text:
    Hayes v. Weaver.

      Surety’s liability — Bond for stay of execution — For filing petition in Supreme Court to reverse circuit court — Surety on such bond held jor judgement rendered in Common Pleas Court,

      A bond for the stay of execution given pursuant to subdivision 1 of Section 6718, Revised Statutes, upon the filing of a petition in error in this court for the reversal of a judgment of the circuit court affirming the judgment of the common pleas court for the recovery of money, the obligation of the bond being that the principal and surety will pay the “condemnation money” and costs if the judgment be affirmed here, binds the surety for the payment of the amount of the original judgment with interest and costs upon affirmance by this court, although upon the filing of the petition'in error in the circuit court a bond for the stay of execution was given with a different surety.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Lucas county.
    Defendant in error brought suit against the plaintiff in error in the court of common pleas alleging in substance that on June 26, 1896, he had recovered a judgment in the court of common pleas against the Wheeling & Lake Erie Railway Company for $2,030.40 and costs taxed at $216.33; that the railway company had thereupon instituted proceedings in error in the circuit court where the judgment of the common pleas was affirmed; that the company then filed a petition in error in the supreme court to obtain a reversal of said judgments and executed, with Hayes as surety, an undertaking whereby said company and said surety bound themselves jointly and severally to pay the condemnation money and costs in case said judgment should be wholly or partly affirmed by the supreme court; that thereafter, upon a hearing in the supreme court, the judgment was affirmed; that the judgment is in full force and wholly unpaid, and praying for judgment for said several amounts with interest. A copy of the bond is attached to the petition and is as follows:
    Whereas, The Wheeling and Lake Erie Railway Company, a corporation of the State of Ohio, has instituted proceedings in error in the supreme court of Ohio, to reverse the judgment of the circuit court of Sandusky county, rendered at the June term, A. D., 1896, thereof, to-wit: On the 7th day of July,, A. D., 1896, whereby said circuit court affirmed the judgment of the court of common pleas of said county, in favor of George F. Weaver and against the said The Wheeling and Lake Erie Railway Company in a certain suit then pending in said court of common pleas, wherein said George F. Weaver was. plaintiff and said The Wheeling and Lake Erie Railway Company was defendant, for the sum of two thousand and thirty dollars and forty cents, and for the costs of said suit.
    Now, therefore, we, The Wheeling and Lake Erie Railway Company and Birchard A. Hayes, jointly and severally do bind ourselves unto the said George F. Weaver in the sum of five thousand ($5,000.00) dollars.
    That if the said judgment shall be affirmed in whole or in part, we will pay to the said George F. Weaver, the condemnation money the whole or the part of said judgment so affirmed and the costs that have accrued or that may accrue in all courts.
    In his answer Hayes admitted the allegations of fact contained in the petition, but denies that his undertaking was to pay the condemnation money of the judgment of the common pleas court in case the judgment of the circuit court should be affirmed in whole or in part by the supreme court, but admits that his obligation was to pay the condemnation money of the judgment of the circuit court in case it should be so affirmed; he further alleges that, with the knowledge of all the parties, when the railway company filed its petition in error in the circuit court for the reversal of the judgment of the common pleas, it gave a bond with the Fidelity & Deposit Company as surety whereby they jointly and severally bound themselves to pay .the condemnation money if-said judgment should be affirmed by the circuit court. In the court of common pleas portions of this answer were, on motion, stricken out, and judgment was rendered in favor of Weaver for the full amount claimed in the petition and this judgment was affirmed by the circuit court.

      Birchard A. Hayes, for plaintiff in error.

      First. There was no consideration for the execution of the second bond.

      Second, The condition of the second bond was to pay costs only.
    A careful examination of section 6718 shows that it is not the “undertaking,” but the “proceeding to reverse,” that “operates to stay execution.” And Section 6710 of the Revised Statutes authorizes a reversal by the supreme court of a judgment of the court of common pleas, when that reversal is rendered after a proceeding in error in the circuit court. And the practice of this court is in proper cases, to reverse, not only the judgment of the circuit court, but also that of the common pleas court, as was done in the following cases selected at random from the last volume of Ohio State Reports: Railway

      Company v. Andrews, 58 Ohio St., 426; Benedict v. Peters, 58 Ohio St., 572.
    In its opinion in the case at bar the circuit court intimated that it would have held the second bond to be without consideration, but for the case of Hyde v. Bank, 49 Ohio St., 60.
    There seems to be no statutory authority to stay execution of a judgment of affirmance; when judgment is affirmed by the circuit court, the cause is remanded to the court of common pleas for execution. There is no such thing as staying the mandate.
    The contract of a surety is void if it be without consideration. 2 Story on Contracts, Sec. 1110 (page 320 of 5th edition). Powers v. Crane, 67 California, 65; 7 Pacific, 135; Lyons v. Lancaster, 33 Southwestern, 838; Powers v. Chabot, 93 California, 266; Post v. Doremus, 60 New York, 371; McCallien v. Hibernia Society, 98 California, 442.
    The supreme court having “affirmed in whole” the said judgment (to-wit, the judgment of the circuit court) the question arises what amount is due on the bond?
    The plaintiff-below claims it is the amount of the condemnation money of the judgment of the court of common pleas and costs.
    The defendant-below claims it is costs only, there being no condemnation money mentioned in the judgment of the circuit court.
    The principle is well settled that a surety has a right to stand upon the letter of his bond. In order to render the defendant-below liable for the amount of the judgment rendered by the court of common pleas, it is necessary after the words “the condemnation money,” in the last paragraph of the bond in ■question, to insert the words “of the judgment of the court of common pleas.”
    We have been unable to find any case decided by an Ohio court in a suit on an error bond given in the appellate court in which the question here involved is made. Smith v. Huesman, 30 Ohio St., 662; Myers v. Parker, 6 Ohio St., 501; Hall v. Williamson, 9 Ohio St., 17; Hamilton v. Jefferson, 13 Ohio, 427.
    So in the case at bar, the judgment is one of affirmance, the railway company is condemned to pay nothing. Miller v. Stewart, 9 Wheaton, 680; McGovney v. State, 20 Ohio, 93; State v. Medary, 17 Ohio 554.
    So in the case at bar “it may be said if the bond do not embrace” the judgment of the court of common pleas, it embraces nothing, or next to nothing, only costs; “and that the officer who took it failed in intelligence. The reply to all this is, that the bond speaks for itself; and the law is that it shall so speak; and that the liability of sureties is limited to the exact letter of the bond.” Greenville v. Anderson, 58 Ohio St., 463.

      Finefrock & Garver, for defendants in error.
    It will be seen that Sec. 6718 Eevised Statutes provides that the bond shall be in double the amount of the judgment or order, to the effect that the plaintiff-in-error will pay the condemnation money and costs of the judgment if final order be affirmed in whole or in part.
    BurwelPs Law Dictionary defines condemnation money, “The damages which the party failing in an action is adjudged or condemned to' pay; sometimes simply called condemnable.” Blackstone, Yol. 3, p. 291.

