text:
    The Second National Bank of Cincinnati v. Hall et al.
    The Southern Ohio Canal Company, by L., its president, executed its promissory note, payable to the order of B., its secretary and treasurer, who loaned to the company the sum for the payment of which the note was given. B. was one of several persons in whose name the company was incorporated by a special act of the legislature of Kentucky, with power to carry on the business of mining coal without as well as within that state. The charter authorized the company to borrow money in the prosecution of its business, and declared its capital stock should consist of $300,000, divided into shares of $100 each, to be subscribed and paid for in such manner as the by-laws of the company might prescribe. Only $120,000 of the capital stock was taken. The corporation engaged in mining coal in this state. ■ B. indorsed the note to the plaintiff, informing its cashier that the company was a corporation. In an-action by the plaintiff on the note against the stockholders of the company as partners: Held, that they were not liable.
    Error to the Superior Court of Cincinnati.

      The original action was brought by the plaintiff against’ Joseph L. Hall, R. C. M. Lovell, J. H. French, Miles Greenwood, B. Homans, Jr., J. Smith Homans, Jr., Francis Howland, and Nathan T. Johnson, as copartners on a promissory note, of which the following is a copy:
    “ 557,500. Cincinnati, June 10, 1869.
    “ Hinety days after date, we promise to pay to the order of R. C. M. Lovell seven thousand five hundred dollars, payable at the office of Homans & Co. Value received. Southern Ohio Coal Co.,
    f TJ. S. Stamp, -i By R. C. M. Lovell,
    \ $3.75 canceled. J President.

    “ Indorsed: R. C. M. Lovell. [H. S. Stamp, 5c. canceled, September 11, 1869.] Demand, notice, and protest waived. R. C. M. Lovell.”
    Only three of the defendants, namely, Hall, Greenwood,' and French, were served with process. In their answer, they severally denied that the Southern Ohio Coal Company was a copartnership, or that the defendants were co-partners, or that they or either of them ever made or authorized the making of said note.
    The case was tried at the special term of the superior court, where judgment was rendered for the defendants. A motion for a new trial was denied; a bill of exceptions was taken, setting out all the testimony; the cause was carried to the general term, by petition in error, where the judgment of the special term was affirmed. It is now sought to reverse both judgments.
    .' It appears from the bill of exceptions that, on .February 25, 1869, the Southern Ohio Coal Company was incorporated by a special act of the legislature of -Kentucky, as follows (Charter, chapter 591):
    “An act to incorporate the Southern Ohio Coal Company.

      “Be it enacted by the General Assembly of the Commonwealth of Kentucky:

    “ Section 1. That R. C. M. Lovell, J. H. French, and B. Homans, Jr., and -their associate members and assigns, be, and they are hereby, created a body politic and corporate, under th§ name and style of ‘ The Southern Ohio Coal Company/ and under and by that name they and their as-' sociates and successor shall have succession, contract and bo contracted with, sue and be sued, in all courts and places, shall have power to organize said company by the appointment of a president and such other officers as they may deem necessary, at such time and place as they may designate by notice previously given by them, and when thus organized, they and their successors may have a common seal, and alter the same at pleasure, and shall have power to make such by-laws and regulations as they may deem necessary, from time to time, for the government, management, and prosecution of the business of áaid company, not inconsistent with the laws of this state or the United States.
    “ Sec. 2. The principal office of said company shall be located in the city of Covington, but offices and agencies may be established at such other point or points as said company may deem necessary to the convenient prosecution of the business of the company. And the company may appoint such agents as may be required by them, and may define the powers and prescribe the duties of such agents.

      “ Sec. 3. The capital stock of said company shall be three hundred thousand dollars ($300,000), to be divided into shares of one hundred dollars ($100) each, which may be subscribed and paid for in such manner as the by-laws of said company may prescribe, and said shares may be transferred in such manner as said company, by its by-laws, may direct.
    “ Sec. 4. The said company may receive, buy, and hold or lease such real estate, within or without this state, not exceeding ten thousand acres, and mining rights, either of coal or other minerals, rights of way, barges, engines, cars, depots, store-houses, stocks of merchandise, and other personal property and estate, that may be deemed necessary by the company to the successful prosecution of their business, and to the execution of the powers herein granted.
    “ Sec. 5. Said company may borrow money on such terms, and receive the same in such way, as may be prescribed by the by-laws, or as may be determined on by the stockholders, but no banking privileges are granted the-company.
    “ Sec. 6. This act shall take effect from and after its passage.
    “Approved February 25, 1868.”
    The company was organized by Francis Howland, JT. Smith Homans, Jr., and Nathan T. Johnson, of New Jersey, and B. Homans, Jr., and E. C. M. Lovell?) of Kentucky. It was first intended to incorporate the company under the laws of Ohio, but the statute requiring the officers and a majority of the directors to reside in the state, the project was abandoned, and a charter obtained in Kentucky, where Lovell and B. Homans, Jr., resided.
    Howland, J. Smith Homans, Jr., and Johnson subscribed $85,000 to the capital stock, and paid the same in coal lands situated in Athens county, Ohio, and Lovell and B. Homans, Jr., each subscribed and paid $10,000 in cash, and Miles Greenwood and Joseph Hall, of Cincinnati, and J. H. French, of Kentucky, subscribed and paid $5,000 each. These sums comprised the total amount subscribed. The company was at once organized, and went into operation, at Covington, the directors being Lovell, French, Johnson, and B. Homans, Jr.; Lovell was elected president, and Homans secretary and treasurer. Hall and Greenwood had nothing to do with the formation of the company.
    In June, 1869, B. Homans, Jr., who owned a bank callpd “ Homans & Co.,” and who was also the owner of the note sued on, having discounted the same for the company, deposited it, with other paper, amounting in the aggregate to-$32,000, with the plaintiff as collateral security for a loan then made to him, of $20,000, informing the plaintiff that the Southern Ohio Coal Company was a corporation. In August next following, Homans became insolvent, and was-afterward declared a bankrupt. The Southern Ohio Coal Company also became insolvent. Neither of the three de~ fendants, Hall,' Greenwood, and French, had any connection with, or knowledge of the making the note sued on.
    The money borrowed, for which the note was given, was used in carrying on the legitimate business of the company; and, at the time the company was organized and went into operation, the stockholders severally believed, and upon good grounds, that the business engaged in, namely, supplying coal for the Cincinnati market from the Athens county lands, would be profitable, aud pay reasonable dividends on the amount invested.

