author: Spear, J.

text:
    United States Mutual Accident Association v. Hubbell.

      Life insurance — Stipulation of an accident policy — Death by accidental drowning — Construction of term — “ Voluntary exposure to unnecessary danger."

    1. Death caused by accidental drowning is death 11 through external, violent and accidental means,” within the meaning of the stipulation of an accident policy which gives indemnity against death by such means.
    2. The term “ voluntary exposure to unnecessary danger,” in an accident policy, does not embrace every exposure of the assured that might have been avoided by the exercise of due care on his part. It relates to dangers of a substantial character of which the assured at the time had knowledge, and to which he purposely and consciously exposed himself, intending at the time to assume all the risks.
    3. And where a traveling salesman who holds an accident policy issued to him as such salesman, is confronted, while in pursuit of his.business, with possible danger because of a slough in a public road on his regular line of travel, over which he has passed twice a year for thirteen years, and makes inquiry of other men living in the vicinity as to the existence of danger at the time, and receives opinions, some expressing fears of danger and others to the contrary, and acting on his own judgment, formed from such opinions and from his previous knowledge, and from appearances at the time, in good faith concludes that there is no danger to his life in crossing and attempts to cross, and is accidentally drowned, such attempt is not a “ voluntary exposure to unnecessary danger, ” within the meaning of the policy.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Hamilton county.
    The action of the plaintiff below, defendant in error here, commenced in the superior court of Cincinnati, was upon two policies of accident insurance,. for $5,000 each, issued by the Association on the life of her husband, Wakeman Hubbell, whose death was alleged to have been caused by accidental drowning.
    The answer set up that a condition of each of the policies was that the “contract shall not extend to or cover voluntary exposure io unnecessary danger,” and “that the said Wakeman Hubbell met his death solely in consequence of voluntary exposure to unnecessary danger on or about the 28th day of December, 1892, while attempting to cross a slough caused by back water from the Tombigbee river near Vienna, in the state of Alabama; that the said Wakeman Hubbell, well knew the dangerous condition of said slough, and was warned of said danger by others, but persisted notwithstanding such warnings and known danger in an effort to make such crossing, and in such effort lost his life by drowning, and this defendant denies that such drowning was accidental, or due to any cause whatever other than such voluntary exposure to unnecessary danger. ”
    The reply denied the new matter.
    In the charge to the jury, the judge, after stating the issues, at request of plaintiff, gave the following instructions:
    1. It is not disputed that the policies set forth in the petition were duly issued and were in force at the date of the death of Mr. Hubbell. If, therefore, you find that he died by drowning at the time and place named in the petition, and that his death was accidental, and that the plaintiff was his wife, the plaintiff is entitled to recover the insurance, unless you should find that Mr. Hubbell voluntarily exposed himself to unnecessary danger.
    2. If the jury find that Mr. Hubbell was familiar with the ford at and before the date on which he lost his life and that he judged from the appearance of the slough and the landmarks thereabout, and from such information as he had, that there was no danger to his life in crossing, and, in the exercise of his judgment, in good faith, though erroneous, undertook to cross and lost his life thereby, the plaintiff will be entitled to recover.
    3. Even if the jury should find that Mr. Hub-bell had been warned by some person or persons, that the ford was dangerous, he would not be bound by such'warning, but was entitled to act upon the opinion of others and upon his own knowledge and experience of the ford, if you find that he had such knowledge and experience.
    And, at the request of defendant, the following:
    1. If the jury find that Mr. Hubbell, being aware of the danger to his life, attempted to cross the ford, it cannot be said that it was a necessity that he should cross at that time; and if, therefore, he voluntarily exposed himself to a known danger, the danger was, within the meaning of the policy, unnecessary.
    2. If the jury find that there was another road to Vienna, and it was not necessary for Mr. Hubbell to cross the slough to reach Vienna, then it was unnecessary for him to expose himself to the danger of fording it.
    3. The jury must find, from the evidence, that Wakeman Hubbell was accidentally drowned or the plaintiff cannot recover.
    4. The burden of proof is on the plaintiff to show affirmatively that Wakeman Hubbell was accidentally drowned as alleged in the complaint, and, without such affirmative proof, plaintiff cannot recover.

      5. The words “voluntary exposure to unnecessary danger” means an exposure willingly undertaken of a hazard which necessity does not require.
    Exception was entered by defendant to each of the propositions given for plaintiff.
    A verdict for plaintiff having been returned and judgment thereon rendered, which was affirmed by the circuit court, the Association prosecutes error here to obtain reversal of those judgments.

      Follett & Kelley and Milton Sater, for plaintiff in error.
    The evidence shows Hubbell could not swim; that the water was deep in the slough; that the road across could not be seen; he therefore voluntarily encountered the hazard of crossing, and if he was drowned, in his endeavor to cross, the result, we insist, can only be attributed to such voluntary exposure.
    The authorities are uniform on the proposition that when the facts constituting the alleged exposure are undisputed, as we think they are in this case, the question as to whether the provision of the policy has been violated is one of law. Shaffer v. Iravelers Ins. Co., 31 111. App., 112; luttle v. Travelers Ins. Co., 134 Mass., 175; Williams v. ü S. Mutual Acci. Assn., 133 N. Y., 370; Sawtelle v. By. Pass. Assn. Co., 15 Blatch., 216; Cornish v. Accident Ins. Co., L. R. 23 Q. B., 453; Lovell v. Accident Ins. Co., 3 Ins. L. Jr., 877, 5 ib. 559; Burkhard v. Travelers Ins. Co., 102 Pa. St., 51; Ins. Co. v. Seaver, 19 Wall. (U. S.), 531; Bon v. By. Pass. Ins. Co., 56 la., 664; Conboy v. Bail-way Officials and Employes Accident Association (Ind. App.), 43 N. E. Rep., 1017; Carpenter et al. v.
      American Accident Co., 24 S. E. Rep., 500; Follis v. U. S. Mut. Acci. Assn., 62 N. W. Rep., 807 ; Bean v. Employes Liability Assurance Corp'n., 50 Mo. App., 459; Keene v. New England Mutual Acci. Assn., 161 Mass., 149. 1 Am. and Eng. Ency. of Law (2 Ed.), 306, et seq. and eases cited in note; 1 Beach on Insurance, section.276, et seq.\ 2 Bacon Benevolent Societies and Accident Insurance, section 492; Niblackon Benevolent Societies, section 367, et seq.; Neil v. Travelers Ins. Co., 17 Can. L. J., 44; Travelers Ins. Co. v. Jones, 80 Ca., 541; Badenfield v. Mass. Mut. Acc. Assn., 13 L. R. A., 263-5, note; Duncan v. P. M. Accident Assn., 36 ’N. Y. Sup., 928; Equitable Accident Assn. v. Osborne, 13 L. R. A., 267; Standard Life and Acc. Ins. Co. v. Langston (Ark.), 30 S. W. R., 428.

      Ramsey, Maxwell <& Ramsey, for defendant in error.
    This case is not to be determined by any of the general rules of law relating to negligence, but solely by a consideration of the express language of the contract. Schneider v. Provident Life Ins. Co., 24 Wis., 28.
    That was a ease' where the insured fell and lost his life while attempting to board a slowly moving train. The plaintiff sustained a nonsuit at trial, upon the ground that the contributory negligence of the insured was a bar to recovery. Collins v. Banker's Acc. Ins. Co., 64 N. W. Rep., 778; Equitable Accident Insurance Co. v. Osborn, 90 Ala., 201; Fidelity da Casualty Co. v. Chambers et. al., 24 S. E. (Va.), 896; Keefe v. Insurance Co., 38 N. Y. S., 854; Lehman v. Insurance Co., 39 N. Y. S., 912; Tucker v. Mutual Benefit Co., 50 Hun., 50; National

      Benefit Ass. v. Jackson, 114 111., 533; 2 May Ins. 2d ed., section 530.
    The burden of proof was upon the defendant to show that Mr. Hubbell’s exposure to danger was both voluntary and unnecessary. Freeman v. Insurance Co., 144 Mass., 572; Badenfield v. Accident Insurance Co., 154 Mass., 77; Keene v. New England, etc., Assn,., 161 Mass., 149; Jones v. Ins. Assn., 61 N. E., 372.
   Spear, J.

The evidence shows that the deceased was about sixty years of age, a traveling salesman by occupation, and, at the time of the occurrence, in good health and in full possession of his mental faculties. He was drowned while crossing at a public ford through a slough caused by back water from the Tombigbee river, near Vienna, in the state of Alabama, on the afternoon of December 27, 1892. The ford was a part of the state road lying between a cross-roads settlement, known as Bun tins, and Vienna, the places being about nine miles apart. There was no other public road connecting the two points, although there was a by-way through plantations around by a place called the Lee place, some three and a half miles farther, which way also led over a slough caused by like back water, the condition of which was not then known. Hubbell had traveled the state road twice* a year for thirteen years, and was more or less acquainted with the ford where the occurrence took place. He had stayed near Buntins the night of the 26th, and left that place about three o’clock, in the afternoon of the 27th, in a buggy drawn by.two horses hired of a livery man near there, and driven by a colored man named Emmitt Cavett. It was understood in the neighborhood that a colored boy, having in charge some mules, a few days before, had to go around by the Lee place because the water at the ford was up, so that fording was thought to be dangerous, and this information was conveyed to Hubbell, but the water at the ford was subject to rapid changes, and might be high at one time and easily fordable in a few hours after.

