author: Shauck, J.

text:
    Riggin et al. v. Creath.

      Surety's liability — Distributee accepts individual check of executor for share of land — Upon dishonor of check cannot look to sureties of executor.

    A distribute* having, pursuant to a private arrangement with one of two joint executors, accepted his individual check for the amount of her distributive share, and in consideration thereof assented to the delivery of her share of the fund to such executor and executed her receipt in full to the executors on account of such share, can not, upon the dishonor of the check, maintain an action against the executors and the sureties upon their joint bond, the act of the executor in drawing his individual check being apart from his duties in the execution of the trust.
    (Decided March 28, 1899.)
    Error to the Circuit Court of Pickaway county.
    Mary E. Creath brought her action against Cork-well and Riggin as executors of the will of John McCafferty, deceased, and the sureties upon their joint bond to recover the sum of $1,006.73, the balance of her share of the sum which the probate court had found due in the hands of the said executors for distribution. The questions to be considered here arise upon the third defense in the answer of Corkwell and the evidence relating to issues joined on that defense. That defense is as follows:
    Third Defense — Por his third defense, this answering defendant, George W. Corkwell, says,that prior to said April 4, 1895, said executors had collected the assets of said estate, and deposited the same in the Citizens’ Bank of Mt. Sterling, Ohio, to their credit as such executors, and that the same were on deposit on April 4, 1895, and so remained until paid out in the settlement of said estate, and the payment of the sum hereinafter referred to, as paid to George V. Riggin individually, and that the sum so on deposit on April 4, 1895, was sufficient to pay the entire balance remaining due upon all of the distributive shares of said estate, of all of which facts plaintiff had full knowledge.
    This defendant further avers that prior to said April 4, 1895, said George V. Riggin had individually made divers and sundry loans or advancements to said plaintiff upon her distributive share, of said estate, the exact amount of which loans or advancements were at the time and still are, unknown to this answering defendant, George W. Corkwell.
    That on said April 4, 1895, said executors and part of the legatees of said estate, including plaintiff, met in the probate court of Pickaway county, Ohio, for the purpose of settling said estate, and determining the amountsof the several distributive shares of each of said legatees, and paying the same in full, of all of which plaintiff had full knowledge. That at the said time and place said George V. Riggin and plaintiff represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, who is a brother-in-law of plaintiff, had an accounting to make with plaintiff of his said loans and advancements to her; and thereupon said George V. Riggin and plaintiff retired privately and apart from this answering defendant, George W. Corkwell, and made a settlement of their said accounts, and plaintiff, with a full knowledge of all of the facts aforesaid, signed for and gave to said George V. Riggin, individually, a receipt in full to said executors for her distributive share in said estate; and said George V. Riggin, individually, with the knowledge and consent of' said plaintiff, presented said receipt to this answering defendant, as such executor, and represented to this answering defendant, George W. Corkwell, that he, George V. Riggin, individually, had paid to plaintiff the full amount of her distributive share in said estate, and that the same was, therefore, due and payable to him, said George V. Riggin, individually.
    Whereupon, and in reliance upon the conduct and representations of the plaintiff, and this answering defendant, George W. Corkwell, believing that plaintiff had been paid her share of said estate in full, said executors executed and delivered to said George V. Riggin, individually, their check upon said funds of said estate so deposited in said Citizens’ Bank of Mt. Sterling, Ohio, as aforesaid, for the sum of $1,768.86, and which said check was on April 5,1895, duly presented by and paid to said Riggin individually, whereby the said sum of $1,768.86, became and was, and is wholly lost to and placed beyond the control of said executors, and this answering defendant, George W. Cork-well.
    This defendant further says that prior to said April 4, 1895, plaintiff borrowed a large sum of money from one A. R. Alkire, who was at that time and still is the president of the said Citizens’ Bank, upon the promise of repaying the same out of her distributive, share in said estate, and that both plaintiff and said Alkire knew that the funds of said estate were deposited in said Citizens’Bank of which said Alkire was president.
    And at the time of said accounting between plaintiff and said Rig’gin, said Riggin, as this plaintiff is since informed and believes, paid to plaintiff a part of tbe sum so found due ber on said accounting, in currency, but the exact amount of which payment in currency this defendant is unable to state, and for the balance so found due her upon said accounting said Riggin thereupon gave her his individual check upon the Farmers’ Bank of Mt. Sterling, Ohio, for the sum of $1,006.73, which sum of money in currency and said check she then accepted in full satisfaction of her said distributive share in said estate; and thereupon, and with a full knowledge of all the facts aforesaid, executed and delivered to said executors her receipt for said sum of $1,955.23, in full of her distributive share of said estate, and the same was thereupon, with her full knowledge and consent, filed and recorded by the probate court in full satisfaction of her distributive share of said estate; and the plaintiff thereupon authorized said executors to draw their check as 'aforesaid, in favor of said Riggin, individually, for said sum of $1,768.86, which amount included the said sum of $1,006.23 now claimed by plaintiff in her petition.
    (That one of the purposes and objects of plaintiff in settling with said Riggin and agreeing with him to accept his check upon said Farmers’ Bank, and so authorizing said Riggin, individually, to draw and receive from said executors the said money so deposited by them in said Citizens’Bank was to avoid the payment of said moneys so due and owing by her to said Alkire as aforesaid. This defendant further says that plaintiff failed and neglected to present to said Farmers’ Bank, for payment, her said check for $1,006.73, so given her by said Riggin, until April 13, 1895. That for a long time prior to, and on said April 4, 1895, and until April 15, 1895, said Riggin had a large amount of property subject to attachment or execution, and that on April 15, 1895, and before this defendant, George W. Corkwell, had any knowledge or intimation that plaintiff had not received all the money or property which she claimed from said estate, said Riggin’s property was seized on execution and upon attachments, upon valid claims for much more than its value, and said Riggin became and is now wholly insolvent, so that, if this answering defendant, Geo. W. Corkwell, as such executor, is now compelled to again pay the claim of plaintiff, that the same will be wholly lost to him.)
    In the court of common pleas the portions of this defense which related to the plaintiff’s motive in entering into the arrangement with Riggin were stricken out on motion of the plaintiff. She then demurred to the third defense, and her demurrer was overruled. She then replied denying that she had ever represented to Corkwell that Riggin had paid to her the full amount of her distributive share of the estate, and alleging that although she had received advances which reduced the amount due upon her distributive share to the sum named in her petition, the executors had united in the representation that Riggin had funds to his credit in the Farmers’ Bank of Mt. Sterling sufficient to meet his check for that amount and that they induced her to accept his individual check upon that bank for the sum named, and in consideration thereof to execute to the executors her receipt for the full amount of her distributive share, and that Riggin did not then nor at any time prior to the presentation of the check by her have any funds on deposit in the Farmers’ Bank, and that the cheek remains unpaid. The cause coming on for trial in the court of common pleas a jury was waived and there was a general finding and judgment in favor of the defendants. Thereupon the plaintiff, her motion >for a new trial having been overruled, took a bill of exceptions containing all the evidence offered, and filed her petition in error in the circuit court where the judgment of the common pleas was reversed for two reasons as shown by the record; first, because the common pleas had erred in overruling plaintiff’s demurrer to the third defense; second, because the judgment was not sustained by the evidence. This petition in error is for the reversal of the judgment of the circuit court.

      (Maries JDresbach and Abernethy c& Folsom, for plaintiff in error.

      Clarence Curtain and J. W. Harsha, for defendant in error.
   Shauck, J.

However variously it may be stated, the only proposition submitted by counsel for the defendant in error in support of the ruling of the circuit court on the demurrer to the third defense is that Riggin and Corkwell were joint executors and had given a joint bond for the faithful performance of their duties, and that, therefore, each was surety for the other with respect to all things done in the execution of the trust. Conceding the soundness of this proposition, it can have no application to the defense interposed by Corkwell. That defense is, in substance, that Mrs. Creath waived the payment in money of the balance due upon her distributive share after deducting the advancements which had been made to her by her brother-in-law, Riggin, and also waived the delivery to her of a check drawn by the executors upon the Citizens’ Bank where, as she knew, they had on deposit a sum sufficient to meet the check. In lieu of payment in cash or by the check of the executors upon the trust fund, she voluntarily and for purposes of her own accepted the individual check of Riggin upon a different bank for the balance, and in consideration of that check and the advancements previously made to her, she executed to the executors, for the purpose of their settlement, her receipt for the entire dis- . tributive share, from which it resulted that by her authority the portion of the trust fund which she had been entitled to' receive was delivered to Riggin and lost to the fund. In executing to her his individual check upon the Farmers’ Bank, Riggin' acted wholly apart from his duties as executor. He did not execute it as executor, nor in any way represent that it would be paid out of money subject to control of the executors. It follows that whatever may have been Mrs. Creath’s reason for preferring the individual check of Riggin to that of the executors, she was the sole judge of its sufficiency, and she is'bound by her election, and estopped to maintain an action on the bond because of the non-payment of the check which she chose to receive. The common pleas properly overruled the demurrer.