      George Iloadly and E. S. Thorp, for plaintiff in error:
    1. The conditions precedent of the charter were never complied with by the defendants. The charter of the company provided that the capital stock should be $300,000. It is the imperative condition of the charter that the full amount of the stock should be subscribed before commencing business. The defendants could not claim the immunities, and protection of the charter till they had complied with its conditions. 1 Redfield on Railways, §§ 18-51; Salem Mill Dam Co. v. Ropes, 6 Pick. 23; s. c., 9 Pick. 195; King v. Elliott, 5 Sm. & M. 428; Wood v. Bank, 9 Cowen, 203; Shurtz v. Railway Co., 9 Mich. 269; Railway Co. v. Dummer, 40 Me. 172; Railroad Co. v. Johnson, 10 N. H. 890; Railroad Co. v. Gould, 2 Gray, 277; 4 Eng. L. & E. 455; Angell & Ames on Corp., § 591 et seq.; Lyons v. Railroad, 32 Md. 18.
    The use of a corporate name does not make a corporation. Williams v. Bank, 7 Wend. 542; Fuller v. Rowe, 57 N. Y. 23.
    Not having complied with the conditions of the charter, the defendants were not legally incorporated, but were only a partnership or unincorporated joint-stock company.
    2. Even if this so-called “ Southern Ohio Coal Company” was a legal corporation in Kentucky, and gave its ■stockholders the protection of its charter, it had no legal •existence as a corporation in Ohio. It was a mere association of individuals under a corporate name.

      Its charter had no valid force or effect outside of the State of Kentucky. If it existed at all in Ohio it was by sufferance. When the court considers the history of this company — that it was organized in Kentucky because the laws of Ohio forbid its organization here, when all the property .and business were in Ohio, it will be apparent that this company was a fraud upon the laws of the State of Ohio, and that these defendants are not entitled to the protection of their pretended charter by any rule of comity of the State of Ohio, such as is extended to corporations lawfully established and doing business in their parent states and .extending their operations into Ohio. See Bank v. Earle, 13 Peters, 519; Runyan v. Coster, 14 Peters, 122; Farnum v. Blackstone Canal, 1 Sumner, 46; Day v. Newark Manufacturing Co., 1 Blatchford C. C. 628; Angell & Ames, §§ 104, 161 — 166; Wheeler v. O. & M. R. R. Co., 1 Black, 286; Hill v. Beach, 1 Beasley (N. J.), 31; Paul v. Virginia, 8 Wallace, 168; Miller v. Ewer, 27 Me. 509; Aspinwall v. O. & M. R. R. Co., 20 Ind. 492; County of Allegheny v. Railroad Co., 21 Penn. St. 228; Land Grant Railroad v. Commissioners, 6 Kansas, 245.

      Lincoln, Smith & Stephens, for defendants in error:
    It is clear, from the evidence, that none of these defendants ever intended to become partners.
    This was a valid corporation in the State of Kentucky. The act of the legislature created it and prescribed its powers, and the act itself is conclusive as to its validity. Railroad Co. v. Clayes, 21 Vt. 36; Patterson v. Arnold, 45 Penn. St. 410; 10 Wend. 266. It is to be recognized as valid here by the comity of states. Story on Conflict of Laws, § 38; Bank of Augusta v. Earle, 13 Peters, 588; Merrick v. Van Santvoord, 34 N. Y. 208; American Bible Society v. Marshall, 15 Ohio St. 541; Cochran v. Arnold, 58 Penn. St. 399; Bank of Ashland v. Jones, 16 Ohio St. 157; Lathrop v. Commercial Bank of Scioto, 1 Dana, 116; Pickaway County Bank v. Prather, 12 Ohio St. 502; Kanawha

      Coal Co. v. Kanawha and Ohio Coal Co., 1 Blatchf. 391; 23 Ohio St. 625; 25 Ohio St. 282; 27 Ohio St. 251.
    Therefore, under the comity of states, this corporation, will be recognized in our courts, unless “ repugnant to its policy or prejudicial to its interests.”

