to discharge the assignee from his trust, it is shown that all the creditors except four have been paid, and the object and purpose of giving that bond was to secure these four creditors if the bond of the assignee should be cancelled The language of the order is as follows:

“That said trust be vacated, and the assignee released and discharged from further liabilities by reason of his trust; upon condition, however, that said Alexander Backus file forthwith a new undertaking, etc”

We take it that the assignee was discharged The intention of the court was to discharge him. The only thing-that the court was undertaking to do was, if it made a cancellation of the bond, to secure the creditors who had claims or accounts against the estate; and thereupon the order provides that as a condition of that cancellation a new-bond be given to take the place of the other. The clear effect of that is to discharge the assignee, without reference to the fact whether he gave a bond or not.

We think, therefore, that that order must be held to be a valid and binding order, except as to these four parties that I have mentioned, and they are not here making any complaint. Indeed, so far as appears by the record, the assignee has in his hands the money necessary to pay these four persons, and they have not made any claim for it, .or called upon him for it in any manner or form, although they have been notified by him that he has the money for them, and is ready to pay it over to them.

That order stood unchallenged up to the filing of this petition, except by certain proceedings which are recited in this petition as follows:

“That on the 19th day of May, 1894, one Abner L. Backus, who was at the date of said assignment and still is a large creditor of the said assignor, filed in said probate court a paper writing of which the following is a copy:

“And now comes Abner L. Backus, a stockholder in and a creditor of said company, and moves the court to vacate the conditional order of the court to discharge the assignee from the further administration of said trust, for the following reasons, viz:

“1. That the order of the court that said assignee give a new bond has not been complied with.

“2 That it is not true that the new undertaking to be given by the assignee was in fact given and approved by the court,

“3. That the assignee has, through a misunderstanding, misinformation, and mistake, reported to the court that all of the creditors of the insolvent corporation, except four, had been fully paid, and had given their consent to the discharge of said assignee, which was not true in fact, for that the undersigned and three others had not been paid in full, and had not given their consent.

“4. That there are now actions pending in the court of common pleas in and for Lucas county, Ohio, against the said Abner L. Backus & Son’s Company, in which said corporation may be adjudged to pay large amounts, and the stockholders ultimately made liable therefor.

“5. That the undersigned is one of the largest creditors of said insolvent corporation whose claim is wholly unpaid.

“Abner L. Backus,

by L. H. Pike, his atty.

“I hereby enter my appearance and consent to the immediate hearing and disposition of the within motion, by the court.

“May 19th, 1894. Alexander Backus,

“Assignee of A. L. Backus & Son’s Co.,

“by L. H. Pike, his atty.’’

That on the same day, to-wit. May 19th, 1894, the probate court of said county made an order which was duly entered upon the journals of said court of said date, of which the following is a copy:

“In the Probate Court of Lucas county, Ohio.

“Ex parte The assignment of J. E. May 19th, 1894.

The Abner L. Backus &

Son's Company.

“This day this causa came on further to be heard on the motion of Abner L. Backus to vacate the conditional order heretofore made by this court to discharge the assignee from his trust, and the assignee in open court consenting thereto, and the court after hearing the evidence being fully advised in the premises, does find:

“That the order heretofore made that said assignee Alexander Backus give a further bond in the sum of 12500 before being discharged had not been complied with; that the journal entry reciting that the bond was given or approved was a mistake of the clerk of the court; that the assignee had through a misunderstanding and misinformation reported to the court that all of the creditors of said corporation, except four named in the report, and for whom he had a sufficient amount of money in his hands to pay them in full, had consented to the discharge, when in fact there were other creditors of said firm unpaid who had not given their consent to the vacation of the trust and the discharge of the assignee, and that the order was improperly obtained; and that said assignee still has in his possession money belonging to said insolvent estate, and that there are assets which he has not yet distributed; that Abner L. Backus, the party moving to vacate the order, is a creditor of and stockholder in the company, and has an interest in the proper administration of said trust; and that said order for discharge being conditional on the proper performance by said assignee of the condition affirmed by the court, which order was not complied with by said assignee, and has not since been so complied with.

“It is therefore ordered and adjudged by the court that the conditional order heretofore made to discharge1 the assignee be vacated, set aside and held for naught, and that said Alexander Backus, assignee as aforesaid, proceed to discharge the duties as assignee, and administer the trust according to law.”