Upon the trial of the case the material allegations of the third defense were fully sustained by the testimony of Riggin and Corkwell, corroborated by that of the probate judge and the counsel who were present assisting in the settlement. In her testimony offered in her own behalf Mrs. Creath admitted that she. had the settlement with Riggin in a room connected with the office of the probate judge, that she there received Riggin’s individual check for the balance ascertained to be due her, that they then returned to the room where Corkwell and the counsel for the executors and the probate judge were, that she then signed a receipt 'in full of her distributive share, that Corkwell did not participate in any representation by which she was induced to accept the check of Riggin in lieu of that of the executors, and that he had no knowledge of their arrangement, except that communicated by Riggin in her presence just before she signed the receipt, that he had satisfied her demand. According to what seems the proper view of the legal effect of this evidence we must infer that the circuit court, when considering its weight and effect, was governed by the same view of the law which led it to the conclusion that the demurrer to the third defense should have been sustained; that is, that it thought the evidence insufficient to support a judgment against Mrs. Creath even though it fully supported the allegations of the third defense and refuted those of the reply. Upon the material questions of fact there was no conflict in the evidence, and the judgment of the court of common pleas holding the plaintiff bound by the arrangement into which she voluntarily entered with Riggin, accepting his individual obligation in lieu of the check of the executors, was right.

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


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    State of Ohio ex rel. The Attorney General v. The Hygeia Medical College.

      “A medical institution in good standing” — Determined by State Medical Board.

    1. Whether a diploma presented, by one who desires a certificate authorizing him to practice medicine is from “a medical institution in good standing” is to be determined, in the first instance, not by the court, but by the Board of Medical Registration and Examination.
    2. An institution incorporated for the purpose of “the education of suitable persons in the art and science of curing diseases by the use of air, baths, electricity, heat, magnetism, massage and all other resources of nature” does not offend against the law of its creation by imparting instruction concerning the administering of drugs.
    (Decided March 28, 1899.)
    In Quo Warranto.
    The petition charges that the defendant, being a corporation formed for the purpose, as shown by the articles of its incorporation, ‘ ‘of the education of suitable persons in the art and science of curing diseases by the use of air, baths, electricity, heat, magnetism, massage and all other resources of nature,” had violated the provisions of section 3726, Revised Statutes, because it had not acquired real and personal property of the value of $5,000, and fraudulently representing to the state authorities that it had acquired property of that value, and that after the passage of the act of February 27, 1896, “To regulate the practice of medicine” (92 O. L., 44) the defendant did, in violation of the provisions of that act, grant to numerous persons diplomas conferring upon them degrees and honors in medicine, surgery and midwifery, without reference to the course of study pursued or to the attainments of those upon whom such degrees and honors were conferred; and prays that it be ousted from its franchises.
    The answer denies all the allegations of the petition with respect to the offenses of the defendant. The case is submitted upon the evidence.

      F. S. Monnett, Attorney-General, and G. O. Blankner, Asst. Atty. General, for the state.

      A. M. Warner, for defendant.
   By the Court:

1. The evidence shows that the real and personal property of the defendant is of the value of at least five thousand dollars, and the allegation of the petition in that respect fails.

2. The allegations founded on the act of February 27, 1896, “To regulate the practice of medicine” (92 O. L., 44) show a misconception of the provisions of the act. The purpose of these allegations and the evidence offered in their support is to show that the defendant is not a “medical institute in good standing” because of the insufficiency of its cur riculum and the incompetency of its instructors. By the terms of section 4403c of the act whether such an institution is “in good standing”is to be determined in the first instance, not by the court, but by the Board of Medical Registration and Examination. The requirement that it shall issue to the holder of a diploma the certificate entitling him to practice medicine is upon the express condition that the diploma shall be from a medical institution “in good standing, as determined by the board.”

■ 3. Nor is there merit in the contention that the defendant should be ousted because the course of instruction exceeds that contemplated by its articles of incorporation. It is not made to appear that any subject now taught is beyond “the resources of nature.” Nor should we be able to find authority or reason to support the conclusion that an institution of this general character must secure an amendment of its charter whenever it may be thought best to add a new subject to'its curriculum.

Petition dismissed.


author: Bradbury, C. J.

text:
    Poe v. Dixon.

      Grantee of realty — Assumes payment of previous mortgage debt on land — Grantor of mortgage also bound for payment of debt— Grantor is surety of grantee — Respective rights — Statute of limitations.

    1. Where the grantee of a parcel of real estate as part of the purchase price thereof assumes to pay a debt secured thereon by a mortgage, the grantor being also personally bound for the payment, such assumption as between the grantor and grantee constitutes the grantee the principal debtor and the grantor his surety.
    2. Where in such case the assumption of the debt, the deed being a deed poll, is recited in the deed in substantially the following terms: ‘ ‘ The premises are subject to mortgages and notes to the amount of $...............with interest, which the grantee assumes to pay,” the promise thus arising runs, not to the grantor, but to the mortgagee, whose debt is thus assumed, and the latter, although he is not a party to the deed and may not have known of the arrangement when it was made, may when the promise comes to his knowledge, maintain an action thereon.
    3. If in such case the mortgage is foreclosed and the land sold to pay the debts, leaving unpaid a portion thereof, which the grantor pays, the latter can not maintain an action for indemnity on the recital in the deed, the promise therein not running to him, but must resort to an action on the implied promise of indemnity which arises in every instance where a surety pays the debt of his principal.
    4. In such case the cause of action accrues at the, time the grantor pays the debt, and being one founded on an implied promise, is barred by section 4981, Revised Statutes after the expira- . tion of six years.
    (Decided March 8, 1899.)
    Error to the Circuit Court of Cuyahoga county.
    This action was brought in’the court of common pleas of Cuyahoga county by the plaintiff in error, Adam W. Poe, against the defendant in error, Flora A. Dixon, to recover against her on account of certain sums of money he had been compelled to pay as her surety. He recovered in the court of common pleas the amount claimed, which judgment the circuit court on error reversed. Thereupon the plaintiff in error instituted proceedings in this court to reverse the judgment of the circuit court and to affirm that of the court of common pleas. The facts will be stated in the opinion.

      E. J. Hart and Burke & Ingersoll, for plaintiff in error.

      (a) The contract relied upon in plaintiff’s petition, namely, that defendant assumed and promised to pay the mortgage indebtedness existing upon the property transferred by plaintiff' to her, was in writing, and the statute of limitations did not run against the same for the period of fifteen years, as provided by Revised Statutes, section 4980. Wood on Frauds, section 364; Allen v. Bennet, 3 Taunt, 173.

      (b) If it should be held that under the allegations of the petition the only contract that plaintiff could rely upon was that expressed in the deed delivered from plaintiff to defendant, then the fact that such contract was wholly executed takes it out from the statute of frauds and the acceptance by defendant of the deed of plaintiff containing- the written provision that defendant assumed and agreed to pay said mortgages, constituted the same such a contract in writing that the statute did not run against it for fifteen years.

      Himrod Furnace Co. v. The Cleveland & Mahoning R. R., 22 Ohio St., 451; Durant v. Brown, executor, 10 Eng. Common Law Reports, 202.
    The attornejr for the defendant has argued this case in both of the courts below upon the theory, that the plaintiff below occupied the position of a surety, and that, therefore, the only contract existing between him and defendant when he paid the mortgage indebtedness, which was primarily the debt of defendant, was an implied contract on the part of the defendant or principal that he would reimburse his surety, and that, therefore, the Statute of Limitations had run against the claim of plaintiff after the expiration of six years.
    If it were not for the words, “which the grantee assumes and hereby agrees to pay,” which were written into the body of the deed and which we have shown above were a part of the contract in writing signed by the parties at the time the transaction took place, then the plaintiff’s contention — ■ that the contract' between a principal and surety, by which the principal ag-rees to reimburse his surety, is an implied contract — would be well taken; but the moment the parties put that agreement in writing an implied contract ceased to exist. The written agreement, it will be noticed, moreover, is different from the implied agreement; it is not that the grantee will repay the grantor if he has to pay the mortgage indebtedness, but a promise by the grantee to the grantor, made upon full consideration, namely, the exchange of the properties that she will pay the mortgage indebtedness, a promise upon which the mortgagee could have sued her and held her responsible instead of proceeding against the grantor, Poe, had the mortgagee seen fit so to do. Corbett v. Waterman, 11 Ia., 86.

      Dickey, Brewer, Bentley & McGowan, for defendant in error.
    Where a promise is made to one for the benefit of another, the latter may obtain an action thereon in his own name. Brewer v. Maurer, 38 Ohio St., 543; Trimble v. Strothers, 25 Ohio St., 378; Emmet v. Brophy, 42 Ohio St., 88; Crumbaugh v. Kugler, 3 Ohio St., 549; Bagaley v. Waters, 7 Ohio St., 367; Thompson v. Thompson, 4 Ohio St., 333.
    1. The relation of principal and surety, with all its incidents, existed between the plaintiff and defendant. Calvo v. Davies, 73 N. Y., 212; 24 Am. & Eng. Encyc. of Law, 718 and 719; 98 Ill., 293; 26 N. J., 504, (6 Syll.); 96 Ind., 377; 5 Conn., 596; 3 Pomeroy’s Eq. Jur., section 1206; also volume 2, note 1, section 798; Huyler's Exrs. v. Atwood, 26 N. J., 504.
    2. The relation of principal and surety existing at the time the payments were made by the plaintiff to recover which, this action was brought, the cause of action accrued when the payments were made, and is based on the implied agreement of the grantee, Dixon, to indemnify the grantor, Poe. Williams, Admr., v. Williams, Admr., 5 Ohio, 444; Neilson & Churchill v. Fry, 16 Ohio St., 552; Neal

      v. Nash, 23 Ohio St., 483; Kamp v. Bostwick, 20 Ohio St., 337; Brewer v. Maurer, 38 Ohio St., 543.
    3. The relation of principal and surety existing, and the action being on the implied contract, the six year limitation controlled and was properly applied by the circuit court. Thayer v. Daniels, 110 Mass., 345; Wood on Limitations, section 35; 24 Am. & Eng. Eneyc. of Law, 792, par. 9; Brandt on Suretyship, section 295; Bullock v. Campbell, 9 Gill. (Md.), 182; Stone v. Hammell, 83 Cal., 547; Thayer v. Daniels, 110 Mass., 345; 1 Wood on Limitations, section 145, (2 Ed.); Ward v. Henry, 2 Conn., 595.
   Bradbury, C. J.