    The legislature has declared the policy of our state, and expressly authorizes the formation of mining companies where all the business may be done, and aU the property held, out of the state'. See the act of 1865, 1 S. & S. 166. This act was modified in 1871 (see Acts of 1871, p. 97), but all the essential features are retained. This is the settled policy of our state from 1865 up to 1871, as manifested by two general acts of the legislature.
    The defendants were not liable as partners. Lawler v. Bush, 7 Ohio St. 340; Railroad Co. v. Clayes, 21 Vt. 36; Bigelow v. Gregory, 73 Ill. 201; Patterson v. Arnold, 45 Penn. St. 415; 10 Wend. 269; 5 H. of L. 267; Faye v. Noble, 7 Cush. 194; 58 Penn. St. 406.
    The plaintiffs contracted with the coal company as a corporation ; and it is a well-settled rule, “ that where a person has contracted with an organization as a corporation, he is estopped to deny its legal corporate existence at the date of his contract, where there is no fraud.” Judah v. American Live Stock Ins. Co., 4 Ind. 339, and cases there cited ; Faye v. Noble, 7 Cush. 188; Trumbull County Ins. Co. v. Howe, 17 Ohio, 407; Circleville Bank v. Renick, 15 Ohio, 322; McBrown v. Corporation of Lebanon, 31 Ind. 268 ; Meadow Dam Co. v. Gray, 30 Maine, 547; Dutchess Manuf. Co. v. Dow, 14 Johns. 239.
    A corporate name implies a corporate existence. Grant on Corporations, 51; Jones v. Cincinnati Type Foundry, 14 Ind. 89; Hubbard v. Chappel, 14 Ind. 601; Worcester v. Harding, 11 Cush. 285.
   Boynton, J.

The liability of the defendants in error,, as partners, on the promissory note sued on, is asserted by the plaintiff on two grounds. The first is, that the Southern Ohio Coal Company was not legally organized, because of the non-performance of certain conditions which it is alleged were to precede the vesting of corporate power under the charter of the company, the claim being that there was no power to engage in the business for which the company was formed, until the whole capital stock was subscribed, and, hence, that those owning stock at the time the debt was contracted, to recover which suit is brought, whether original members of the company or not, became liable as partners for its payment, although no partnership relation was contemplated by them. To this position there are several decisive answers. In the first place, the subscription of the whole amount of capital stock was not a condition precedent to the vesting of corporate power under the charter, nor a condition precedent to the right to borrow money and engage in the business for which the association was formed. The language of the ■charter is, that “ R. M. C. Lovell, J. II. French, and B. Homans, Jr., and their associate members and assigns, be, and they are hereby, created a body politic and corporate under the name and style of the Southern Ohio Coal Company,” with “ power to organize said company by the ■appointment of a president and such other officers as they may deem necessary, at such time and place as they may designate by notice previously given.” Its capital stock ■consists of $300,000, divided into shares of $100 each, “which may be subscribed and paid for in such manner as the by-laws of said company may prescribe.”

Express power is conferred to purchase or lease real estate within or without the State of Kentucky, and to borrow money on such terms, and receive the same in such way, as-may be prescribed by the by-laws, oras may be determined on by the stockholders; and this is authorized to be done as soon as the corporation is organized. The charter nowhere makes, either in express terms or by implication, a subscription of the entire amount of capital a .,oek a condition to the right to borrow money and engage in the business for which the corporation was organized. In the second place, it by no means follows that the subscribers to tbe capital stock of an association supposed) to be a corporation, or the persons who organize it,, become individually liable for its debts, by reason of a failure upon the part of the corporation to comply with the requirements of the charter in its organization. That personal liability does not attach to stockholders as partners,, or otherwise, from the circumstance that the powers of the-association have.been exceeded without their authorization, is a principle well established. Medill v. Collier, 16 Ohio St. 599. Those only who engage in or sanction the business, not within the purposes for which the association was organized, are liable for the debts contracted in carrying-such unlawful business forward. Rianhard v. Hovey, 13 Ohio, 300.

It not only is not claimed, in the present case, that the-defendants in error, or either of them, contracted the debt for which the note in suit was given, but it clearly appears that neither of them had any knowledge that the note was given or outstanding. Therefore, to hold them liable upon it as makers, in the face of these facts, would be to create-a promise where none existed, and a consequent liability where none was contemplated by any party to the transaction in which the note originated.

Again, the evidence discloses the fact that the note sued on was, in the first instance, discounted byB. Homans, Jr.,, the treasurer of the company, and one of the original corporators; that he had full knowledge that the company was exercising the powers that the charter professed to grant, and that in discounting the note for the company kedealt with and treated it as a corporation, are undisputed facts. It further appears that the plaintiff, through its cashier, was informed that the company was a corporation before it received the note as collateral to the loan to Ho-mans. It accepted and received it as corporate paper and as carrying with it only a corporate obligation, and therefore is estopped from denying the corporate existence of the-company executing it.

