author: By the Court.

text:
    State ex rel Keyser v. Commissioners of Wayne County.

      Preference in public employment to soldiers — Act of March 8, 1896— Mandamus.

    The act of the legislature passed March 3, 1896 (52 Laws. 50), amending the aet of April 3, 1888, requiring a preference in public employment to be given honorably discharged soldiers, sailors and marines in the late rebellion, cannot be enforced by mandamus.
    (Decided November 16, 1897.)
    In Mandamus.
    The question is presented on a demurrer to the answer; but in fact arises on the sufficiency of the petition, which is searched by the demurrer to the answer. The object of the petition is to compel the defendants to employ the relator, or some other honorably discharged soldier of the late rebellion, as janitor of the court house, he the relator, being such a soldier, a resident of the county, and having all the requisite qualifications for such place. The statute relied on is the act of March 3, 1896 (92 Laws, 50), amending the act of April 3,1888, on the same subject. The amendment requires, “That in every public department, and all public departments in any municipal corporation, and upon all public works of the state of Ohio, honorably discharged Union soldiers, sailors and marines of the late rebellion, shall be preferred for appointment and employment,” the applicant to be a resident of the county in which the office or position is located for one year and possess the requisite qualifications. The petition states, and it is admitted, that the relator is an honorably discharged Union soldier of the late rebellion, that he has the requisite qualifications, that he has been a resident of the county for the requisite time, that he has made application for, the place, and that the defendants have refused to employ him or any other honorably discharged soldier, resident within the county. It is claimed that the board of county commissioners is not a public department, and that the act is unconstitutional.

      H. R. Smith; John R. McKinney and John McSweeney, for plaintiff in error.
    We are not asking that our relator be inducted by the action of the defendants exercising- judicial power into an office fixed by the Constitution of the state of Ohio; Offices named by the Constitution or the laws of ■ the state are ever open to the honorable endeavor of every male citizen within the state of Ohio and no act of the legislature can place one citizen above the other in competition for such public office. But we base our whole claim sustained by the courts of New York and Massachusetts that the position we aspire to in this petition is not a public office, but is a position or employment created by' the board of commissioners of Wayne county and created by them alone.
    The board of commissioners of Wayne county, Ohio, in creating the position and offering the employment to a janitor acted as a legislature unto themselves, and their fiat in the matter becomes as potent as a constitution. Brown v. Russell, 166 Mass., 14; 148 N. Y., 219; 150 N. Y., 444.
    We further contend, on behalf of the relator, that the words, “office, employment, position, and public department,” each have a separate meaning in the law, and that the word ‘‘office” is not a synonym in the laws of Ohio for either of the other words set out. If our statute provided that a veteran soldier should have the preference over other citizens to the induction into any public office provided for by the Constitution or the laws of this state we would not for a moment contend here that such an act was constitutional, but would say it violated the spirit underlying a government by the people.
    The position we ask for is one created by the defendant in which the occupant exercises neither judicial or ministerial functions. He as to this public department exercises physical functions alone. A janitorship is a creature of the defendants’ judicial discretion. The pleadings admit that they have employed a janitor and have found it necessary to do. so, therefore the commissioners have voluntarily created a public department and no one wars with them for any abuse of discretion in creating said public department. We war with said board because said public department is not filled by said board pursuant to the statutes of Ohio.
    It is a well recognized principal in Ohio that an act of the legislature to be unconstitutional must be within the prohibition of the Constitution 39 Ohio St., 399; 22 Ohio St., 461; 10 Ohio St., 77. The fact that an act is against public policy, alone does not render the law unconstitutional and this court has no right to so decree. 50 Ohio St., 378.

      Ross W. Funck and A. D. Metz, for defendants in error.
    The said board of commissioners made a contract with one William Young to perform the duties of said position under section 853, Revised Statutes of Ohio, said Young to do and perform the duties of .janitor of said offices and said county buildings for a period of one year at a salary of $30.00 per month, the said contract to begin March 4, 1897.
    Said Young never had been a Union soldier in the late rebellion, and was neither an honorably discharged sailor nor marine. It is claimed by the attorneys for the relator, Edmond Keyser, that because he was an honorably discharged Union soldier and possessing the requisite qualifications for said position of janitor, that the board of commissioners would be required to appoint him under said act, entitled “an act to give preference of appointment or employment to honorably discharged soldiers, etc.,” and that said board should have rejected the application of said William Young.
    Conceding that said relator has the mental and physical qualifications for the position of janitor, the respondents, the board of commissioners, claim from a legal standpoint that no construction of said statute will justify the claim made by relator, and that said contention of said Keyser is not tenable for the reasons following:
    1. That said board of commissioners is neither a public department, nor a public department in municipal corporations, nor public works of the state of Ohio, as contemplated by said statute.
    2. The said board of commissioners of Wayne county, Ohio, and the duties, offices, and appointive offices and positions included among the acts and duties of the public service of said board; is neither a public department, nor a public department of a municipal corporation, nor public works of the state of Ohio, as contemplated in said act of the legislature.
    3. Said act of the legislature has no application to and does not include within its provisions the position of janitor, that said position of janitor is not an appointive office or position contemplated by or included in either a public department, a public department of a municipal corporation, or public works of the state of Ohio.
    4. That said act is unconstitutional and void.
    If the legislature had meant and intended to include any appointments or positions to be made and designated by the various boards of the state, counties and townships and schools, the legislature would have included in this act of the legislature the words “all public boards created by law, or all public officers. ” We hold that the legislative intent must be clearly expressed in the act itself.
    We deny the right of a legislature in the race of life, under article 1, section 1, Bill of Rights, to enact a law that favors any class of our citizens. Cooley on Constitutional Limitations, star pages 390, 391, 392, 393; Birney v. The State of Ohio, 8 Ohio, 238; Young v. The Lion Hardware Co., 55 Ohio St., 423; Anderson v. Poindexter, 6 Ohio St., 622; Coal Co. v. Rosser, 53 Ohio St., 11.
    Our further contention is, that the act in question is unconstitutional, because in conflict with article 2, section 26, of the Constitution of Ohio. Cooley’s Constitutional Lim., star page 391; McGill v. State, 34 Ohio St., 228; State v. Brewster, 39 Ohio St., 653; State v. Powers, 38 Ohio St., 54; Bronson v. Oberlin, 41 Ohio St., 476; Falk, Exp., 42 Ohio St., 638; In re Elevated R. R. Co., 70 N. Y., 350; Adler v. Whetbeck, 44 Ohio St., 539.

      A general law as distinguished from a special one, is a law that embraces a class of subjects and does not omit any subject or place belonging to such class (McGill v. The State, 34 Ohio St., 252), and can not he obviated by general rides, but by the consideration of each case as it arises. State v. Powers, 38 Ohio St., 54.
   By the Court.

We do not think it necessary to pass on the constitutionality of the law, for, admitting its validity, the relator is not, as we think, entitled to the relief asked or any part of it.

1. The petition does not show that it is the duty of the commissioners to appoint him in preference to any one else. It does not show that he is the only soldier in the county entitled under the law to be employed as janitor of the court house, in fact, it appears that there are such'. So that if the law be valid, the commissioners have a discretion as to which one of the soldiers in the county shall be employed; and in refusing to appoint him they violate no duty enjoined on them by law.

2. Nor does the refusal of the commissioners to appoint any other honorably discharged soldier of the county, afford any ground for relief in this proceeding. The object of the writ is to compel an officer to do some specific thing enjoined on him by law, and not to compel him to enforce the general mandates of the law — or, in other words, to execute the law — not in favor of some particular person entitled to his official action — but generally in favor of all persons within its provisions, by selecting some one of them. To do so would simply be to duplicate the act of the legislature in making the law. If. there he any remedy for an omission of tliis kind on the part óf the commissioners, it must be by indictment as provided in section two of the amendatory act; or else by an appeal to the people at the proper time in the election of county commissioners.

Writ refused and petition dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Harris v. The State.

      Indictment for pocket-picking — Verdict of guilty sufficient, though value of property not found.

    A verdict rendered upon the trial of a valid indictment for pocket-picking, which finds the defendant guilty o£ pocket-picking in manner and form as charged in the indictment, is sufficient to sustain judgment and sentence, although such verdict does not find and return the value of the property. taken.
    (Decided November 16, 1897.)
    Error to the Court of Common Pleas of Franklin county.
    The plaintiff in error, Joseph B. Harris, was tried on an indictment based upon sectioa 6818, Revised Statutes, which in one count charged the crime of robbery, and in a second count charged the crime of pocket-picking, averring the property to be of the value of three dollars. The verdict found the prisoner not guilty under the first count, but “guilty of pocket-picking in manner and form as charged in the second count,” but failed to find and return the value of the property taken. When asked why judgment should not be pronounced,-the prisoner interposed a motion in arrest, on the ground that the verdict is insufficient in law because it does not find the accused guilty of any crime, and will not sustain any sentence. This motion was overruled and sentence pronounced, which is the ground of error complained of.