      The fact that the statute provides that the bond shall be in double the amount of the judgment and costs, we insist, shows conclusively it meant the entire judgment. Besides it will be seen that the-very language of the statute is to pay the condemnation money and costs; and so is the language of the-bond. To give this statute and the bond the interpretation which the plaintiff-in-error is seeking to-have placed upon them, it would be required to strike out from the bond and the statute the words “condemnation money,” and would then read to pay the-costs only. Hyde v. The Bank, 49 Ohio St., 60; Hartwell v. Smith, 15 Ohio St., 200.
    Sureties to a writ of error bond, executed on removing a case from one court to another, are discharged by the execution of a new writ of error bond by new sureties, taking the case from the latter into-a higher tribunal. Thus where a case was removed by a writ of error' from the county to the circuit court, and there affirmed, and subsequently by a, writ of error was taken to the supreme court, it was held that the execution of the writ of error bond in the latter case operated as discharge of the sureties in the former bond. Winston v. Rives, Sup. Ct. Ala., Stewart & Porter Reports, V. 4, p. 269; Justices v. Sparks et al., Georgia Reports Vol. 6, p. 432; Roberts v. Dust et al., 4 Ohio St., 502.
    The bond should not be construed to defeat, but should be liberally construed to sustain the intention; to preserve rather than to destroy; and to make every word operate if possible. Secrest v. Barber, 17 Ohio St., 45; Helt v. Whittler, 31 Ohio St., 475; Alexander v. Jacoby, 23 Ohio St., 358; King v. Bishop, 44 Ohio St., 221; Albert v. Froehlich, 39 Ohio St., 245.
   By the Court:

The bond executed by the Fidelity & Deposit Company as surety operated to stay the judgment of the common pleas court, or to suspend the payment of the “condemnation money,” only until the affirmance by the circuit court. The further suspension to await the judgment of this court was a consideration ’for the execution by the plaintiff in error, as surety, of the bond on which the present judgment was recovered.

The phrase “condemnation money” as used in the first subdivision of section 6718 of the Revised Statutes, and in the bond counted upon in the present case, means the money, which by the original judgment the plaintiff in error, the principal in the bond, is adjudged to pay. In the common pleas the motion to strike out should have been treated as a general demurrer to the answer and sustained. But since the facts admitted in the answer entitled the plaintiff there to a judgment, notwithstanding the matters alleged for the purpose of avoidance, the practice adopted did not operate prejudicially to the plaintiff in error.

Judgment affirmed.


source: Caselaw Access Project

author: Bx the Court:

license: Public Domain

text:
    State ex rel. Allen, v. Mason, etc., et al.

      Clerk in U. S. Pension oMce — Eligible to membership in General Assembly — Article 2, Section 4 of Ohio Constitution.

    A clerk in the United States pension agency, serving by appointment for -a period not exceeding three months, and compensated with money of the United States appropriated for that purpose by congress, having no duties defined by law nor discretion to act independently of the direction of the pension agent, is not “holding an office under the authority of the United States” within the meaning of Section 4 of Article 2’ of the constitution of the state which renders persons so holding office ineligible to membership in the general assembly.
    (Decided October 24, 1899.)
    IN MANDAMUS.
    In his petition the relator alleges that from and since the first Monday in January, 1898, he has been a duly elected and qualified and acting member of the house of representatives in the General Assembly of Ohio; that for the same time the defendant, Mason, has been the duly qualified and acting speaker of the house, and the defendant Guilbert, the duly qualified and acting Auditor of State; that the relator’s salary as such member, as fixed by law, is $600.00 per annum, and that his salary for the year 1899 became due and payable on the 16th day of February, 1899, and that an appropriation therefor had been made; that it was the duty of the speaker to issue to him a certificate for his said salary and the duty of the auditor to issue a warrant therefor on the Treasurer of State; that upon his demand said officers refused to perform the duties so imposed upon them by law, and he prays for a peremptory writ of mandamus to compel the performance of said duties.

      The cause is submitted on an agreed statement of facts which concedes the relator’s right to the writ unless it should be denied because, during the time for which he seeks compensation, and at the time of his demand therefor, he was “holding an office under the authority of the United States” within the meaning of section á of article 2 of the constitution of the State. The facts agreed upon and material to the question to be determined are in substance as follows: On September 1, 1898, the relator was appointed a clerk at the United States pension agency at Columbus, Ohio, for a period not exceeding three months, and has continued until now to occupy said position by virtue of successive reappointments for like periods, he being one of thirty-six clerks at the agency. His salary as clerk is $1,800 per annum, which is paid out of the money of the United States appropriated by- congress for clerk hire. He acts as confidential clerk to Mr. Jones, the pension agent, having no duties which are defined by law, nor has he discretion in any matter to act independently of the will of the agent. His duties are wholly such as are imposed upon him by the agent.

      David L. Sleeper, for plaintiff.
    1. Section 4, article 2 of the constitution of Ohio providing that “no person holding office under the authority of the United States shall be eligible to the General Assembly, does not include a position as is held by relator, of a temporary character and purely ministerial in its duties.
    2. That section 6, article 2 of the constitution of the State provides, “Each house shall be judge of the election, returns and qualifications of its own members,” and that the defendants have no right to expel relator, or to refuse his salary so long as he shall remain a member of the General Assembly; that until the House of Representatives shall have passed upon the eligibility of relator and excluded him from membership in the house, relator remains a member thereof, and is entitled to draw his salary therefor and no other officer, authority or court has a right to pass upon the question of his eligibility or refuse to pay his salary. •
    What is an “office,” under section 4, article 2 of the State constitution?
    The Century Dictionary defines it to be “A post the possession of which imposes certain duties upon the possessor and confers authority for their performance.” It must be permanent, continuing, durable and possesses independent power to control the property of the public or to perform public functions. It invests the occupant with certain discretion in the performance of his public duties within the limits of which he is not answerable to another. It possesses judicial, legislative or administrative powers. A position purely ministerial, possessing no right of independent action, dependent entirely upon the will and direction of another in its appointment and execution is not such an office as comes within the inhibition of said section 4. State v. Kendle, 52 Ohio St., 346; State ex rel. v. Brennan, 49 Ohio St., 37; King v. Burnell, Carthew, 478; United States v. Hartwell, 6 Wall., 385; Bradford v. Justices, 33 Ga., 332; Smith v. Lynch, 29 Ohio St., 261; State v. Anderson, 45 Ohio St., 196; Warwick v. State, 25 Ohio St., 21; State ex rel. v. Kennon, 7 Ohio St., 548; 20 Johns, 492; Lessee of Anderson v. Brown, 9 Ohio St., 151.
    In the proceedings against Gen. Joseph Wheeler and others, in the present house of representatives, it was sought to unseat them because they had accepted military commissions in the volunteer army in the late war with Spain. The federal constitution says: “And no person holding an office under the United States shall be a member of either house •during his continuance in office.”
    In the statement of Gen. Wheeler made on the floor of the house in his own defense, he says: “When I accepted the appointment as a major general of volunteers last May, I was requested by persons whose desires I could not disregard not to resign my seat in congress. I find that during the pres-■congress forty-three of its members had been appointed to offices and that none of them have resigned their seats in congress.
    “I have examined decisions and precedents on the ■subject and found that during the 110 years of the ■existence of our government hundreds and possibly thousands of members of congress had accepted offices during their terms, and that none of them holding a temporary office like mine have ever been unseated. I found that the decisions of the courts, even including four decisions quoted by General Henderson in his report took the ground that inhibitions found in constitutions with regard to offices referred to offices of a permanent character and not of a temporary character. I also found that the attorney general of the United States had rendered an elaborate opinion on this subject, in which he took precisely the same ground and held that an office in the volunteers was not such an office as was inhibited by the constitution.” 71 N. Y., 238; Hall v. State, 39 Wis., 79; Bun v. The People, 45 Ill., 397; McArthur v. Nelson, 81 Ken., 67.
    We maintain that the foregoing authorities clearly establish, our first claim. The office referred’ to in section 4, article 2 must possess the characteristics of permanency, duration, continuity, with independent power to control the property of the public or performance of certain public functions conferred by law.
    The position held by the relator possesses none of these characteristics. It is held by sufferance from day to day, subject to the will or caprice of his superior. He must do whatever he is told to do. and in the manner directed by the pension agent. The position confers no authority, trusts him with no public property, enjoins the performance of no' public functions. It invested him with no discretion as to what he shall do or how he shall do it.
    Eligibility and qualification are synonymous, terms.
    The relator still holds the office of representative. No action has been taken by the house upon the question of his eligibility. No other tribunal, officer or authority can pass upon that question. The jurisdiction of the house is exclusive. Dalton, Clerk, v. The State, 43 Ohio St., 652.
    The jurisdiction of each house to decide upon the election, returns and qualifications of its own members is supreme and exclusive. Cooley’s Con. Lim., 133; State v. Jarrett, 17 Md., 309; People v. Mahoney,. 13 Mich., 481; Throop’s Public Officers, section 500; People v. Greene, 5 Daily N. Y., 254; Sleigh v. U. S., 9 Court of Claims, 369; U. S. v. Saunders, 120 U. S., 126; Major Collins case, 15 Ct., of Cl., 22; State Auditor ex rel. v. Clark, 52 Mo., 508; Winston v. Mosley, Auditor, 35 Mo., 146; Board v. Benoit et al., 20 Mich., 176; 17 Iowa, 525; 23 Ind., 449; 5 Pick., 487.