The second ground upon which the liability of the de~ fendants, as partners, is claimed to arise is, that the company, although it may have a legal existence in Kentucky, has, and can have, no such existence in Ohio; that its incorporation in the former state to conduct a business beyond its limits, and within Ohio, is a fraud upon our laws, because the stockholders are not, by the laws of Kentucky, individually liable to any extent for the debts of the corporation. How this fact, if true, in the absence of a statutory regulation, operates to make the defendants liable on a promise they never made, either expressly or impliedly, it is difficult to understand. It is not doubted, that a state-may forbid a foreign corporation from exercising corporate-powers within its limits, or may lay such restrictions upon their exercise as will prevent it, except on condition that-the stockholders become bound for the debts of the corporation. But the mere circumstance, that, by the laws of the-state by which the corporation is created, the stockholders may not be individually liable, to any extent, for the debts of the corporation, has never been deemed a sufficient ground for the exclusion of the company from exercising' its corporate powers within this state. The right of such foreign corporation to acquire and hold property in the state, and to sue and be sued in her courts, has been repeatedly recognized. In Hanna v. International Petroleum Co., 23 Ohio St. 622, it was said, “ that a foreign corporation, under the present laws of Ohio, can hold property in this state and sue and be sued in her courts, is well settled.” And to the argument that the company which was organized in Pennsylvania was not a corporation because it was empowered by its charter to do business outside the state of its creation as well as within, it was said “ that the company was a legal corporation in Pennsylvania as soon as organized there, and without commencing business there. Being such, it surely had the right to sue for and recover its property wherever found, provided the laws of the place did not deny it the right.” In The Newburg Petroleum Co. v. Weare, 27 Ohio St. 343, it Avas held by the Commission that “ to permit a corporation, lawfully organized in' another state, to do business in Ohio, was not against public policy, nor contrary to her laws.” There is nothing in the facts of the present case to withdraw it from the operation of the principle applied in the above cases.

The claim that the charter was sought and obtained in Kentucky, in order that the' stockholders might avoid individual liability for the debts of the corporation, is not established by the evidence. What effect, if any, such fact would have, we have not considered. There is little doubt that the company would have organized under the laws of Ohio had not the statute required the officers and a majority of the directors to reside within the state.

Judgment affirmed.


source: Caselaw Access Project

author: Gilmore, C. J.

license: Public Domain

text:
    The Lawrence Railroad Company v. Sarah Williams.
    Where a railroad company occupies a public highway for its track, without appropriating or otherwise acquiring the right to do so, an owner of abutting lands, having the fee in the lands covered by the highway, may proceed, under section 21 of the act of 1872 (69 Ohio L. 95), to compel the company to appropriate the right of way for its road.
    Error to the District Court of Mahoning county.

      J. T. Brooks, for plaintiff in error:
    The plaintiffs have mistaken their remedy. The action was brought under section 21 of the act of 1872 (69 Ohio L. 88). The scope of this act is clearly limited to cases of ■the appropriation of private, as distinguished from public property.
    The occupation of streets, highways, and other public grounds, by railroad companies, is regulated by section 12 of the corporation act of 1852 (S. & C. 278). As the public has an easement, merely, in these public thoroughfares, and, as county commissioners and city and village councils have charge of them, the terms and conditions on which they may be used, and the public, to that extent, dispossessecl, are determined by these public officers. The right of adjacent land or lot-owners to compensation for injury they may have sustained in the enjoyment of their private lands, in consequence of such occupation of the highway by a railroad company, is recognized and fully established.

      George F. Arrel and M. W. Johnson, for defendant in error.
   Gilmore, C. J.

The original proceeding was instituted in the probate court, by the defendant in error, against the plaintiff in error, to compel it to appropriate the right of way for its railroad over a strip of land forty-five feet wide by ninety feet long, taken off the south end of her homestead lot, which lot and strip she owns in fee simple, subject to the easement in the public of an established highway, which covers the strip of land above mentioned, and on which highway the railroad company located and constructed its road, without having made an agreement either with the public authorities having charge of the highway, or with the defendant in error, for the right of way. In constructing its road the company made a fill which covers the highway, including the strip of land above mentioned, and entirely destroys the highway, as such, in front of the residence of defendant in error. All of which appears from á finding of facts by the court from the plaintiff’s testimony, which finding is made part of the record. The proceeding resulted in a verdict in favor of defendant in error, giving her compensation for the land taken, and also damages to the lot occasioned by the destruction of the highway in front of it; upon which verdict judgment was rendered.

On error prosecuted by the present plaintiff in error in the court of common pleas, this judgment was reversed. On proceedings in error instituted by the present defendant in error in the district court, the judgment of reversal was reversed, and that of the probate court affirmed. By this proceeding the railroad company seeks the reversal of the judgment of the district court.

The proceedings in the probate court were under section 21 of tlm act “ prescribing the mode of assessment and collection of compensation to the owners of private property appropriated by and to the use of corporations.” 69 Ohio L. 88. This act provides that when any corporation authorized to make appropriations of private propei’ty has-taken possession of and is occupying and using the land of any person for any purpose, without having appropriated or paid for the same, and without an agreement with the owner, the latter may serve notice on the- corporation to proceed under the act to appropriate the land so taken, and on failure of the corporation for ten days to so proceed, the owner may file a petition in the probate court, setting forth the facts of such occupation by the corporation, and thereafter the proceedings in said court shall be conducted to-final judgment in all respects as provided in the act. The-act prescribes the mode of pi-oceedings in the appropriation of private property by corporations.