      E. IF. Courtright, for plaintiff in error, argued that the verdict does not comply with section 7315, Revised Statutes, and is, therefore, fatally defective and will not sustain any sentence because pocket-picking is an offense against property, and the section referred to, provides that “when an indictment charges an offense against property by iarceny * * * the jury on conviction shall ascertain and declare in the verdict, the value of the property stolen, ” and in support, cited sections 6818 and 7315, Revised Statutes; People v. Nelson, 56 Cal., 77; State v. Sigermon, 19 Pac. Rep., 370; Commonwealth v. Sullivan, 5 S. W., 365; Same v. Prewitt, 82 Ky., 240; Armstrong v. The State, 21 Ohio St., 357; and Powell v. The State (Georgia), 13 S. E., 829.

      Joseph H. Dyer, prosecuting attorney for the state, argued that the value of the property taken in the crime of pocket-picking is but one of the ingredients of the crime, and that, unless definitely required by statute, it is not ever necessary that the verdict, in order to be valid, shall find all the ingredients of the crime; and farther, that within the meaning of our statute, pocket-picking is an offense against the person and not one against property, and hence section 7315 does not apply, citing State v. Howerdon, 58 Mo., 581; State v. Brown, 113 N. C., 645; State v. Perley, 86 Me., 427; Ellers v. The State, 25 Ohio St., 388; Wilson’s Crim. Code, 35; McClain on Crim. Law., part 5, chap. 22; 21 Am. & Eng. Ency. of Law, 430; 1 Wharton’s Crim. Law, 857; 2 Archibald’s C. P. & P., 1287; Bishop’s Stat. Crimes, see. 427. and 73 N. C., 83.
   By the Court.

The question is: Is it necessary, in the trial of an indictment for pocket-picking, that the jury, upon conviction, ascertain and declare in the verdict, the value of the property taken ?

We answer the question in the negative. The crime involves stealing, but it is not primarily an offense against property, but an offense against the person, and is so classified in our statutes. The punishment is not made to depend upon the amount taken, but is confinement in the penitentiary from one to five years, irrespective of the amount. The section providing for the offense is found in chapter 3, of title 1, of the penal subdivision of the statutes. This chapter is entitled “Crimes against the Person,” and includes murder, rape, robbery, and the like, while larceny is provided for in chapter 4, under the sub-title of “Offenses against Property,” which embraces, also, arson, burglary, horse-stealing, and the like. These titles are part of the statutes, and are to be considered in arriving at the intent of the legislature. Had that body intended to require a finding by the jury as to the value of the property taken by a pick-pocket, it would not have limited that requirement, as is done in section 7315, Revised Statutes, to offenses “against property by.larceny, ” but would, in apt language, have embraced also offenses against the person where larceny is involved.

Judgment affirmed.


author: Shauck, J.

text:
    The State v. Buechler.

      Allegation of indictment— Variance between indictment and evidence , —Decision of trial judge as to same may be reversed, when.

    1. The allegation of an indictment that the accused feloniously broke and entered the poultry house of P., is supported by evidence, that he thus entered one of several compartments under a continuous roof, that entered being completely separated from the others and being in the exclusive possession of P. as a tenant, and used by him as a poultry house. ■ '
    2. A decision of the trial judge on a question as to the materiality of a variance between an allegation of an indictment and the evidence offered in its support, may be reversed, if erroneous and prejudicial to the accused, and it may be the subject of an exception by the prosecuting attorney with a view to obtaining a decision which shall determine the law for the goverriment of similar cases.
    (Decided November 23, 1897.)
    Exceptions to the ruling of the Common Pleas Court of Fairfield county.
    Buechler was placed on trial upon an indictment which charged that he in the night season, “feloniously and forcibly broke and entered, “with intent to steal, into a certain building, to-wit: A poultry house of one Jonas Pickens, * * * and seven turkeys, of the value of seven dollars, the personal property of said Jonas Pickens, in said building, to-wit: in said poultry house, then and there being found, then and there unlawfully did steal, take and carry away.”
    The evidence showed that Pickens was lessee of one of several rooms in a business block, using his room for the purposes of a restaurant; that in the rear of the block were three rooms under a continuous roof, for use in connection with the business rooms, the three rooms being separated by permment partitions extending- from floor to roof that Pickens occupied two of these rooms to the entire exclusion of one Bauman, who was tenant of the other compartment, and that one of the rooms, so occupied by Pickens, was entered by the accused.
    The court charged the jury, “if you find from the evidence, that one or more of the compartments of said building were owned and occupied separately by Pickens, and that another compartment of the same was used exclusively by Bauman, that there would be a fatal' variance, between the allegation of ownership in the indictment and the proof, and the defendant could not be convicted of burglary, ” to which the prosecuting attorney excepted.

      John M. Wright, Prosecuting Attorney, for plaintiff.
    1. We claim the court erred in its charge in sustaining the motion for a new trial, and that the variance, if any existed, was trivial and non-prejudicial to defendant. Section 7216, Revised Statutes.
    2. The law of Ohio recognizes the occupant of a building, or a part of a building, in burglary cases, as the owner, whether he have full legal title, or is a mere tenant for years, or even by sufferance. 18 Ohio, 300; 17 Ohio St., 583.
    Any title is good as against a burglar. Wharton’s Cr. L., 8th ed., secs. 787, 798, 802, 804 ; 2nd East P. C., 499, 500; 38 Ga., 165.
    3. A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Abbot’s Trial Briefs in Cr. Cases, sec. 680.

      This defendant was charged with the unlawful breaking and entering of the building of Jonas Pickens, and the larceny of his property. The proof shows that it was the property of Pickens that was broken and entered, and that the property of Pickens, therein found, was unlawfully carried away. He was not charged with any offense against the building or property of Bauman, nor had he committed any such offense. He was fully apprised of the charge against him by the indictment in this case and came to trial on the issue made by his plea of not guilty, to the charges- in the indictment. We can see, that if the proof had shown, that it was the part of the building occupied and controlled by Bauman that had been broken and entered, or that it was the property of Bauman that was stolen, there would have been a material variance. But Bauman is an alien to this case. Defendant could not be put on trial again upon the same proofs, charged with burglarizing the building of Bauman because the actual breaking, having been in Pickens’ building, and the proof showing it, a material variance would exist.

      George Ewing, for defendant.
    I. There is a variance in this ease between the necessary allegation of ownership, and the proof, in that the title is laid in Pickens, whereas the proof shows it to have been in Pickens and Bauman. 34 Ohio St., 203; 25 Ohio St., 388.
    The question of variance does not come under section 7224, Revised Statutes. This section must, of course, receive a strict construction, affecting, as it does, the administration of penal statutes. But under the most liberal view,'it could not be taken to extend to separate possessory owners of parts of the same building, for that class of ownership has no logical association with joint ownership ; the separate owners having no community of interest, title, or possession.
    The question of variance in this case must be passed upon under section 7216. The trial judge, i.n the exercise of his statutory power of discretion, under this section, found such variance to be material and prejudicial.
    The discretionary action of a trial court should not be interferred with, unless there appears to have been a gross misuse of discretion. This discretion is invoked upon the hearing of the facts in the case; and it finds its chief function in weighing all the conditions and subtle influences that bear upon the question that calls it forth. It, therefore, acts upon that which canno't be fully reproduced, by record or otherwise, before the reviewing court. 1 Ohio St., 286; 4 Ohio, 420; 9 Ohio St., 397.
    The record does not disclose the facts which were produced in evidence, either supporting or controverting thé material and prejudicial character of the variance.
    As far as the record shows to the contrary, defendant whs misled, and was put upon his defense under his .plea of not guilty, for one crime, and then tried, under the evidence of the state, for an entirely different one.
    II.' Separate occupancy of the same building does not create separate buildings for the purposes of burglary, except where such separate occupancy is for domiciliary purposes.
    Where a burglary is committed in one of a number of office rooms in a building, it would not be proper to lay the ownership of the building in the occupant of that one room. Neither would it be logical to allege the occupant of a store-room below, in case the entry were made there, to be the owner of the building.
    III. The exercise of discretionary powers by trial courts can be reviewed only for the purpose of relieving individuals who might otherwise suffer from an abuse of the power vested in such courts. No precedent can be established, which shall govern the trial courts in the exercise of their discretionary powers ; for, evidently, to do so would be to usurp the legislative power, by binding the trial courts in that which the legislature has seen fit to leave directly to their discretion.
    IV. The state can prosecute no alleged error which may have occurred prior to the rendering by the jury of their verdict; for the record shows that the verdict of the jury was in compliance with the full demand of the state. The prisoner was found guilty of burglary and larceny as charged in the indictment; ■ and there could, therefore, have been nothing in the rulings or charge of the court, prior to said verdict, which has worked an injury to the state.
   Shauck, J.

The separate character of the two compartments occupied t>y Pickens, and his exclusive possession of them, were not affected by the fact that under the same continuous roof was another compartment which was used exclusively by Bauman. The trial judge correctly held that the case does not come within the provisions of section 7224, Revised Statutes, because there was not a joint use by Pickens and Bauman of the corm partment entered.. For the • same reason, it was correctly charged as the separate property of Pickens.

It is provided in section 7216, Revised Statutes, that “when, on the trial of an indictment there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, * * * *, in the name or description of any matter or thing therein named, or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had, find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” It is clear that the defendant could in no way have been prejudiced by the contiguity of the compartments occupied by Pickens and that occupied by Bauman. It would not have been practicable to allege the ownership of the building with more certainty or particularity. Indeed, the instruction that there was a fatal variance if the compartment broken and entered was used exclusively by Pickens, considered in connection with the instruction, that as there was no evidence showing a joint use by Pickens and Bauman, there could be no conviction under section 7224, was tantamount to holding that a compartment thus related to another cannot be unlawfully broken and entered.