It appears by the record that for a valuable consideration plaintiff in error conveyed to the defendant in error certain real estate situate in the city of Cleveland, Ohio; that three mortgages were held against the land thus conveyed, for the payment of which the plaintiff in error, Poe, was personally bound by his having assumed their payment as part of the consideration for a former conveyance to him of the same premises; and that when he sold the premises to the defendant in error she assumed the payment of these identical mortgage debts as part of the consideration for the conveyance to her. The assumption by her of these mortgage debts was recited in the deed that conveyed the premises to her. This conveyance was made April 7, 1879. On the tenth day of June following an action was begun by one of the mortgagees, which resulted in the foreclosure of the several mortgages and a sale of the premises on April 6, 1880, for a sum insufficient to pay the mortgage debts, which she had assumed as aforesaid, the deficiency amounting to $2,195.53. Mrs. Dixon failing to pay this deficiency it was paid by the plaintiff in error at different times, the last payment being made on July 20, 1886. And on March 6,1894, nearly eight years thereafter he began this action to recover of her the aggregate amount thus paid, with interest on the respective payments from the time they were severally made.

This statement of facts shows that Mr. Poe, the plaintiff in error, had become personally bound for the payment of the debts, although they were also secured by mortgages on the premises involved, and it further shows that Mrs. Dixon, the defendant in error, had for a valuable consideration assumed their payment. A novation was not effected, that is, the mortgage creditors did not accept Mrs. Dixon’s promise to pay these debts in lieu of that of Mr. Poe, and discharge the latter. In fact it does not appear that the creditors had any knowledge of the transaction. Mr. Poe, of course, could not shift from himself to her the obligation he was under to these creditors except by their consent. He, therefore, also remained personally liable for the payment of these debts, notwithstanding he had procured her to assume them.

However, although he was still bound to the creditors, yet as between himself and Mrs. Dixon the debts became hers. This result follows from the application of the plainest principles of natural justice to the facts. He was bound for these debts, and for a valuable consideration paid by him to her, she assumed to pay them and hold him harmless. The justness of requiring her to do this is so obvious that a rule of law which enforces that requirement needs no illustration or support from authority. Nevertheless, as it has received both illustration and support at the hands of the courts and authors, it may not be inappropriate to refer to some of them. Paine, Receiver, v. Jones, 76 N. Y., 274; Cornell v. Prescott et al., 2 Barb. (N. Y.) 16; Comstock v. Drohan, 71 N. Y., 9; Calvo v. Davies, 8 Hun. (N. Y.), 222; same case, 73 N. Y., 211; Shepherd v. May, 115 U. S., 505; Flagg v. Geltmacher, 98 Ill., 293; 24 Am. & Eng. Ency. of Law, 792; Brant on Suretyship, section 295; Huyler’s Exrs. v. Atwood et al., 26 N. J. Eq., 504; Ellis et al. v. Johnson, 96 Ind., 377.

As between themselves, the one who has thus assumed the debt is regarded as the principal debtor and the other as a surety, and they respectively incur the obligations and acquire the rights that are by law attached to the relation each occupies. 24 Am. & Eng. Ency. Law, 719; Flagg v. Geltmacher, 98 Ill., 292; Bayless on Sureties and Guarantors, 490; Comstock v. Drohan, 71 N. Y., 13; Cornell v. Prescott, 2 Barb. (N. Y.), 16; Calvo v. Davies, 73 N. Y., 211; Huyler's Exrs. v. Atwood et al. 26 N. J. Eq., 504.

The authorities supporting this proposition are numerous, but a further citation of them is unnecessary.

The plaintiff in error, therefore, when he paid the deficiency before alluded to, was entitled to reimbursement from the defendant in error. This deficiency, however, he paid in installments, and. nearly eight years elapsed between the last payment and the commencement by him of the present action to obtain indemnity. This lapse of time appeared on the face of the petition. The six years’ statute of limitation was invoked by a demurrer to the petition, a practice recognized in this state. The chief contention made by counsel was over this question. Our statute limiting the commencement of actions provides (section 4980, Revised Statutes): “An action upon a specialty or an agreement, contract or promise in writing,” shall be brought within fifteen years “after the cause of action accrues.” Section 4981, Revised Statutes, provides: “An action-upon a contract not in writing, either expressed or implied,” shall be brought within six years “after the cause of action accrues. ’ ’ The authorities are quite numerous in holding that a surety who has paid a debt for his principal may maintain an action on the implied promise of indemnity. The security having paid a' debt which the principal ought to have paid, the law raises (or implies) a promise on the part of the principal to reimburse the surety, and the latter may maintain an action on the implied promise as for money paid for the use of * the principal. Hill et al. v. Wright el al., 23 Ark., 530; Appleton et al. v. Bascom et al., 3 Met (Mass.), 169; Homes v. Weed, 19 Barb (N. Y.), 128; Tom v. Goodrich, 2 Johns., 213; 1 Brandt on Suretyship & Guar., 205-7; Huntley v. Sanderson et al., 1 Cr. & M., 467; 2 Barnard, 26.

Any further citation of authorities in support of a rule of law so firmly lodged in the jurisprudence of England and America is unnecessary even if it had not been heretofore recognized by this court. It is, howéver, as firmly established here as in the other states of the Union. Williams' Admr. v. Williams' Admr., 5 Ohio, 444; Neilson et al. v. Fry, 16 Ohio St., 552; Camp et al. v. Bostwich, 20 Ohio St., 337; Oldham v. Broom, 28 Ohio St., 41.

The rule that the period of limitation fixed for beginning an action of this kind is the same that applies generally to other actions upon implied and unwritten contracts, is also generally recognized. Bayless on Sureties and Guarantors, 335; Sherrod v. Woodward, 4 Dev., L., 360; Thayer v. Daniels, 110 Mass., 345. This rule prevails in this state, and the period as fixed by statute above cited is six years. Neilson et al. v. Fry, 16 Ohio St., 553. Plaintiff in error, however, through his counsel contends that he is not compelled to resort alone to an action as an implied promise, but may maintain an action on the recital in the deed and that ’the present action is so founded. This contention must be made good in order to avoid the bar of the six years statute, which it is seen would otherwise apply.

The obligation of Mrs. Dixon, the principal in this case, was in writing, that is, it was embodied in'the form of a recitation in the deed made to her for the premises on which the debts were secured by mortgage liens. The deed had not been recorded and was not produced at the trial, but as near as can be ascertained from parol evidence of its contents, the recitation was substantially as follows: “ The premises are subject to mortgages and notes to the amount of $--with interest * * * -which the grantee assumes to pay.” Pay to whom? To the creditors, or the persons who held the notes and the mortgages. It. was not a promise to pay anything to the plaintiff in error. Doubtless he might have taken from her a written undertaking to himself binding her to pay the creditors the debts involved, with a stipulation therein that if she did not and he was compelled on that account to pay them, that she would repay him the amount thus paid. That, of course, would fix on her a written obligation to indemnify him which we may concede would not be barred until fifteen years after it had accrued, as provided by section 4980, Revised Statutes, before quoted. This, however, he did not do, and must, therefore, rely on the recitation in the deed. This recitation as already stated contained no promise to pay anything to the plaintiff in error. It was a promise to pay a debt to the creditors. It inured to each of them severally, and each could have maintained for the recovery of his claim a separate action against Mrs. Dixon on the promise. Brewer v. Maurer, 38 Ohio St., 543; Emmitt v. Brophy, 42 Ohio St., 82; Thompson Admx. v. Thompson et al., 4 Ohio St., 333.

But examine the promise in any way one may choose, and no promise to the plaintiff in error will be found. True the relation of principal and surety was established between the plaintiff and the defendant from the time she assumed the payment of debts involved in the case. Her duty or obligation to indemnify him, in case he afterwards paid the debts, arose at the moment the relation was established. It sprang from the assumption, for a valuable consideration, of those debts. It is a consequence that attaches to the relation of principal and surety in every instance, however that relation may have been created. 24 Am. and Eng. Ency. Law, 774-5; Rice v. Southgate, 16 Gray, 142; Choteau v. Jones et al., 11 Ill., 300; Barney v. Grover, 28 Vt., 391; Martin v. Ellerbe's Admr., 70 Ala., 327; Ward v. Henry, 5 Conn., 596.