Hubbell made inquiries of a number of persons living in the vicinity of Buntins as to its condition. The evidence tends to show that opinions were expressed,. some favorably, and others unfavorably with respect to the presence of danger there, but no one claimed to have knowledge, and the exact condition of the ford that afternoon was not known. There had been a little rain thereabouts within the few dajTs past, but not much, and the roads were fairly good. It had rained above.

Vienna was on Hubbell’s regular route, and was to be his next stopping place. He had, upon his person, some seven or eight hundred dollars in money, collected within the two or three days previous.

On the way to the ford, and a short distance from Buntins, the driver turned off the state road intending to drive around by the Lee place. Hub-bell stopped him and a conference ensued in which the driver said to Hubbell that one Wilder had told him that they could not go the direct road, because, he said, he had sent a boy over there and he couldn’t cross, and that they would have to go by the Lee place. Wilder was one of those of whom Hubbell had inquired and who mentioned to Hubbell the circumstance of the boy with the mules which was two days before. By direction of Hubbell, the driver, against his own inclination, turned back, and they continued on the public road. The driver’s objection expressed later, was not that he feared bodily danger, but it was cold, and he feared getting wet.

They presently reached the slough. The road dipped into the water. They stopped. It was thirty to thirty-five feet to the opposite slope. There was no current. Hubbell said to the driver that “the water was not more than three or four feet déep according to old signs setting out there, and that he always noticed them. That’s no water there to stop us, at all; you’ve been kicking all along, about the slough being so bad, and I’ve been traveling here about thirteen or fourteen years; I never found this slough in as fine a fix as it is now in all my traveling here, and you acknowledge, yourself, you never saw it in such good fix; no water nor mud on the sides of the road; and that is the reason I wanted to come this road instead of the road around. Public roads are always kept up. I have traveled here when the roads were three times as bad, and also have crossed this slough, and more water there than seems to be there now.” They entered the water and again stopped.

Hubbell’s valise was on the floor of the buggy behind the seat. The driver asked if he had anything he didn’t want to get wet. Hubbell replied: “Yes, I don’t want my valise to get wet; go ahead and get it, though I don’t think the water will reach that high.” The driver then got the valise and put it on the seat. They started across. Giving the words of the driver: “We made a few steps when the horses commenced swimming. The water then struck us in the face and he jumped and caught the lines; it seemed that he wanted to turn around. This pulled the horses out of the road when he pulled the lines and I caught hold of the lines to try to get back in the road, and I was going on all right and would have kept on all right if the buggy had not struck a stake driven into the ground; then the buggy hung. (This stake was not seen by him, nor was its presence known to him until the buggy struck it.) He asked me what I would do now. I told him I was going to cut the horses loose; Mr. Hubbell said, ‘let the horses alone and save me aild yourself. I will pay for the horses; I have paid for one pair and I will pay for these. Save me. Can’t yc/u swim?’ I told him, yes. He said, ‘you swim out and take me out on your back, for I can’t swim a lick.’ I told him we were directed to come this way and after I got here I would have turned around, but you said there was no danger, which I did not think there was myself, any further than just me getting wet. ‘I wish I had have let you turn around when you wanted to; but you heard Mr. Whitten say to me to keep right íd the middle of the road. Don’t you think no ways hard of me, Emmitt; do all you can to get me out of here. I said I could not swim with him on my back. ‘Well what in the world am I going to do, Emmitt? I am freezing. ’ I said, oh, no, you are not freezing, you are just a little cold; you have on better clothes than I have and I lack a heap from freezing. He then had hold of me when we were talking. He said, ‘I am afraid for you to leave me.’ I said, how am I to get you out? I can’t swim with you on my back. He then asked, ‘what am I going to do; how am I to get out?’ He said you must not leave me here at all. ’ I asked him, then, what are we going to do; just stay here and drown? We will freeze or drown unless I go off and get a boat. He then turned me loose and told me to go and get a boat just as quick as I could. I left him then and started to hunt for a boat. I stepped into the water and tried to. swim and I failed to swim myself. He was talking to me the. whole time. ‘Emmitt you are drowning,' and what will I do?’ This he repeated time and again; and finally, at last, I got to the shore. He says, ‘Emmitt, go ahead, old boy. Mr. Eiland told me you are all right, and I believe you are; and also Mrs. Dillard. ’ I was now at the shore and used every effort tp get a boat.”

Cavett’s effort to get a boat in time proved unavailing. When help reached the scene, Hubbell was found out of the buggy drowned.

This extended statement of the circumstances surrounding the case, has been given because it seems to us that the facts, when fully stated, have the effect to much simplify the question of law involved.

The construction of the clause “voluntary exposure to unnecessary danger” has not heretofore been presented to this court, although the question has been the subject of numerous adjudications in other jurisdictions. A citation of the authorities, pro and con, will be found in the full briefs of counsel, which, with the able discussions of the legal propositions there so fully given, permits a disposal of the case with more brevity than might otherwise be fitting.

The policy covered, with the exception before stated, and others not important to be cited, death “through external, violent and accidental means.” It will not be doubted that the definition of “death by accidental means,” given by the trial judge to the jury, viz: “Any event which takes place without the fore-sight or expectation of the person acted upon or affected by the event,” was a proper definition, and there is no reasonable question that the facts proven warrant the conclusion by the triers that the assured came to his death by accidental means. And it is now settled by uniform adjudication that although the drowning is the result of the action of water internally, yet the water is external, and that accidental death -by drowning is produced “through external, violent and accidental means,” within the import of an accident policy.

It being thus sufficiently shown by the evidence of plaintiff, that the assured came to his death within the general terms of the policy, the burden rested upon the company to prove that a recovery was defeated by reason of the exception pleaded, viz: that death was the result of “voluntary exposure to unnecessary danger.”

It is clearly not enough, in such ease, to show that the deceased was negligent. Negligence in its usual legal signification, has no place in measuring the liability of a company under an ordinary accident insurance policy, for its presence would overturn the primal theory of the contract. Accidents are the result very largely of the failure to observe due care, and yet the contract is intended as a remuneration in case of accident, and it is to procure the obligation of the company to pay this remuneration, that the assured pays the prem-' ium. As stated by Allen, J., in Keene v. Association, 161 Mass., 149: “By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or in part from his own inadvertence.”

A literal construction of the words “voluntary exposure to unnecessary danger” might embrace any exposure not actually required by the circumstances, or enforced by the superior will of others, as well as every danger attending such exposure that might have been avoided by the exercise of ordinary care. But it must be borne in mind that language of exceptions in such policies, limiting the liability of the company, are to be construed favorably to the insured, and doubts and ambiguities resolved against the insurer. The words of the exception are not, therefore, to be literally interpreted. We think reason, as well as the clear weight of authority, leads to the conclusion that the words of the exception should be held to relate to dangers of a substantial character which the assured realized. The voluntary exposure requires an exercise of the will; the party must intentionally and consciously assume the risk. This necessarily involves knowledge that the danger exists, and that the risk will follow an attempt to brave it. The act done may be voluntary, but it cannot involve “voluntary exposure” unless the exposure is understood. Before the party can voluntarily expose himself to danger he must know of its existence. See Travelers' Ins. Co. v. Randolph, 78 Fed. Rep., 754.

We are not called upon to pass on the weight of evidence, but some features may, with propriety, be adverted to, and its general legal effect indicated. The policy describes Mr. Hubbell as engaged in the occupation of traveling salesman, and the contract was intended to cover risks incurred in the pursuit of that business. He was pursuing this line of business, and was on one of the usual routes of travel, when he met his death. In the line of duty to his employer, it was important that he make Vienna without unreasonable delay, and unless the way involved substantial risk, it was his duty to reach that point that day. In this sense it was necessary for him to make the trip then. He had not gone out of his way to seek perils, nor for any ulterior or outside purpose, but was on a public highway, and the only one leading to his destination. It is a significant circumstance also, that no one whom he heard speak on this subject, indicated that the road itself was at all out of repair. The water on it was still, not running water, and hence it was not natural to anticipate any washing or impairment of the road. The presence of the back water over it was the only source of probable danger to be considered. Fords are common in many sections of the country, especially in the newer portions. To refuse to cross them is to refuse to travel. There is no evidence in the record that the road itself was out of order, and it was the belief of the prudent driver, even, that had the team been kept in the road, a safe crossing would have been made.

if the crossing of the ford at that time was dangerous,, and Hubbell was conscious of the danger, and consciously assumed the risk, that was a voluntary exposure to it, and would prevent a recovery. But the attempt to cross because it was a ford was not necessarily, and per se, a dangerous act, and plaintiff showed a right to recover unless the circumstances were such as disclosed to Hub-bell that the attempt to cross would be dangerous. This does not imply that he might recklessly, and in a fool-hardy way, rush into probable danger, even though he was at the time pursuing his legitimate calling. But where different men, having substantially equal means of judging, would differ in opinion as to the safety of an act, it cannot be said to be fool-hardy. The attempt to cross under the conditions which surrounded Hubbell would be largely a matter of temperament. A very timid person would be likely to shrink and refuse; a courageous one would be likely to go ahead. The former would see troops of lions in the way; the latter would think the way clear. That Hubbell thought the way free from substantial danger, his conduct abundantly attests. His panicky grasping of the lines when the imminence of the peril dawned upon him, is not to be counted against him. Even under - the rule of contributory negligence his actions in the face of great peril, though unwise, would not condemn him. It is a recognized rule that where one is confronted with a sudden emergency, the failure on his part to exercise the best judgment possible, does not establish laek of care.