      F. S. Monnett, Attorney General, and G. C. Blankner, Assistant Attorney General, for the defendants..
    Of a like public policy as expressed in the State constitutional provisions, we find in the federal constitution, showing the jealousy with which the law makers of the United States, which legislate for the-State of Ohio as well as the other states within their limitations, provide in article 1, section 6 (2), that “no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created or the emoluments whereof shall have been increased during said time- and no person holding any office under the United States shall be a member of either house during the continuance in office.”
    Of like import is article 1, section 9, division 8,, which provides: “And no person holding any office of profit or trust under the United States shall accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign: state.”
    To enforce the spirit and letter of the above state- and federal constitution, article 6 of the federal constitution provides: “That members' of the several state legislatures and of executive- and judicial officers both of the United States and of the several states shall be bound by oath or affirmation to support this constitution.”
    Hence, we call the court’s attention to the warning, and protests and safe-guards thrown about the legislative department both in the federal and state constitution to prevent their being influenced in performing the solemn and important governmental functions of legislating for the states in the state assemblies and of “legislating” for the states as a whole in the federal congress. That it violates the letter of the constitution as above cited, to-wit: Section 4, article 2, although the affirmative of the propositions is simply apparent in that particular section, viz.: “That no person holding office under the authority of the United States shall be eligible to have a seat in the General Assembly.” It would be a mere mockery of the solemn injunctions of the federal and state constitution to permit a member ■of the General Assembly to be open to employment by the State of Illinois or Germany or the United ¡States itself, for as to this particular test the United .States as well as Illinois may be a foreign state.
    It was the intent of the legislature not only to prevent any of the neighboring states, the United ¡States or any foreign government from tampering with our legislative bodies, but they even made it impossible for such an assemblyman to accept an ■office, reward or emolument from any state office that had accrued for at least one year after his term ■as such legislator had expired. The danger of using state positions, state emoluments, federal offices and federal positions to accomplish sinister results and to warp the will of the member from his natural ■choice in performing any of his duties by holding ■out any such rewards and offices, must be apparent to the court at first blush.
    The constitution, as well as the statutes, both State and federal, have indicated to the court what the federal and state public policy is, in this behalf. In addition to the bribery statute, we have the constitutional warning, which has made it forever impossible for a legislative officer to accept rewards, •emoluments or positions from the federal government, which is in the following language, viz.: “No person holding office under the authority of the United States shall be eligible to or to have (or hold): a seat in the General Assembly;” and has provided certain exceptions to this sweeping prohibition, viz. that of township officers, justices of the peace, notaries public and officers of the militia, any and all: other offices render them both ineligible as well as: forfeit their seat in the General Assembly. We believe the doctrine of expressio unius est exclusi© alterius applies. This doctrine has been so frequently interpreted by this court and the principles applied that we scarcely need cite the authorities. Bricker v. Bricker, 11 Ohio St., 240; Baker v. Cincinnati, 11 Ohio St., 534; State ex rel. v. Taylor, 15 Ohio St., 137; Courson v. Courson, 19 Ohio St., 454; Lowry v. Narrelli, 21 Ohio St., 325; Williams v. Welton, 28 Ohio St., 451; Mack v. Brammer, 28 Ohio St., 508; Wilkins v. Ins. Co., 30 Ohio St., 317; Sargent v. Railroad, 32 Ohio St., 449; McNeil v. Hagerty, 51 Ohio St., 255.
    An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested. Platt v. Beach, 2 Benedict (U. S. D. C.)
    An office is a right to exercise a public or private* employment, and to take the fees and emoluments' thereunto belonging. Bowers v. Bowers, 26 Penn. St., 77.
    A position or station in which a person is employed to perform certain duties, or by virtue of' which he becomes charged with the performance of certain duties, public or private. People v. Tweed, 13 Abb. Pr. (N. Y.), 422.
    An office is simply an appointment or authority on behalf of the government to perform certain duties usually at and for a certain compensation. Smith v. Mayor, etc., 37 N. Y., 520.
    We take it that the idea intended to be conveyed by the words “duration, permanency and continuation” is that the position does not end with the change of administrations, with the discharge, resignation or death of the party elected or appointed to such position, but continues to exist after the change takes place. United States v. Maurise, 2 Broc. (U. S. C. C.), 103. Why take an oath and why give a bond if the relator is not an officer? Collins v. Mayor, 3 Hun., 680.
    Clerk in office assistant treasurer of the United States. United States v. Hartwell, 6 Wall., 385.
    Clerkship in treasury department and one in attorney general’s office. Talbot v. United States, 10 Court of Claim, 426.
    Clerk in office secretary of state. Vaughn v. English, 8 Cal., 39.
    Commission for construction of public highways. People v. Nostrand, 46 N. Y., 381.
    Commissioners appointed by governor to construct public buildings. People v. Comptroller, 20 Wend. (N. Y.), 595.
    The second contention of the relator is rather a novel one, viz.: that even though the court should •find the position which relator holds to be an office, yet the defendants have no right to expel him or ¡refuse him his salary so long as he is a member of 'the house, and that under section 6, article 2, the ■house is to be the sole judge as to whether or not he is competent to act as a member.
    We concede that the house has the exclusive power to determine which of two contestants for a seat in the General Assembly is entitled to admittance. If, during the interim in legislative sessions, some contingency arises, as in the case at bar, which makes it necessary to determine the rights of a member to longer serve in the capacity of a representative, and which involves the construction of the constitution or a law, is the house to be called together for the purpose of deciding what the law is and passing .judgment? We do not think so. The framers of our constitution never intended to confer such power upon the house.
    The defendants have not, and are not now seeking to expel the relator from the house. The position which relator now holds was accepted by him before the commencement of the present legislative year. If the court decides that the position now held by relator is an office, and they alone are to determine that question, then the relator has, by his own act, vacated, relinquished and forfeited his right to act as representative and his claim for salary and there is nothing for the house to pass upon. If the house of representatives possesses the unlimited power claimed for it by the relator, then it .was a waste of time to bring this action, for, according to relator’s contention, the decision of our supreme court in this case must be reviewed by the house.
    Where the holding of two offices at the same time which is forbidden by the constitution or the statutes, a statutory incompatibility is created similar in its effect to that of the common law, and as in the case of the latter, it is well settled that the acceptance of a second office of the kind prohibited, operates ipso facto to absolutely vacate the first. People v. Brooklyn, 77 Va., 503; Shell v. Cousins, 77 Va., 328; State v. Newhouse, 29 La., Ann., 824; State v. Arata, 32 La. Ann., 193; State v. Draper, 45 Mo., 355; Dickson v. People, 17 Ill., 191; Foltz v. Kerlin,
      105 Ind., 221; Daily v. State, 8 Blackf. (Ind.), 329; Meecham on Public Officer Sec. 429; 2 Hill (N. Y.), 93; People v. Nostrand, 43 N. Y., 381; People v. Green, 48 N. Y., 394.
    Therefore, the moment the relator accepted the position of confidential clerk to the pension agent,, he ceased to be a member of the house and lost all right to claim the emoluments attached thereto.
   Bx the Court:

The attorney general contends that the relator,, upon the facts stated, is disqualified to be a member of the house of representatives by section 4 of article 2 of the constitution: “No person holding-office under the authority of the United States, or any lucrative office under the authority of this State,, shall be eligible to or have a seat in the General Assembly * * * * .”

We assume, without deciding, that the question before us is not affected by the provision of the sixth section of the same article that “each house shall be judge of the election returns and qualifications of its own members,” and that we may adjudge the relator disqualified, although the house has recognized him as qualified. Since the relator performs no duties except such as by law are-charged upon his superior, the pension agent, his position is not an office but merely an employment. The subject appears to be sufficiently discussed in State ex rel. v. Brennan, 49 Ohio St., 33, and State v. Kendle, 52 Ohio St., 346.

Peremptory writ allowed.


author: Spear, J.

text:
    Raudabaugh v. Hart.

      Contract of sale — Made by one of several joint owners — Contract ing vendor not regarded as agent of the others, when — Mutu ality of conditions — Law of performance of contract — Neces sary averments in petition for failure of performance - Demurrer — Pleadings.

    1. A contract of sale, made by and in the name of one of several persons who are joint owners of the property agreed to be sold, and which purports on its face and by its terms to be-the contract only of the individual who negotiates the sale, will not be construed as a contract on the part of such vendor as agent for the others simply because he has represented to the buyer that he has full power and authority to sell the interests of the others in the property.
    2. Where two acts are to be done at the same time, as when the vendor has agreed to convey interests in real estate upon the payment of - a given sum as purchase money, the deal to-be closed by a certain day named, and the purchaser has agreed to pay the purchase money, a part on that day and the balance in one year, the conditions are what are known in law as. mutual conditions, and neither party can maintain an action against the other without averring a performance, or an offer to perform on his part. Mere willingness and readiness to perform, uncommunicated to the other party, will not avail. And it is not, in such case, sufficient that the plaintiff aver that from the date of the making of the contract to and including the day at which it was to be completed, “he was ready and willing to do and perform everything to be done by him in • the carrying out of said sale and contract.” Nor are the averments sufficient, when, in addition thereto, he avers that “the defendant, although often requested so to do, has refused to comply with said contract, and has at all times refused to transfer and deliver said property to plaintiff.”
    3. A petition declaring upon such contract, which contains neither an allegation of performance nor of tender of performance, will be held bad on general demurrer.
    (Decided October 31, 1899.)
    Error to the Circuit Court of Mercer county.
    The action below was by the defendant in error, Charles F. Hart, against the plaintiff in error, I. F. Raudabaugh, to recover damages for the alleged breach of a contract for the sale of certain interests in oil property. Hart’s amended petition, filed in the court of common pleas, is as follows, namely:
    “Plaintiff complains of the defendant that on the 21st day of September, 1894, Riley, Raudabaugh & Company was a partnership, doing business in Ohio; that defendant, I. Frank Raudabaugh, was a member of the firm of C. E. Riley & Company; that defendant was also a member of said firm of Riley, Raudabaugh & Company, owning a large interest in each, of said companies. That defendant, prior to the entering into the contract hereinafter set forth, represented to plaintiff that he, the defendant, has full power and authority from all the other members of said partnerships of C. E. Riley & Company and Riley,'Raudabaugh & Company, to sell, and then and there undertook to sell all of the property hereinafter described to plaintiff, and plaintiff relying on said representations of said defendant, on the 21st day of September, 1894, accepted the following proposition, which was tendered to plaintiff by defendant in writing, which said proposition was on the same day, to-wit: September 21st, 1894, accepted by plaintiff. That in the said written proposition said I. Frank Raudabaugh agreed to sell to plaintiff the interests of C. E. Riley & Company and Riley, Raudabaugh & Company in sis hundred (600) acres of land in Franklin township, Mercer county, Ohio, then owned by Riley, Raudabaugh & Company and C. E. Riley & Company. Said property being certain oil and gas leases, being described as two leases from Benjamin Preston to I. F. Raudabaugh, one lease from Isaac Sheely to I. F. Raudabaugh, one lease from the State of Ohio to John Lyons and Isaac W. Sheely, one lease from State of Ohio to' Isaac Brandon, one contract from John Lyons to J. W. Eiley, one contract from Stephen Brandon to J. W. Eiley, one lease from Isaac Brandon to J. W. Eiley, one lease from Isaac W. Sheely to C. E. Eiley & Company. Said sale was to include all of the above leases, oil wells, machinery and other personal property used in the operations for oil together with seventeen oil wells, fully completed. Said defendant further agreed to drill and complete one additional well on one of the above described leases. The consideration for said sale was the sum of twenty-three thousand dollars ($23,-000.00). That said sale was made upon the following terms of credit, to-wit: Ten thousand dollars ($10,000.00) to be paid by October 1, 1894, and the balance payable within one year at six per cent.
    “Said contract further provided that Charles Hart, plaintiff, should locate the new well to be drilled by the 27th day of September, 1894. Said agreement between the plaintiff and the defendant contained a condition that defendant would sell said plants and property above set forth to plaintiff provided the deal was closed by October 1, 1894. Plaintiff further says that on the 26th day of September, 1894, he located the well as required by said contract and notified defendant in writing of such location but that defendant wholly disregarded said notice and location. Plaintiff further says that from said 21st day of September, 1894, and until and including October 1,1894, he was ready and willing to do and perform everything to be done by him in the carrying out of said sale and contract, but the defendant although often requested so to do, has refused to comply with said contract and has at all times refused to transfer and deliver said property to plaintiff and has deceived plaintiff in this, to-wit: That the defendant had not at the time of the mating of said contract of sale or afterwards power or authority from the said members of the said partnership of O. E. Riley & Company or from the members of the partnership of Riley, Raudabaugh & Company, to sell all or any of the above described property to this plaintiff on the said terms whereby the said contract and agreement became and was void and by reason thereof and of the said defendant’s failure and refusal to deliver and transfer the said property to the plaintiff on the terms aforesaid,, this plaintiff has been deprived of the ’advantages that would otherwise have accrued to him under-said contract, and in this that the market price and value of said property above described was on said October 1, 1894, the sum of twenty-eight thousand ($28,000.00) dollars, while the price and consideration to which said defendant undertook and agreed to sell the same to plaintiff as aforesaid, was but twenty-three thousand ($28,000.00) dollars, and that by reason of the premises plaintiff has been damaged in the sum of five thousand dollars ($5,000.00)..
    “Wherefore the plaintiff prays judgment against the defendant, I. Frank Raudabaugh, for the sum of five thousand dollars, with interest from October-1, 1894.”
    A general demurrer to- this pleading being overruled, an answer was filed and trial had which resulted in a judgment for the plaintiff. A motion for a new trial being thereupon overruled, and error prosecuted to the circuit count, that court affirmed the judgment of the common pleas. Raudabaugh brings error to this court to obtain a reversal of both judgments.