On the trial, after the plaintiff' in the probate court had introduced her evidence, from which the court found the-facts, as above stated, and rested, the railroad company moved the court to strike the petition from the files and dismiss the action, for the reason, among others, “ that the-ground taken and now used by defendant for their track is-in or about the middle of what was a public road or highway opened by order of the commissioners of Mahoning county, in 1847.” This motion was overruled, and the defendant excepted. This ruling is assigned for error, and raises the question whether the probate court has jurisdiction of the case under section 21 of the act referred to.

The points made by counsel for plaintiff in error are: 1. That the scope of the act is limited, to cases of the appropriation of private, as distinguished from- public property ; and that the property in this case being of the latter description, the plaintiff' mistook her remedy.

2. That the plaintiff’s only remedy is by a civil action for the recovery of damages, under section 12 of the corporation act of 1852. S. & C. 278. But it may as well he said here, that this section assumes to apply only in cases where a railroad occupies a highway by agreement with the public authorities having charge thereof, or by appropriating it “ in the same manner and upon the same terms as is provided for the appropriation of the property of individuals.” The railroad company had not procured the' right to occupy the highway in question in either of the modes indicated in this section ; and inasmuch as it is not itself within the provisions of the section, the remedy provided by the section for injuries done to private property by the occupancy of the highway by it can not be applicable.

Recurring, therefore, to the first point: If the interest which the plaintiff in the probate court had in the highway was private, property, within the meaning of the constitution and laws of this state, then the case is within the' scope of the act, under the 21st section of which the proceedings were had, and the probate court did not err in overruling the motion to dismiss the action.

As between the public and the owner of land upon which a common highway is established, it is settled that the public has a right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established. The right to improve includes the power to grade, bridge, gravel, or plank the road in such a manner as to make it most convenient and safe for use by the public, for the purposes of travel and transportation in the customary manner, which is well understood to be by the locomotion of man or beast, and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is to receive-compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner; he is-taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance.

In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. But the appropriation for this purpose can not be constitutionally made without making compensation to the public for the injury thereby occasioned to its easement in the highway; and also making compensation to the owner of private property taken for the use indicated. In such case, the rights of the public, and the rights of the owner, are entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other. But we are not dealing with the public right. It has already been said that the plaintiff, in the probate court, was the owner in fee of the land covered by the highway. This was her private property within the meaning of the constitution, subject only to the easement of the public therein. The nature and extent of this easement was above shown. The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use, to which the highway has been diverted, imposes burdens on the land that are entirely different from, and in addition to, those that were imposed by the highway. The right to so divert the.use, and impose additional burdens on the land, could only be acquired by the corporation by agreement with the owner, or by appropriating and making compensation therefor, in the mode prescribed by law. Cincinnati v. Cumminsville, 14 Ohio St. 523; Hatch v. Railroad, 18 Ib. 92-122; Cooley’s Constitutional Limitations, *549.

The facts in this case clearly bring it within the provisions of section 21 of the act of 1872, under which the proceedings were had. The original jurisdiction was in the probate court. The act created no new right; for the plaintiff’s right to compensation, for the new and additional burdens imposed on her land, together with damages for the injuries to, or destruction of, the easement in the highway, which was appendant to her lot, was constitutional. It did not give a new remedy; for section 1 of the act of 1865 (S. & S. 114) gave the same remedy, and it was in force at the time the highway was taken possession of by the railroad company.

The probate court did not, therefore, err in overruling the motion to dismiss the action ; and there is no error in the judgment of the district court.

Judgment affirmed.


author: By the Court.

text:
    Jeffers v. Philo.
    Where a deed conveying real estate is executed and delivered, the destruction of the unrecorded instrument will not revest the title in the grantor; and the grantee will not be estopped to claim the land under such conveyance, unless such claim would operate as a fraud on his part. Buhes v. Spangler, ante, 119, followed.
    Error to the District Court of Wood county.
    On July 14, 1878, Asahel Philo filed a petition in the Court of Common Pleas of Wood county, against John R. Eay, and his three sisters, setting forth that he, Philo, was in possession of the premises described in the petition, and had a legal estate therein; and that the defendants claimed an estate in the premises adverse to his estate, and he asked that his title might be quieted.
    An answer and a reply were filed; and, after judgment in the court of common pleas, the cause was appealed to the district court, where the court, on hearing, at the March term, 1874, found the following to be the facts : Henry Hood, being the owner of the premises, sold and conveyed them to John Pay, who subsequently destroyed the deed, which had not been recorded; and on Deeembei 30, 1839, caused Hood, without any other consideration, to execute to Elizabeth, the wife of Fay, a deed for the same premises, which deed was recorded within six months thereafter. Elizabeth Fay, the grantee, died November 13,1846, leaving, surviving her, John R. Fay and his three sisters, her only children and heirs at law. Subsequently, John Fay married another woman, whose Christian name also was Elizabeth, and on October 17, 1853, she joined him in conveying the land in fee to Nelson Berkley, under whom Pililo claims by deed in fee, duly executed; and Philo is in possession. And thereupon the district court found the equity of the case to be with Philo, and rendered judgment in his favor accordingly.
    On leave, a petition in error was filed in this court by John R. Fay and his three sisters, to reverse the judgment of the district court.

      George Strain, for plaintiffs in error.

      Cook & Troup, for defendant in error.
   By the Court.