We think that Hubbell’s previous acquaintance with this ford, and the landmarks thereabouts, and the information received from others at the time, justified him in exercising his own judgment, and if he did so in good faith and in the belief that there was no danger to his life in crossing, however erroneously he judged, his act in attempting to cross was not a voluntary exposure to unnecessary danger. Nor was the warning of others more than a circumstance to be considered. Such warning was but the. expression of an opinion, and he had received opinions to the contrary. It was a part of the circumstances; it did not, of itself, forbid the exercise of personal judgment. The question, therefore, of whether the attempted crossing was or not a voluntary exposure to unnecessary danger, was for the jury, and not, as now contended by plaintiff in error, solely a question of law to be determined by the court. Indeed, counsel, at the trial, seem to have regarded it as a question for the jury, as is indicated by their first request to charge.

We find no error in the charge given at the request of plaintiff below. The record shows as against the objections of plaintiff in error, that not only substantial but technical justice was done by the judgments of the superior and circuit courts, and they should not be disturbed

Judgment affirmed.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    Ham v. Kunzi.

      Right of action — By married women — Determined by statute i% force when right accrued — Section 4968.

    A right of action accrued to H., a married woman, before section 4968, Revised Statutes, was amended March 26th, 1883, so as to remove her disabilities as to actions concerning her separate property: Held — that her rights must be determined by the statute of limitations in force at the time her right of action accrued, and the 'removal of her disabilities by said amendment clid not have the effect to cause the statute of limitations to begin to run against her.
    (Decided June 8, 1897.)
    Error to the Circuit Court of Franklin county.
    On the 3d day of March, 1892, Mrs. Ham, plain tiff below, commenced an action against Mr. Kunzi, defendant below, for the recovery of five hundred and thirty dollars ($530), and interest. The body of her petition is as follows:
    “Plaintiff says that some time in the month of February, A. D., .1878, the exact day she cannot now state, she loaned to the defendant the sum of five hundred and thirty dollars (530) dollars, out of her separate property, under and by virtue of a parol agreement between plaintiff and defendant then entered into, whereby the defendant promised and agreed to borrow from plaintiff said sum of money, for a short time, to be used by him in his business and then promised to pay the same back to plaintiff within a short time from that date, with interest thereon for the use thereof. Pursuant to said agreement and promise, plaintiff on the date aforesaid, paid to the defendant the sum of money aforesaid, without taking his promissory note for the re-payment thereof, but relying- wholly upon defendant’s promise to repay the same as aforesaid.
    “Plaintiff was at the time of making said contract with the defendant and paying the 'said money to him, a married woman, the wife of one Frederick Ham, and remained a married woman, the wife of said Ham, from that date until the 26th day of January, 1889, when she was divorced from her husband, by a decree of the court' of common pleas of Delaware county, Ohio.
    “Notwithstanding the premises, the defendant has always, since a short time after receiving said sum of money as aforesaid, refused to pay the same back to the plaintiff, although she has frequently requested him so to do, and he now refuses to pay the same or any part thereof back to the plaintiff. 1
    “Wherefore, plaintiff prays judgment against the defendant for said sum of five hundred and thirty ($530) dollars, with interest thereon from the first day of March, A. D., 1878, and for any other or further relief in the premises, to which she either in law or equity, may be entitled.”
    To this petition the defendant demurred on the ground that the action was barred by the statute of limitations, and that the petition does not state facts sufficient to constitute a cause of action in favor of said plaintiff and against said defendant.
    The demurrer was overruled by the court of common pleas, and proper exceptions taken. An issue was made up, a jury waived, and the cause was tried to the court, and judgment rendered in favor of the plaintiff, Mrs. Ham, for the full amount claimed in her petition. A motion for a new trial was made and overruled, and proper exceptions taken.

      Upon petition in error, the circuit court reversed the judgment, upon the sole ground that the court of common pleas erred in overruling the demurrer to the petition. Thereupon, Mrs. Ham filed her petition in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the -'udgment of the court of common pleas.

      G. J. Marriott and F. M. Marriott, for plaintiff in error.
    The simple fact that plaintiff in error might have brought her suit under section 28, of the old Code, earlier than she did, could not have the effect of repealing by implication the saving clause of the statute extended to married women. Hurlbut v. Wade, 40 Ohio St., 603; Ashley v. Rockwell, 43 Ohio St., 386.
    The amendment of section 4986, by the act of April 14, 1886, repealing the saving clause, to married women, of the former section, cannot be considered as affecting the question involved, as six years had not elapsed from the date of this amendment, before the bringing of the suit, so that there is but the one amendment of the statute left, to be considered as affecting the question involved, and that of March 26, 1883, Ohio Laws, vol. 80, p. 77.
    We think it is quite clear that this amendment did not affect, nor^was it intended to affect the right of plaintiff in error to sue upon her claim against defendant in error, at any time within six years after the removal of her disability of coverture, and her rights continued unaffected after the amendment of 1883, just as they existed before.

      The subsequent amendments of the different sections of the statute of limitations do not affect this general provision found in section 4974, and were not so intended. Webster et al. v. Bible Society, 50 Ohio St., 17.
    Under our claim that the statute above referred to, in S. & S., page 1, prevents the amendment of section 4986 of March 26, 1883, from affecting the cause of action of plaintiff in error, we cite, without comment thereon : Bode Adm. v. Welch, 29 Ohio St., 19 ; Railroad Co. v. Belt, 35 Ohio St., 479 ; Rafferty v. Shinn, 38 Ohio St., 46.

      S. A. Webb and Harry E. Stafford, for defendant in error.
    Plaintiff alleged in her petition that it was her own separate property on which she was seeking to recover, and under .this statute as amended there can be no question but that this action was barred when commenced, March 3, 1892.
    But an attempt is made to support the position of plaintiff in error by claiming that two other sections are of “controlling importance.” One, on page 1 of Swan & Sayler’s Statutes, and which was carried forward into the Revised Statutes of 1880, section 79. Sec. 4974 is the other section cited to sustain her position.
    The amendment of March 26, 1883, to section 4986 (O. L., vol. 80, p. 77), shows beyond doubt that it was the intention of the legislature to remove the disability of married women so far as rights of action growing out of her separate property were concerned.
    A statute must be construed with reference to the subject matter of it, and its real object and true intent. Doyle v. Doyle, 50 Ohio St., 330. Courts must consider the policy of Statutes.
      B. &B.v. Trustees, 19 Ohio St., 97; Wilber v. Paine, 1 Ohio St., 251; B. B. Co. v. Belt, 35 Ohio St., 481.
    Plaintiff in error relies on the general statutes to support her position, but when the general provisions of the statutes are varied by special provision of the same or another statute relating to the subject, the special section will govern. State ex rel. v. Mg Gregor, 44 Ohio St., 628; Brower v. Hunt, 18 Ohio St., 311.
    We contend that the act of March 26, 1883, if given effect as the legislature intended, bars the action brought by plaintiff. Lehman v. McBride, 15 Ohio St., 573; Commissioners of Knox Co. v. Mc-Cornb, 19 Ohio St., 320; Ex parte Van Hagan, 25 OhioSt., 425; Trust'Co. v. Beiter (Neb.)66N. W., 658; State v. Moore (Neb.) 67 N. W., 876 ; Anderson v. City of Camden (N. J. Sup.), 33 A., 846; Am. & Eng. Ency. of Law, vol. 23, p. 485 (Note 4).
   Burket, C. J.

The circuit court was of the opinion that the action was barred by the six years statute of limitations, and that for that reason the demurrer to the petition should have been sustained.

T]ie money was loaned in the month of February, 1878, to be paid back in a short time, which would mean a reasonable time, not beyond one year.

The statute of limitations then in force was found in chapter 3 of the Code of Civil Procedure, and the limitation for the recovery of money loaned, not evidenced by written instrument, was six years. Section 19 of the Code was then a part of said chapter 3, and reads as follows:

“Section 19. If a person entitled to bring any action mentioned in this chapter, except for a penalty, or forfeiture, is, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane, or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability shall be removed.” S. & C., 949. '

This section was carried into the Revised Statutes without change, and became section 4986, found in title 1, division 2, chap. 2, sub-division 3.

Said sub-division 3 of chapter 2 is devoted to the statute of limitations, and it is therein provided in section 4981, that actions upon contracts not in writing, can be brought only in six years after the cause of action accrues. This limitation subject to the saving clause in said section 4986, applies to the cause of action of the plaintiff. The question is, when was the disability of being a married woman in her case removed?

This section 4986 remained in the same form,- and with the same saving clause in favor of married women until March 26th, 1883, 80 O. L., 77, when it was amended so as to read as follows:

“Section 4986. If a person entitled to bring any action mentioned in this sub-division, except for a penalty or forfeiture is, at the time the cau§e of action accrues, within the age of twenty-one years, a married woman, insane, or imprisoned, such person may bring such action within the respective times limited by this chapter, after such disability is removed; provided, however, that the disability of being a married woman shall not extend to rights of action of a married woman, concerning her separate property, or growing out of or concerning business transacted in her own name.”

The section as so amended became part of said chapter 2, sub-division 3, and is to be read and construed as if introduced into the place of the repealed section in said chapter and sub-division. McKibben v. Lester, 9 Ohio St., 627.