It cannot be maintained that section 7216, Revised Statutes, vests in the trial judge a conclusive discretion to determine what is a fatal variance. That section is subject to the general provisions of the statutes as to the review of the proceedings of the common pleas by the circuit and supreme courts. That an erroneous decision in that regard in the court of common pleas, is subject to reversal, if prejudicial to the accused, is shown by all the numerous cases in which such decisions have been reviewed. For equal reasons such decision is contemplated by section 7305, Revised Statutes, under whose favor exceptions are taken by the prosecuting attorney, not with a view to obtaining a reversal of the judgment, but to secure a decision which shall determine the law to govern in any similar case.

The exception is sustained.


author: By the Court :

text:
    Weidman v. Weidman.
    Alimony— Wife obtains decree of divorce — Cannot later obtain alimony by separate action.

    Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she cannot thereafter maintain a separate action against him for alimony.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    In 1879, Caroline Weidman, plaintiff in error, was divorced, by the court of common pleas of Cuyahoga county, from Michael Weidman, defendant in error, on the ground of extreme cruelty, and was given the custody of her two minor children, (daughters), the defendant then promising plaintiff that if she would not apply for divorce on the ground of adultery, and would not disclose the fact that he had been afflicted with a venereal disease, he would pay her money from time to time, amply sufficient to support her and her daughters. That relying upon that promise, being at the time young and inexperienced in business matters, she applied for and obtained a divorce without any decree for alimony, and thereafter in this suit, filed her petition for alimony, setting out that he failed to perform his promises; that he was worth $25,000; that he had violated his marriage vows in every possible way; that she had been put to great expense in rearing her said children, and providing medical attendance for one of them, (their daughter Florence, who had been under the doctor’s care constantly); that her own health had been greatly enfeebled by her exertions, and her great need of alimony to support herself.
    The defendant demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained by the court of common pleas, and petition dismissed, to which she excepted.
    On petition in error, the circuit court affirmed the judgment, and thereupon she filed her petition in error in this court, seeking to reverse the judgments of both the lower courts.

      W C. Rogers and C. B. Robinson, for plaintiff in error.

      Clark & Thompson, for defendant in error.
   By the Court :

At the time of the divorce, both parties were residents of Cuyahoga county, and personal service was had upon the husband, and the divorce was absolute, the decree giving the custody of the children to the wife. The court had full jurisdiction of the parties and of the subject-matter. In that respect this case differs from the cases of Mansfield v. McIntyre, 10 Ohio, 27; Cox v. Cox, 19 Ohio St., 502; 20 Ohio St., 439; and Woods v. Waddle, 44 Ohio St., 449. In those eases the proceedings were ex pa/rte, without personal service, and in the Woods - Waddle Case, the application for alimony was dismissed without prejudice, to enable her to recover alimony elsewhere, for the reason that there was no personal service on the husband, and the court had no. jurisdiction of" his person. In the other cases there was no personal service on the wife, and the court had no' jurisdiction of the person. In cases in which there is no jurisdiction of the person of one of the parties, there can be no adjudication in personam of the question of alimony; and therefore in such cases, while- the divorce may be valid, the question of alimony remains unadjudicated, and the wife may, under proper circumstances, maintain an action for alimony.

But in actions for divorce in which the court has jurisdiction of both parties by personal service, the final decree of divorce will include all questions of alimony, and the wife cannot thereafter maintain a separate action against her late husband for such alimony.

The action for alimony is statutory, and- by sec tion 5702, Revised Statutes, it is provided that, “the wife may file her petition for alimony alone.” After an absolute divorce in an action in which the court had jurisdiction of both parties, she is no longer “thewife,” and does not come within the provisions of the statute. Strictly speaking, the same is true in eases in which the divorce was obtained by the husband in an ex parte proceeding, but as the wife in such cases has not had her day in court as to alimony, nor as to her equitable interest in his property, this court, by a liberal construction in her favor, has allowed her in such cases to maintain a separate action against her divorced husband for the recovery of alimony, which is in its nature an equitable allowance out of his property. But the principle can not be extended so as to allow a woman who has been divorced in an action in which the court had jurisdiction of her person, to waive alimony in the divorce proceedings, and then years afterward maintain a separate action therefor.

The property of the husband is usually the result of the joint efforts of both husband and wife, and upon dissolution of the marriage she is entitled to her equitable share of the property as alimony. The amount of the equitable interest in the property can only be ascertained by a court upon a full hearing of all the facts and surroundings concerning the parties. Her equitable interest in such property is so connected and interwoven with the marriage relation, that it can be best ascertained and separated in the same action in which the marriage contract is severed by divorce. And when both parties have their day in court in the divorce proceedings, and permit the marriage contract to be severed, without at the same time having their property rights growing- out of such contract and relation, adjusted, it will be held that they have conclusively waived and withdrawn the consideration of that question from the court, and neither of them can thereafter be heard in aid of an adjudication as to such property, or as to such property rights. In such cases the courts will leave the parties where they have placed themselves.

Judgment affirmed'.


author: Spear, J.

text:
    Gates et al. v. The City of Toledo. Goulden v. The City of Toledo.

      Counsel fees — Assessments assigned by municipality to contractor — Unsuccessful suit against lot owners — Counsel fees not recoverable in subsequent action.

    Counsel fees and other expenses paid by a party in the conduct of an unsuccessful suit against lot-owners to recover the amount of a sewer assessment assigned, by a municipal corporation to such party, in payment for the construction of a sewer which suit failed because the assessment was held invalid, are not recoverable in an action subsequently brought against the corporation for damages for violation of contract even though by its contract the corporation had stipulated that the assessment should be a valid assessment.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Lucas county.
    Frank Gates and Neil Hueston constructed a public sewer for the city of Toledo, and book in payment therefor, as per previous contract, an assignment of certain assessments upon lots and lands claimed to be benefited by the improvement. It was stipulated in their contract with the city, that the assessments so to be assigned should be valid assessments. All the steps taken by the city authorities in providing for the sewer and in awarding the contract to Gates and Hueston were in form regular and in accordance with statute. In a suit, prosecuted to final judgment by Gates and Hueston against persons whose property was assessed and who refused to pay, it was decided and adjudged, that some of the assessments were valid, and as to them, Gates and Hueston recovered judgment. A part were held invalid, because, as to some the property had already been provided with local drainage ; as to others the sewer did not provide drainage, and as to all such, Gates and Hueston failed in their action. As to still others, the assessments were excessive. In those instances Gates and Hueston partially failed in their action. One-half the costs were adjudged against them. They expended in attorney’s fees, $1,300.65, for abstract of title to property in suit, $65.00, and paid one-half the costs, $46.37; in all, $1,412.02. Their action against the city was to recover these sums. To a petition setting' up the foregoing and other pertinent facts, a demurrer was sustained by the common pleas and judgment given against plaintiffs which was affirmed by the circuit court.
    Michael M. Goulden constructed a sidewalk for the city of Toledo, and took in payment, as per previous contract, an assignment of an assessment upon the property abutting. It was stipulated in the contract that the assessment so to be assigned should be a valid assessment. All the steps' taken by the city authoritiés in providing for the building of' the walk, and in awarding the contract to Goulden, were regular save that no notice of the proposed improvement' was given the owner of the abutting property. In a suit prosecuted to final judgment by Goulden against the person upon whose property the assessment was made, it was decided and adjudged, that the assessment was invalid for want of notice, and on that ground Goulden failed in the suit. His action against the city was, in one cause of action to recover the amount of the assessment, and in a second cause of action to recover for the attorney’s fees paid for conducting the unsuccessful suit. The common pleas gave judgment for the entire claim. The circuit court affirmed this judgment as to the amount of the assessment and reversed it as to the amount claimed to have been paid as attorney’s fees. Goulden asks of this court a reversal of the judgment of reversal.

      Stephen Brophy and John F. Kumler, for plaintiffs in error.
    For the breach of an authorized contract a corporation is liable the same as an individual. Dillion on Municipal Corps., 4th ed., sec. 472.
    In order to recover the costs and expenses of previous litigation, including counsel fees, it is not necessary that the covenantee, warrantee or vendee should give the covenantor, warrantor or vendor notice of suit. Sedgwick on Damages, vol. 1, secs. 236, 238, 241; Southerland on Damages, (2d ed.) vol. 2, sec. 618, 619; Rawle on Covenants, 4th ed., pages 305, 306, 307; Morris v. Rowan, 17 N. J. L., 304 (1839); Ryerson v. Chapman, 66 Me., 557 ; Cincinnati v. Dickmeir, 31 Ohio St., 242.
    The same rule of recovery which governs in case of breach of covenant of a deed of land, governs in case of a jbreach of a contract or a warranty in sale of a chose in action or of a chattel. Southerland on Damages. 2d ed., vol. 2, sec. 669, page 1501; Bank v. Jarvis, 20 N. Y., 230; Giffert v. West, 33 Wis., 617; Coolridge v. Nicholas, 5 Met., 68; Kirchner v. Cincinnati, 14 W. L. B., 48.
    The costs and expenses, including counsel fees, incurred in prior litigation whether in prosecuting or defending an unsuccessful suit are recoverable. Sedgwick on Damages, 8th ed., vol. 1, sec. 236.
    Upon breach of covenant of warranty in a deed, a party may recover the costs and expenses including counsel fees.