      Marsh & Loree and Selwyn N. Owen, for plaintiff in error.

      The amended petition does not state a cause of action. It purports, in one phase of it, to declare Tipon the alleged breach of an optional contract for the sale of interests in oil lands and property for •$23,000.00, $10,000 to be paid October 1, 1894, and the balance within one year. The agreement provided that “the deal was to be closed by October 1, 1894.” There is no allegation that the deal was closed by that date, nor anything to show that any requisite was observed to close the •deal. The one thing required of plaintiff below “to close the deal” was to pay or tender the $10,000. He did neither.
    It is not enough for him to allege that he “was ready and willing to do and perform everything to be done by him in the carrying out of said sale and •contract,” so long as he left the defendant in ignorance of such readiness and willingness. This did not take the place of a tender. Cin. G. L. & C. Co. v. Avondale, 43 Ohio St., 269.
    Time was of the essence of this contract. It was, by its terms, to expire October 1,1894, if not then or •sooner closed. This was the express stipulation which the parties were competent to make. The action is one at law for damages for breach of a contract. Kirby v. Harrison, 2 Ohio St., 326; Tyler v. Young, 35 Am. Dec., 116; Shinn v. Roberts, 43 Am. Dec., 636; Parkin v. Thorold, 16 Beav., 59, 65; Coleman v. Applegate, 68 Md., 21.
    The rule which treats time as ordinarily not of the essence of contracts is a rule of equity. 3 Pom. Eq., 454, sec. 1408; Steele v. Branch, 40 Cal., 3; Bullock v. Adams, Ex’rs., 20 N. J. Eq., 367.
    Where there is a contract to convey on the payment of money, or the performance of other conditions by the vendee, the latter, in order to put the vendor in default and maintain an action on the contract, must not only pay or perform, or tender payment or performance, but also demand a conveyance. Fuller v. Hubbard, 6 Cow., 13; Fuller v. Williams, 7 Cow., 54; Hacket v. Huson, 3 Wend., 250; Connelly v. Pierce, 7 Wend., 129; Lawrence v. Simon, 4 Barb., 358; Lutwiler v. Lindwell, 12 Barb., 516; Garlock v. Lane, 15 Barb., 364; Wells v. Smith, 2 Edw., Ch., 81; Bruce v. Tilson, 25 N. Y., 196. See also, note of editor in 16 Am. Dec., 428, to the effect that general doctrine of Fuller v. Hubbard is approved in Slocum v. Despard, 8 Wend., 619; Hoit v. Hall, 3 Bosw., 59; Hartley v. James, 50 N. Y., 53; People v. Mills, 17 Cal., 276. See, also, Mowry v. Kirk, 19 Ohio St., 383, where it is held that: “The mere facts that the vendor denied having made the contract and refused to deliver the bonds, did not imply a waiver' by him of the vendee’s obligation promptly to tender payment.”
    We maintain that the defendant had at all times, a right to refuse to transfer the property unless and until the plaintiff tendered down-money, $10,000.
    The contract being mutually binding and enforcible by either party down to and including October 1, 1894, died upon that day. Cummings v. Town, 86, Wis., 382.
    We maintain, further, that the contract was in-all respect an optional one, and did not bind the-plaintiff unless he accepted the option to buy by October 1. Defendant himself would have had no redress in case the deal was not closed within the time. We have a one-sided contract. It falls within the principle of Cooke v. Oxley, 3 T. R., 653; followed in Bernell v. Johnson, 4 Johns., 235. See also, Bank v. Steele, 10 Ala., 915, and The Dayton W. W. & X. T. Co., v. Coy, 13 Ohio St., 84.

      ,. The petition talks vaguely about the plaintiff being deceived and defrauded by the defendant in that he said he had authority to sell the property for those associated with him, when he had not. The claim can hardly be treated with seriousness. The alleged representations were not of any facts so far material as to make them the subject, in a legal sense, of fraudulent representations. If defendant undertook to sell the property he would be liable on this contract whether he had authority or not.