By this amendment of March 26, 1883, of said section 4986, the disability of being a married woman was removed as to rights of action concerning the separate property, and as the petition in this case shows that the money sought to be re. covered is the separate property of the plaintiff, it is urged, and the circuit court held, that the statute of limitations began to run upon the removal of her disability on March 26th, 1883. and that the cause of action became barred in six years from that date.

This might be so were it not for the provisions of section 4974, Revised Statutes, passed in 1880, and also found in said chapter 2. Said section reads'as follows:

“Section 4974. This chapter shall not apply to actions already commenced, nor to eases wherein the right of action has already accrued; but the statutes in force when the action accrued shall be applicable to such cases, according to the subject of the action and without regard to the form; nor shall this chapter apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property, in possession thereof, to obtain a conveyance of it.”

As section 4986 as amended March 26th, 1883, is to be regarded and construed as though intro, duced into the place of the repealed section, it forms a part of said chapter 2, and by the express provisions of said section 4974, said chapter 2 does not apply to eases wherein the right of action had already accrued. And as the right of action of the plaintiff had accrued before said amendment of said section 4986, removing her disabilities, it follows that said removal did not apply to her case, and that her rights remained the same as if there had been no such removal.

It was provided in the statute of limitations passed in 1831, that it should not apply to actions already commenced, nor to causes of action already accrued, and that the statute of limitations in force at the time of the accruing of any right of action should be applicable to such action. That provision has been retained in our statute of limitations ever since, and is now found in said section 4974, re-enacted in the year 1880.

The amendment of section 4986, March 26th, 1883, by removing the disability of a married woman as to rights of action concerning her separate property, changed the statute of limitations in that regard, and shortened the time within which a married woman could commence an action concerning her separate property.

That change of the statute of limitations could not apply to causes of action already accrued, without violating the statutory provision in force ever since 1831, to the effect that the statute of limitations in force at the time the right of action accrues, shall govern the case. This rule was recognized in Webster v. Bible Society, 50 Ohio St., 1, 17.

Again, it is provided in section 79 Revised Statutes, that a repeal or amendment of a statute shall not affect causes of action existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

It is not expressly provided in the amendment of said section 4986, March 26, 1883, that it shall apply to, or affect causes of action then existing; neither is there an implication to that effect.

It therefore follows by force of both said sections, 4974 and 79, that said amendment of March 26th, 1883, does not apply to or affect her accrued right of action; and therefore her disability as a married woman continued until she was divorced, January 26th, 1889. As she commenced her action in less than six years after her divorce, it is clear that her action was not barred by the statute of limitations.

The court of common pleas was right in overruling the demurrer to the petition, and the circuit court erred in reversing the judgment. The judgment of the circuit court is reversed and that of the common pleas affirmed.

Judgment reversed.


author: Williams, J.

text:
    The State ex rel. v. Wright.

      Mayor of Municipal corporation^ Serves uutil successor qualifies— Extent of authority of jury to try election contests—
    1. A mayor of a municipal corporation who has been regularly elected to the office, is entitled to serve until his successor is qualified ; and while he continues to so serve on account of a failure to elect his successor, there is no vacancy in the office, nor is the council authorized to make an appointment thereto.
    2. The jury selected to try a contested election case instituted by' a rival candidate against one who has, by the proper authority, been declared duly elected to the office of mayor at a regular municipal election, is authorized to decide, and should determine which of the candidates was elected, or, that there was no valid election of either, as the facts may warrant; a finding that the contestee did not receive a majority of all the legal votes cast at that election, and a decision that, therefore he was not elected to the office, is incomplete, and insufficient to defeat his title to the office.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Darke county.
    Action in quo -warranto was brought in the circuit court, to oust the defendant from the office of mayor of the city of Greenville, and induct the relator therein.
    The petition is as follows:
    “Prank Bachman now comes and gives the court to understand and be informed: That the relator was, on the 5th day of April, 1897, and has ever since been, a resident and an elector of the city of Greenville , of the county of Darke* and state of Ohio, and over the age of twenty-five years, and eligible to be elected to and hold the office of mayor of said city. That at the general municipal election held in the month of April, 1895, for the election of municipal officers for the city of .Green-ville, Darke county, Ohio, among other officers elected at said election, was mayor of said city. The defendant, Edwin Wright, being a candidate for said office of mayor, was duly elected to said office at said election, and that thereafter, to-wit: on April 15, 1895, he was duly qualified as such officer, and entered upon the discharge of the duties of the same, and has so continued to act ever since. That at the general municipal election held in said city, on April 5, 1897, said Edwin Wright stood as a candidate for election to the office of mayor of said city of Greenville, and this relator, Frank Bachman, also stood as a candidate for election to said office of mayor of said city, and that they were the only candidates for said office at said election, and the only persons voted for at said election for mayor; and that the judges of said election, and other election officers and canvassers of the votes, tally-sheets and ballots thereof, found and declared that said Edwin Wright was elected to said office of mayor of said city, by one majority. And that thereaftei', to-wit: on April 9, 1897, said Frank Bachman, deeming it proper to contest the election of said Edwin Wright, so declared elected to said office of mayor made the same known to the Probate Judge of said Darke county, Ohio, within ten days after said election, and in writing he specified the points on which he, as contestor, meant to contest said election. And said judge of the said probate court communicated the same to the said Edwin Wright, specifying the name of the contestor, and the points on which the contestor relied, and cited him to appear for the trial of said contest on the 15th day of April, 1897, at hjs office in said county, after giving him more than five days’ notice of said contest. And that said probate court, on the same day that he issued a notice to said Edwin Wright, whose election was to be contested, appointed three respectable freeholders of said county of Darke, to try said contest, none of whom were residents of the township of Greenville, said Greenville township being the township in which the said citv of Greenville is situate; and that said freeholders were summoned to appear at the day appointed for the trial of said contest, and that said jury of freeholders appeared according to summons, and were sworn to try said contest agreeable to evidence. And after said jury of freeholders had heard the evidence adduced by the contestator and the eontestee, and arguments of counsel, the freeholders, after deliberation, signed their decision, which was in the words and figures following, to-wit: ‘In the Matter of the Contest by - Frank Bachman of the Election of Edwin Wright as Mayor of the City of Greenville, Darke county, Ohio. Darke Probate court. No. 7868. Decision of Jury. We, the undersigned freeholders, summoned and qualified as jurors herein, to try the contest by Frank Bachman of the election of Edwin W right, as mayor of the city of Green-ville, Darke county, Ohio, do find the facts against the said Edward Wright, and do find that he did not receive a majority of all the legal votes cast at said election, in said city, held April'5, 1897. It' is therefore our decision, that Edwin Wright was not elected to the office of mayor of said city, at said April election.
    Edward MpCuE,
    Matthew Glunt,
    Wm. Flaig.
    Attest: J. M. Bickel, Probate .Judge.’

      CERTIFICATE.
    ‘The State of Ohio, Darke County.
    ss. Probate Court.
    I, J. M. Biekel, judge and ex-officio clerk of the probate court within and for the county of Darke, and state of Ohio, do hereby certify, that the foregoing is a true copy of the decision of the jury in the matter of the contest bv Prank Bachman, of the election of Edwin Wfight, as mayor of the city of Greenville, Darke county, Ohio, as the same appears upon the records of said court; and I further certify, that I have carefully compared the foregoing copy with the original record, and that the same is a full and correct transcript thereof.
    In witness whereof, I have hereunto set my hand and affixed the seal of said probate court, at Greenville, Ohio, this 2d day of April, A. D., 1897.
    J. M. Bickel,
    Probate Judge of said Court.’
    Which decision is unreversed and unmodified, and is in full force. And that said probate judge after attesting the same, and within three days thereafter, transmitted a copy of such decision to the clerk of the city of Greenville. Said relator alleges further, that on April 22, 1897, at a special meeting of the council of the city of Greenville, Ohio, convened according to law at their usual place of meeting, and having before them a copy of said decision of said jury of freeholders, so transmitted to the said clerk by the probate judge, did find that there was a vacancy in the office of mayor of said city, and did then and there, in said session, by a vote of a majority of the members of the council in and for said city, appoint said Prank Bachman, this relator, to act as mayor and discharge the duties of said office, and that said Frank Bachman, then and there presented a bond in the sum of one thousand dollars (SI,000), with four good and sufficient sureties, which bond was then and there approved and accepted by said council of said city; and thereupon, at said time and place, said Frank Bachman, took the oath of said office, which was administered to him by a justice of the peace, in and for said county of Darke. Thereupon said Frank Bachman, said relator, after -being so appointed and qualified, proceeded to the mayor’s office provided for him by the council of said city, and did then and there request and demand of said Edwin Wright, this defendant, that he turn over to him Frank Bachman as such appointed and qualified mayor of said city the seal, books, papers, and other property belonging to the office of mayor of said city and that said Edwin Wrig’ht, defendant, then and there declined and refused to comply with said request and demand, and insisted, and still insists upon acting as the mayor of said city, performing the duties and functions pertaining to said office. Said relator alleges further that on the 22d day of April, 1897 the defendant usurped the said office of mayor of said city, and has since held, and does still hold and receive the fees and emoluments thereof, amounting to the sum of $--, and has during the said time wrongfully and unlawfully kept this relator out of the possession of said office, and deprived him of the said fees and emoluments, to his damage in the sum of twenty-five dollars ($25.00). Wherefore, the relator demands judgment for the said sum of twenty-five dollars ($25.00) damages, and that the defendant be ousted from said office, and the relator have possession thereof awarded him.”