The deed from Henry Hood to John Fay having been duly executed and delivered, the title passed to Fay, and it was not revested in Hood by the destruction of the deed, though the instrument had not been recorded. True, the grantee may, under some circumstances, be es-topped to claim the land, if he consent to the destruction of the deed in which the title was conveyed to him; but nothing appears in this case which, as against Philo, can work an estoppel in favor of the plaintiffs in error, claiming, as they do, under their mother, who received a deed without consideration. Dukes v. Spangler, ante, 119, followed.

Judgment affirmed.


author: Okey, J.

text:
    Williams v. The State.
    An indictment in which it is charged that the defendant unlawfully killed the deceased, is sufficient, notwithstanding the change in the language of the section of the crimes act defining manslaughter (74 Ohio L. 244, • § 4), and in the section relating to the sufficiency of indictments for that offense (74 Ohio L. 335, § 6). Wolf v. The State, 19 Ohio St. 248, approved.
    Motion for leave to file a petition in error to reverse the judgment of the Court of Common Pléas of Mahoning county.

      T. W. Sanderson, for plaintiff in error.

      Isaiah Pillars, attorney-general, and John S. Poller, for the state.
   Okey, J.

By an indictment, returned at the May term, 1879, of the Court of Common Pleas of Mahoning county, the grand jurors, on their oaths, did find and present, in substance, that William Williams, Thomas Williams, and Edward Lewis, on the twenty-fourth day of May, in the year of our Lord one thousand eight hundred and seventy-nine, at the county of Mahoning aforesaid, did unlawfully kill Isaac Brougher, then and there being, contrary to the form of the statute, etc.

William Williams was placed on trial, and a verdict of guilty was rendered; and the court, having overruled a motion in arrest of judgment, sentenced him to the penitentiary. He asks leave to file in this court a petition in error, on the ground, among others, that the court improperly overruled the motion in arrest.

The legislature, in enacting our former crimes act, adopted, as to the crime of manslaughter, the language employed by authors of approved works on criminal law in defining that felony at common law. 1 S. & C. 403; Sutcliffe v. The State, 18 Ohio, 469, 476; Archbold’s Cr. Pl. (17 ed.) 623. See Nichols v. The State, 8 Ohio St. 435. In 1869, the legislature, without any change in the language of that statute, provided, in the code of criminal procedure (66 Ohio L. 301), that, “ in an indictment for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused ; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.” This section was borrowed from the statute, 24 and 25 Viet., c. 100, § 6, which provided, furthermore, that in an indictment for murder it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased ; and the approved precedents of indictments for murder and manslaughter, under the English statute, are in the brief terms indicated in the section. ArchbokVs Or. PI. (17 ed.) 620, 656. See also 8 Am. ed., vol. 1, p. 725.

The indictment in Wolf v. The State, 19 Ohio St. 248, in the brief form authorized by the act of 1869, simply alleged that the defendant, on, etc., at, etc., “ one Samuel Lee, then and there being, did unlawfully kill and slay.” The point was strongly urged that this was not an indictment within the meaning of the constitution (art. 1,§ 10) ; but the court held that it was, and it seems to us properly so held.

The act of 1869 was so changed by the act of May 5, 1877, as to make provision for the form of an indictment for murder in the second degree ; and at the same time the language, as to the sufficiency of an indictment for manslaughter, was slightly changed, so that it is now sufficient to charge “ that the defendant did unlawfully kill the deceased.” 74 Ohio L. 335, § 6; Eev. Stat. § 7217. The language of the section relating to manslaughter was also changed by an act passed on the same day (74 Ohio L. 244, § 4; Eev. Stat. § 6811), so that the crime is defined in substantially the same language as in the indictment in Wolf v. The State, and in the above-mentioned section 6. It is a homicide of less degree than murder, and is committed by one who “ unlawfully kills another.”

We see in this change of language no purpose to change the law in any particular (Gardener v. Woodyear, 1 Ohio, 170, 176; Swasey v. Blackman, 8 Ohio, 5, 20; Ash v. Ash, 9 Ohio St. 383, 387; Tyler v. Winslow, 15 Ohio St. 364, 368); and, following Wolf v. The State, we hold this indictment to be sufficient.

Motion overruled.


author: Okbt, J.