It will be observed that this order was granted upon the ■application of Abner L. Backus, with the consent of the assignee, Alexander Backus, and .without any notice of any kind, so far as the record shows, to the assignor. The petition now proceeds:

“That at the time and prior to the making of said order by said probate court, to-wit: the order of date May 19th, 1894, no notice of any kind, either personal, by publication or otherwise, was given the assignor, the Abner L. Backus- & Son’s Company, of the filing or pendency of said paper writing by said Abner L. Backus, or of the time of the hearing of said paper writing filed by said Abner L. Backus; neither did the said assignor, The Abner L. Backus & Son’s Company,have any knowledge of the hearing of said paper writing filed as aforesaid. That after the order of date May 19th, 1894, was so made and entered as aforesaid, said relator, as such assignee,further performed duties that were necessary in the execution of said trust in good faith;. and in the further performance of said duties incurred and paid expenses that are properly chargeable to said trust. That on the 3d day of October,1895,your relator,as such assignee, filed in the probate court of said county a paper writing of which the following is a copy:

“To the Probate Court of Lucas county, Ohio:

“Ex parte the assignment of

The Abner L, Backus & Son’s Second Report..

Company.

“The undersigned assignee respectfully represents that it will appear from the previous report of the assignee and other files in this cause that there was at the date of the last report in the hands of the assignee an amount sufficient to satisfy the respective claims of four of the creditors of said-insolvent corporation not yet proven and presented, and a large amount of assets in possession of one Samuel L. Backus, belonging to said corporation and this assignee respectively, The late Abner L. Backus, now deceased, was a-creditor of said insolvent corporation on whose motion this order discharging the assignee was vacated. But by the last will and testament of said Abner L. Backus, deceased, it is provided that his interest in the assets of The Abner L. Backus & Son’s Company shall go, and is bequeathed, to-said Samuel R. Backus on condition that said Samuel R Backus execute to the executors of said last will a bond in a sufficient amount to hold the estate of the deceased harmless from any liability by reason of the interest of Abner L. Backus in said insolvent corporation.

“Immediately after receiving notice from this court that this assignee should make a further or final report as such assignee, he gave notice to said Samuel R. Backus, that he should either execute the required bond to the executors, or hand over the assets in his possession to the assignee. But said Samuel R. Backus refuses to comply with this demand in any manner or form, but threatens to bring an action against the undersigned for failure to pay over to him the assets now remaining in the hands of this assignee; or it may become necessary that the assignee bring the proper action against Samuel R. Backus for the recovery of the property belonging to the estate in his hands. Wherefore the undersigned asks for an order further extending the time to make a final report of his trust.

“Alexander Backus,

“Assignee of Abner L. Backus & Son’s Company.”

That upon the hearing of said paper writing said probate court of said county made and entered upon the journals a finding and order of which the following is a copy:

“On December 10, 1S95, came on for hearing said application of Alexander Backus, the former assignee herein, asking for further time in which to file his final account. Thereupon the court carefully examined the application,and also carefully examined the proceedings of this court heretofore had herein, together with its several orders as appears from the journal of this court; and the court being fully advised in the premises finds and orders as follows:

“1. Thatsaid Alexander Backus, upon qualifying as assignee herein, gave notice of his appointment as such assignee, as required by law, by publishing notice of said appointment for three consecutive weeks, on the same day of the week, in the Toledo Bee, a newspaper published and of general circulation in Lucas county, Ohio; due proof of said publication of notice having heretofore been filed in this court, the same is approved and confirmed.

“2. That said Alexander Backus, as assignee, was on the 19th day of August, 1893,discharged as assignee herein, and said The Abner L. Backus & Son’s Company was thereby released and discharged from under its said assignment, upon condition that the said assignee give a bond in the amount of $2500 for the benefit of certain creditors, the money to pay whom the assignee retained in his possession, and which bond the court approved.

“3. That the order upon the journal of this court granting the application of Abner L. Backus, under date of May 19, 1894, was made without»? any notice whatever having been given to the said The Abner L. Backus & Son’s Company, and the order that the assignee proceed to administer his trust as assignee is therefore void.

“4. The court therefore finds that said Alexander Backus, by reason of the discharge aforesaid, ceased to be the assignee of said The Abner L. Backus & Son’s Company, on the 19th day of August, 1893, and that he has at no time since said date, and is not now the assignee of said The Abner L.Backus & Son’s Company.

“5. It is therefore ordered by the court that said application of said Alexander Backus for leave for further time in which to file his final account, be and the same hereby is ovreruled and disallowed.

“Thereupon said Alexander Backus gave notice of his intention to appeal this cause to the common pleas court, and also duly excepted to the ruling of each of the above findings and orders herein.’’