      Southerland on Damages, 2d ed., vol. 2, see. 617 to 619 inclusive; Rawle on Covenants for Title, 4th ed., 305, 312; Harding v. Larkin, 41 Ill., 413; Swett v. Patrick, 12 Me., 1; Cox's Heirs v. Strode, Bobb, vol. 2, page 273; Kennison v. Taylor, 18 N. H., 220; Pitkin v. Lebvitt, 13 Vt., 379; Keeler v. Wood, 30 Vt., 242; Taylor v. Holton, 1 Mont., 688; McAlpin v. Woodruff, 11 Ohio St., 120 ; Lane v. Fury, 31 Ohio St., 574.
    Where a person is subjected to a suit through defendants tort, he can recover from the defendant, the costs and expenses, including counsel fees, of a suit brought against him by the injured party. Sedgwick on Damages, sec. 241; Westfield v. Mayo, 122 Mass., 100.
    Upon a breach of the implied warranty on sales of notes and choses in action, a party may recover the costs and expenses, including counsel fees, incurred by him in an unsuccessful suit in asserting or defending. Southerland on Damages, (2d ed.) volume 2, section 668 ; Delaware Bank v. Jarvis, 20 N. Y., 226 Ct. App. (1859)
    Upon breach of warranty of title to personal property a party can recover the costs and expenses, including counsel' fees, incurred in defending an unsuccessful suit. Thurston v. Spratt, 52 Me., 202.
    Upon failure of reinsurers to pay a fire loss, the reassured may recover from them the costs and expenses, including counsel fees, incurred in an unsuccessful suit. N. Y M. Ins. Co. v. Protn. Ins. Co., 1 Story, 458 U. S. Cir. Ct. (1841).
    Upon the breach of an agreement in a written contract, a party may recover the costs and expenses of previous litigation including counsel fees. Dubois v. Hermance, 56 N. Y., 673, (1874); Goulden v. Toledo, 32 W. L. B.,78.
    There is nothing peculiar about a covenant in a deed in Ohio to-day, private seals and all the old common law technicalities have been abolished and disregarded in this state, and such a covenant is but a plain agreement, nothing less and nothing more; and it is difficult to distinguish between such an agreement, and an agreement to deliver a valid assessment and we are unable to understand why a different rule of damages should apply in the one case than in the other, and the cases in the 11 Ohio St., 120 and 31 Ohio St., 574, are directly in point and in both of these cases the court permitted a recovery of counsel fees. Dubois v. Hermance, 56 N. Y., 673; Westfield v. Mayo, 122 Mass., 100.

      W. A. Mills, for defendant in error.
    These two actions were brought to recover the damages alleged to have been sustained by the plaintiffs’ in error through the failure of the city of Toledo to levy valid assessments, whereby the cost of the construction of certain improvements was to be paid. The actions are, therefore, ex eon^actu in their nature and the question here presented is, are the expenses of litigation incurred in actions brought by these plaintiffs in error to enforce the payment of assessments which the citj7 agreed should be valid, but which were not, and by reason whereof said actions failed, recoverable ?
    In the cases at bar the city of Toledo entered into a contract with the plaintiffs in error to pay the cost of certain improvements by levying a valid assessment therefor. If it failed to levy such an assessment it would be liable for the contract price of the work.
    If the city had failed to levy any assessment and these plaintiffs in error had brought an action to recover the contract price, it would not be even claimed that the moneys by them expended in litigation would be an element of damage for which judgment could be rendered.
    In the cases at bar it is said that no valid assessment was levied; • if this be true then no assessment was levied, and hence we claim there can be no recovery. Roberts v. Mason, 10 Ohio St.. 277.
   Spear, J.

It will be noted that one .question is common to both cases : Is the city liable for attorney’s fees incurred in prosecuting the action against owners whose lands were claimed to have been benefited by the respective improvements, but which were found not liable to assessment? Probably there is no difference in principle between, counsel fees and other expenses.

The affirmative of this proposition is based upon the further proposition that in a suit for breach of an agreement in a written contract by which a claim or chose in action is assigned, the party damaged may recover the costs and expenses of previous unsuccessful litigation necessarily resulting from such breach, including counsel fees, and especially so, where there has been a guarantee of title and the title fails, or of validity and the claim assigned proves invalid.

Decisions of courts in other states, support this claim. But they are not uniform, and the question after all, is, what is the law of this state on the subject. Decisions of this court determine the matter as to cases bearing more or less analogy to the cases at bar, but the precise question has not heretofore been presented..

The rule that in actions involving malice, fraud, insult or oppression, reasonable counsel fees may be included in the recovery, is well established. Stevens v. Handly, Wright, 121; Sexton v. Todd, Ib., 316; Roberts v. Mason, 10 Ohio St., 277; Finney v. Smith, 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; and Peckham Iron Co. v. Harper, 41 Ohio St., 100, are cases of this character.

So where land is conveyed with covenants of warranty and for quiet enjoyment, and a breach follows' and the covenantee is evicted by reason of a paramount title, and in such suit has vouched in the covenantor to defend the title, his damages for the breach may include an allowance for counsel fees. McAlpin v. Woodruff, 11 Ohio St., 120, and Lane v. Fury, 31 Ohio St., 574, are cases illustrative of this rule.

Other cases are to the effect that in actions on attachment, or injunction, or replevin bonds, where, in previous suit, the attachment has been discharged, orthe.injunction dissolved, or recovery had against the officer for wrongful seizure, counsel fees in such actions may be allowed in suits upon the bonds. Noble v. Arnold, 23 Ohio St., 264; Alexander v. Jacoby, Ib., 358, and Finckh v. Evers, 25 Ohio St., 82, are cases of this character.

The foregoing’ cases show the extent to which counsel fees have been allowed as part of the recovery of damages by decisions of this Court. One case in the Superior Court of Cincinnati, Kirchner v The City, 14 W. L. B., 48,. holds that damages for failure to give to the contractor a legal assessment for the construction of a sewer, may include costs and counsel fees in an unsuccessful suit by the contractor to recover against the land owner. This holding was predicated on the cases heretofore cited in the 11 Ohio St., and 31 Ohio St., involving damages for breach of covenants in deeds.

No other reported case in this state, so far as our search has extended, goes to this length. One case distinctly holding against such recovery, is that of Cincinnati v. Steadman, a circuit court case reported in 8 O. C. C., at page 407, by Smith, J. The case was brought to this court, but upon questions other than the one above stated, and the inquiry here did not involve the question of counsel fees.

It will be noted, that in the cases upon tort where counsel fees have been considered, although treated as part of plaintiff’s compensation, they relate to such probable expense of this character as would be incurred in the case on trial, and which would be present in the mind of the jury, but that no proof was allowed as to their extent or value. This principally or partly because, if proof were given it would introduce a new issue, and would result in an unseemly controversy. Among the varying grounds stated by different judges for allowing counsel fees in such cases as part of the plaintiff’s compensation, perhaps the most reasonable one is that, inasmuch as the law furnishes no exact measure, and since such matter of damage can in practice hardly be excluded from the jury, they should be allowed to be taken into consideration under proper instructions. But, as they are matter of actual expense, they cannot reasonably be allowed under the head of exemplary damages, and so, necessarily, should be included as part of compensation. In the cases upon undertakings or bonds, where counsel fees actually incurred in preceding litigation were allowed, the decisions are based on the provisions of the bonds themselves, as where the obligation is “to pay all damages he may sustain,” etc., or “to save harmless and pay all damages he may sustain,” etc, or the like. The recovery of counsel fees and other expenses incurred in defending title to land which had been warranted, is based on diverse grounds, one being that such expenses should be considered as a portion of the money paid for the title, that is a portion of the purchase money; another, and one which seems more reasonable and satisfactory, is, that the solemnity which should surround the transfer of real estate and the necessity of maintaining - stability of titles require the rule.

It may be that the rationale of the decisions affecting titles to real estate, applied to contracts affecting the title to personalty, and chosesin action, might warrant a similar rule. But it is believed that the policy of this state has been, and the understanding generally, among bench and bar, is, that such damages are not recoverable for the breach of simple contracts, not involving tort, even though there has been an express agreement as to the validity of the thing in controversy. Transactions in the business world have been conducted upon this understanding, and it would seem that if the rule of damages is to be enlarged it should be done by the law-making power, and thus be made to apply to future, and not to past, transactions. An enlargement of the rule would, also, tend to uncertainty. As observed by the learned judge of the circuit court who reported the case of Cincinnati v. Steadman, supra: ‘ ‘ If counsel fees are to be allowed as part of the damages in a case of this kind, where there has been no contract between the parties which provides therefor, we would not know where to draw the line, or say in what cases they should not be allowed, where a party had been involved in litigation, as a result of the breach by the other party of a contract between them.”

•And there is an additional reason for refusal to enlarge the rule in these cases, growing out of the peculiar situation of the parties. The defendant is a municipal corporation. In the case involving the sewer assessments, the city was acting as the agent, not of the people of the entire municipality so much as that portion of them who were to be benefited by the improvement. If, in this respect, a. different situation is presented in the other case, as to the sidewalk, it is not of such a character as to call for the application of a different rule. In all such.cases strictness should be observed by courts, and the municipality visited with liability only where the right to recover is made clear. See opinion in McCloud v. Columbus, 54 Ohio St., 439.