text:
      Moore v. Coates.
    1. The court having caused its findings on an issue in an action to he entered on the journal, the defendant then filed a motion for a new trial, alleging one of the grounds in these words: "Newly discovered evidence.” At the next term, to which the cause had been continued for want of time to hear the motion, the court refused to hear affidavits containing material testimony, filed shortly after the trial term, in support of that ground, although no objection had been previously made to the form of the motion, and also refused to permit the motion to be so amended as to show the names of the witnesses and the newly discovered facts sought to be established by their testimony, and thereupon overruled the motion and rendered judgment on the findings: Held, that this was error.
    2. While the court retains jurisdiction over a motion for a new trial on the ground of newly discovered evidence, the hearing of the motion is not limited to evidence discovered during the term at which the motion was made, but may include evidence subsequently discovered, and which, in the absence of such motion, could only be brought before the court by petition in accordance with the civil code (2 SOI). The object of the provision requiring the application to be made by petition, is to bring the matter within the jurisdiction of the court in cases where, in the absence of such provision, control over the subject would have been lost in the particular case.
    Error to the District Court of Athens county.
    On April 6, 1868, George C. Coates brought suit in the Court of Common Pleas of Athens county, against Eliakim H. Moore and the Chillicothe Bank, to impeach for fraud. a decree rendered in the same court, on September 16,1867, whereby said Coates was divested of all claim of ownership in certain lands in that county, and the sum of $2,400 was adjudged to him as and for his interest in the premises. An answer and a reply were filed. The pleadings are fully stated in this case as reported in 23 Ohio St. 415.
    The cause was heard in the court of common pleas on the evidence; and, after judgment in that court, an appeal was taken to the district court, where, at the September term, 1874, a finding was made and entered on the journal, to the effect that the allegations contained in the petition were true. On the trial, objection was made to the exclusion of certain evidence, and this is specified in a motion for a new trial, which was filed when the finding was made, but no bill of exceptions was taken during the term. The motion for a new trial also alleged that the finding was against the evidence, and the eighth specification in the motion was in these words: “Newly discovered evidence.”
    The motion for a new trial was heard in the district court, at the December term, 1875, no objection to its foi’m having been made by court or counsel until that time. Counsel for plaiutiffs in error read before the court the evidence taken on the trial at the former term, and in support of the eighth specification in the motion, relating to newly discovered evidence, they offered to read the affidavits of E. II. Moore and others, tending to show that since the trial of the cause, the plaintiffs in error had discovered new and material evidence, which evidence they could not, with reasonable diligence, produce at the trial; and they offered to read the newly discovered evidence, as detailed in the affidavits of witnesses then produced, which evidence tended to prove the issues in favor of plaintiffs in error, and was not cumulative, all the affidavits, except one, having been filed in the cause previous to January, 1875. The defendant in error objected to the affidavits, on the ground that the eighth specification in the motion did not contain the names of the witnesses, nor a statement of the newly discovered evidence, and the court sustained the objection The plaintiffs in error then asked leave to amend the eighth specification, so as to supply the alleged defects, admitting at the time, however, that the larger part of such evidence had been discovered since the term at which the finding was made and entered ; but the court overruled the motion to amend. Plaintiffs in error excepted to the several rulings of the court; and thereupon the court overruled the motion for a new trial, and entered judgment in favor of Coates, in accordance with the finding. A bill of exceptions was then taken, setting forth the evidence admitted on the trial at the September term, 1874, and the various rulings complained of, but not containing the affidavits offered and rejected on the hearing of the motion for a new trial.
    On leave, Moore and the bank filed in this court a petition in error to reverse the judgment, order, and findings.

      John Welch and Be Steiguer, Jewett $ Slattery, for plaintiffs in error:
    The court erred in refusing to hear the affidavits. Tidd’s Pr. 904 ; Hilliard on New Tr. 16, 20, 514; Wright v. Haddock, 7 Dana, 253 ; 2 Term, 113. If the motion was defective, the remedy was an application that it be made more certain. Code, § 118; 23 Ohio St. 366. Leave to amend the motion should have been granted. Hilliard ton New Tr. 35 ; 34 Eng. L. & Eq. 413 ; 24 Geo. 565 ; 20 Iowa, 477. Refusal to grant new trial for newly discovered evidence was ground of reversal. Hilliard on New Tr. 8, 12; 15 Ohio St. 211; 16 Ohio St. 328.

      Harrison, Olds & Marsh, for defendant in error:
    Error can not bo assigned to the ruling of the district court on the motion for a new trial based on the ground of newly discovered evidence. Smith v. Bailey, 26 Ohio St. 1; House v. Elliott, 6 Ohio St. 497 ; Gest v. Kenner, 7 Ohio St. 75; Civil Code, §§ 297-301. Applications on this ground are entertained with reluctance. Moore v. Philadelphia Bank, 5 S. & R. 41; Aubel v. Ealer, 2 Binn. 582; The

      State v. Harding, 2 Bay, 267. The ground must be set forth with certainty, and there must be no laches. Hilliard on New Tr. 504, 514; Gilbert v. Woodbury, 22 Maine, 246; Hoffman v. Gordon, 15 Ohio St. 211; Eastman v. Wight, 4 Ohio St. 156; Parks v. The State, 4 Ohio St. 234; Cowden v. Wade, 23 Ind. 471; Fikes v. Bentley, 1 Hemp. 1. 2 Swan’s Pr. 921, 925, and Swan’s C. S. 667, commented on. For aught that • appears, the newly discovered evidence may have been offered to coutradict Coates’ witnesses, which evidence, though newly discovered, forms no ground for a new trial. Hilliard on New Tr. 505. The court will not reverse for excluding affidavits, unless it appears from the record there was prejudice. Smith v. Woodfine, 1 C. B. (N. S.) 660 ; Ludlow v. Parks, 4 Ohio, 45; Cleveland, etc., R. R. Co. v. Long, 24 Ohio St. 133; Scovern v. The State, 6 Ohio St. 288; Ohio L. T. Co. v. Goodin, 10 Ohio St. 557 ; Hollister v. Reznor, 8 Ohio St. 1; Legg v. Drake, 1 Ohio St. 286 ; Palmer v. Yerrington, 1 Ohio St. 253 ; Gandolfo v. The State, 11 Ohio St. 114; Oviatt v. The State, 19 Ohio St. 573; Alpin v. Morton, 21 Ohio St. 546; Perminter v. Kelley, 18 Ala. 719; Audner v. Broughton, 21 Ala. 204; Donnell v. Jones, 17 Ala. 689; 40 Maine, 274; 3 Lit. 315 ; 7 Mo. 293. Refusal of leave to amend motion no ground of reversal where the abuse of discretion is not manifest. Brock v. Bateman, 25 Ohio St. 609.