“That on the 8th day of July, 1896,your relator, as such assignee, filed in the probate court of said county a paper writing of which the following is a copy:

“The undersigned assignee respectfully represents that his former report, dated August 19,1893, made within seventy days after he had qualified as such assignee, was neither complete or entirely accurate, and it would further appear from the records of this court in this case that there was never filed a complete list of the liabilities or assets of the assignment, nor was an inventory and appraisement ordered and made, because, as will hereafter appear, the large majority of the claims against said estate were liquidated within 70 days, but owing to the fact that the books and papers of The Abner L. Backus & Son’s Company, pertaining to its assignment, being as far as the assignee is now aware in the possession of Samuel R. Backus, at the date of the assignment, the vice-president of said corporation, and that Edwin Parsons, then the secretary and a director cf said assignor, acting during the first ninety days after I qualified as my clerk,I am now unable to make an absolutely complete report of my transactions and proceedings, said books and papers still being in the possession of the above named persons, notwithstanding I have made of the Abner L. Backus & Son’s Company, repeated demands for such books and papers.

“The following is a more complete statement of the liabilities of said assignor:

The Second National Bank of Toledo,-Ohio, $150,000.00

The Union Railroad Elevator & Trans'. Co. 50,177.84

Rice, Quimby & Co., 67,525.00

Abner L. Backus, 35,093.64

Hauck & Jones, 400.14

Vernon & Moss, 125.12

Weckizer & Boggs, 5220.24

Fowler, Harpster & Smith, 201.59

“The last four of the above named claims have never been presented to this assignee, and no payment has been made by him thereon. The claim of Abner L. Backus,now deceased, and represented by his executors, Edwin Jackson and Alexander Backus, is still entirely unpaid. All other claims above stated and a number of others which cannot be named, for the reason already stated, are all paid and liquidated in full. ”

He then sets out some matters in relation to accounts that were given to secure some claims to the Second National Bank, etc., that perhaps are not relevant here, and then sets up some costs and expenses as having been made, and says he is still further indebted to his attorney, and so on. And thereupon on August 17, he filed the following motion or paper:

“Now comes Alexander Backus, assignee, and moves the court to set for hearing his second partial account of said asssignment, and order publication of notice according to law of the filing and hearing of said account, filed July 8, 1896. - .

2. And said assignee farther moves the court to approve said account, and to make an allowance for his services and disbursements as assignee.”

He says:

“That on the 27th day of August, 1896,the said probate court of said county, acting upon paper writings of your relator, as such assignee, made and entered upon the journal of said court an order of which the following is a copy:

‘‘Now, on this 27th day of August, 1896, came on to be heard the motion of Alexander Backus, filed on August 17, 1896, which is hereto attached, marked Exhibit A, to set the time for hearing of the second partial account of said Alexander Backus, as assignee of The Abner L.Backus & Son’s Company, and publish notice of the filing and hearing of said account, marked Exhibit B, hereto attached and made a part of this entry, and also the motion of said assignee to approve the account and make him an allowance for his disbursements and services as such assignee. The Abner L. Backus & Son’s Company did not appear. The court being now fully advised in the premises, denisd said motion and refused to fix the time for the hearing of said partial account, and refused to order a publication of a notice for the hearing of said account, and also denied the motion to approve his accounts for disbursements and to make an allowance for commissions or other compensation or for his services as assignee,for the reason that this court has no jurisdiction of the parties, or of the subject matter; to all of which rulings of the court said Alexander Backus, assignee as aforesaid, then and there excepted. And thereupon said Alexander Backus, as assignee, gave also notice of his intention to appeal this cause to the court of common pleas in and for Lucas county, and the court being of the opinion that said assignee was discharged and the trust had terminated, and that it had no jurisdiction as aforesaid, at the request of said Alexander Backus, ordered that said Alexander Backus, assignee, give a bond of $200, to perfect such appeal, in case he is entitled to an appeal, to which rulings and orders said Alexander Backus also, then and there*excepted. ”

The petition further sets forth, that Abner L, Backus (has departed this life, and that Edwin Jackson and Alexander Backus were appointed and qualified as executors of his last will, and that on said 27th day of August, the following paper was filed in said court:

“And now comes Alexander Backus and Edwin Jackson, the duly appointed, qualified, and now acting executors of the last will and testament of Abner L. Backus, late of Lucas county, aforesaid, deceased, and respectfully represent that the said estate of Abner L. Backus is a creditor of said assignor in the sum of $35,093.64, which said claim has ■heretofore been duly allowed by the assignee of' the said The Abner L. Backus & Son’s Co., as a valid claim against the estate of said company; that said claim remains and is now unpaid and unsatisfied; that said assignee has never filed any account of his administration of said trust; that he now has money of said company in his hands aggregating upwards of $1038.99, which are subject to distribution among the creditors of said estate; that there are also further valuable assets belonging to said estate which said assignee has failed to collect and convert into money.