The authorities say that under certain conditions and at any time after the relation is established and the debt has become due the plaintiff in error could have maintained in equity an action to compel her to pay these debts and thus relieve him from liability on their account. 24 Am. and Eng. Ency. Law, 789, and note 1. This also is an incident that necessarily' attaches to the relation, and the’ right of the plaintiff in error in this respect does not differ from what it would have been had he signed a promissory note or a bond as the surety of Mrs. Dixon. In such cases, as well as in the present case, the promise runs to the creditor, and in all three eases the relation of principal and' surety arose when the promise to the creditors was made, and the obligation of the principal to indemnify the surety if he afterwards paid the debt, came into existence at the same instant. The circumstances that the promise was embodied in a deed is not material. It would have been equally binding on Mrs. Dixon, equally beneficial to the creditors and equally potent to create between her and the plaintiff in error the relation of principal and surety if it had been accomplished by a separate instrument executed by Mrs. Dixon to the creditors in which the name of Mr. Poe did not appear. Mrs. Dixon did not sign the deed. It was a deed poll, executed by the grantors only, and the recitation involved here was binding on her only because she accepted and held under the deed that contained it. True Mr. Poe had a deep interest in her fulfilling the promise, but it was no greater and • no different from what that interest would have been if the promise had been embodied in a bond, note or other writing which bound her directly to those creditors.

‘Whatever other rights may have accrued to the plaintiff in error on account of the transaction or to whatever stage of such transaction his right to ultimate indemnity in case he paid the debt, had its origin, it is obvious that his right to call upon Mrs. Dixon to refund what he had paid in her behalf did not accrue to him until he had paid the debt or some part of it, which as between themselves she ought to have paid. Such payment is a prerequisite to his right to be reimbursed. Before he made it he could not have maintained an action for reimbursement. As soon as it was made his right of action was complete. •

We are, therefore, constrained to hold that the cause of’ action being for reimbursement, and arising out of the implied contract to indemnify that inheres in or attaches to the relation of principal and surety accrued when the payments were made, and in six years thereafter was barred by section 4981 Revised Statutes.

Judgment affirmed,


author: Spear, J.

text:
    The Village of St. Marys v. The Lake Erie and Western Railroad Company.

      Lighting of railway lingjby railroad-company — Construction of ordinance requiring lighting — Assessment of expense on railway company — Sections 2492 to 2499 — Municipal law.

    1. An ordinance requiring the lighting of a railway line by a railroad company, enacted by virtue of the authority given by Revised Statutes, sections 2492 to 2499, being one which relates to the comfort, safety, convenience and good order of the people of the municipality, should receive a reasonable construction. The instrument should be reasonably certain in its requirements, but no particular form of words is necessary. It will not be held defective as failing to fix a specified time for the performance of such requirement by the company, if its language, taking the ordinance all together, is sufficiently definite to inform the company that such lighting is required to be done, how it is to be done, and when it is to be done.
    2. A requirement that the company proceed to do the lighting by electricity within twenty days after notice of the passage of the ordinance, is not necessarily unreasonable.
    3. Where an assessing ordinance, fixing the expense of such lighting has been enacted in conformity with section 2498, such ordinance, of itself, furnishes prima facie evidence of the expense of the lighting.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Auglaize county.
    On the eleventh day of August, 1896, the plaintiff, the Village of St. Marys, commenced its action against The Lake Erie & Western Railroad Company by filing a petition in the court of common pleas, in which it was alleged in substance that the defendant is a railroad corporation, operating a line of railroad through Auglaize county, a part of which is located in said Village, and that such line of railroad crosses certain streets therein, the names of which are given; that the Company is the owner of real estate and a leasehold interest in real estate in said county; that on the ninth day of February, 1895, the council of St. Marys duly passed an ordinance requiring the defendant Company to light its line of railway at the points where the same crosses the above mentioned streets with electric lights, said ordinance specifying the manner in which the railway should be lighted and the number and style of lamps, and the times such lamps should be kept burning in each twenty-four hours. Said ordinance was duly published.
    On the ninth day of February, 1896, a copy of the ordinance and notice of its contents and requirements was served upon the defendant in form and manner and in conformity to law, and more than twenty days prior to the imposing of any penalty for default. The Company neglected for more than twenty days after the service of such notice to do such lighting, and plaintiff caused such lighting to be done, and on the seventeenth day of March, 1896, duly passed an ordinance assessing the expense of such lighting on the real property and leasehold interest of the Company in Auglaize county. Said ordinance assessing the expense of lighting in the following manner: $42, April 1, 1896, $42, on the first day of each and every month thereafter until the first day of April, 1897, and in default of the payment of any or all of such installments when the same shall become due, that they shall be collected as provided by law. On the first day of April, 1896, the sum of $42 became due and payable, and a like sum became due and payable on the first days of May, June, July and August of said year, and none of -said amounts have been paid. Plaintiff demands judgment against the defendant for $210, interest, penalty and costs, and prays that the same may be declared a lien upon the real estate and leasehold interest of defendant, and for other and further relief.
    By its answer the Company admitted that the plaintiff is a municipal corporation and the defendant a railroad corporation, and that as such it is the owner of and operating a line of railroad through Auglaize county, a part of which is located in the Village of St. Marys; that it is the owner of real estate and leasehold interest in real estate in Auglaize county, and that the plaintiff caused the streets alleged to be crossed by defendant’s railway to be lighted by and with electric lights, and denied the other allegations of the petition.
    At the trial of the case a jury was waived and the issues joined were tried to the court. Plaintiff gaye iñ evidence the ordinances referred to in the petition; also evidence showing service upon the Company as alleged in the petition; also evidence showing the number, location and character of the lights furnished and the lighting done by the procurement of the Village at points where the streets named in the petition are intersected by the line of railway of theD defendant. No evidence was given or offered by the defendant. The court thereupon rendered judgment in favor of the plaintiff and against the defendant for the sum of $154.37. Motion for á new trial by the defendant being overruled, a bill of exceptions containing all of the evidence was taken. On error the circuit court reversed the judgment of the court of common pleas and rendered final judgment against the Village, dismissing its petition. This proceeding is to reverse the judgment of the circuit court and affirm the judgment of the common pleas.

      John T. Schoonover, for plaintiff in error.
    It is admitted that there is no evidence of the costs and expenses of ■ lighting, other than that furnished by the assessing ordinance passed by the Village and it is maintained by the plaintiff that the petition which alleges this action of the council is sufficient and by introducing the ordinance assessing the costs and expense of lighting makes a prima facie case, shifts the burden upon the defendant and raises the presumption that the expense and costs was incurred by the Village in doing such lighting and that the costs and expense was just what the village council by ordinance assessed. To hold otherwise is to accuse the council of mistake, bad faith or unreasonableness. To assess any other amount than the expense of lighting the right-of-way would be unlawful and unauthorized.
    The law always presumes until the contrary is shown that facts existed necessary to make the act of a village council lawful. Bank v. Danbridge, 12 Wheat., 70; Ward Lessee v. Barrows, 2 Ohio St., 241; Combs et al. v. Lane, 4 Ohio St., 112; Beach on Corporations, sections 513 and 516; Dillion on Municipal Corporations, sections 311 and 312; State ex rel. v. Gas Company, 37 Ohio St., 45; Reynolds et al. v. Schweinefus, 27 Ohio St., 311. Facts presumed are as effectual as facts proven. Bolton v. Cleveland, 35 Ohio St., 319; 9 Ohio Cir. Ct., 524; 6 Circ. Dec., 531.
    The second point made by the defendant is that ordinance 130 is defective in that it does not state and fix any specified time within which the said lighting shall be done. True, the ordinance in so many words does not state that the Lake Erie & Western Railroad Company shall within twenty days cause its right-of-way to be lighted but it does say, “in case said Company shall fail to comply with the requirements of the same (of the ordinance) for a period of twenty (20) days from the delivery of said notice, then the village shall do the lighting,” etc.
    No ambiguity, no doubt, or double meaning could be inferred. Prom the ordinary accepted meaning of language the defendant was clearly and positively notified that it was required to do the lighting in twenty days or the Village would do it at their expense. The claim of the defendant that the ordinance does not specify any time for it to do the lighting, is wholly technical.
    Now this question of time that must be given the defendant to do the lighting is governed by three sections of the Statutes, 2494, 2495, 2496.

      W. E. Ilaokedorn; John B. Gookrmn; F. G. Layton and G. A. Btueve, for defendant in error.
    Por the defendant in error, we contend, in the first place, that the petition in this case does not state facts sufficient to support the judgment rendered by the court of common pleas, and that there is no evidence presented upon which the judgment of that court can stand. No demurrer to the petition was filed by the defendant below. Although a jury was waived, and the case tried to the court, and, of course, no charge to a jury was or could be made, and consequently, no exceptions could be taken to a charge not given, we believe, that this court should look to all the pleadings and the evidence as contained in the record. We feel satisfied if the court does so, that the judgment of the circuit court will be affirmed.