      The circuit court sustained a general demurrer to the petition, and rendered judgment against the relator for costs. The reversal of that judgment is sought here.

      Anderson <£¡ Bowman; Williams c& Krickenberger and A. O. Robeson, for plaintiff in error.
    This case is not one to review the finding of the freeholders. Their decision was explicit, and settled the question which was submitted to them, and that is, was Edwin Wright elected mayor, or was he not elected mayor? The freeholders decided the question that he was not elected mayor. There was no question submitted to them to ascertain how many votes he had received, and there was no statute requiring them to make a finding of how many votes either candidate had received at said election for mayor. So that, for the purpose of this ease, the decision that Edwin Wright was not elected mayor at the April election, 1897, must stand as final. State ex rel. v. Marlow, 15 Ohio St., 114.
    It will not be contended by any one that the appointment of the relator to act - as mayor could be for a period longer than the next annual -municipal election. And the right to make the appointment is claimed under section 1754, of the Revised Statutes.
    The court will take judicial notice of the existence of the corporation of the city of Greenville, and that it is a city of the second class. Rev. Stat. of Ohio, section 1587.
    Concerning the election of municipal officers see Revised Statutes of Ohio sections, 1709, 1723, and as to contest, section 1731.

      The provisions of the statute relating to contest of election of justices of the peace are found in sections 572 to 578, inclusive.
    Owing to the peculiar method provided by the statutes for the contest of the election of justices of the peace, but one result could follow the decision of a contest against the contestee, viz: That he was not elected to the office. Thus far, there can be no serious contention as to the effect of a proceeding to contest the election of mayor. State ex rel. Worthington v. Cist, 5B., 422.
    We also ask the ' consideration of the court of sections 8, 11, 19, 1724, 1740, 1754, Rev. Stat. 1880, sections 1709, 1713, and 66 O. L., 160, section 62, 66; 74 O. L., pp. 74, 75; 91 O. L., L72.
    It will not be disputed that “terms of office” are distinctly recognized in the Municipal Code. Offices were not to be filled except for definite “terms.” States. Cook, 20 Ohio St., 252.
    In the light of the decisions of this court, if some person other than the defendant had been elected Mayor of Greenville, and had given bond, and taken the oath of office, and before obtaining possession of the office had died, there would be a vacancy in the office for the purpose of exercising the appointing or electing power, notwithstanding the defendent is in office and entitled to serve.beyond his term. And in the case last supposed, it would not be necessary for the person so elected to give his bond and take the oath of office prior to his death in order that the office might be considered vacant. State v. Hopkins, 10 Ohio St., •509; State ex rel. v. McGregor, 44 Ohio St., 628; State ex rel. v. Albert, 55 Kans., 154; The State ex rel. v. Thomas, 102 Mo., 86.

      No distinction in this regard is to be taken between a resignation and the expiration of the time fixed for the holding of the office. A resignation and its acceptance end the term of office the same as the expiration of the time of the tenure of the office itself, and no more effectually. People v. Supervisors, 100 111., 332; Badger v. U. S. ex rel. 93, U. S. 599; State ex rel. v. Stonestreet, 99 Mo., 376; State v. Harrison, 113 Ind., 434; State v. Cocke, 54 Tex., 482.
    The collector of taxes was elected and failed to qualify. Such office was held vacant and filled by appointment. County v. May nor d, 44 la., 15.
    In matters of contest (in case of this sort), the election by the people, as certified by the canvassers of the votes, is nullified or let stand. 5. B., 422; Reiter v. The State, 51 Ohio St., 74.

      J. I. Allread; J. R. Knox; II. M. Cole ; I). L. Gas-kill; T. C. Miller and IK. Y. Stubbs, for defendant in error.
    The mere declaration of the appointing power creates no vacancy. The vacancy must actually exist. State ex rel. v. Howe, 25 Ohio St., 588.
    ■ Right to hold over until successor is elected and qualified. Section 1709 provides that all elective officers of municipal corporations shall serve for two years.
    Section 1713, as amended, 91 O. L., 172, provides: “That unless otherwise provided, all municipal officers shall serve until their successors are qualified.”
    The general policy of the law as to holding over is contained'in section 8, which provides:“ Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified unless it is otherwise provided in the constitution or laws. ” State ex rel. v. Kearns, 47 Ohio St., 566.
    There, is no distinction between the ease at bar and the case of the .member of council as will be noticed by comparing sections 1673 and 1724 with the sections here involved. State ex rel. v. Caldwell^ recently decided in this court); 44 Ohio St., 465; 12, c. c. 235.
    If the incumbent has the lawful right to hold over until his successor is elected and qualified there can be no vacancy. State ex rel. v. Howe, 25 Ohio St., 588; State ex rel. v. McCracken, 51 Ohio St., 123; Mechem on Public Officers, section 129-130 -131; State ex rel. v. Meilke, 81 Wis., 574; People v. Edioards, 93 Cal., 153; State ex rel. v. Harrison, 113 Ind., 434; State ex rel. v. Hadley, 64 N. H., 473.
    The incumbent’s term is two years, and until his successor is elected and qualified.
    There having been therefore, no successor elected at any general or specific election provided by law, the term of the incumbent still continues. And failure to elect a successor or irregularity which defeats the election does not create a vacancy. State ex rel. v. Governor, 7 Ohio St., 372.
    The only authority which the city council have in the matter of appointment is conferred by section 1754: It is not claimed that this ease falls within the direct terms of section 1754, or any other section of the statute. The claim is made, however, that it is within the general clause, “other vacation of his office.”
    Did the contest proceeding create a vacancy within the meaning'of section 1754? The right to hold over being given in case of a municipal office, the decision setting aside the election did not create a vacancy in the absence of some direct provision of law so declaring. State ex rel. v. Hophim, 10 Ohio St., 509; State ex rel v. McGregor, 44 Ohio St., 628; 7 Ohio St., 372.
    Bachman, the relator, does not seek the office by right of election. He claims the right by appointment of the city council. He does not seek to have a choice of the people at a new election, but seeks to have the court confirm his right to the office in face of the adverse decision of the people as declared under the safe guards of the Australian ballot law by bi-partisan election boards.
    The theory of the relator is that, although, the legislature deliberately provided for a system of contest for municipal offices in the minor cities which can not induct the defeated candidate into office or try his title thereto, yet he may without election and in spite of defeat receive the office, after contest, by right of appointment.
    The theory of the defendant is that the setting aside of the election has the same effect as if there had been no election for mayor, and the incumbent whose title to the office by choice of the people for the term of two years and until his successor is-elected and qualified, will continue until such successor ■ is so chosen -at a legal, special or general election. State ex rel. v. ForaJcer, Governor, 46 Ohio St., 667.
   Williams, J.

The facts, as far as they are important in the consideration of the questions made in the case, are, in substance, that at the regular municipal election held in the spring of 1895, the defendant was duly elected to the office of mayor of the city of Greenville, for the full and lawful term ensuing; and was the incumbent of the office, ' serving on his term, when the general municipal election was held in April, 1897, at which he was a candidate for re-election. He was declared by the proper authorities to have been re-elected to the office, and has continued to hold the same. At that election the relator was also a candidate for the office, and the only competitor of the defendant therefor; and being dissatisfied with the declared result, he instituted a proceeding to contest the election, which resulted in "a finding*, by the tribunal trying the contest, that the defendant “did not receive a majority of all the legal votes east at said election, held April 5, 1897,” and for that reason he “was not elected to the office.” Thereupon, the council of the city, upon receiving a copy of the decision, concluded there was a vacancy in the office of mayor, and appointed the relator to fill it, who, accordingly, took the oath of office, executed an official bond, and demanded possession of the office, which the defendant refused to surrender.

The case turns upon the legal effect of the proceeding to contest; the relator claiming that it resulted in producing a vacancy in the office which the council was authorized to fill by appointment, and consequently he is entitled to the office; while the claim, of the defendant is that no such vacancy occurred.

The constitution enjoins upon the general assembly the duty of providing by law, “before what authority, and in what manner, the trial of contested elections shall be conducted;” and by section 1731 of the Revised Statutes, the election of mayor, except in the cities of the first grade of the first class, “may be contested in the manner provided for contesting the election of justices of the peace.” The election of any person declared elected to the office of justice of the peace, maybe contested by any candidate, or elector of the township in which the election was held, by making application for that purpose to the probate judge of the county, within ten days after the election, stating the points on which the contestor relies. A time is then fixed by the judge for the hearing, notice given the person whose election is contested to appear, and the judge selects three respectable freeholders of the county to try the contest. Revised Statutes, sections 572, 573. Section 575, provides: “The jury of freeholders shall be sworn, to try Such contest agreeable to evidence, and no evidence shall be admitted but such as relates to the points stated in the notice; and when the trial is closed, the freeholders shall sign their decision, which shall be attested by the probate judge; and if, by such decision, there is a vacancy in the office of the justice of the peace, the judge shall, within three days thereafter, transmit a copy of such decision to the trustees of the township, or the clerk thereof, if there be no trustees, who shall forthwith give notice to the electors to fill such vacancy as in other cases; and if, by the decision, the election remains good, he shall transmit the same to the clerk of the court of common pleas, who shall immediately proceed as if no contest had taken place.” Section 576, contains the provision, that the election shall not be set aside because illegal votes were cast, “if it appear that the person whose election is contested, has the greatest number of legal votes given at such election after deducting all illegal votes given, when there is no evidence for whom such illegal votes were given, as well as all illegal votes which are shown to have been given for the person whose election is contested.” And, it is provided by-section 578, that: “If the contestor fail in setting-aside the election, he shall pay the costs, and the judge or justice, as the case may be, shall render judgment, from which there shall be no appeal, and issue execution for the same to the sheriff, or any constable of the county; but if the election is set aside, the township in which said election was held shall pay the costs.”