“Wherefore, said executors pray that said assignee may be •ordered to file his account herein, to collect all outstanding assets belonging to said estate, that a dividend may be duly declared by this court and payment thereof ordered made to said executors upon their said claim herein, and for all other and proper relief.

“Alexander Backus and Edwin Jackson,

“By George H. Beckwith their attorney.

“That on said 27th day of August, 1896,the said probate court of said county, acting upon the paper writing filed by said executors, made and entered upon the journals of said court an order of which the following is a copy:

“And thereupon on said 27th day of August, 1968, there came also to be heard the motion filed by Edwin Jackson and Alexander Backus, deceased, said motion hereto at-ached and made a part hereof, marked Exhibit C, to order Alexander Backus, assignee of Abner L. Backus Son’s Company, to file his account, collect all outstanding assets belonging to the estate of assignor, that this court might declare a dividend and order payment to be made to said executors of said estate of Abner L. Backus, deceased, a creditor of the assignor whose claim was allowed and wholly unpaid, and the court being fully advised in the premises denied the motion of said executors and refused to make the order prayed for, or to make any order in the premises, on the ground that said assignee was discharged, and that this court had no jurisdiction as aforesaid; to all of which rulings and orders of the court said executors then and there in due time excepted, and also gave notice of their intention to appeal from said order of this court to the court of common pleas of Lucas county, and said executors not having given bonds as executors, they are required to give a bond in the sum of $200, to perfect their appeal in case they are entitled to an appeal.”

It is said that this order and all of the orders hereinbefore recited appear upon the journals of the probate court, and that no other orders or journal entries were made in said matters. And the relator prays:

‘‘That an alternative writ of mandamus be allowed and issued against said defendant,Irwin I. Millard,as probate judge of Lucas county, Ohio, requiring him as such judge and said probate court, to proceed with the filing, publication, and hearing of the accounts of your relator as assignee in trust for the benefit of all the creditors of The Abner L- Backus & Son’s Company; and that said defendant, Irwin I. Millard, as probate» judge of Lucas county, Ohio, and said probate court, be required to proceed with the settlement of said trust under the provisions of the statutes in such cases made and provided, the order of said probate court of date August 19, 1893, to the contrary notwithstanding; and that upon the final hearing hereof, a peremptory writ of mandamus to be awarded to the same end and object; and that relator further have his costs and all other relief.”

I have already stated the views of the court in regard to that first order of August 19, 1893. That order stands as an order of court, and can only be attacked by parties who desire to attack it, and who were made parties, or who are reported to be parties, in the manner pointed out by law. We take it that|the]finding ofjthe court that these creditors were present in court asking for this relief, shows that the parties were present, and is binding upon them until that is set aside by the court in which the order was made. It certainly is binding upon the assignee, who is the relator herein, and upon whose motion an application to allow those orders was made. Abner L. Backus did appear in p^sdn in court and filed a motion,_ or an application, whatever it was, to set aside a forme^ order. That he might wéll do under the provisions of the statutes of this state providing in what manner and form the judgments of a court may be set aside at terms after the orders and judgments have been made. There are statutes which make such provisions, which are applicable to proceedings in the probate court. But the assignee having been discharged,being out of court, and the assignor by virtue of that order being entitled to proceed to transact business, these proceedings did not dissolve the corporation; it was entitled to be heard upon this application of Abner L. Backus, and the record is entirely silent as to whether or not they were made parties. It nowhere shows in the orders of the court that they were parties, or were present in any way consenting. The allegations of the petition are, that .in fact they never were present, and never were served with notice. The order that was made upon them, being made with the consent of the assignee and of Abner L. Backus, was held by the probate court in proceedings afterwards to be void. It certainly was void as against The Abner L. Backus & Son’s Co. They never were made parties to it in any manner or form. And the orders which I have read that were made by the probate court in regard to the application of the assignee to have a hearing upon the accounts which he had filed,and to have an allowance to him of certain expenses, and the approval of his action as assignee and his discharge, stand today in that court unreversed and in full force.

L. H. Pike, and H. W. Seney for Relator.

King & Tracy, for Defendant.