      In support of this theory, we call the court’s attention to decisions cited, as follows: Mowry v. Kirk & Cheever, 19 Ohio St., 375; The Marietta & Cincinnati R. R. Co. v. Strader & Co., 29 Ohio St., 448; Railway Company v. Porter, Admx., 32 Ohio St., 328; Clark v. Bayer, 32 Ohio St., 299; Baker v. Pendergast, 32 Ohio St., 495; Weybright v. Fleming, 40 Ohio St., 52; Railroad Company v. Fitzpatrick, 42 Ohio St., 319, and section 5301 of the Revised Statutes of Ohio.
    A judgment by a court, when a jury is waived, must be based on sufficient evidence to support it; otherwise it will be reversed. Mutual Fire Insurance Company v. Palm, Admr., 5 Ohio St., 107; Mary Turner v. Turner et al., 17 Ohio St., 450; Union Insurance Co. v. McGookey et al., 33 Ohio St., 555; Wooley v. Staley, Treasurer, 39 Ohio St., 354; Ford v. Osborne, 45 Ohio St., 1.
    We contend that the ordinance referred to in the case, requiring the defendant below to light the street crossings is insufficient in this: That it does not state a specified time within which the lighting shall be done. Section 2494, of the Revised Statutes of Ohio, provides that the council of the • plaintiff shall pass an ordinance requiring the * * * railroad company to light such * * * railway, within a “specified time.” We concede that a similar ordinance was passed upon by the Supreme Court in the case of the C., H. & D. Ry. Co. v. Sullivan, 32 Ohio St., 152, but the question there turned upon the points of the constitutionality of the law, and whether the charges assessed against the railroad company were legally placed upon the tax duplicate of Miami county, Ohio, for collection. The Supreme Court never touched upon the inherent quality of the ordinance passed by the council of the village of Troy. All ordinances are construed reasonably, but ordinances of a penal nature should be construed strictly. We believe that this ordinance should be strictly construed, and should therefore be held invalid and void. Marietta v. Fearing, 4 Ohio, 428; American and English Encyclopedia of Law, vol. 17, page 264; Bliss v. Krauss, 16 Ohio St., 55.
    We coutend that the plaintiff below has not in any manner or form shown what the expense of such lighting is. The said plaintiff has averred in its petition that the expense of such lighting is the sum of ”$42 per month, or $210 for the time stated in the petition; no proof is made, not even offered, as against a denial of such value by the defendant and yet the common pleas court finds that such is the value; the court below jumped at a conclusion in this case, if it ever did. No testimony was offered, not even attempted in this case, to show to the court below how much it cost 'the plaintiff below to furnish the fixtures for lighting the crossings, nor for the lighting done by it for the defendant below. It certainly is a well settled rule of law, that where a plaintiff, demands compensation for any material furnished or services, rendered plaintiff must, upon issue made by a general denial, make some sort of proof that, the material furnished or services rendered are worth something in dollars and cents, and a court or jury can not take the statements of the petition as to the value of such material furnished or services rendered for granted.
    The Statutes of Ohio provide that when the railroad company fails or neglects, after proper notice, to comply with the requirements of the ordinance, the council may immediately proceed to cause the lighting to be done at the expense of the railroad ‘company, and direct the manner in which the expense of lighting such railway shall be assessed and collected.
    An ordinance was passed on March 17, 1896, assessing the expense of lighting the railway of the defendant Company, from March 12,1896, to March 12, 1897, or one year in advance. On February 9, 1896, notice .was served upon the defendant Company of the requirements of said ordinance, or upon failure or neglect for twenty (20) days, plaintiff would cause such lighting to be done at the expense of the defendant. Just seventeen (17) ■days after the expiration of the time granted by said notice, and when plaintiff had furnished light for only seventeen days, (or nights), an assessment of five hundred and four ($504) dollars is made by plaintiff below, which by operation of section 2498 of the Revised Statutes of Ohio, is summarily made a debt due against and payable by the defendant railway company, and a lien upon the real estate and leasehold interests of the defendant within Auglaize county, Ohio.
    An absurd construction of the law! Certainly no services, or at most, services for only seventeen (17) days had then been performed, and yet a lien is created for three hundred and sixty-five (365) days services. That can not be law; it isagainst reason and good conscience.
   Spear, J.

The grounds of reversal by the circuit court were that the finding below is not supported by the evidence, and that the finding is contrary to law. There being no evidence offered in contradiction of that given by plaintiff, the record presents no question as to conflict of evidence, but only questions of law, and these relate to the construction and legal effect of the two ordinances. It was the opinion of the circuit court that the first ordinance is defective in that it does not state and fix any specified time within which the lighting shall be done by the Company.

Authority to require lighting is given by the Revised Statutes, sections 2494 to 2499, inclusive. Pertinent provisions are to the effect that, whenever the council deems it necessary that any such railway line be lighted, it shall pass an ordinance for that purpose, requiring the Company to so light within a specified time. The ordinance shall specify the manner in which the railway shall be lighted, the number and style of posts, electric lights or other lights and fixtures, and the time such lights shall be kept burning in each twenty-four hours. Notice of such requirement shall be given at least twenty days before any penalty or charge shall be imposed for default. If the Company neglect to do such lighting in conformity with the ordinance for twenty days after notice, the council may immediately proceed to cause the lighting to be done at the expense of the Company; it may direct the manner in which the expense shall be assessed and collected, and when assessed, the amount shall be a debt due against, and shall be a lien to be enforced upon the real estate of the Company within the county, and the charge may be collected or the lien enforced in the manner pointed out in the chapter providing for the assessment of damages and expenses for making public improvements. This statute has been held to be a valid exercise of the police power by this court in Railroad Co. v. Sullivan, 32 Ohio St., 152. So that the question here is as to the validity ot the acts of the village council under this authority.

By the first section the ordinance requires the Company to light its line at street crossings within the Village with electric light in the same manner that the streets are lighted therewith, and with poles, lamps and fixtures of the same kind, the lamps to be constructed in all respects like the lamps now used to light the streets of the Village, and the lamps to be kept burning during’ the hours between the hour of darkness and the hour of daylight on each and every day. The second section (the portion of the ordinance held to be insufficient), is as follows: ‘ ‘That the work of lighting said railway shall be done under the supervision and to the satisfaction of the lighting committee, and the village clerk is hereby instructed and directed to cause due notice to be given to said Company of the passage of this ordinance by delivering a copy of this ordinance according’ to law, and in case said Company shall fail to comply with the requirements of the same for the period of twenty days from the delivery of said notice, then said lighting committee is hereby directed to cause said lamps to be so suspended, poles erected and lighting to be done as hereinabove set forth, the cost thereof to be assessed on the property of said company according to law, or to be collected as directed by law.”

The ordinance is not penal. It is not for the punishment of offenses, and is not, therefore, to be subjected to the rule of strict construction. It relates to the comfort, safety, convenience, and good order of the Village, and is to be given a reasonable construction. Undoubtedly it must be reasonably certain in its requirements, but no set form of words is necessary in its provisions. If, with reasonable definiteness, it prescribes the time within which the lighting shall be done, that is sufficient. And to determine that, the entire ordinance is to be considered. The first section definitely enjoins the duty of lighting. It also fixes the hours as ‘ ‘from the hour of darkness to the hour of daylight on each and every day.” The second section provides for the giving of notice to the Company of the passage of the ordinance and that in case it fails to comply within twenty days from the service of notice, then the proper committee is to cause the lighting to be done; and the cost is to be assessed and collected as directed by law. Why are not these provisions, taken together, a sufficient specification as to time within which the lighting must be done? No reasonable person could doubt that the lighting was required; that it was to be commenced within twenty days after notice of the passage of the ordinance, and that it was to be maintained between the hours of darkness and daylight. This would seem to be sufficient to inform the Company what was to be done, how it was to be done, and when it was to be done, and to hold otherwise, would, we think, be to give an unreasonable construction to the ordinance. It is proper to add that an ordinance similar in this particular to the one in question was under review in the case of Railroad Co. v. Sullivan, supra. The contention here insisted upon does not appear to have been distinctly made by the eminent counsel appearing for the railroad company, but it counts for something that the court found no defect in the ordinance in this respect. Scott, J., in the opinion, after citing the statute, observes that “so far as we can discover, the ordinance strictly follows and in no way transcends the powers conferred.”

It is insisted that a requirement to do the lighting upon twenty days’ notice is unreasonable. We think not necessarily so. The statute gives authority for just that notice, and then, in case of neglect, authority to council to immediately proceed to have the lighting done. The language of the ordinance indicates that, at the time of its passage, the streets of the village were being lighted by electricity, as in fact they were, and this was being done by an electric light plant. It does not appear but that what the village was procuring for its streets, the Company could have obtained for its crossings.

It is insisted further that the assessing ordinance is invalid because passed before any considerable part of the lighting had been done. This implies that the municipality must go forward and expend its own ■ money for lighting, and cannot ascertain or fix the expense until after such lighting has been done. The point is not well taken. There is nothing in the nature of the ease to prevent the cost being ascertained at any time, and when that has been done, the assessing ordinance may be passed. The statute itself provides that the council may direct the manner in which the expense of lighting shall be assessed and collected, and the action taken was not an unreasonable exercise of that power.

Nor is there force in the proposition that there was no proof showing what the expense of lighting was. The statute in terms authorizes the council to assess the expense, and when so assessed the amount shall be a debt due, and the passage of such an ordinance implies that the cost had been ascertained. The presumption attaches that the action of the council was regular and legal, and, until attacked by proof to the contrary, the amount assessed will be presumed to be the proper amount. The suit was not brought until after the lighting had been done, and there was abundant opportunity, had the fact existed, for the Company to show that the amount assessed was unreasonable, or for any reason was in excess of the true amount.

We find no error in the judgment of the court of common pleas. It ^follows that the judgment of the circuit court should be

Reversed.


author: Burket, J.

text:
    Hagerty, Auditor, and Leo Schott, Treas., v. Huddleston, Hubbard & Company.