The foregoing are all the statutory provisions affecting the manner of the contest and the proceedings subsequent to the decision, which it is important to notice and it is claimed from them, by counsel for the plaintiff in error, that the jury selected to try the contest is limited in its powers, to the decision of the question whether the contestee was elected, or not. In support of this position, a decision by the district court of Hamilton county, in the case of State v. Simpson, reported in 5 W. L. B., 422, is cited, where that construction appears to have been placed on the statutes; though, in that case, the only question involved, was whether a decision that the contes tee was not elected, was in legal effect a decision that the contestor was elected. The latter claimed title to the office solely on that ground, and not as an appointee to a supposed vacancy resulting from the decision of the contest.

While we think it is clear the position taken by the relator in that case was not tenable, and the ease was properly decided against him, we entertain a somewhat different view of the statute from that there expressed. Assuming, however, that as counsel contend, the effect of the decision of the contest in this case is, that at the April election of 1897, there was a failure to elect a suecessor of the defendant to the office of mayor, the question is presented whether a vacancy of the office was thereby occasioned which the council •was authorized to fill by appointment. It is not doubted that a vacancy occurs where, in a contest of the election of a justice of the peace, it is determined that there has been no valid election of a successor to a justice whose term then expired; because, by the constitution, the term of office of justices of the peace is limited to three years, and they are without authority to hold beyond the expiration of their term. Hence, provision is made by section 575, for filing such vacancy by special election. The constitution, however, prescribes no limit to the terms of municipal officers, but has' invested the legislature with full discretionary power over the subject. That body has enacted: “That unless otherwise provided, all municipal officers shall serve until their successors are qualified. Revised Statutes, section 1713, (91 O. L., 172.)” It is not otherwise provided with respect to the office of mayor, so that, his lawful term, expressly fixed by statute, is not only for two years^ but also until his successor shall be qualified. His right to serve after the expiration of the designated period, until the qualification of his successor, being conferred by statute at the time of his election, is no less a part of his statutory term of office, than is the fixed period itself; and while he is so serving, there can be no vacancy in the office; in any proper sense of the term, for there is an actual incumbent of the office legally entitled to hold the same. As was said by McIlvain, J., in State v. Howe 25 Ohio St., 588, 596, “the incumbent continues in office, not as a mere de facto officer or locum tenens, but as its rightful possessor until such successor” is duly chosen and qualified. And by a successor, is not meant a mere temporary appointee, but one regularly chosen in succession to the office, to take the place of the predecessor on account of the cessation of his right of occupancy. Among other cases which support this view are, State v. Bryson, 44 Ohio St., 458, 465; State v. McCracken, 51 Ohio St., 124, 129; People v. Tilton, 37 Cal., 614. The-rule applicable to cases like the one before us is, therefore, that where an officer elected by the people is authorized to hold the office for a fixed period and until his successor is qualified, a failure to elect a successor does not create a vacancy to be filled by appointment under a general authority to fill vacancies. If the council had made no appointment, the right of the defendant to continue in the occupancy of the office until a successor should be elected and qualified, would be indisputable; it could not plausibly be claimed that a vacancy existed; and if not, it must follow that none was produced by the expiration of the designated term, or the failure to elect .a successor. And it is not apparent how any action of the council in making an appointment to the office, can operate to create a vacancy to be so filled, where none otherwise existed, unless that power be expressly conferred by statute. The appointive power exercised by the council in this case, is sought to be maintained under section 1754, of the Revised Statutes, which provides that: “In case of the déath, resignation, disability or other vacation of his office, the council may * * * appoint some suitable person, within the corporation to act as mayor and discharge the duties of the office until the vacancy is filled or the disability removed.” In the case of the death, resignation, or disability of the officer, the office is left without an occupant, there is an actual vacancy in the office; and under familiar rules of construction, it may well be' claimed that the phrase “other vacation of his office, “refers to other cases of actual vacation, similar in character to those previously mentioned, such as leave the office without an incumbent. Nothing is found in this section of the statute which empowers the council to declare a vacancy where none exists; and, as has already been observed, no vacancy existed in the office of mayor, actual or legal, when the relator was appointed.

It is argued that by force of the provisions of section 575, a vacancy resulted from the decision of the election contest; and, that section having special application to such cases, they are governed by it rather than by general provisions of the statutes. If this were so, then, according to such special provision, the vacancy must be filled by special election. There is no authority given to fill it by appointment. But, the statute makes applicable to contests of elections of municipal officers, the provisions of the statute governing the contests of elections of justice of the peace, only in so far as they relate to the manner of conducting the contest. The proceedings . subsequent to the decision of the contest, are no part of the manner of the contest, and consequently have no application to contested municipal elections. Hence, no provision is made for certifying the result of the contest to the council, or clerk of a corporation; and the absence of such provision, clearly shows that it was not within the legislative purpose that there should be any action by the council, or other municipal officers, founded upon the decision of the contest, either in the way of making appointments to the office, or otherwise, except as authority may have been conferred by other statutory provisions. Upon the theory of the cases as argued for the relator with regard to the effect of the decision of the contest, his petition shows no right to the relief he seeks.

We are also of opinion that the powers and duties of the jury selected'to try the contest are ■ not so limited as has been suggested. Ordinarily, the trial and decision of a contested election case between two persons who were rival candidates for the same office, involves the hearing and determination of all questions, within the specified points of contest whien affect the rights of the respective parties to the office in controversy, and necessarily a determination of those rights. It may be, in certain cases, that for lack of compliance with the law, no valid election has been held; or, that when the election has been purged of frauds and mistakes neither party has received the votes necessary to his election; and in either ease, the contest ends in simply setting aside the election. But where one or the other of the candidates has been legally elected to the office, the decision should so declare, and put an end to the controversy; and the power to do so, is included in the power to try and decide the contest, unless it is excluded by, or is inconsistent with some express provision of the statute. The clauses of the statute which are supposed to place the limitation contended for on the powers of the tribunal trying the contest, are those which provide that, “if by the decision there is a vacancy in the office of the justice of the peace;” and, “if by the decision, the election remains good;” and the further provisions that the election shall not “be set aside on account of illegal votes,” etc., and if the contes tor fail “in setting aside the election, he shall pay the costs;” but “if the election is set aside, the township shall pay the costs. ” From these provisions it is argued, that the only deci- - sion contemplated, is one setting aside the election, or one sustaining the title of the contestee. It is evident the statute does contemplate and authorize either of those decisions, as the facts proven may warrant. But it contemplates something more. If the decision be that the contestor was elected, the-election is not set aside, but remains good as well as if the decision be in favor of the contestee. Neither of the statutory provisions referred to, while applicable to the cases mentioned, nor any other that has come under our notice, prescribes any limitations on the power to try and decide the contest; which power is conferred in general terms, broad enough to authorize and require a complete determination of every 'question involved in it. This being so, the contest between the relator and defendant has not been decided. The decision that the defendant was not elected, is not a decision that the relator was: nor, is it a decision that no valid election was held. And the contest proceeding remaining'incomplete, the title of the defendant to the office is unaffected thereby. There is now no way to remedy the omission. The freeholders selected to try the contest having signed their report and been discharged, cannot be re-assembled for further action; and the time for instituting another contest is past. Again, the report of the freeholders as set out in the petition, can scarcely be regarded as a decision that the defendant was not elected to the office from which it is sought to oust him. They simply find, “the defendant did not receive a majority of all the legal votes cast at said election in said city, held April 5, 1897,” and, “therefore” decide that he was not elected. It was not essential to the defendant’s election that he should have re-, ceived a majority of all the legal votes east at that „ election; it was sufficient if he received a greater number of legal votes than was cast for any other candidate for the office; and there is no finding-or decision, directly, or by fair implication, that he received a less number of legal votes. The decision that he was not elected, is a conclusion founded on a statement of facts not sufficient to warrant or sustain it; and being- expressly placed on that state of facts, excludes any inference that it may have been based on other facts not found. In order to deprive a person of an office to which he has been declared elected by the duly constituted election officers having that authority, and to which he. bears the customary evidence of his title, the decision of a contest instituted against him should^ show on its face, with reasonable certainty, that he was not elected. We do not say it is required that the grounds of the decision be stated; but when they are given, and the decision is expressly placed upon those stated, it will not be presumed there were others not stated, on which it might have been placed; and where, in such case, the facts on which the decision rests are insufficient to warrant it, the decision cannot be sustained.

Judgment affirmed.


author: Minshall, J.

text:
    Ashley v. Henahan.

      Building contract — Substantial performance — Additional work— Provisions of contract as to — Provisions of, as to acceptance m writing by architect — Waiver, proof as to.