The object of this mandamus,as I have said, is to compel the probate court to disregard these orders, and to proceed to hear that account. And it is claimed that mandamus is the proper remedy in that behalf. It is well established that a writ of mandamus will not issue where the party who seeks relief has an adequate remedy at law. We are of the opinion that these orders that were made are so far final orders in the proceedings in this case,that they are subj’ect to be either affirmed or reversed upon the filing of a petition in error by the party who deems himself aggrieved thereby; that is to say, that the assignee, or the executors of Abner L. Backus could, as to the orders made to them respectively,have filed a petition in error to reverse those orders; that until they are reversed they stand binding and conclusive upon the parties; and that the party in making this application is in fact asking us to do that by a petition in mandamus which ought to be done by the proper court upon petition in error; that is to say, they ask us to try these matters, and to declare them nullities, and to proceed regardless of them to order, direct, and compel the probate court to act in this matter.

These are all the reasons that I desire to give why we sustain the demurrer, and why we shall order a dismissal of the petition. There are other reasons apparent upon the face of the record that might be mentioned, but of course, it is not necessary to state them at the present time.


author: Smith, J.

text:
    (First Circuit Hamilton Co., O., Circuit Court,
    Oct. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE STATE OF OHIO EX REL. MEADER, et al. v. JOHN J. SULLIVAN, JOHN ZUMSTEIN, LEWIS WERNER AND GEORGE MORTIMER ROE.

      Quo warranto — Prosecuting Attorney need not verify petition, nor give security for costs—
    1. Where the Prosecuting Attorney has filed, by leave of the ' court, a proceeding in quo warranto, on the relation of other persons, challenging the right of'.several persons, claimed to unlawfully hold and who were usurping the rights, privileges and functions of certain public offices, such petition • need not be verified, and sec'urity for costs need not be given.

      Same — Demurrer to petition — What grounds insufficient—
    2. The petition in this case is not subject to a demurrer on the grounds, 1st, that the plaintiff-has not capacity to sue; or 2nd, that there is a misjoinder of parties plaintiff; or 3rd, because there is a defect of parties plaintiff; or átb, because there is a defect of parties defendant; or 5th,because several causes of action,and separate causes of action against several defendants are improperly joined; or 6th,because the petition does not state facts sufficient to establish a cause of action.

      Same — Joint proceeding against several defendants—
    3. If it had appeared on the face of the petition, what seems to be conceded as true, that separate charges were brought against each of these defendants, and a separate trial had and a separate judgment of removal in each case, the demurrer would be sustained on the 5th ground set up, viz: that several causes of action,’ and separate causes of action against several defendants are improperly joined. In such case there could not properly be a joint proceeding against all.
    Quo Warranto.

      (*For the decision of this case on the merits, see 15 C. G. 333.)

   Smith, J.

On the 30th of November, 1897, John 0. Schwartz, the prosecuting attorney of this county, having obtained the leave of this court to do so, filed his petition in this case, stating that he, said Schwartz, prosecuting attorney for Hamilton county, on the relation of J. F. Meader, and Harry Haacke,E. G. Schreifer and Samuel A.Miller,brings this action on behalf of the state of Ohio, and informs the court (in substance), that on September 22, 1897, Gustavus Tafel, then duly acting as the mayor of the city of Cincinnati, by virtue of the power vested in him by sec. 2690m, Revised Statutes,did remove, upon charges preferred before him,and a full hearing of the same, the said four defendants from their offices as members of the board of supervisors of said city, and did thereupon appoint to fill the vacancy in the unexpired term of said defendants, caused by their said removal, Henry Haacke to fill the unexpired term of said Sullivan; E. G.Schreifer to fill the unexpired term of Louis Werner, and S. A. Miller to fill the unexpired term of said Roe. That they qualified as such members of said board of supervisors, and having the legal title to said offices and the legal right to the possession of the property belonging thereto,demanded possession of t1 e place of meeting, books and other property used in the transaction of the business of said board, but the defendants refused, and still do refuse to surrender possession of said property, and unlawfully, without title or right thereto, retain possession of the same, and unlawfully hold the same and pretend to exercise the right to act as members of the said board of supervisors and transact the business belonging to said board. That the defendants did, and each of them have, since the 22nd day of September, 1897, and do now, usurp the office of members of the said board of supervisors, and unlawfully hold the same, and have and do usurp the rights, privileges and functions of such office, to the great prejudice and damage of the state of Ohio and the city of Cincinnati.

Wherefore the said prosecuting attorney prays the advice and judgment of the court in the premises, and due process of law against the said - defondants; that they be required to answer to the state of Ohio by what warrant they claim to have, use and enjoy the liberties, privileges and franchises as aforesaid of'members of the said board of supervisors of the city of Cincinnati, and that they be -ousted therefrom, and for all proper relief.

This petition was signed by Mr. Schwartz, as the prosecuting attorney of the county of Hamilton, but not verified.