We think there was no error in the refusal of the courts below in these cases to allow a recovery for costs and other expenses, and counsel fees, incurred in the suits against the lot owners.

Judgments affirmed.


text:
    The Findlay Rolling Mill Co. et al. v. The National Bank of Commerce.

      Jurisdiction of circuit court — To reverse common pleas — Order discharging an attachment — Order made in chambers.

    The provisions of the Revised Statutes, (sections 5562 to 55636), confer upon the circuit court, jurisdiction to reverse an order discharging an attachment made by a judge of the court of common pleas at chambers, for the reason that such order is not supported by the evidence.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Hancock county.
    The National Bank of Commerce, commenced an action in the court of common pleas against the Rolling Mill Company, to recover $38,956.79, on several notes and bills of exchange set out in its petition. The bank also filed' an affidavit for an attachment, on the ground that the defendant had fraudulently contracted the debt for which the suit was brought. The defendant filed its motion for the discharge of the attachment, denying the truth of the affidavit upon which the writ had been issued. The motion came on to be heard before a judge of the court of common pleas, sitting in chambers, and evidence was submitted'supporting and opposing the charge that the debt was fraudulently contracted. The judge made an order discharging the attachment, to which the plaintiff excepted ; and the judge further ordered that twenty days be allowed ; the plaintiff to prepare and file a bill of exceptions and file a petition in error, and said orders were entered upon the journal of the court.
    Within the time so allowed, a bill of exceptions containing all the evidence offered on the hearing of the motion to discharge was signed and filed in the court of common pleas, and a petition in error was filed in the circuit court, praying for a reversal of the order discharging the attachment. In the circuit court the order was reversed, and the motion to discharge the attachment was overruled.
    The reversal of the judgment of the circuit, court is sought here.

      J. A. & E. V. Bope, M. B. Gary and Blackford & Byal, for plaintiffs in error.

      Squire, Sanders & Dempsey, and H. E. Burket, for defendant in error.
   By the Court :

On behalf of the plaintiff in error, it is insisted that the circuit court has only such jurisdiction in error as is conferred upon it by statute, and that jurisdiction to reverse an order made in chambers by .a judge of the court of common pleas, is not given by the general statute upon the subject, Revised Statutes, section 6709, which provides that “ a judgment rendered, or final order made by any court of common pleas, may be reversed, vacated, or modified, by the circuit court, etc.”

Counsel for the bank, admitting that the jurisdiction is statutory, insist that it is conferred by the provisions of the statute which relate especially to motions to discharge attachments and proceedings thereon.

It is provided in section 5562, that a motion to ■ discharge an attachment may be heard and decided by the court of. common pleas at any term or regular session thereof, or by any judge thereof in vacation ; and by the general statute relating to orders made out of court, (Revised Statutes, section 4963), the order of discharge made by the judge in chambers must be entered upon the journal of the court.

Section 5563a, provides that a party affected by an “order discharging an attachment, may ñle a petition in error to reverse, vacate or modify the same, as in other eases.” The following section provides, that “when an order discharging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not exceeding thirty, in which such party may hie his petition in error.”

From these provisions of the statute, it is manifest that the legislature intended that an order discharging an attachment made by a judge in chambers, should have the same effect, and be subject to the same provisions for review, as though made by the court at a regular session. In the. case of Atwood v. Whipple, 48 Ohio St., 308, it was decided that the circuit court has no jurisdiction to review an order dissolving an injunction made by a judge of the court of common pleas at chambers, but nothing more was held than that the jurisdiction is not conferred by the general provisions of section 6709, there being no such provisions as to motions to dissolve injunctions as those relating to motions to discharge attachments and providing for a review thereof.

With respect to the evidence offered upon the hearing of the motion to discharge, it is sufficient to say that that offered by the bank tended to support the affidavit, upon which the writ had been issued, and we do not consider its weight.

Judgment affirmed.


author: Burket, C. J.

text:
    Harris v. The Ohio Oil Co.

      Lease of land — For obtaining oil and gas — Portion of product delivered to lessor — Implied covenants of lessee — Effect of breach of covenant — Contract law.

    1. Where lands are granted, demised and let for the purpose, and with the exclusive right of drilling and operating for oil and gas, in consideration that a certain part of the oil produced should be delivered to the lessor, the lease providing that one well should be completed within six months, and in default the lease to be null and void, the lease being silent as to the drilling of other wells, or the protection of lines: . Held, that in such a lease there is an implied covenant on the part of the lessee, that he will drill and operate such number of oil well s on the lands as would be ordinarily required for the production of oil contained in such lands, and afford ordinary protection to the lines.
    2. Where the forfeiture clause in such a lease is to the effect that a failure on part of the lessee to comply with the conditions, or pay the cash consideration in the lease mentioned, at the time and in the manner agreed, then the lease to be null and void, and not binding on either party; and oil being produced in paying quantities through wells drilled on the lands by the lessee under the lease: Held, that the lessee has a vested interest in the lands; that to work a forfeiture of the lease, there must be a breach of a condition or covenant which is mentioned in the lease; that a breach of an implied covenant does not work a forfeiture of the lease; and that certain causes of forfeiture being specified in the lease, others cannot be implied.
    3. Under such a lease, the remedy for a breach of an implied covenant, is not by way of forfeiture of the lease,, in whole or in part, but by an action for damages caused by such breach.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Wood county.
    The written instrument of which the following is a copy, was duly executed by the parties there bo and-properly recorded:
    “Memorandum of agreement, made and entered into this 16th of December, 1887, by and between William Snyder and Cordelia Snyder, of Hancock county, Ohio, of the first part, and Carey C. Harris, of the second part, witnesseth:
    “That the party of the first part for the consideration of one dollar and other considerations in hand paid, and the covenants and agreements hereinafter contained, have granted, demised and let unto the said party of the second part, for the purpose and with the exclusive right of drilling, operating for petroleum oil and gas, all that certain tract of land situated in the township of Henry, Wood county, Ohio, known and described as follows: The east half of the northeast quarter of section 14, and the west half of the northwest quarter of section 13, in township three north, range ten east, containing 159 acres, more or less.
    “The said party of second part to have and to hold the said premises for the said purpose only for and during the term of five years from the date hereof, and as much longer as oil and gas are found in paying quantities.
    “The said party of the second part, in consideration of said grant and demise, agrees to give to the party of the first part the full equal one-sixth part of all petroleum oil obtained or produced on the premises herein leased, and to deliver the same to the pipe line to the credit of the party of the first part.
    “It is further agreed if gas is found in sufficient quantities to utilize, the consideration in full to the party of first part shall be one hundred dollars per annum for each and every gas well drilled upon the premises herein described and so used, and the privilege of using sufficient gas to heat the house on said premises.

      ‘ ‘The party of the first part grants the privilege to the party of the second part of using sufficient water from the premises herein leased, except from wells now on the premises, necessary to the operations thereon, and the right of way over and across said premises to the place of operation.
    “The right to lay pipes, to convey oil and gas, and the right to move any machinery and fixtures placed on said premises by them.
    “Provided that no well shall be bored nearer than three hundred feet of house or barn or in the orchard, except by consent of the first party.
    “Provided in case no well be completed within six months from date of this lease, unavoidable delays excepted, then this lease shall be null and void unless second party shall pay one hundred dollars to first party for each three months it is delayed.
    “Second party agrees to commence and complete one well within six months.
    “It is further agreed by party of first part with party of second part, that the failure on the part of the party of the second part to comply with the conditions or to pay the cash considerations herein mentioned at the time and in the manner agreed, then and in that event this lease shall be null and void, and not binding on either party.
    “It is understood between the parties hereto that all conditions between the parties hereto shall extend to their heirs, executors and assigns.
    “In witness whereof the parties hereto set their hands, the day and year first above mentioned.
    (Signed) “William Snyder.
    “Cordelia Snyder.
    “Carey C. Harris.”