    1. The general rule is, that one who seeks to recover on a contract must show substantial performance on his part, and this rule applies to a “building contract” as to any other. But slight omissions and inadvertences should be disregarded. Where there has been an honest effort by the contractor to perform, and not a willful omission, substantial performance is all that is required.-
    2. The plaintiff below entered into a written contract with the defendant to make the excavations and construct the foundation walls, of a building she was about to construct for a certain sum. It provided for payment from time to time on estimates made by the architect, and that the final payment should be made in a certain time after the contract is completely finished, on the certificate of the architect in writing, that the work has been done to his satisfaction. Held: That without this certificate, or a waiver of it by the owner, no recovery can be had.
    3. The contract provided that the contractor should make the excavations and put in the stone foundations of the proposed building, according to the plans and specifications, including all labor and material incident thereto. In order to make the excavations of the required depth, which was some 22 or 23 feet, it became necessary to underpin á house standing on the line of one of the foundations, and to use a certain quantity of lumber for the purpose of sustaining the sides of the trenches. Held: That the under-pinning of the house and the lumber used in the trenches, are a part of the work to be done included in the terms of the contract; and that a recovery therefor cannot be had on an implied obligation to pay what it is reasonably worth.
    4. The contract contained the following clause: “the contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work.”

      Held: That under 6his provision no recovery can be had for work in addition to that provided in the contract, where the work done is necessary to the performance of the contract, unless the work was done in pursuance of the order of the architect, and notice of the claim be given to him, in writing as required, unless waived by the employer.
    5. Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing, or by such olear and convincing evidence as to leave no reasonable doubt about it.
    (Decided June 21, 1897.)
    Error to the Circuit Court of Lucas county.
    By a petition filed in the court of common pleas of Lucas county, the plaintiff, Michael Henahan, sought to recover of the defendants, on two causes of action, the sum of $3,708.21.
    By his first cause of action, he asked to recover the balance due him on a contract made between him and the defendants, whereby he was to receive $9,365 for furnishing the labor and material for making the excavations and putting in the foundations of a building in Toledo, the defendants were then about to construct. The alleged performance on his part, the receipt of $9,000, and asked judgment for the balance.
    In his second cause of action, he asks to recover on a quantum meruit, $3,343.20 for underpinning a building, at the request of the defendants, on the line of one side of the foundations; and, also, by like request, for lumber used in supporting. the trenches, and left in by the direction of the defendants; and for some minor matters not material here on the question of error to be considered.
    Emma J. Ashley, the real party in interest, answered, averring that on June 20, 1892, the plaintiff and • the defendant entered into a written contract, a copy of which she attaches to her pleading, and denies that any other contract was made or existed between them, touching the subject of the plaintiff’s suit; she denies the completion of the contract by the plaintiff, or that anything is due him, beyond what she has paid. She also claims damages for the non-completion of the work.
    The answer to the second cause of action, so far as material here, is as follows:
    II — For answer to plaintiff’s second cause of action, defendant admits that “in the course of erection and construction of said foundation aforesaid, it became necessary to pi operly protect said work, to furnish labor and material to hold up and underpin the building on the west side of said lot, which was built on the line and with foundation walls of the depth of eight feet or thereabouts; that the walls of defendant’s building extend about twenty-three feet below the street level and that in excavating the trenches for said walls, plaintiff had to penetrate through walls of quick-sand;” and defendant admits that plaintiff excavated beneath said building- on the west side and put in said underpinning of stone work.
    But defendant denies that said work was very difficult and dangerous. Defendant denies that plaintiff did said work at the request of this defendant. Defendant denies that plaintiff was obliged to use any labor or material for said work which he did not agree to supply in the annexed agreement marked “Exhibit A.” Defendant says that said A. B. Sturges, architect, gave no order for any additional work, nor was any claim in writing for such work ever presented to said architect.
    In a reply filed, issue is taken upon the averments of fact contained in the answer, except as to the making of the contract attached to the answer as an exhibit, and the payment of $9,000 to him by the defendant.
    The contract attached to defendant’s answer, was drawn by the architect and signed by the parties. It is in the form now in general use, adopted by the American institute of Architects and National Association of Builders. The parts relevant to the questions of error to be considered are as follows:
    “The contractor shall and will, well and sufficiently perform and finish, under the direction, and to the satisfaction of A. Burnside Sturges, architect (acting as agent of said owner), all the work included in the excavating, grading, foundations, stone walls, etc., agreeably to the drawings and specifications made by the said architect, and signed by the parties hereto, (copies of which have been delivered to the contractor), and to the dimensions and explanations thereon, therein and herein contained, according to the true intent and meaning of said drawings and specifications, and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements and cartage necessary for the due performance of the said work.”
    “3. Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specifications, shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the architect, and the valuation of the work added or omitted, shall be referred to three (3) arbitrators, (no one of whom shall have been personally connected with the work to which these presents refer), to be appointed as follows: One by each of the parties to this contract, and the third by the' two thus chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one-half of the expense of such reference.”
    “9. The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing, within ten days of the beginning of such work.”
    “13. And it is hereby mutually agreed between the parties hereto, that the sum to be paid by the owner to the contractor for said work and materials, shall be nine thousand three hundred and sixty-five dollars (89,365.00), subject to additions or deductions on account of alterations as herein-before provided, and that such sums shall be paid in current funds by the owner to the contractor in installments, as follows:
    Eighty (80) per cent, of the estimated value of • materials furnished and labor performed on the building from time to time as said work progresses.
    It being understood that the final payment shall be made within thirty days after this contract is completely finished; provided, that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction.”
    The case was tried to a jury and a verdict rendered for the plaintiff for $803.40. A motion for a new trial was made and overruled and judgment entered upon the verdict, to which defendant excepted; and prepared a hill of exceptions setting forth all the evidence, which was allowed and made a part of the record.
    Among the errors assigned, is, that the court erred in its charge to the jury, and in refusing to charge as requested. The facts as to this will be stated in the opinion.
    On error, the judgment was affirmed by the circuit court.

      O. S. Ashley, for plaintiff in error.
    1. Was plaintiff below entitled to recover the three hundred and sixty-five ($365,00)dollars or any amount on the unpaid balance of contract price of work?
    II. Was plaintiff below entitled to compensation in underpinning Decker’s house adjoining the west foundation wall?
    The contract says: “It being understood that the final payment shall be made within thirty days after the contract is completely finished,” and it is further provided at the same place that the architect shall certify in writing that all the work upon the performance of which payment is to become due, is done to his satisfaction.
    No such certificate was ever given or ever asked for by. the defendant in error; nor is it alleged that this provision was ever waived by the architect or owner.
    Such a provision in a contract is as valid as any provision and governs the rights of the parties. Smith v. Brady, 17 New York, 173; 29 American & English Ency. of Law, page 931. Michaelis v. Wolf, 136 111., 68.

      The plaintiff below did not allege any fraud on the part of the architect or owner in refusing him a certificate, nor did he plead that defendant below had in any manner waived this provision of the contract to entitle him to prove waiver. He should have alleged waiver of this provision or fraud on the part of the architect in his petition.
    Another reason why defendant in error was not entitled to recover judgment below is; that inasmuch as he never completed his contract he has been paid all that he is entitled to have. The contract provides that eighty (80%) per cent, of the estimated value of the materials furnished and labor performed on the building from' time to time, shall be paid the contractor as the work progresses and prior to its completion. More than eighty (80%) per cent, of such value was paid prior to the beginning of such and hence the plaintiff below had no cause of action. The contract is “entire,” and not having been completed no liability arises. Withron v. Withron, 16 Ohio, 238; Larkin v. Buck, 11 Ohio St., 561; Allen v. Curies, 6 Ohio St., 505 ; Ashbrook v. Ilite, 9 Ohio St., 365; 29 American & Eng. Eney. of Law, page 901; Winona v. Minn. R. Co., 27 Min ., 415; Quigley v. DeHass, 82 Pa. St., 267; Coxy. Western R. Co., 44 Cal., 18.
    The defendant in error was not entitled to any judgment for any payment of extra work, for the reason that he failed to comply with article nine of the contract in that he never made any claim in writing for such extras within ten days, and in fact not until long after he had quit the work altogether.
    Such a provision is competent for parties making a contract, and has been upheld in well considered cases. O'Keefe v. St. Francis Church, 59 Conn., 551; Vandeioerker y.R. Co., 27 Vt., 130. Such provisions may he waived by the parties, but waiver, if relied on, must be pleaded and proved. 1, Bates’ Pleading and Practice, 186, and cases- there cited.
    There is nothing in the testimony to show that it was legally incumbent upon either the owner or contractor to underpin this house. Lasalla v. Holbrook, 4 Paige Chancery, 167; S. C. 25 American Decisions, 524; Quincy v. Jones, 76 111., 231; McQuire v. Grant, N. J. L.,256; Thurstons. Hancock, 12 Mass., 220; Stuart v. Cambridge, 125Mass., 102.

      L. G. Richardson, for defendant in error.
    Work was performed in building a house, which, under the contract, was subject to the approval of an architect, who was in the employ of the owner of the property, held :
    1. Such approval may be presumed from the presence of the architect at the time the work was done, and his failure to make objection.
    2. If such architect, acting in good faith, fails and refuses to approve the work in any form, the general rule is that the contractor cannot recover.
    3. When the owner approves the work, such approval by the architect is dispensed with. Kane v. Stone Co., 39 Ohio St., 1.
    Was there an implied contract by which the plaintiff in error was bound to pay the defendant in error for these extra services?
    This underpinning’ was a work of necessity. Had it not been done the foundation of the adjoining building and perhaps the building itself would have been destroyed. Me Gatrick v. Watson, 4 Ohio St., 566; Parsons on Contracts, volume 11, p. 60;
      Me Cormick v. Connoly, 2 Bay, 401; Trustees of Farmington Academy v. Allen, 14 Mass., 171,
    Whenever work is done, services rendered, goods delivered, or money paid by one person at the request of another, provided such request be not made and acceded to as a gratuitous favor, a contract is implied to pay the value. American and English Encyclopaedia of Law, volume 3, p 860. Bay v. Catón, 119Mass., p. 513.
    The maxim, qui tacet consentiré videticr, is to be construed indeed as applying only to those cases where the circumstances are such that a party is fairly called upon either to deny or admit his liability. But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak. Conner v. Hackley, 2 Met., 613; Lamb v. Bunce, 4 M. & S., 275.
    A requirement of the contract may be waived by the parties and this waiver was found by the jury to have been made in this case. Cunningham v. Baptist Church, 159 Pa. St., 620 \ Lewis Yagel, 77 Hun., 337; Goldsmith v. Lland, 26 Ohio St., 101.
   Minshall, J.