One of the defendants, Mr.-Rro.e, filed a motion to strike the petition from the files and' to dismiss the action for the following reasons: 1st. That the petition was not verified as required by secs. 5102 and 213,Revised Statutes; and 2nd., Because neither of the relators, or any one on their behalf, has given security for costs as required by sec. 6764, Revised Statutes.

Louis Werner and John Zumstein file separate demurrers to the petition,stating these grounds:

1st. Because the plaintiff'has-not legal capacity to sue, 2nd. Because there is a misjoinder of parties plaintiff. 3rd, Because there is a defect of parties plaintiff. 4th. Because there is a defect of parties defendant. 5th. Because several causes of action, and separate causes of action against several defendants are improperly joined; and 6th. Because the petition does not state facts sufficient to constitute a .cause of action.

We have heard the arguments of counsel on the questions raised by the motion and demurrer, and state our conclusions jas to these questions.

And first, as to those raised by the motion.

The action is one brought, by the state of Ohio, by the-prosecuting attorney of the county, duly authorized by law-to bring the same. Sec. 213-, Revised Statutes, provides, that “no undsrtaking or security is required on behalf of the state, or of any officer thereof in the prosecution or defense of any action, writ or proceeding. Nor is it necessary to verify the pleadings on the part of the state, or any officer thereof in any such action, writ on proceedings. ’’ Sec. 6762, under the provisions of the statute as to Quo Warranto proceedings,says, that the prosecuting attorney is authorized to bring such action when he has good reason to believe that it can be established by proof. By sec. 6763, he may bring such action upon his own relation, or on leave of the court, (which was given here), on the relation of another. And in an action like this,he may require security for costs to be given as in other cases, but is not bound to do so. Where the action is brought by a private person claiming to be entitled to a public office unlawfully held by another, he may by himself, or an attorney at law bring such an action upon giving security for costs. Sec. 6764. This is not such an action. The motion is therefore overruled.

Second. As to the demurrer, we hold 1st. That the plainiiff in this case, (the state of Ohio), has the legal capacity to sue. 2nd. That there is but one plaintiff (the state), and therefore that there is no misjoinder of parties plaintiff. 3rd. That there is no defect of parties plaintiff.' 4th. That there is no defect of parties defendant. 5th. That several causes of action are not improperly joined, There is but one cause of action,

6th. As to the 6th ground, included in the fifth, viz., that separate causes of action against several defendants are improperly joined, there is much more difficulty. We have no hesitation in saying that as at present advised, if the facts in this case as stated, and as we understand conceded to be true, appeared on the face of the petition, we would hold that there would appear to be separate causes of action against each one of these defendants, and therefore, that they were improperly joined in one action, and that the demurrer would have to be sustained, as the statute, sec. 5062, makes this a good ground of demurrer to a petition. It is evident from these statements of counsel, and which facts do not appear on the face of the petition, that separate charges were brought against each of these defendants— that a separate trial was had in each case, and as a necessary consequence, different evidence in each, and a separate judgment of removal in each case. It can not be, we suppose, that there was any necessary connection between the case of one of these defendants and that of either of the others, There was no common bond of union between them, and each of them must stand on his own footing, and that it is not allowable to permit one defendant to be joined in and burdened with the costs and expenses of a litigation as to the right of one or more other persons to an office, when in law the result of such litigation can not affect him — however much personal interest he may'feel therein.

Of course, we recognize the law to be that if all the persons whose right to hold office is in controversy,stand in the same position, as for instance, where they claim to hold by virtue of a statute the validity or constitutionality of which is denied or contradicted, the reasons urged would not apply, and we think the authorities are that in such case, all may be made defendants to one quo warranto proceeding. But in a case where it appeared that separate proceedings were had against each to remove him, and on grounds pertinent to each, and there were several judgments, in our opinion, there could not be a joint proceeding against ail.

But on the allegations of this petition, we do not see that this question is properly prosecuted for decision. As .we understand it, the pleadings in quo- warranto cases are peculiar — -such was the case before the comparatively recent amendment of our code of civil procedure brought them within its provisions, and this court held several years ago, in a case reported in 13 C. C. Rep., 379, that the effdct of this, was not substantially to change the character of the pleadings. Our. recollection of the law is, that according to the old system, it was not necessary where the state challenged the right of a person to hold a public office, that there should be any great.particularity in the statements of the petition in quo warranto. That all that was essential was that the plaintiff should allege that the defendant was unlawfully usurping a certain office,and call upon him to answer by what warrant he claims the right to do so. If this Be so still, and we incline to the opinion that it is, this petition is sufficient to require the defendants to file their answer and show their right, and upon this an issue can be raised by reply or demurrer. On these grounds therefore, we hold that the demurrers are not well taken, and they will be overruled; but if we are right in the suggestions before made, as to the real facts being that there are separate causes of action against the several defendants, and that this would appear from the answer filed, it would seem advisable that separate proceedings be had against the several defendants, in the first instance.