      Taxes and assessments — Relief against illegal taxation — Record of board of equalisation not conclusive — Sections 6848 and 2740, Revised Statutes.

    1. The record of a board of equalization is not conclusive, but is only prima facie, evidence, in an action by a taxpayer under section 5848, Revised Statutes^ challenging the legality of a tax or assessment.
    2. H. H. & Co., being engaged in the live stock commission busi" ness at the city of Cincinnati, and live stock having been shipped and consigned by parties outside the state to the Union Stock Yards Company at said city, care of H. H. & Co., and upon arrival put into the yards by said Company, kept there, yarded, fed and watered by the company until sold by H. H. & Co., they having access to the stock by permission of the company to show the same to purchasers ; upon a sale being made they would give an order to the purchaser on the company, and upon receipt of such order the company would deliver the stock to such purchaser ; upon receiving the price of the sale, H. H. & Co. would retain their commission, and pay the company its charges for yarding, feeding and watering the stock, and remit the balance to the owner, said H. H. & Co., at no time having any control of such stock while in the possession of said company. Held: That such transactions did not constitute H. H. & Co., merchants, within the meaning of section 2740, Revised Statutes.
    (Decided April 25, 1899.)
    Error to the Circuit Court of Hamilton eounty.
    The action in the court of common pleas was for the purpose of enjoining the auditor from adding $12,000 valuation to the tax return of plaintiffs below, defendants in error, and to enjoin the treasurer from collecting the taxes on said amount.
    The court of common pleas decided the case against the plaintiffs below, and the case is reported in the 2 Ohio Nisi Prius Reports, 291. Upon trial on appeal in the circuit court there was a finding of facts and conclusion of law as follows:

      1. The plaintiff is a partnership composed of Thomas F. Huddleston, Charles R. Hubbard, ffm. A. Ragsdale and Ed. Y. Hauss, formed for the purpose of carrying- on business in the state of Ohio, and engaged in business in the city of Cincinnati; that the said firm has been engaged in business since a time prior to the year, 1893.
    2. The defendant, John Hagerty, at the time of the bringing of this action, was the auditor of Hamilton county, Ohio, and the defendant, Leo Schott, was at the time the treasurer of Hamilton county, Ohio.
    3. The plaintiff made a return for taxation, for the year 1893, ox its personal property, upon a certain printed form, furnished by the county auditor, containing the various items for the return of all moneys, credits, investments, and personal property of every kind subject to taxation under the laws of Ohio, one of which items was known as No. 10, and provided for the average value of all goods and merchandise owned or held as a merchant during the year or part thereof, from the day preceding the second Monday of April, 1893. The plaintiff made a return of its moneys, credits, and property, but returned no property for taxation as a merchant under said item 10.
    4. The plaintiff firm was cited to appear before the board of supervisors of the city of Cincinnati, sitting and acting as the city annual board of equalization, on the eleventh day of July, 1893, to show cause why an addition should not be made to the personal return of the plaintiff for the said year 1893. On said July 11, 1893, Mr. Charles R. Hubbard, one of the members of said firm, in response to the said citation, appeared before the said board, and was examined by the said board ■with reference to the business of the said firm, and his testimony so given was the only evidence presented to the said board on the hearing of such citation.
    5. The evidence, and the only evidence, submitted to the board, was this:
    The said firm of Huddleston, Hubbard & Company was engaged in the live stock commission business in the city of Cincinnati, and had its place of business at the stock yards in said city. The business of the plaintiff was required to be transacted at or near the stockyards. The Cincinnati Union Stock Yards Company is an incorporated company under the laws of Ohio, for the purpose of handling live stock and yarding the same. It is not engaged in the business of buying live stock and selling the same, either on its own account or on commission. Its business consists of feeding, yarding, and holding the stock for others, and it is near their yards where the business of the plaintiff is conducted. The owners of live stock within the states of Ohio, Kentucky, Indiana, Illinois, and Tennessee, in certain cases, send their live stock to the city of Cincinnati to be sold for them. In some cases, the owners bring the live stock, while, in other cases, the owners do not do so, but consign the live stock, as hereinafter set forth. When the owners come with their stock and arrive with it, it is taken in charge by the employes of the Cincinnati Stock Yards Company, as aforesaid, and placed in their yards by the said employes. The owner then goes to the office of the plaintiff, and notifies the plaintiff of the arrival of the stock, and authorizes the plaintiff to sell the stock for him, and deduct a commission and all yardage expenses for feeding, watering and keeping the stock, and remitting the balance. The owner accompanies the stock in about sixty per cent, of the sales made by the plaintiff from the stock yards. In the remaining cases, being about forty per cent, of all the sales by the plaintiff from the stock yards, the stock was shipped by the owner, consigned to the Cincinnati Union Stock Yards Company, care of Huddleston, Hubbard & Company. When the stock was so consigned, the owner would notify the plaintiff by letter or telegram, advising’ them of the shipping of the stock, and directing them to sell the same at a certain price, and informing them how to remit the proceeds of the sale. In such cases, after the arrival of the stock, the employes of the Cincinnati Union Stock Yards Company take charge of the same, and place it in their yards, as hereinbefore set forth, and notify the plaintiff of the arrival of the same. Thereupon, the plaintiff having been notified of their said arrival, in accordance with the instructions of the owner, as hereinbefore set forth, would make the sales of the stock in the same manner as herein-before described. The plaintiff has access to the stock, at all times, by asking the employes of the stock yards company to unlock the gates, which are kept locked to prevent the escape of the stock. The said company is required to deliver the same number of head which it received, upon receiving an order to do so, as hereinafter set forth. When the plaintiff makes a sale of the stock, it orders the Cincinnati Union Stock Yards Company to weigh the same, and deliver it to the purchaser, and the Cincinnati Union Stock Yards Company comply with the said order of the plaintiff. The plaintiff collects from the purchaser the amount of the sale, and deducts the charges which are due to the Cincinnati Stock Yards Company, for feeding, watering, and yarding the stock, and also its commission, and remits the balance to the owner. The .Cincinnati Union Stock Yards Company claim a lien on all stock placed in their yards for their charges. Settlements are made by and between the Cincinnati Union Stock Yards Company and the plaintiff daily, for the business of the preceding day. Generally, the sales made by the plaintiff of said stock are for cash, or the check of the purchaser. If, however, the plaintiff is entirely convinced of the solvency of the purchaser, credit for a short time is occasionally given. In all cases of sales, upon the direction of the plaintiff, the Cincinnati Union Stock Yards Company delivers the stock to the purchaser, without ascertaining whether plaintiff has collected the money, and, when so delivering the stock, releases any lien or claim it has thereon, and looks to the plaintiff for the same. The plaintiff, in such cases, makes its settlement as is customary on the day following, whether payment has been made or not. In all cases of sales, whenever the plaintiff orders the stockyards company to deliver stock to the purchaser, it is weighed and delivered, and the plaintiff held responsible by the company for the charges. About two-thirds of the business of the plaintiff consists of dealing with stock sent, as aforesaid, from other states other than the state of Ohio. In case the stock so consigned to the stock yards company, in care of the plaintiffs, or that brought to the stock yards company by the owners thereof, was not sold by them (the plaintiffs), the same would then be shipped by said stock yards company, or the owners of the stock, without any direction or control of the plaintiff, to other markets indicated by the owner or consignor. The only duty conferred upon the plaintiff being to sell said property when consigned to the stock yards company in their care, or when brought by the owner, being to sell the same, if the price could be obtained, pay the charges and their commission, and remit balance of proceeds, as directed, and that, at no time, did plaintiff have any control of said stock while in the possession of the stock yards company. There was no evidence whatever before said board as to the average value of all goods and merchandise owned or held by plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893, or of the average value of goods, merchandise, or stock owned or held by them as merchants, or sold by them under the conditions hereinbefore stated, which had come to them- from any place within this state, or from any place out of this state, for the purpose of being sold at any place within this state, and no books or papers of said plaintiff were asked for or produced, showing the same, and no inquiry was made by the board of the plaintiffs, or either of them, as to such matters, and no evidence was heard in regard thereto by said board.
    6. The said annual board of equalization entered upon its minutes for the year 1893 the following:
    Office of the Board of Supervisors,
    Cincinnati, July 7, 1893.

      City Annual Board of Equalisation.

    The board met. Present, Messrs. Doherty, Krohn, Strunk and Mr. President. Messrs. Foley and Harper were absent, the former being ill and the latter engaged in inspection of new structures and examination of complaints.
    President Smith in the chair.
    It was moved and adopted that citations be issued for the following corporations, firms and individuals, to show cause why additions should not be made to the personal returns for 1893 of said corporations, firms and individuals. Said citations are returnable on dates specified.
    Citation 168, Huddleston, Hubbard & Co. Returnable July 11th, at 10 A. M.
    The board adjourned to meet Saturday, A. M., July 8, 1893.
    Louis Krohn, V. Pres.
    Attest:
    F. S. Armstrong, Secy.
    Office of the Board of Supervisors,
    Cincinnati, Ohio, July 11, 1893.

      City Annual Board of Equalization.