      Motter & Mackenzie; Anthony Gulleton, and J. H. Goeke, for defendant in error.
    Counsel for plaintiff in error seem to have mistaken the real principle involved in this case. In their brief they do not raise a single question that is presented by the record in the case.
    We contend that plaintiff’s cause of action is not based upon an alleged breach of a contract, but is an action for damages resulting from a breach of an agent’s implied warrant of his authority to act in the premises. The question has been clearly decided by this court in Trust Co. v. Floyd et al., 47 Ohio St., 525. See opinion at page 537, wherein is cited Story on Agency, Sec. 264. The principle is that where one undertakes to do any act as the agent of another if he does not possess authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal. Thompson v. Davenport, 2 Smith’s leading Cases, 408; Walker v. Bank, 9 N. Y., 582; White v. Madison, 26 N. Y., 117. “Although no fraud or wrongful motive can be imputed to the-agent, still his act is an affirmation that he has anthority to make the contract, and he may justly be held responsible for the truth of it; and it is no more than reasonable that he should suffer the con-' .sequences of his mistake rather than the party who is misled by it, because, before holding himself out as such agent it is his duty to ascertain whether his claim to act is well founded or not, and he surely cannot be heard to complain if others have confided in his assertion of authority and upon the strength of it have entered into reciprocal engagements with him. Even if wholly innocent of any wrongful purpose his acts follow then the familiar principle that when one of two innocent persons must suffer a loss, it ought to be borne by him who has been the means of causing it by inducing the other to confide in the truth of his representations.” Weare v. Gove, 44 N. H., 196.
    While the authorities agree on the above proposition, a diversity is found in regard to the exact nature of the liability. In Jenkins v. Hutchinson, 13 Ad. & E., 746, it is said by Earl J., “that an action of deceit would lie notwithstanding the good faith of the agent;” other cases hold it is on the contract. But it is believed that whether the agent is so liable depends upon the intention of the parties to be discovered by the contract itself, and on this question the form of the agreement and mode of signature may be quite conclusive. Another class of cases establish the rule which we are inclined to adopt, that in cases like the one we are considering the agent is liable upon his implied promise, that he possesses the authority he assumes to have. Smith’s Leading Cases, Vol. 2, No. 1408, 8th edition, and cases there cited. White v. Madison, supra. The liability of the agent rests upon the ground that he warrants his authority, and not that the contract is to be deemed his own.
    The amended petition distinctly alleges that defendant, prior to the entering into the contract'hereinafter set forth, represented to plaintiff that he, the defendant, had full power and authority from all the other members of said partnership of C. E. Riley & Co., and Riley, Raudabaugh & Co. to sell and then and there undertook to sell all of the property hereinafter described to plaintiff, and plaintiff, relying on said representations of said defendant, on the 21st day of September, 1894, accepted the terms and agreements stipulated and recited in the amended petition. The amended petition further alleges: “That plaintiff did all things on his part to be done and performed by him under the contract, and that he was ready and willing during the times mentioned in the contract to do and perform everything to be done by him in the carrying out of said sale by said contract.” It further avers a demand on the defendant to comply with the contract, and his refusal, and that defendant has deceived plaintiff in that he had not at the time of making the contract, or afterward, authority to sell any part of the property described on the terms designated, whereby the agreement became void, and by reason of which plaintiff has been deprived of the advantages which would otherwises have accrued to him.
    As to form of petition we cite Swan’s Practice & Precedents, p. 229, and 25 Eng. Com. Law Reports, 514.
    As to rule of damages we cite 3 Sutherland on Damages, 1855, and Godwin v. Francis, L. R., 5 C. P., 295. The true rule is the difference between the contract price and the market value.

      We maintain that the facts stated in the amended petition in this case not only show an implied promise on the part of the defendant, Raudabaugh, that he had the authority to make the contract that he undertook to make, but the allegations are clear and explicit to the effect that he expressly represented that he had the power and authority from the members of the partnership referred to, to make the contract that he undertook to make with the plaintiff below. Consequently we say that the facts stated in the amended petition clearly constitute a cause of action in favor of plaintiff below and against the defendant below, and that all the questions that can possibly be raised as against the sufficiency of the petition have been decided by this court in the ease hereinbefore referred to.
    For these reasons we respectfully submit that the judgment of the court below should be affirmed.
   Spear, J.

The question presented to this court i's only as to the sufficiency of the amended petition. It appears to have been the opinion of the court below, and is argued here by counsel for defendant in error, that the case made by the amended petition is one upon a contract undertaken to be made on behalf of certain named principals, by one undertaking to represent them and claiming to have authority to do so, whereas, in fact he had no such authority, and is, therefore, liable upon that agreement for a breach of it rather than upon the contract itself; also that there is presented, in the facts, a case of deceit based upon the alleged false representation as to authority and Hart’s belief in the same and his contracting and agreeing to pay the purchase money in reliance upon such representation as true; and that, in some way, not very clearly stated, this construction of the pleading gives the plaintiff a favorable standing which he might not otherwise have.

Whether the conclusion which counsel seem to draw from their construction of the pleading is warranted or not, we think need not be discussed, for we are impressed that, applying the rule that the intent of the parties is to be gathered primarily from the form of the agreement and the mode of the signature, the contract set out in the pleading, and the additional facts pleaded, do not justify the conclusion that the contract was made, or was intended to be made, or understood to be one on the part of Raudabaugh as agent. It is true the statement is that Raudabaugh represented that he had authority from the other members of the partnership named, to sell, and undertook to sell the interests of the other partners in the property as well as his own. But it is nowhere averred that he undertook to sell for them or act for them in any manner. On the contrary, the averment is that the proposition was tendered to plaintiff by defendant; that in the proposition so tendered he “agreed to sell to plaintiff/7 etc., etc. Again: “said defendant further agreed to drill and complete one additional well/7 etc. Again: “said agreement between the plaintiff and the defendant contained a condition that defendant would sell said plants and property above set forth to plaintiff provided the deal was closed by October 1, 1894. Plaintiff further says that on the 26th day of September, 1894, he located the well as required by said contract and notified defendant in writing of such location/7 etc. In the absence of pertinent allegations to that effect it would seem like a strained construction to claim that the- contract was one of agency. To test the question, suppose this action had been brought against the other partners to recover against them for Raudabaugh’,s dereliction (an averment that Raudabaugh had authority to sell their interests being substituted for the statement that he had not such authority), but without any .allegation that he was acting in making the sale, for them or in their behalf, how would the petition have stood against a general demurrer? Manifestly, the absence of any allegation that the contract had been undertaken to be made between Hart and such other persons would have been fatal to the pleading. One case relied upon to sustain this proposition of counsel is that of White v. Madison, 26 N. Y., 117. We think it wholly fails to support the contention. In that case Madison, who was a deputy sheriff, undertook to bind his principal, one Snow, the sheriff, by a promissory note signed, “N. D. Snow, Sh’ff, Chau. Co., by A. Z. Madison,, Dep. Sh’ff,” given to a mutual insurance company for a policy issued upon certain goods which the sheriff had seized in attachment. The note not being paid suit was brought against the sheriff which failed on the ground that Madison had no authority to bind his principal. Action was then commenced against Madison, who was held on the principle that one making a contract in behalf of another without authority is liable on the ground that he warrants his authority, and not that the contract is to be deemed his own, and the damages to which the professed agent subjects himself are measured, not by the contract, but by the injury resulting from his want of power, and involve, e. g. the costs of an unsuccessful action against the alleged principal to enforce the contract. A controlling feature of the above case, and one which conclusively differentiates it from the one at bar, is that the contract, on its face and by its terms, plainly purports to be a contract with the principal. The same is true of the other cases cited to the same point, viz.: Walker v. Bank, 9 N. Y., 582; Weare v. Gove, 44 N. H., 196; Godwin v. Francis, 5 L. R. C., p. 295; Pauli v. Simes, 25 Eng. C. L. R., 573; and Simons v. Patchett, 7. El. & Bl., 568, cited by Professor Sutherland in volume 3 of his work on Damages, 1856. Nor is this conclusion in any way at variance with the holding of this court in Trust Co. v. Floyd, 47 Ohio St., 525, with which holding we are in entire accord. There, too, the party contracted as agent.