S. N. Maxwell, and Mr. Eollett, for Relator.

E. W. Kittredge, and W. M. Ampt, for Defendants.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Parker, JJ.

    NICHOLAS BURCH v. THE TOLEDO PLOW COMPANY.

      Sale of business — flight of purchaser to trade-mark subsequently adopted by vendor—
    1. B. sold to C. certain specific property together with certain existing patents, and agreed that C. should have the right to use any future patents in its shop that B. might obtain; afterwards B. procured a patent upon a new invention of his own, and entered into the manufacture of the newly patented article on his account, and adopted and placed on his product a trade mark which he used for several years when C. adopted and used the same trade mark on its product. Held: That in an action by B. to enjoin C. from using such trade mark, it is not a defense to show that B., at the time of such sale or Subsequently, had also agreed that he would not engage in the manufacture of the same or similar articles.

      Same—
    2. That while C. might have acquired the right to use B’s. new patpnt in its shop, it had nqt acquired the right to B’s. future trade marks.

      Same — Proper remedy for breach of contract not to manufacture — ■
    3. That if B. had violated his agreement not to manufacture, C’s. remedy was by an action brought either to enjoin such work, or for damages.
    4; Whether such contract not to thereafter manufacture, unlimited as to duration or place, would be enforcible. either at law or in equity,is not decided.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

In this case a petition was filed in the court of common pleas of this county, to enjoin tha defendant from the use of a trade-mark, consisting of the words “The New Burch” together with the figures “21” and “22” used upon plows, the former number indicating a right-hand plow,and the latter a left-hand plow.

It is alleged in the petition that the plaintiff was engaged in the manufacture of plows, at Crestline, Ohio, That in 1887, he adopted this name and these numbers,and marked them upon the plows of his production, and sold them through the country wherever he could find buyers. In 1897, the defendant, The Toledo Plow Company, began to use this name which plaintiff had so adopted, upon its products.

Some of these allegations are denied in the answer; and the answer alleges, substantially, this state of facts: that in September, 1883, the plaintiff alone, was engaged in the manufacture of plows at West Toledo; that in thet month three gentlemen here entered into a partnership with him buying one half-interest in the business — in the factory,the land upon which it was situated, the machinery, tools, patterns and patents, and everything owned by the plaintiff and used by him; that they paid to him for that, the sum of $10,000; that also, a little later — in January, 1884 — thése parties organized a corporation, known as The Toledo Plow Company, and took stock therein, the plaintiff being a stockholder and an officer thereof. This new corporation purchased from the firm of which plaintiff was a member, all of its machinery, patterns, tools, patents, stock and real estate, the resolution to that effect being attached to the answer. That afterwards the plaintiff sold his shares of stock to private individuals, and that they were persons interested in the corporation and owners of stock therein, “That at the time the plaintiff sold his interest in said business as aforesaid, he entered into a verbal agreement with the persons purchasing his shares of the capital stock of said company, who then constituted all of the holders of the capital stock of said company, whereby the plaintiff undertook and agreed that he would not thereafter enter into the business of manufacturing plows. The defendant says that shortly thereafter, the plaintiff began and has since continued the manufacture of plows at Crestline, Ohio. The defendant says that the said plaintiff at the time of his manufacturing plows at West Toledo, named the plows so manufactured the “Burch Plow,’’ and thereafter the said partnership, and subsequently the said defendant corporation, continued the use of said name more or less in the manufacture of plows, with designated numbers therefor. That about the year 1887, the plaintiff procured another patent, as an improvement upon the Burch plow, previously manufactured by the plaintiff and the defendant, and thereupon called the same “The New Burch,’’ the right-hand plow being numbered 21, and the left-hand plow being numbered 22. The defendant says that the said The New Burch, numbered 22, differed only from the previous Burch plow manufactured by the defendant and numbered from 1J to 20, in the use of the device covered by the said new patent, and that in no other substantial respect was the said New Burch different from, or a change in the plow previously manufactured.. The defendant says, that under the terms of the original agreement,'as shown by said Exhibit “A,” the said defendant had a shop-right to manufacture the said New Burch, and use the patented device acquired and used by the plaintiff as aforesaid. ” And defendant admits that prior to the time of the filing of the petition of plaintiff, it had manufactured and sold plows and marked the same “The New Burch,” numbered “21,” as alleged.