      Said Carey C. Harris having taken possession of said premises under said instrument, and drilled and operated nine oil wells thereon, assigned all his interest in said lease to the Ohio Oil Company on the 22d day of February, 1889, and delivered possession to said company, and it has been in possession ever since, and has drilLed and operated three additional oil wells, and all the wells have at all times produced oil in paying quantities, but have produced no gas.
    On the 5th day of January, 1892, said Carey C. Harris purchased said lands from said William Snyder and wife, and he has continued to own the same ever since, so that- in legal effect he is the lessor, and the Ohio Oil Company the lessee.
    The plaintiff in error, Mr. Harris, claimed that at least ten additional oil wells should be drilled upon said lands in order to reasonably and properly develop the same, protect lines, and prevent the wells on the surrounding lands from draining the oil from under his said lands to his injury, and he notified the company to drill more wells, and notified it that unless such additional wells should be drilled within a reasonable time, sixty days, that he should regard the lease forfeited as to the undrilled parts of said lands, and should proceed to drill wells on said parts of the lands himself.
    The company refused to comply with his notice, and claimed that it had the exclusive right to drill wells on said lands by virtue of said lease.
    After repeated notices on his part, and refusals on part of the company, he made preparations to drill a well on the undrilled part of said lands, and the company thereupon filed its petition and obtained a temporary injunction against the defendant below, and he filed his answer, averring that at the time the lease was made, there existed a well known custom throughout said county of Wood to the effect following:
    “I. That the grantee or lessee should protect the lines of lands so leased or granted for said purpose from wells on adjoining lands — in all cases where on adjoining lands, wells were, or should be operated so near the same as to draw oil or gas from lands so leased or granted — by drilling and operating wells near the same immediately on lands so leased.
    II. That upon the completion of the first paying well at the time stipulated in the lease or grant, without delay others must be- completed and operated so as to develop and operate the lands so leased or granted, and particularly so, where adjoining lands are being operated.
    III. That to operate such lands for said purpose, one well at least should be drilled and operated on each five acres of the lands so leased or granted for said purpose.”
    The following averment was also contained in the answer:
    “That plaintiff owns and operates the lands adjoining said lands in the petition described on every side, and has operated the same ever since the said 22d day of February, 1889; that on the 160 acres on west of said lands, plaintiff owns and operates twenty oil wells; that on the 80 acres on east, it owns and operates ten oil wells; that on each of the quarter sections on north, northwest and southwest, it owns and operates nineteen oil wells, and within a distance of about one-half a mile from said lands of defendant, plaintiff owns and operates over 120 oil wells. That many of said wells are near the lines of defendant’s said lands, and draw the oil from under and in his said lands, and do him irreparable injury.”
    Also the following:
    “Defendant says the said wells now on said • land, are located as follows: Six are located along the east line of said farm at a distance of from thirty to two hundred feet of said line; four are located along west line of said lands, at a distance of from 200 to 300 feet of said line, of which the north one being 520 feet from the north line of said lands.
    “One of said wells is 200 feet.from south line, and 700 feet from said east line.
    “One of said wells is about 200 feet west of center of said farm.
    “With the exception of said last well, no drilling has been done on the middle of said -farm — more than eighty acres.”
    There was an averment in the answer that ah oil well could be drilled and completed in thirty days, and there were also other averments in the answer which are not material here, as the court. found them not to be true.
    The reply of plaintiff was as follows:
    “For reply to the answer filed in this cause, the plaintiff admits that oil wells in the Wood county field, should be drilled 1,200 to 1,300 feet deep; that a well can be completed, barring accidents, in thirty days; the exclusive right of plaintiff to mine on the lands for oil and gas, so long as the same may be found in paying quantities; the number, location and dates of drilling the wells thereon; that plaintiff owns and operates wells on adjoining lands, but not to the extent nor in .the manner alleged in the answer; that some of the wells on adjoining lands are near the line of defendant’s lands; that defendant has requested plaintiff to drill other wells; its refusal to drill the number requested by defendant; that it has prevented, aud intends to prevent defendant from drilling on said lands during the continuance of the lease set forth in the petition.
    “It denies every other allegation in the answer. ” The cause was tried in the circuit court on appeal, and the following decree rendered, to-wit: “This day came the said parties with their attorneys and submitted this cause to the court upon the pleadings and the evidence, and the same was argued by counsel.
    “Upon consideration whereof, and being fully advised in the premises, the court find that all and singular the matters and things alleged in the petition are true; that the matters and things set up by way of defense in the answer and cross-petition of the defendant are not true; and that the equities of this cause are with the said plaintiff.
    “It is, therefore, adjudged, decreed, and ordered, that the said plaintiff be, and it hereby is quieted in its exclusive right to drill for and produce oil and gas, in and upon the lands described in the petition under the lease mentioned and referred to in the pleadings in this cause, and that the defendant be, and hereby is perpetually enjoined from drilling for, or producing oil or gas, upon, or in said lands, or any part thereof, during the continuance of the said lease and under the terms thereof, and from in any manner interrupting’ or interfering with the plaintiff in the exercise of its exclusive right to drill for and produce oil and gas upon said lands, and that the cross-petition of the said defendant be, and it is dismissed.”
    A motion for. a new trial was filed and overruled and exceptions taken, and a bill of exceptions containing all the evidence was allowed, and made part of the record.
    Thereupon Mr. Harris filed his petition in error in this court, seeking to reverse the judgment of the circuit court.

      A. & F. P. & R. A. Blackford, for plaintiff in error.

      M. F. Elliott and Troup & Dunn, for defendant in error.
   Burket, C. J.

The matters and things set up in the answer and cross-petition, and expressly admitted to be true -by the reply, must be regarded as conceded by the parties, and therefore true, notwithstanding the finding of the circuit court to the effect “that the matters and things set up by way of defense in the answer and cross-petition are not true. ”

The case therefore stands the same as if the facts expressly admitted by the reply to be true, had been found by the court in addition to the finding’ as made; and the rights and remedies of the parties must be determined by the terms and conditions of the written instrument and the facts, both as found by the court, and as expressly admitted in the reply.

While the written instrument must be construed in the light of the surrounding circumstances, no new terms or conditions can be injected into such instrument, and no existing terms or conditions can be taken therefrom by averment in a pleading. In Kellogg v. Larkin, 3 Pinney (Wis.,) 123, 56 Am. Dec., 164; it is said: “No averments can give to an agreement character it had not, and no admission can take from it the character it had.” The effort to bend and change the construction of the written instrument in question, by averments in the pleadings, as to its true construction and meaning, must therefore fail, and the instrument must be construed, and its legal effect declared from the language used when read in the light of the surrounding circumstances. The facts found, and those admitted by the reply, are not such as to bend or vary in any respect, the construction or legal effect of the language used in the written instrument, and therefore a consideration of the terms and conditions, and legal effect of the written instrument itself, is all that is required.

It is not claimed by the plaintiff in error, that the oil company is in default as to the one-sixth of the royalty, nor as to the payment for gas, nor as to completing one well within six months, nor as to cash payments for delay. His only complaint is, that the company has failed to drill the number of wells necessary to properly develop the lands and so protect the lines as to prevent wells on adjoining lands from draining the oil from under his lands; and for this alleged default he seeks to forfeit the lease as to so much of the land as has not been sufficiently drilled. What are his rights in this regard under the lease? Is he entitled to the remedy he seeks? These questions are fairly made in the record, and are of great interest to the oil producing, and oil land interests of the state.

There is no express covenant, condition, or agreement, in the lease as to the extent to which the lands should be developed, nor as to the number of wells that should be drilled after completion of the first well. Is there an implied covenant, condition, or agreement, as to such development, or as to the drilling of a reasonable number of wells?

On principle, it would seem that there is such implied covenant in the written instrument. When no time is fixed for the performance of a contract, a reasonable time is implied. When a contract for the erection of a house or other structure, is silent as to the quality of the materials or workmanship, it is implied that the same should be of a reasonable quality. In a lease of a farm for tillage on the shares, it is implied that the tenant shall cultivate the farm in the manner usually done by reasonably good farmers. So under an oil lease which is silent as to the number of wells to be drilled, there is an implied covenant that the lessee shall reasonably develop the lands, and reasonably protect the lines. The development and protection of lines which is thus implied when the lease is silent, is such as is usually found in the same business of an ordinarily prudent man, neither the highest nor lowest, but about medium or average.

We therefore hold, both on principle and authority, that there is an implied covenant in this lease to reasonably develop the lands by drilling and operating such number of wells as would be ordinarily required for the production of the oil contained in such lands, and afford ordinary protection to the lines. Glasgow v. Chartiers Oil Co., 152 Pa. St., 48; Koch’s and Balliet’s Appeal, 93 Pa. St., 434; Mc Knight v. Manuf. N. Gas Co., 146 Pa. St., 185.

The extent of the development, and number of wells to be drilled, and as to the protection of the lines, is often, if not usually, expressed in the lease, and that is certainly the better practice. When the extent of the development and protection of lines is provided for in the lease, there can be no implied covenant for further development and protection of Tines. The implied covenant arises only when the lease is silent on the subject.

There being such implied covenant in this lease, and conceding, but not deciding, that a breach of that covenant is shown by the record, the question arises as to whether such breach works a forfeiture of the lease in whole or in part? And as to whether the plaintiff in error could, by notice to the oil company, secure to himself the right to drill oil wells on the undrilled part of said lands ?

This lease is in its terms, an entire contract without any words of severance; and there is no implication of severance, as is sometimes the case when all wells are to be drilled within a shorter time than the period of the lease. In such cases, even though the lease is in terms a sale of all the oil contained in the lands, whatever oil remains in the undeveloped parts of the land at the expiration of the time in which drilling can be done by the terms of the lease, inheres in the land and lapses into the fee, and remains the property of the land owner, the same as standing trees which are sold to be removed within a given time, remain the property of the owner of the land after the expiration of such time. Clark v. Guest, 54 Ohio St., 298.

In such cases the lease is severable by implication, at the end of the period in which drilling is allowed; but there is nothing in this lease to indicate a severable character, and therefore the rule of law applicable to the breach of conditions of entire contracts, would seem to be applicable here. That rule is, that a condition must defeat or determine the whole estate or contract, to which it is annexed, and not only a part of it, unless otherwise .expressed. 2 Cruise on Real Prop erty, 5.

The case of Masson v. Bovet, 1 Denio, 69; 43 Am. Dec., 651, is authority to the effect that a rescission of a contract must be in toto, or not at all. See also, Trimble v. Doty, 16 Ohio St., 129. The same rule of law applies as to forfeitures of contracts.

■ The rights and remedies of the parties to an oil or gas lease, must he determined by the terms of the written instrument, and the law applicable to one form of lease may not be, and generally is not, applicable to another and different form. Such leases are contracts, and the terms of the contract with the law applicable to such terms, must govern the rights and remedies of the parties.