    Messrs. Doherty, Harper and Krohn met, with President Smith presiding, and approved as read the minutes of the last preceding meeting-. Mr. Foley was engaged elsewhere on official business.
    The following appeared in answer to citations, and the action as is recorded in each case was adopted by the board:
    Citation No. 168, Huddleston, Hubbard & Co. Chas. R. Hubbard appeared, was sworn and examined.
    Case continued.
    Office of the Board of Supervisors,
    Cincinnati, O., July 18, 1893.

      City Annual Board of Equalization.

    The board met with all members present, and President Smith presiding.

      The minutes of the last preceding meeting were approved as read. Citations having been issued and duly served for the following firms, to appear and show cause why additions should not be made to the return of personal property of each for 1893, the said firms appeared as is stated (in previous minutes), and were examined.
    The board having heard the evidence of said firms, as well as other evidence introduced, in each ease adopted the following resolution, by the following affirmative vote: Ayes- — Doherty, Foley, Krohn, Strunk and Mr. President.
    ‘Resolved, That the amounts set opposite the names of the following firms be added to their personal returns for 1893, under the items respectively stated, for the reason that in each case the amount returned in said item in the tax return was, as shown by their statements, and by other evidence brought before the board, and as found by this board, that much below the actual value of the property that should have been returned in said item.’
    The vote on each case separately being:
    Ayes — Doherty, Foley, Harper, Krohn and Mr. President.
    Citation 168, Huddleston, Hubbard & Company. Amount returned, $7,500. Added by B. of S., $12,000. Dup. 1893, $19,500. Add to item 10, $12,000.”
    7. The said annual board of equalization for the year 1893 added to the return of the plaintiff the sum of $12,000 under said item 10.
    The said addition was made by the said board under the provisions of section 2740 of the Revised Statutes, claiming that said amount should be added under item 10, as plaintiff was engaged as a merchant under said section, and on account of live stock sold by plaintiff, which live stock had been sent or brought to the Cincinnati market in the manner hereinbefore stated, from states other than the state of Ohio.
    If said plaintiffs, under the provisions of section 2740, were as merchants required to return under item 10 for taxation the average value of all the live stock billed to the said stock yards company, from any place out of the state of Ohio, and which was sold by the plaintiffs under authority given them by the owner or consignor, in the manner hereinbefore stated, and in addition thereto, all of the said live stock billed to said stock yards company from points out of the state of Ohio, and which was accompanied by the owner, and who merely employed the plaintiffs to sell the same, in the manner hereinbefore stated; the plaintiffs having no other ownership or control of said stock, then the addition made by the board of equalization to the return of said plaintiffs was not excessive. But if said plaintiffs were not required to return the same, then said addition was excessive.
    And the court further finds that no evidence was offered to said board on such hearing- as would justify the board in making said addition of $12,000, or any other particular sum, and that no evidence was offered in this court from which it could be determined what addition, if any, ought to have been made to such return by the said board.
    As a conclusion of law, from the facts hereinbefore found, the court finds:
    1. That section 2740 of the Revised Statutes is a constitutional and valid law.
    2. That the action of the board of equalization was arbitrary and unjust, and without sufficient evidence.
    3. That there was no evidence offered to said board on such hearing which justified or warranted it in making the addition of $12,000, or any other specific sum, to the personal return of said plaintiff, under item 10, as returned by them, or to said return; but, on the contrary, the said addition was arbitrary and unjust, and without evidence.
    It is theref ore considered, adjudged, and decreed by the court that the defendants, the auditor and treasurer of Hamilton county, Ohio, respectively, be, and they are hereby, perpetually enjoined from placing on the duplicate against the plaintiff the sum of $12,000 for the year 1893, and from collecting or demanding from the plaintiff the taxes upon said sum for the said year. Nothing herein contained, however, shall prejudice the right of the said board, if such right it has, or the auditor of Hamilton county, or of any other board or officer, on proper proceedings or evidence, to place upon the duplicate the average value of all goods or merchandise owned or held by the plaintiff as merchants during the year, or part thereof, ending the day preceding the second Monday of April, 1893.
    It is further ordered that the defendants pay the costs of this action. The defendants except to the findings of fact herein, for the reason that the same are against the evidence, and are contrary to the undisputed evidence, and are contrary to the undisputed evidence offered by the plaintiff, and there is no evidence to sustain the same. The defendants further except to said findings, for the reason that the same are not sufficient, and the court has not found all the facts involved in this case and necessary to the determination thereof. The defendants except to the conclusions of law, for the reason that the same are contrary to law, are not sustained by the findings of fact, are not sustained by the undisputed evidence of the case, and are contrary to the undisputed evidence of the plaintiff, and there is no evidence to sustain the same.
    The defendants further except to said conclusions of law, for the reason that the court does not set forth all the conclusions of law involved in the case and presented thereby and necessary to a determination thereof.
    And the defendants except to the judgment entered herein.
    Plaintiff excepts to so much of the findings of fact as are contained in item 5, and which purports to give the evidence of Charles R. Hubbard before said board, and item 6 thereof, for the reason that it is not finding a fact, but merely stating the evidence.
    A motion for a new trial was filed by the defendants below, which was overruled and exceptions taken. A bill of exceptions was allowed and filed, containing all the evidence. Thereupon the auditor and treasurer filed a petition in error in this court, seeking to reverse the judgment of the circuit court.

      Rendigs, Foraker <& Rinsmore, County Solicitors, for plaintiffs in error.
    Boards of equalization are independent tribunals created by the legislature for the purpose of assisting in carrying on an important branch of the government relating to the appraisement of property for taxation. Their authority is prescribed by the statute, and while acting within the scope thereof their conclusions are final, unless an appeal is provided by law. Their acts are judgments, which can not be reviewed by the courts, nor impeached for any reason, except fraud or want of jurisdiction. The sufficiency of the evidence upon which the act to warrant the judgment which they enter should not be considered by the court, for it is not within the province of the court to say that the evidence will not warrant the specific action based thereon. Wagoner v. Loomis, 37 Ohio St., 571; Stanley v. Supervisors of Albany, 121 U. S., 535; Olympia Water Works v. Thurston Co., 14 Wash., 268; Maish v. Arizona, 164 U. S., 599; McDonald v. Escanaba, 62 Mich., 555; Ex rel. Attorney-General v. Supervisors, etc., 42 Mich., 72; Mayor, etc., of N. Y. v. Davenport, 92 N. Y., 604; Bellinger v. Gray, 51 N. Y., 610; Moore v. Taylor, 147 Pa. St., 481; Ry. Co. v. Backus, Treasurer, 133 Ind., 625; The People ex rel v. Lots in Ashbey, 122 Ill., 297; Macklot v. City of Davenport, 17 Iowa, 379; Stewart v. Maple, 70 Pa. St., 221; Hughes v. Kline, 30 Pa. St., 227; R. R. Co. v. Smith County et al., 54 Texas, 1; Rhoades v. Cushman, Auditor, 45 Ind., 85; The Republic Life Insurance Co. v. Pollak, 75 Ill., 292; Porter v. R. R. Co., 76 Ill., 561; Ry. Co. v. Backus, 154 U. S., 421; San Jose Gas Co. v. January, 57 Cal., 614; Brooks v. Shelton, 47 Miss., 243; The People v. Goldtree, 44 Cal., 323. The text books support the same propositions: Cooley on Taxation, pages 422 and 748; Desty on Taxation, vol. 1, p. 498; High on Injunctions, section 493; 25 Am. & Eng. Enc. of Law, 261, and cases cited.
    In addition to the foregoing authorities, section 2807 of the statutes, conferring authority on boards of equalization, provides that they shall have the power to add to or deduct from the valuation of personal property, or moneys or credits of any person returned by the assessor or county auditor, or which may have been omitted by them, or to add other items upon such evidence as shall be ■ satisfactory to the said boards.
    The journal of the board is fully set forth in the evidence and the findings. It is sufficient under the statute, and no claim is based thereon. Fratz v. Mueller, 35 Ohio St., 397.
    The question presented is one of jurisdiction of the board, and the fact must appear that there was evidence of some kind on which the co'nclu-. sions were based in order to sustain such jurisdiction. But, if it should appear that the board had some evidence before it, which, in its judgment, was sufficient to warrant the increase that was made, the jurisdictional fact is thereupon determined, and the court should not set aside the conclusion of the board, because it disag-rees with its action. Ry. Co. v. People ex rel., 119 Ill., 182; Olympia Water Works v. Gelbach, 16 Wash., 482.

      Gideon O. Wilson; A. L. Ilerrlinger and A. M. Warner, for defendants in error.
    Counsel for plaintiffs contend that the action of the board of supervisors is final and conclusive; that their acts are judgments which cannot be reviewed by the courts nor impeached for any reason except fraud or want of jurisdiction. It seems to us that counsel for plaintiff entirely overlooks the fact that where a taxing board makes an addition wholly without evidence to sustain it, and in the face of positive evidence to the contrary, that said board thereby commits a leg-al fraud, and that courts of equity will always enjoin the enforcement of the collection.of a tax so illegally imposed. We are not, however, willing to admit that a court of equity will not interfere to prevent the collection of a tax unjustly imposed, even where fraud does not enter into the consideration.
    Defendants in error are not merchants under section 2740. The testimony of all the witnesses for the defendant in error who were engaged in the live stock commission business, viz.: Charles R. Hubbard, R. H. West, Louis Rabbenstein, was, that neither the defendants in error, nor any of the firms engaged in a like business at the Union Stock Yards, had possession of the live stock sold by them, nor was such live stock subject to their control, but that, on the other hand, the same was in the exclusive possession and control of the Union Stock Yards Company of Cincinnati. They further testified that the live stock was not consigned to them for the purpose of being sold, but that the same was consigned to the Union Stock Yards Company, and upon arrival was taken possession of by the Union Stock Yards Company; that they in no manner had any interest in said live stock, but were simply enployed as brokers to sell in other word as auctioneers to sell said property, and were paid for their service a fixed rate of commission, whether the stock so sold was sold at a profit or loss to the owner thereof. Cooley on Taxation, 2d ed., 21.
    The action of the board of supervisors was arbitrary, unjust and wholly without evidence. We submit that the action of the board of supervisors in making the addition of $12,000 to Huddleston, Hubbard & Co. ’s return, being wholly without evidence, must therefore of necessity be arbitrary and unjust.