It follows, and it seems to us, naturally, that the contract is to be treated as one wholly between Raudabaugh and Hart, and that the allegation with respect to the former’s representation of authority to sell the interests of his partners in the leasehold property, can have no higher or other significance than as a representation that the seller had not the full title to the property, but could obtain it and would do so and convey the whole ownership to the purchaser on payment of the purchase money. Not having authority to sell the interests of his partners, may furnish a reason for non-compliance by Raudabaugh. The gist and gravamen of the damage to Hart, however, was not in the reason for not complying with his contract to convey a full title, but in the fact of not so. conveying. So long as the fact could be truthfully alleged, a reason for the existence of the fact was immaterial. That was the vital stipulation which, according to the pleading, Raudabaugh neglected to perform. Had he complied with that promise, his want of authority to sell the interests other than his own, as such, at the time of the contract or afterwards, would have been unimportant. He was at liberty to acquire the other interests and complete his contract by a conveyance from himself only. In this respect the contract may be likened to the class known as optional contracts, a species of agreement very well understood in the trading world, where a party ventures to sell property which he is not then possessed of but expects to acquire.

With respect to the facts pleaded showing ground for an action of deceit, it may be sufficient to remark that the claim is of no possible consequence. If maintainable it would relieve the plaintiff of no burden as to performance on his part, nor entitle him to any higher measure of damage against the defendant. In any event, if entitled to recover at all, the measure of damages would be just what he prayed for, viz.: the difference between the contract price and the market value.

The contract pleaded was one that contained reciprocal and mutual obligations, and the. limit of performance, was, by the terms of the agreement, fixed for October 1, 1894. Time was thus made of the essence of the contract, as clearly stated in these words: “Said agreement between plaintiff and defendant contained a condition that defendant would sell said plants and property above set forth to plaintiff, provided the deal was closed by October 1, 1894.” Each party was thus duly apprised of the time within which the deal was to be concluded. What then was it necessary for either to do in order to put the other in default? With respect to such contracts, Hitchcock, J., in Courcier v. Graham, 1 Ohio, at page 842, observes: * . * * * “If one party was ready, and offered to perform his part, and the other neglected or refuse!: to perform his, he who was ready and offered, has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act.” And it would follow that neither party could, in such case, maintain any action upon the contract against the other without offering and proving performance, or a readiness and willingness to perform, and notice to the other party of such readiness and willingness. 1 Warville on Vendors, 366. Under the ancient rule a purchaser could not maintain an action for breach of contract without having tendered a conveyance and the purchase money. 1 Sugden on Vendors, 366. The later rule, and the one which has always prevailed in this State, is that in the absence of stipulations in the contract to the contrary, the conveyance is to be prepared and furnished by the vendor, but the ancient rule otherwise, it is believed, has always prevailed here, and is the law today. So long, therefore, as there is no tender of the deed on the one hand, nor of performance on the other, neither party is in default. Irvin v. Bleakley, 67 Pa. St., 28; Leaird v. Smith, 44 N. Y., 618. To entitle the vendee to demand a deed he must be ready and offer to comply with the contract on his part and show ability to perform it. Smoot v. Rea, 19 Md., 398. Whether or not it is necessary to have present and offer, in legal tender money, the exact sum due as is required in making tender upon an obligation for 1 re unconditional payment of money, except wh* re waived, it is at least necessary that the purchaser show readiness and ability to comply. Nor does the transaction imply haste, but deliberation, rather. As expressed by Woodworth, J., in Fuller v. Hubbard, 6 Cow., 13: “There is, then, something more to be done than the simple payment or the tender of the purchase money. A conveyance must be demanded. Nor would this alone appear to satisfy the principle of the rule. A reasonable time should be allowed to the vendor to prepare the conveyance. The purchaser not having himself prepared it (which he may do), he shall not be allowed to retire immediately and bring his action, but should present himself to receive the conveyance, which he has thus required to be furnished. Deliberation and advice of counsel may be necessary in settling its terms. The framing and execution of modern conveyances, even with us, where the titles to real estate are much less complicated than in England, are not like the payment of money, or the delivery of a chattel.” The rule here announced is followed in a number of other cases in New York and elsewhere. Wells v. Smith, 2 Edwards’ Ch’y., 78; Bruce v. Tilson, 25 N. Y., 196; Fuller v. Williams, 7 Cow., 54; Connelly v. Pierce, 7 Wend., 129; Slocum v. Despard, 8 Wend., 619; Hartley v. James, 50 N. Y., 43; People v. Mills, 17 Cal., 276. The case of Smith v. Lewis, reported in 24 Conn., 624, and again in 26 Conn. 110, is authority for the proposition that “The word Tender,’ as used in connection with such a transaction, does not mean the same thing as when used with reference to the offer to pay money where it is absolutely due, but only a readiness and willingness to perform in case of the concurrent performance by the other party, with present ability to do so,, and notice to the other party of such readiness.” In Cutter v. Powell, 2 Smith’s L. C., 12, the rule is given thus: “Where two acts are to be done at the same time, as when A. covenants to convey an estate to B. on such a day, and in consideration thereof B. covenants to pay A. a sum of money on the same day, neither can maintain an action without averring a performance, or an offer to perform his own part, though it is not certain which of them is obliged to do the first act; and this particularly applies to cases of sales.”