By the terms of the lease in this case, the lessor for a valuable consideration granted, demised and let the lands described to the lessee, for the purpose and with the exclusive right of drilling and operating for petroleum oil and gas, for five years, and as much longer as oil and gas are found in paying quantities. In this case, as in the case of Crawford v. Woodland Oil Company, 55 Ohio St., 161, it is the land that is granted demised, and let for the limited purpose and period named in the lease. An instrument in such form is more than a mere license; it is a lease of the land for the purpose and period limited therein, and the lessee has a vested right to the possession of the land to the extent reasonably necessary to perform the terms of the instrument on his part.

In this case, possession .was delivered to the lessee and operations commenced, wells drilled, and oil produced in paying quantities, and in such cases it cannot be doubted that the lessee has a vested, though limited, estate in the lands for the purposes named in the lease. Venture Oil Company v. Fritts, 152 Pa. St., 451.

■ What the exact rights of the parties were after the execution of the lease, and before oil was found in paying quantities,' is now immaterial, because oil was found, and is still being produced in paying quantities; and for the additional reason that the duty imposed by implication upon a lessee in a leasehold operated for gas, can not be measured by the same rule applied in the same manner, as in the case of a leasehold operated for oil; the peculiar characteristics of the business of producing and transporting natural gas being such as to distinguish it for some purposes from operations for oil. McKnight v. Manufacturers N. Gas Co., 146 Pa. St., 185.

While the period of five years that the lease was to run has expired, the lease is still in full force, because it provides that it shall continue as much longer as oil and gas are found in paying quantities. This provision extends and limits the period of the lease to such time in the future, as oil and gas shall cease to be produced in paying-quantities on said lands. When that period shall arrive, whether caused by exhausting the oil and gas, or by the permanent abandonment of production, the lease will cease, and the whole estate in the premises will become the property of the • owner of the fee, not by forfeiture, but by virtue of the terms of the lease.

A breach of the implied covenant to reasonably develop and protect lines, does not have the effect to forfeit the lease in whole or in part, nor is it good cause for a court to declare such forfeiture, unless the lease in express terms provides that a breach of such implied covenant shall avoid or forfeit the lease. Koch’s and Balliet’s Appeal, 93 Pa. St., 434; McKnight v. Kreutz, 51 Pa. St., 232; Janes v. Emery Oil Co., 1 Pa. S. C. Reports by Pennypacker, 242; Blair v. Peck, Ib., 247; Paschall v. Passmore, 15 Pa. St., 295.

It is strongly urged, that it is inequitable for the lessee to hold on to his lease and still fail to so operate the premises as to produce reasonable results, and that he should either reasonably operate the premises or get off and permit his lease to be forfeited. The answer is, that while there is an implied covenant to reasonably operate the premises, there is no implied or express covenant to get off and forfeit his lease for a breach of such covenant.

The lease in question provides for a forfeiture for the failure to comply with the conditions, or to pay the cash consideration in the lease mentioned, at the time and in the manner agreed; but the implied covenant, to reasonably operate the premises, is not mentioned in the lease, and is therefore not included in the causes of forfeiture. Some causes of forfeiture being expressly mentioned, none other can be implied. McKnight v. Kreutz, 51 Pa. St., 232.

The remedy for a breach of the implied covenant to reasonably operate the premises, is therefore not by way of a forfeiture of the lease in whole or in part, but must be sought in a proper action for a breach of such covenant. Blair v. Peck, 1 Pennypacker, 247.

As to the rule of damages in such cases, see Bradford Oil Company v. Blair, 113 Pa. St., 83.

Judgment affirmed.


author: Bradbury, J.

text:
    City of Cincinnati et al. v. Emerson.

      Assessment on ciiy lot for street improvement — Owner two grounds for contesting — One pertaining to himself alone — One common to himself and others — Election of one action bar to the other.

    1. Where an assessment is imposed on a city lot to pay. the cost of improving a street upon which it abuts, and the owner thereof, having two distinct grounds for contesting the validity of such assessment, one of which is common to him and the owners of all the other abutting lots, the other pertaining to his lot only, elects to bring an action for the benefit of himself and the other abutting' owners to enjoin its collection, based on the grounds common to all, he should be deemed to have waived his right to bring a second action on the other ground, which pertained to his lot only.
    2. If the first action fails on its merits, the judgment rendered therein, is a bar to a second action brought by him alone, in which the assessment is assailed and an injunction against the collection sought on the grounds that pertained to his lot only. This is so, although the grounds upon which the first action was founded,'if maintained, would have totally'defeated the assessment, while the grounds set forth in the second . action, would have simply reduced the amount that had been assessed against the plaintiff’s lot.
    (Decided November 23, 1897.)
    Error to the. Circuit Court of Hamilton county.
    This action was brought against the city of Cincinnati, by Henry Emerson, defendant in error, in the court of common pleas of Hamilton county, to restrain the collection of an assessment, made by the city upon a corner lot owned by him, on account of an improvement of the street that ran lengthwise along the side of his lot. The action was tried in the court of common pleas and judgment given in favor of the city. The cause was taken to the circuit court on error, and there reversed. Thereupon the city brought the cause into this court to obtain a reversal of the judgment of the circuit court, and affirm that of the court of common pleas.

      Frederick Hertenstein and Wm. H Whittaker, Corporation Counsel, for plaintiffs in error.
    Is this decree a bar to the prosecution of the present action?
    We claim that it is, for the reason that an adjudication is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided as incident or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense, Ewing v. McNairy & Clafflin, 20 Ohio St., 315; Roby v. Rainsberger, 27 Ohio St., 674; Covington and Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596; Hixson v. Ogg, 53 Ohio St., 361; Cromwell v. County of Sac, 94 U. S., 351.
    If the plaintiff below could have litigated in the former action the same question raised here, he would be barred from litigating it now. His position has not been changed since that action was brought, and he was then the owner of a corner-lot. The law has not been altered in the meantime. The difficulty i s he neglected to set up the defense he seeks to avail himself of now. Several years ago he could have set up the defense he makes now in that action. Swenson v. Cresop, 28 Ohio St., 668; Martin v. Roney, 41 Ohio St., 141.
    The cause of action was the same in both cases, the irregularity of the proceedings of council in imposing an illegal assessment. Whether the irregularity of illegality consisted in the passage of the ordinance to improve, in the proceedings of council or of the Board of Improvement, there was but one cause of action. Tyler v. Columbus, 6 C. C., 224; Shaw v. City of Cincinnati, 1 Nisi Prius Rep., 88.
    The principles laid down in the 10 Ohio St., 45 and 5 Wall., 592, have been modified by later cases, namely: By Covington & Cincinnati Bridge Company v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 668, and Hixson v. Ogg, 53 Ohio St., 361; also Cromwell v. County of Sac, 94 U. S., 351.

      Burton P. Hollister and Hollister & Hollister, for defendant in error.
    The former adjudication, in which the defendant in error and other's were the plaintiffs and the city of Cincinnati and others were the defendants, is not a bar to the present suit, for the following-reasons:
    1. The question at issue in the present suit was not raised by the pleadings, nor was it necessary so to raise it, nor was it decided by the court, nor was its consideration and decision necessary to the judgment of the former suit.
    2. The question could not have been raised in the former suit, even if the defendant in error had desired to raise it, for the reason that there would have been several plaintiffs joined in the same suit with different causes of action.
    In our judgment the extent of the doctrine that a former adjudication is a bar to a subsequent action is fully stated in the ease of Cromwell v. County of Sac, 94 U. S., 351.
    In the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have ■ been offered for that purpose. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding and verdict was rendered. Cromwell v. County of Sac, 94 U. S., 351; Hixson v. Ogg, 53 Ohio St., 361; Lessee of Lore et al. v. Truman, 10 Ohio St., 45; Davis v. Brown, 94 U. S., 423; Russell v. Place, 94 U. S., 606; Wright v. Griffey, 147 Ill., 496; Kitson v. Farwell et al., 132 Ill., 327; Griffin et al. v. Wallace et al., 66 Ind., 410; Packet Co.,v. Sickles, 5 Wall., 580.
    The matter set forth in the present suit constitutes a distinct and separate cause of action. The former suit, brought by the defendant in error on behalf of himself and other property-owners on Molitor street, attacked the right ox the city of Cincinnati to levy and collect any assessment whatsoever for the improvement of Molitor street, on the ground that the ordinance was not legally passed, and as a natural result the assessment declared by such ordinance was invalid. If the ordinance was bad, then the whole assessment against all the property holders was invalid. The present action admits the validity of the ordinance, but denies that one of the property owners on said street — namely, the defendant in error — should be assessed for more prop • erty than he owned. The question whether the lot of the defendant in error was assessed for too many feet was not raised by the pleadings, nor was it before the court in any form whatever, nor was it decided by the court, nor was its consideration and determination necessarily involved in the judgment rendered in the former suit, nor would the evidence offered to sustain the defendant in error’s contention in the former case aid him in sustaining the present case. Herman on Estoppel and res adjudicateo, page 1422.
    If we grant, for argument, that the question litigated in the present suit might have been determined in the former action, nevertheless, inasmuch as the question now litigated was in no way necessary to the judgment in that case, we were not bound present question in the former suit. Secor v. Sturgiss, 16 N. Y., 554; 66 Ind., 415; Kitson v. Farwell et al., 132 Ill., 339.
    The defendant in error could not, even if he had so desired, have litigated in the former suit the question which arises in this suit — namely, as to the number of feet owned by him on Molitor street subject to the assessment. The former action was brought not only for himself, but on behalf of the other plaintiffs. The authority for one of several plaintiffs suing also on behalf of the others, is found in section 5008 of the Code of Civil Procedure, and the case of Uppington et al. v. Oviatt, Treasurer, et al., 24 Ohio St., 232.
   Bradbury, J.