In his first cause of action the plaintiff below sought to recover the balance, $365, due him upon a contract for making the excavations and putting in the foundation walls of a building, the defendant was then about to construct in Toledo. The answer discloses that it was done under a written contract, a copy of which was attached to her answer. This was admitted by the plaintiff. Under the contract he was to receive $9,365 for the entire work, and had received in payment, $9,000. The defendant claimed that the work bad not been completed according to contract — that one of the walls had not been brought up to the required height, and that it would require great expense on her part, to complete it. This was denied ; but, on the trial, it appeared that the wall in question had not been brought up to the required height, by some ten or twelve inches, and that it would take some $200 to complete it. It was further maintained by the defendant, that no recovery could be had on this cause of action, because the plaintiffs had procured nocertifieatefrom the architect, as required by the contract, that the work had been completed to his satisfaction. It is admitted that this was not done; and the court refused to charge the jury that it was necessary.

The court properly charged the jury that the plaintiff could not recover on his first cause of action without showing a substantial performance on his part according to his contract. The law in this respect is stated with admirable clearness by Comstock, J., in Smith v. Brady, 17 N. Y., 173-190. He says : “There is, in a just view of the question, no hardship in requiring builders, like other men to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true, that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires nor in holding him to a substantial performance.” This does not conflict with the case of Kane v. Stone Co., 39 Ohio St., 1. Controlling effect was, in that case given to the fact that Otis, the owner of the building had accepted it, and the variations seem to have been regarded of little consequence. Where there has been an honest effort on the part of the contractor to perform, and not a willful omission, substantial performance is all that is required. And the consequence of an omission, where there has been no willfulnes, may be saved by making a deduction from the contract price of the reasonable cost of what has been omitted. But this must be confined to very narrow limits, and to the cases where there has been an honest effort to perform. Allen v. Curles 6 Ohio St., 505 ; Goldsmith v. Hand 26 Id., 101; Kane v. Stone Co., supra. And see also I Beach Cont., section 111, and cases there cited.

But we think the court erred in its refusal to give the third instruction requested, nor was it in any way remedied in the general charge. In this the court was requested to instruct the jury, that if they found “from the evidence, that thb architect, Sturges, has never certified in writing that the work to be done was done to his satisfaction, then the plaintiff cannot recover on his first cause of action.” There is no claim that this was done, or that he was requested, and wrongly, or for any reason, refused to give such certificate; and the testimony of Sturges shows that he would not have done so, until the walls were brought to the height required by the contract. The contract provided for payment as the work progressed on estimates of the engineer, a certain per cent being retained until completion ; and that the final payment should be made within thirty days after the contract is completed, “provided that in each of said cases the architect shall certify in writing, that all the work upon the performance of which the payment is to become due, has been done to his satisfaction.” Now, this has not been done by the architect, and there is nothing to show any waiver of it. Had the plaintiff shown that he had made application to the architect for the requisite certificate, and that he had obstinately and unreasonably refused to certify, he might then have established his case by other evidence. As said in Smith v. Brady supra. “The parties have seen fit to make the production of such certificate a condition precedent to the payment. The plaintiff is as much bound by this part of his contract as any other. It is not enough for him to bring his action and say he has completed the work which he undertook to do. He has agreed that the architects named should decide whether the work is completed or not. He cannot now withdraw the decision of this question from them and refer it to the determination• of a legal tribunal.” He might, however, as suggestedabove, on an averment supported by evidence that the architect had fraudulently or unreasonably refused his certificate, recover by showing a substantial performance of the work a,s required by the contract, but in the absence of such a showing against the architect, a recovery cannot be had without his certificate.

The most important question in the case so far as it depends upon the amount of the recovery sought, arises upon the second cause of action. This is upon an account for labor and materials furnished. If the under-pinning of the house on the west line of the walls and the lumber furnished and left in the trenches, were properly a .part of the work required to be done under the contract to make the excavations and construct the foundation walls of the building, or should be regarded as an addition, to that work, then the court erred, in its charge to the jury, in saying that it-was not within the terms of the contract, and that if it was a benefit to the defendant and the work was done and the material furnished with her knowledge a recovery could be had on an implied promise to pay what the labor and materials were reasonably worth.

We think the under-pinning and the lumber furnished was part of the work to be done under the contract without additional compensation. By reference to the first clause in the contract, it will be seen that it required the contractor under the direction and to the satisfaction of the architect, todo all the work included in the “excavating,” “foundations,” “stonewalls,’’etc.,agreeably to the drawings and specifications, “including all labor and materials incident thereto. ” He was then to make the excavations and put in the foundations. No provisions were made for any unexpected difficulties in doing the work. He .undertook to do it, and was as familiar with the situation as the defendant. The proof showed that without underpinning the house and using the lumber, that was used, the excavations could not have been made nor the foundations constructed. They were therefore labor and material incident to the work. he had undertaken to perform, and for which, when completed to the satisfaction of the architect, he was to receive $9,365. In Stewart v. Cambridge, 125 Mass., 102, the plaintiff had undertaken by a written agreement to erect and complete the masonry of a building according to plans and specifications. These showed no requirements for piles, which, on the direction of the architect were putin by the contractor, and they sued the defendant to recover on an account for labor and material so furnished. Morton, J.,said: “By the fair construction of this contract, the plaintiffs agreed to do all the work necessary to secure a solid foundation. They took the risk of its being necessary to drive piles in order to secure such foundations.”

But if it were otherwise, we are of the opinion that the plaintiff cannot recover ;• for, at least, the claim is for “additional work. ” And the ninth clause of the agreement provides that, ‘ ‘ The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work.” It is not claimed that this was complied with. It was not done in pursuance of an order of the architect, but because the excavations for the foundations could not otherwise be made; nor was any claim in writing made therefor at anytime. This is sought to be avoided by the claim that the architect told him that the defendant would pay him for it. Questions of this kind have arisen a number of times, calling for a construction of such agreements; and the courts have generally held that proof of a waiver of the requirement that the claim shall be in writing and allowed by the architect, can only be made by a writing, or by clear and convincing proof. The very object of the provision is to protect the employer against loosely made claims of the kind; and this case is a good illustration of the wisdom of the rule. The claim of the plaintiff that the architect told him he would be paid, is denied by the architect; who adds that if “I had done so, he would have it in writing.” In Stuart v. Cambridge, supra, a similar waiver was claimed on what the architect said. The court in review said: “We are of the opinion that this evidence was rightly excluded. The written contract carefully provides that any additons to or deductions from the plans and stipulations shall be directed in writing byr the committee or architect, and that “it. is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.” No evidence is offered of any waiver of this provision by the defendant or of any authority in the architect to waive it. The clause was intended to protect the defendant against claims for extra work under alleged oral directions or contract. If the evidence offered can be construed to show an oral promise by the architect, founded on a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding on the defendant.” To like effect, see Vanderwerker v. Railway Co., 27 Vt.,. 130-139. In O'Keefe v. St. Frances's Church, 59 Conn., 551, 561, the question arose whether there had been a waiver of the provisions of the contract as to compensation for extra work, the provision being similar to 'the one in this case, and there was evidence of an oral statement by the architect that the work should be paid for. The court said: “We suppose the law to be that the contract must control unless its provisions have been clearly waived. Some of the authorities maintain that there must be an express waiver; and all agree, or should agree, that nothing short of evidence of the most satisfactory character should be permitted to brush aside a contract which the parties have deliberately made. They have determined that certain things shall be proved only by written evidence. ■ To that extent that is the law of this case. It is the duty of the court to enforce that law unless it clearly appears that the parties themselves have abrogated. it. ' Has it been thus abrogated ? The conditions of the contract we are now considering were inserted for the benefit of the owner. There is certainly no presumption that he has waived them. He and he alone, can waive them. No act or omission by the plaintiff will b.e of any avail. If the owner has intentionally relinquished a known right the plaintiff should be able to show it, either in express terms or by acts and' conduct equivalent thereto. Equivocal conduct, or conduct of doubtful import, is not sufficient.”. See, also Weeks v. O'Brien, 141 N. Y., 199; and 2 Beach on Contracts, section 1725.

There is ‘no doubt that where work is done for an individual that is a benefit to him, and he knows that the party doing the work expects to be paid for it, an implied obligation arises on the part of the party benefited to pay what it is reasonably worth. But that rule, and all the cases cited to that effect, are without applicatian here. In a case like this, where there is an express agreement in writing between the parties, the presumption is, that whatever is done that is fairly within the terms of the agreement, is done under and subject to it provisions; and the burthen is on the party making a claim for additional compensation on, a quantum meruit, to show that the work done is not within the terms of the agreement and was so understood by the party to be charged at the time the work was done.

Judgment reversed and cause remanded for a new trial.