But there seems no doubt as to the rule in this State. In McCoy’s Adm’r v. Bixbee, 6 Ohio Rep., 310, it is held that “Covenants to convey a tract of land, specifying no time of conveyance, and a covenant to pay therefor so much money in hand and so much at a future day, are mutual covenants. In such a case a purchaser cannot have a cause of action, without averring the payment or tender of the purchase money.” And in Campbell v. Gittings, 19 Ohio, 347, it is held: “Where an article contains a covenant by one party to execute and deliver a warranty deed, and by the other to execute and deliver, when the deed is tendered, a bond and mortgage for the purchase money, though the party first named neglect or refuse to* deliver the deed, the other is not entitled to sue, after having neglected, at the proper time, to offer or tender a bond and mortgage; and a declaration on the covenant to make a deed containing an averment that the plaintiff offered to ^execute a bond and mortgage, without averring a tender,.or what is equivalent thereto, is bad on demurrer.” And in the opinion by Avery, J., it is said: “The covenants of these parties respecting the deed, and the mortgage to secure the purchase money, being both to be presented on the same day, are dependent covenants in which, according to a clear legal principle, performance cannot be exacted from either party, as a condition precedent. Both, it is understood, must perform at the same time, neither being under any obligation to trust the other.” * * * * “The case made, according to the decclaration before us, is this: The parties meet on the day when the acts required of each, in the article, are to be done; the defendant refuses to perform on his part, and, therefore, the plaintiffs neither perform nor tender performance. The consequence to the defendant of his neglect and refusal, is, that he can maintain no action at law for the purchase money because he has neither delivered nor tendered a deed. Apply the same rules to both these dependent covenants, and the plaintiffs, who do not show themselves ready to perform by offering or tendering the bond and mortgage, cannot maintain this action for the deed. Great strictness is required of a party to a suit, who would avail himself of a tender or of an offer to perform.” Mowry v. Kirk, 19 Ohio St., 375, was an action to recover for non-delivery of certain railroad bonds purchased, in which a recovery was had in the trial court for the difference between the purchase price and the market value of the bonds. This judgment was reversed for error in the charge, and for that, upon the whole case, the judgment should have been for defendant. We quote from the opinion at page 383: “But the court below further told the jury, that when ‘the defendant denied the agreement, and refused to perform on his part, this dispensed with the necessity of a tender.’ In this we think there was error. I can find no authority to sustain the proposition given to the jury. In the interview between Kirk and Mowry, the next morning after the bargain was made, Kirk simply demanded the bonds. He did not offer to pay for them nor tender payment for them; nor does it even appear that he then had the money to pay for them. His right to demand and have possession of the bonds depended on his making or tendering payment, unless such payment or tei ,der was waived by Mowry. Though the property in the bonds passed by the bargain, the right of possession did not pass without payment or its equivalent; and it seems to us that neither principle nor authority would authorize us to hold that the mere fact of a denial of the contract by the vendor alone amohnted to a waiver of a tender of the price of the bonds. The vendor might well say to himself, ‘I deny the contract to be as it is claimed to be; but if it be insisted on as claimed, I still have the right to insist on payment before delivery.’ And if, in a transaction of this kind, where prompt action was evidently contemplated by both parties, a week’s delay occurs in making either tender or payment, a rescission of the contract by the mutual consent of both parties may well be presumed in favor of either. Mutual delinquency gives rise to the presumption of mutual assent to a rescission. See Parsons on Contracts, 667, et seq., and Lewis v. White, 16 Ohio St., 454.” And in the syllabus it is held: “The mere facts that the vendor denied having made the contract and refused to deliver the bonds, did not imply a waiver by him of the vendee’s obligation promptly to tender payment. The delinquency of the vendee in failing to tender payment for a week after the contract was made, gave rise to the conclusive presumption, as against him, of his assent to a rescission of the contract, and authorized the vendor to act on that presumption.”

In the light of the rules thus ascertained, what is the attitude of the plaintiff below as shown by the petition? It is stated in the brief of defendant in error that the amended petition alleges “that plaintiff did all things on his part to be done :and performed under said contract.” 'Whether, if ;his were so, it would or not avail the plaintiff we need not consider, because the allegations of the pleading do not justify this claim. On the contrary, the language is: “Plaintiff further says that from the 21st day of September, 1894, and until and including October 1, 1894, he was ready and willing to do and perform everything to be done by him in the carrying out of said' sale and contract, but the defendant, although often requested so to do, has refused to comply with said contract, and has at all times refused to transfer and deliver said property to plaintiff.” Of what consequence can this averment be so long as there was no attempt to apprise the adverse party of such readiness and willingness, no tender of performance on his part, in any way or manner? The fact of readiness to perform locked up in the breast of plaintiff could neither give information to defendant, nor entail on him any duty. It is, in law, as though the pleading were without any averment as to willingness and readiness to perform on the plaintiff’s part. Nor is this "fault aided by the allegation of demand of performance. The allegation of demand is at best vague and uncertain. It does not even purport to have been made on' or before October 1. It would not, we think, have availed had it so stated, for applying the doctrine of Mowry v. Kirk, supra, the defendant had the right to refuse to perform on his part so long as there was no effort at performance on the other side. To hold that a party so circumstanced may put the other party in the wrong by merely demanding of him that he make conveyance of the leasehold interests, would be to countenance a scheme smacking of mere bluff; it would be to give him an advantage over his adversary without any show of readiness or ability to perform on his part. We are aware that there is a holding in a sister state, that the demand implies that the demandant is himself ready and able to perform. For the reasons above stated, and many others, we cannot assent to the proposition. Nor can it be said, reasonably, that the pleading shows that defendant had put it out of his power to convey. For aught that is alleged he could have acquired the title and could have completed the contract on his .part had the plaintiff come forward with the money or given notice that he was able and ready to perform. In the absence of such action on or prior to October 1, the defendant might well conclude, as in Mowry v. Kirk, that the contract had, by implied assent, been rescinded.

We are of opinion that the overruling of the demurrer to the amended petition was erroneous and that both judgments should be reversed. The cause will be remanded to the court of common pleas with directions to sustain the demurrer to the amended petition, and for further proceedings according to law.

Reversed.


author: By the Court:

text:
    Felch, Assignee, v. The Hodgman Mfg. Co., et al. et al.

      Motion for neiv trial — Overruled — Fifty days given for bill of exceptions — Record must show bill submitted to trial judge, when — Cotirt practice.

    Where fifty days have been given after the overruling of a motion for a new trial for the perfection of a bill of exceptions, it is necessary, with respect to the requirement of its submission to the trial judge or judges, in order to constitute a valid bill, that the record should show affirmatively that the bill was submitted to the trial judge or judges (if within the district or circuit) for his or their signature not less than five days before the expiration of the fifty days allowed for the same.
    (Decided October 24, 1899.)

      Error to the Circuit Court of Erie county.
    Motion by defendant to strike bill of exceptions from the flies.

      H. L. Peeke and George E. Reiter, for the motion.

      C. S. Hubbard and C. P. & S. W Wickham, contra.
   By the Court:

The record shows that judgment was entered by the circuit court and a motion for new trial overruled, on April 22,1899, and fifty days allowed plaintiff to prepare, and have allowed, signed and sealed his bill of exceptions. It further shows that on June 9, 1899, the plaintiff presented his bill of exceptions to the court, which, upon examination by the court, “is found to be true and correct, and is by the court hereby allowed, signed, sealed and ordered to be made a part of the record.”

The question is, does this show a compliance with the statute? We hold that it does not. The requirement of section 5302 is: “Provided that where exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill of exceptions to the opposite counsel for examination not less than ten days before the expiration of said fifty days; and unless the trial judge or judges shall be absent from the district or circuit, as provided in section 5301, the same shall be submitted to him or them for his or their signature not less than five days before the expiration of the fifty days. Provided further, that the trial judge or judges may at his or their discretion extend the time for signing such bill of exceptions for a period not exceeding ten days beyond the expiration of said fifty days; which extension must be endorsed on the bill of exceptions by said trial judge or judges.”

To show compliance with the above requirements it should appear by the record affirmatively that the bill was so, and in proper time, submitted to tbe judge or judges, and tbe fact merely of its allowance and signing afterwards by the court does not carry the presumption tbat tbe bill bad been, in proper time, submitted to tbe trial judges.

A distinction to be noted between the case of Railway Company v. Kernochan, Adm’x., 55 Ohio St., 306, and the case at bar is tbis: In tbat case the entry shows tbat “tbis day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part of the record in this case, all of which is done within the fifty days allowed,” and it was necessarily implied tbat the bill bad been theretofore, and in proper time, presented to, allowed, signed and sealed by the trial judge. In tbis case the record shows only tbat the bill was presented to the court for allowance, signing and sealing on the 48th day after the overruling of the motion for a new trial.

Motion sustained.