“Exhibit A,” referred to above, is as follows:

“Toledo, O., Sept. 22d, 1883.

“F. D. Suydam,John C. Clarke & Horace M. Wright.

“Gentlemen: — I will sell you one-half of my plow factory, including the land on which it is situated, machinery, tools, patterns and patents and everything pertaining and relating to the manufacture of plows, for the sum of ten thousand dollars. Then form a partnership with you in which I will represent one-half, and you the balance. Then I will sell the firm my manufactured plows at 50 per cent, ■discount off my list and stock, raw and in process, at market value. I also agree to include in the sale of my patent-a shop-right of any other patent I may be able to secure.

“Sept. 22, 1883, N. Bueoh.”

“N. Bueoh:

“We accept the above offer.

“F. D. Suydam, By John C. Clarke.

“John C. Clabke.

“H. M. Weight,”'.

Exhibit “B.” is a resolution,by the board of directors; but it would add nothing to the claim made by the defendant. The claim made here by the defendant is, that when the plaintiff sold his business to the firm — which was afterwards acquired by the corporation — he not only sold all his property on hand, or an interest therein, but he agreed at the time that the company or firm should have a shop-right to use any new inventions which he might make in the plows, in their manufactory.

Second: That when he came to sell his stock to private^ individuals, he agreed with them — severally or jointly, it is not alleged which — that he would not thereafter enter into the business of manufacturing of plows. That is an allegation in the answer; and, clearly, it would have the interpretation that he was not ever to enter into the business of manufacturing plows anywhere. Now it is said that notwithstanding that would be a contract perhaps unreasonably in restraint of trade, and which a court of equity would not-enforce, or a court of law either if an action were brought, by the corporation to enforce it — yet, when Burch shall come into a court of equity and ask to have the corporation, enjoined, he does not come with clean hands, but is in such situation that the court will leave him where it finds him;, in other words, that it will not enjoin the defendant from the use of this trade-mark, because while he has entered into a contract which perhaps is void — because not in writing- —or into a contract which perhaps could not be enforced because unreasonable, still a court of equity will not give-him any relief. I have not time to go over the argument in all its details, but that is the substance of it.

From this answer it appears that Mr. Burch sold a half-interest in his running business in Toledo in 1883, and1 thereafter, as a member of that firm, he conveyed the whole-of the business to a corporation in 1884. That the agreement by Burch with his partners was to the effect that the firm should have a right to use in the shop any patent which, he might thereafter secure for improvements upon plows.

The allegation in the answer, that he made an agreement with these stockholders, that he would not enter into the-business of manufacturing plows, is of an exceedingly shady character, It is doubtful if there is any privity of contract between the stockholders severally and the corporation, or whether the corporation could take advantage of that contract; but we do not rest the decision upon that ground. Conceding that they might, and conceding that if this contract had been in writing, it would'have been one that the Plow Company could have enforced against Burch, yet the agreement was, that Burch should not manufacture plows; the agreement was, that the corporation should have the use in its shops of any patents 'that Burch might thereafter obtain. Burch has violated one of these agreements by -going into the business of the manufacturing of plows. But he claims that in entering into the business of manufacture of plows he did not manufacture the plow that defendant was manufacturing; on the contrary, he secured a patent upon an improvement of that plow, and he manufactured the improved plow, and that was not the plow that the defendant itself was manufacturing. He made no agreement with defendant that he should not thereafter invent, or that he should not have the property in his invention. He did not convey to the defendant a right to his’future inventions, exclusively — but conveyed only the right to the defendant to use his inventions in their shop. They would thereby acquire no right to prevent him from using them if the contract was valid; nor could he prevent them, if they had the right to use them, from adopting any name or device they saw fit.

In 1887, having secured this new intention, he commenced the manufacture of plows — possibly in violation of the agreement that he would not do só, but he manufactured the improved plow, upon which he had obtained a new patent and upon which he placed his new trade-mark. This action is to enjoin the defendant from the use of that trademark, and we can discover no equitable reason why Burch has not a full right to apply to a court of equity to enjoin them from the use of this trade-mark. It is not an answer to say that he had agreed not to manufacture plows; he did not agree not to improve his plows by new inventions, and he had not agreed that the property in those inventions should pass to and be vested in the Plow Company. They did not acquire by this contract concerning this invention, a right to use Mr. Burch’s trade-mark. We think the answer sets up a clear case of infringement of this trade-mark, and therefore the injunction will be made perpetual.

Ahnon Hall, for Plaintiff,

E. W. Tolerton, for Defendant.