The only question arising on the record relates to the effect to be given to the proceedings and judgment had in a former action between the same parties respecting the identical assessment assailed in the present action.

The record discloses that Mr. Emerson was the owner of a lot situated on the southwest corner of Molitor and Dallas streets, in the city of Cincinnati, fronting twenty-five feet and nine inches on Dallas street, and “running back on Molitor street, eighty-two feet;” that in 1888, the city council of Cincinnati adopted a resolution declaring the necessity of improving Molitor street, and in July following (1889), passed an ordinance providing therefor; which improvement was after-wards made and accepted by the city, and the cost thereof assessed upon abutting property according to its frontage on Molitor street — the street improved.

The true front of his lot being upon Dallas street, its owner, the defendant in error, brought the present action to restrain the city from collecting any greater amount than would be payable if the assessment should be computed according to the actual frontage of the lot on Dallas street, which, as we have seen, was twenty-five feet and nine inches.

To this claim for partial relief against the assessment the city interposed a plea of a former adjudi- ■ cation.

The cause was tried, upon this issue, in the court of common pleas. The court finding: That the plaintiff there, defendant here, in a former action brought by him, on behalf of himself and others, had sought to enjoin the collection of the assessment, in toto, on the ground that the ordinance to provide for the improvement had not been lawfully .passed; because it “and six other ordinances to improve, having each been read three times on different days, and the question then and there being on their final passage, all seven of said ordinances were then and there, on. said day, voted upon together, without a separation or division of the question, and were finally passed together on said vote, and on one and the same roll-call of the yeas and nays, and by forty-seven favorable votes out of a membership of fifty members, and without any other or further vote or roll-call of the yeas and nays.”

The court found further, that this method of enactment did not render the ordinance invalid, and that the assessment based upon it was binding on the abutting property: — and, thereupon dismissed the plaintiff’s petition. This judgment, not having been reversed or set aside, was adjudged by the court of common pleas to constitute a bar.to the second action; which was brought, as we have seen, by the plaintiff below, to reduce the assessments placed upon his property on account of the same improvement, because, his, being a corner lot, was liable to assessment only upon such part of its length along the street improved, as was equal to its frontage on Dallas street, upon which last named street it in fact fronted.

The circuit court reversed this judgment, holding that the judgment in the first action was not a bar to the relief sought by means of the second action.

It is apparent that the particular ground of relief set forth by the plaintiff below in his second action, was not in fact considered or passed upon by the court in the first action. It does not, therefore, fall within the principle that governed the decision of this court in Hixon v. Ogg, 53 Ohio St., 361. In that case, (Hixon v. Ogg, supra,) the precise issue determined in the first action, was sought to be relitigated in a subsequent action between the same parties, on the g-round that the subject matter of the two actions was different. This court, there, held against the right to relitigate the question. The syllabus was as follows: ‘ ‘Where issue has been joined on a material fact in an action, and the issue judicially determined and carried into judgment by a court having jurisdiction of the action, the parties to such action are concluded by such finding until the judgment is reversed or set aside. And the fact thus established cannot be retried by the same parties in any subsequent action, whether the second action is upon the same or a different subject matter from the first. In this respect, it is immaterial that one of the actions may have been ex contractu, and the other ex delicto.”

The estoppel invoked in the ease of Hixon v. Ogg, supra, (53 Ohio St., 361,) rests upon the principle, that where two parties have, in fact, joined issue upon some particular matter in a court clothed with jurisdiction over such matter, and over the persons of the contending parties, and the court has decided the matter and carried its decision into judgment, such matter must, thereafter, as long as the judgment remains in force, be deemed to be at rest as between such parties, and their privies. To hold otherwise, would be to open a endless avenue to contention, contrary to the mandates of that enlightened public policy which seeks to secure the repose of the community by adopting rules on this subject that will prevent interminable, or vexatious prolongation of private contention in the courts of the country, even if the parties thereto were willing to maintain it. Independently of the interest of the public in limiting the period of contention among its members, the prevailing party has rights founded on principles of natural justice. If the defeated party, through the carelessness of himself or attorney, fails to bring to the attention of the court all the reasons or grounds favorable to his contention, he should not be permitted, again, on that account, to harass and vex his opponent by bringing forward in a second action, the omitted reasons or grounds. That the plaintiff did not, in the first action advance all his grounds of relief, was his own fault, and the consequences of this omission, should be borne by him, and not by his opponent who was without fault in the matter. Ewing v. McNairy & Clafflin, 20 Ohio St., 315.

The justice and wisdom of the rule that denies a relitigation of facts that have been previously decided in a former action between the same parties, is quite apparent, and appears to be generally conceded by all the authorities.

The estoppel relied on in this action, does not rest, however, as has been already noticed, on that particular principle, though it does rest upon that same general principle of public policy, that seeks to confine within a reasonable period of time, the duration of litigation, and also upon the same notion, that justice to the prevailing party requires that he should not be subjected to the burden of maintaining bis rights a second time, on account of the negligence or caprice, or by the election of his defeated opponent.

This doctrine does not prevent the defeated party from applying to the court in the same action to be relieved from a judgment against him, where, without fault, he has been prevented from prosecuting or defending an action. If a party who, by negligence chargeable to him, has failed to bring forward all the reasons or grounds upon which his claim or defense rests, should not be allowed to advance them in a new action, by far stronger reasons should this privilege be denied to one, who from choice in his first action, withholds some of the grounds upon which his claim or defense might be made to rest.

What was the situation of Mr. Emerson in reference to the assessment against his lot at the time he began his first action?

The assessment was an entirety; he had two distinct grounds of attack upon it. One of which was a denial of the validity of the ordinance providing for the improvement.

If this ground was well founded, it would defeat the assessment in toto; and from its nature was available to every lot owner along the line of the improvement, and all of them might therefore be joined in an action which advanced it as a ground of relief against the assessment. Mr. Emerson, however, had another ground for assailing the assessment, which was open only to him, as it rested on the peculiar situation of his lot, being a corner lot, and so far as the record discloses, the only one along the line of improvement.

Doubtless, to one thus situated, it would be a valuable privilege, if the law granted it, to first bring an action to totally destroy the assessments and join with him the owners of all the other abutting property, and then, in case this action should fail, fall back upon the other ground peculiar to his lot, and bring a second action in his own name, only, to reduce the amount of the assessment against it.

We think sound reason denies to him this privilege. He doubtless had an election between two courses of procedure; he could join with him in an action all abutting proprietors, and jointly, with them, assail the validity of the ordinance that authorized the improvement; or, he could bring an action in his own name, and for himself only, in which both grounds open to him, of attack upon the assessment, could be advanced. Having’ made his election, he should be held bound by his choice of remedies.

The principle which relates to the question of dividing, or splitting, a cause of action by a plaintiff and of advancing only a part of the defenses available to a defendant, has recently received a good deal of attention, by both text-writers and courts. Van Fleet in his redent work on Former Adjudication, has devoted to these two subjects nearly three hundred pages of interesting discussions: Wells’ Res Adjudicata, chap. XX; Black on Judgments, chap. XIX; A treatise on the law of Res Judicata, Huk’m. Chand., M. A., (an East Indian author,) section 86, et seq.; Stark v. Starr, 94 U. S., 477; Breeze, Co. Treas., v. Haley, 11 Colo., 351; Rueger et al. v. R. R. Co., 103 Ill, 449. The list might be indefinitely extended. They certainly establish the general rule: That complainants cannot “divide their cause of action, setting up one ground of illegality in that suit, and, if they failed in that, bring a second suit for a like purpose, setting- up another ground of illegality. They should have disclosed their entire wealth of their ease at once. ” Pribble v. Board, 8 Biss., 358.

In the cases cited, the effect to be given to the circumstance, that in the former action the plaintiff had joined with him other parties, while the second action was brought in his own name, and for his own benefit, only, was not discussed, as the question does not appear to have been made. We think, however, that the principles stated as the foundation of our decision of the case under consideration, properly apply, notwithstanding that he, in his first action, joined with him other parties. He did this, as we have seen, at his own election; to enable him to do so, he omitted from his petition in that action, the particular grounds of relief advanced in the second action. Having deliberately chosen between two courses open to him, we think he should be bound by his election, and that the privilege of vexing the defendant by a second action, is denied to him by the principles herein, before announced.

While the previous decisions of this court do not cover the precise question involved here, we think they are not only in harmony with the conclusions reached by us, but that the principles on which those decisions rest, fairly lead up to this one. Ewing v. McNairy & McClafflin, 20 Ohio St., 315; Roby v. Rainsberger, 27 Ohio St., 674; Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Petersine v. Thomas, 28 Ohio St., 596; Martin v. Roney, 41 Ohio St., 141.

Judgment of circuit court reversed, and that of the court of common pleas affirmed.