      A court of equity will enjoin the collection of a tax imposed upon an addition unlawfully made. We submit that our Supreme Court has on several occasions had before it the identical question here submitted, and held in each case, that where the board acted without any evidence or knowledge of the' facts to support the addition, that it acted arbitrarily, and that a court of equity would enjoin the collection of a tax so imposed. Fratz v. Mueller, 35 Ohio St., 397; Wagner v. Loomis, 37 Ohio St., 571; Musser, Auditor, v. Adair, 55 Ohio St., 466.
    In view of the fact that section 5848, Revised Statutes, provides a remedy by injunction, and in view of the fact that the Supreme Court of this state has several times passed upon this question, we would consider it an imposition upon the court to cite it to the numerous eases to be found in reports of other states supporting this proposition.
   Burket, J.

Section 2740, Revised Statutes, was then as follows:

“Every person who shall own or have in his possession or subject to his control any personal property within this state, with authority to sell the same, which shall have been purchased either in or out of this state, with a view to being sold at an advanced price or profit, or which shall have been consigned to him from any place out of this state for the purpose of being sold at any place within this state, shall be held tobe a merchant; and when he shall be by this chapter required to make out and deliver to the assessor a statement of his other personal property, he shall state the value of such property appertaining to his business a.s a merchant; and in estimating- the value thereof he shall take as the criterion the average value of all such articles of personal property which he shall have had from time to time in his possession or under his control during the year next previous to the time of making such statement, if so long he shall have been engaged in business, and if not, then during such time as he shall have been so engaged; and the average shall be made up by taking the amount in value on hand, as nearly as may be, in each month of the next preceding year in which the person making such statement shall have been engaged in business, adding- together such amounts and dividing the aggregate amount thereof by the number of months that the person making the statement may have been in business during the preceding year; provided, that no consignee shall be required to list for taxation the value of any property, the product of this state, which shall have been consigned to him for sale or otherwise, from any place within the state, nor the value of any property consigned to him from any other place for the sole purpose of being stored or forwarded; provided, he shall, in either case, have no interest in such property, or any profit to be derived from its sale.”

• Defendants in error claim that their business as shown in the finding- of facts does not constitute them “merchants” as that term is defined in said section 2740. The plaintiffs in error claim that defendants in error are merchants within the meaning of that section, and this is the principal controversy in this case. It is, however, claimed by plaintiffs in error, that as the record stands, this point cannot be determined by the courts, for the reason that as the board showed by its record that it added the $12,000 to the return of the dofendants in error upon statements made by said defendants in error, and by other evidence brought before the board, and that the board found that the said return was that much below the actual value of the property that should have been returned in said item 10, the said record is conclusive, and that the courts cannot go behind that record and determine whether said addition was made legally or illegally, and that, therefore, the defendants in error have no standing in court to have the question as to whether they were merchants or not judicially determined.

That taxing officers and boards are not courts, and do not exercise judicial powers as courts, and that their actions are not judgments, seems so well settled since the case of Musser, Auditor, v. Adair, 55 Ohio St., 466, that nothing more need be said on that question here.

The valuation placed upon property by a taxing officer or board within the scope of authority conferred by law, when made in good faith, will be held and regarded by’ courts as conclusive of the value, unless it should appear that there was some gross mistake to the prejudice of the taxpayer. But when the complaint is not as to the valuation, but goes. to the extent of claiming that under the statute the taxpayer is notliable to be taxed at all, under the peculiar circumstances of the case, that is that the tax is illegal, then the determination of the taxing officers and boards is only prima facie, and under section 5848, Revised Statutes, full jurisdiction is conferred upon the courts of common pleas and superior courts to enjoin such tax as illegal. All taxes and assessments in this state are levied and assessed by officers and boards subject to the test of legality by the courts, and when found illegal they will be enjoined. The legal effect of this statute is to protect the rights of the citizens in every case, as completely as if the right of appeal should be given from the taxing officers to the courts direct. The right of the citizen to test the legality of a tax or assessment under section 5848, cannot be taken away by any record that can be made by a taxing officer or board. The right is given to all to have the final test as to the legality in the courts, no matter what record may have been made by the taxing officers and boards. When the power to tax in any'particular case is challenged, the citizen has the right to be heard in court as to the legality of the tax, but when the power to tax is conceded, and the complaint is only as to the valuation, a valuation made in good faith and according to the best judgment of the taxing officer, will not be disturbed by the courts in the absence of gross mistake.

Again, in the case of Gager v. Prout, 48 Ohio St., 89, this court held as follows: “Proceedings had before a board of equalization cannot be pleaded as an adjudication in bar of proceedings before a county auditor for the correction of returns under the provisions of sections 2781 and 2782, Revised Statutes.”

As the proceedings evidenced by the record of the board of equalization are not conclusive as against proceedings by the county auditor for the correction of returns as to the same property, they cannot f>e conclusive as to proceedings in court for the correction of such returns by injunction under section 5848, Revised Statutes, because it is well settled in this state that the proceeding's of a county auditor are not final, but may be inquired into in an action for an injunction under said lqc tion 5848, and it would indeed be strange if the result of the proceedings of the board of equalization could be overhauled by the county auditor under sections 2781 and 2782, and then his proceedings could be overhauled by the courts under section 5848, but that the proceedings of the board of equalization when attempted to be inquired into by the courts under the same section, would be found to be conclusive. Such inconsistencies and contradictions cannot be tolerated. The proceedings and record of a board of equalization, and the proceedings and record of a county auditor under sections 2781' and 2782, stand upon the same footing, and neither is conclusive when challenged in a proceeding under section 5848. In such proceedings under section 5848 the record of the board of equalization is only prima facie, and upon the trial in court the burden is upon the plaintiff to show by evidence that the tax in question is illegal, and the defendants may show by their evidence that it is legal, and the issue thus made must be decided by the court upon the weight of the evidence as thus introduced by the parties, the record of the board being regarded as prima facie, but not in any sense conclusive. This results from a proper construction of our taxing and procedure statutes, and finds some support in the case of Fratz v. Mueller, 35 Ohio St., 397.

It therefore follows that the record of the board in this case does not conclude the defendants in error, and this brings us to the question as to whether or not they were merchants within the meaning of said section 2740. It is clear that the defendants in error did not own the live stock, and that the same was not in their possession, because it was owned by the shippers, and was in the possession of the stock yards company.

Had the defendants in error such control of the live stock as to make them merchants under said section? We think not. When the owners accompanied the stock it went to the stock yards before defendants in error knew of its existence. When the owners did not accompany the stock, it was shipped and consigned by them to the stock yards company, care of defendants in error, and they were notified by letter or wire, and the stock upon arrival was taken in charge at once by the stock yards company without any order from, or control of, defendants in error. The stock being thus in the possession of the company in its yards, whether accompanied by the owners or shipped and consigned by them, the defendants in error had the naked power of sale for the owners as their agents, and to that end had “access to the stock at all times by asking the employes of the stock yards to unlock the gates which are kept locked to prevent the escape of the stock.” This access was only for the purpose of making sales, and not for any general control. Purchasers would necessarily desire to see and inspect the stock before purchasing, and such access was a necessary part of the sale, and was not a control of the stock within the meaning of the statute; After a sale was made the defendants in error would give an order to the purchaser, and upon presentation of such order, the company would deliver the stock to such purchaser. The order was a part of the sale, and not a control of the stock, and was given only after a sale was made; and what the company did in honoring- the order was done for the purchaser, and not for the brokers. The payment of charges for feeding, watering and ■yarding, and the retaining of commissions, were all after the stock had been sold and disposed of, and did not appertain to the control of the stock. In fact the court finds that “at no time did plaintiffs have any control of said stock while in the possession of the stock yards company.’'

Again, to bring the defendants in error within the statutory definition of a merchant, it should appear either that they purchased the live stock, or that it was consigned to them. All concede that they did not purchase it, and the finding of facts shows that none of it was consigned to them. The consigmments were to the stock yards company, care of defendants in error. Such a consignment is to the stock yards company, and not to the brokers. The finding of facts shows that in due course of business under such a consignment, the live stock went direct to the company’s yards independent of any order or control from defendants in error, and that such a consignment was regarded and treated by all as a consignment to the stock yards company alone, and we think that in legal effect such was its character.

With these holdings it follows that the defendants in error were not merchants, and that they were not liable to be taxed as such, and that the tax as to the $12,000 addition to the returns, was illegal. Having arrived at this conclusion, the question as to the constitutionality of section 2740 is immaterial, and we therefore express no opinion upon it.

Judgment affirmed.