      Simeon Nash, also for defendant in error:
    The court will not review the order of the district court as to the new trial. 26 Ohio St. 1. No cause for a new trial is disclosed, nor is any diligence shown. 22 Maine, 246 ; 1 Cal. 180 ; 21 Texas, 171; 18 Wis. 320; 16 Maine, 121.
   Okbt, J.

¥e do not find any thing in the record which will warrant a reversal of the findings of the district court at the September term, 1874. In reaching that conclusion, we decide nothing which, under our rules, is for report. This opinion will be confined to the question whether the district court erred in holding that the eighth specification in the motion for a new trial — “ newly discovered evidence ” — was in such indefinite form that it might be regarded as frivolous. But, in determining that.question, the practice as to new trials, on the ground of newly discovered evidence, must, to some extent, be considered.

Under the former practice in this state, the courts always had the power to grant new trials. By a provision in the practice act of 1810 (1 Chase, 706), w’hich was continued in force until the adoption of the code of civil procedure, in 1853, the supreme (now district) court and the court of common pleas had power to grant new trials “ for reasons for which new trials have usually been granted in courts of law.” 2 Chase, 969, 1275 ; 3 Chase, 1686 ; Swan’s C. S. 677, 671; 3 Curwen, 1983.

Anciently, in England, new trials were not allowed, except for matters appearing in the record; but the courts, at an early day, began to exercise discretion in setting aside verdicts where injustice had been done ; and, finally, that which had been merely matter of discretion, became classified into well-defined rules, though, of course, a court clothed with power to grant new trials, must necessarily be vested with large discretion. Long before the passage of the earliest statute to which I have referred, it had become well settled, in England and in this country, that a new trial would, in a proper ease, be granted on the ground of newly discovered evidence. Broadhead v. Marshall, 2 W. Bl. 955 ; Lister v. Mundell, 1 B. & P. 427; Thurtell v. Beaumont, 8 Moore, 612 ; s. c., 1 Bing. 339 ; Weak v. Callaway, 7 Price, 677; Hilliard on New Trials (2 ed.) 491. These authorities show that motions for new trials, based on that ground, are not favored. In construing our former statutes, that rule was not disregarded. The motion was denied if the mover had been guilty of laches. And in Ludlow v. Bark, 4 Ohio, 5, 44, it was said : “ In considering the motion, the court will not inquire whether, taking the newly discovered evidence in connection with that exhibited on the trial, the jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict.” But, while there has been great diversity in the practice in this country as to new trials, the strictness required in this state was, under the former practice, generally in matter of substance, and not as to the mere form of the motion. The statement of a ground for a new trial, in substantially the form employed in this case, was sufficient. Ludlow v. Park, supra; Reed v. McGrew, 5 Ohio, 475 ; Perrin v. Protection Ins. Co., 11 Ohio, 147; Loeffner v. The State, 10 Ohio St. 598; Harris v. Protection Ins. Co., Wright, 548; How v. Bodman, 1 Disney, 115 ; 2 Swan’s Pr. 922. True, it was said in Ludlow v. Park, that “ our practice requires that the newly discovered evidence should be disclosed ” (p. 44). This was said, however, not with reference to the form of the motion, but to the manner in which it should be supported, the object being the disapproval of a practice, which had prevailed in this state, of granting the motion on the verbal statement of counsel as to the newly discovered evidence. The State v. Shanks, Tappan, 13.

In our former statutes, as we have seen, the grounds for a new trial were not enumerated; but a change in this particular was made by the civil code of 1858, which, in enumerating the grounds, provided that a new trial might be granted for “ newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial ” (§ 297). But this worked no change in the law. In Humphries v. Marshall, 12 Indiana, 609, the ground assigned was in the identical words of this motion, and the statute of Indiana, in this particular, is a transcript of our code. Objection was made to the form of the motion, but the supreme court held it to be sufficient. And in Cleveland, etc., R. Co. v. Long, 24 Ohio St. 133, Mcllvaine, J., in speaking of the condition of things essential to granting a motion based on that ground, pertinently remarked that “the rule of practice on this subject has not been substantially changed by section 297 of the code.”

Suggestion is made, however, that the motion should be so specific that if the opposite party will admit the truth of the statement, the court would be warranted in granting a new trial. I do not know of any such pi’actice. A motion for a new trial proves nothing ; nor is any statement, verbal or written, required in answer to it. Silence is a complete answer. Nothing is required of the opposing party but to overcome, if he can, by like evidence, the case made in the mover’s affidavits. The court is not required to grant a new trial, even at the request of both parties. Aiken v. Bruen, 21 Ind. 137. Nor will it do so, except to subserve the ends of justice, or in obedience to the provisions of a statute. Any other course would be unjust to other litigants and to those who are taxed to secure the due administration of justice. If, in assigning this ground for a new trial, the mover had copied the words of the statute literally, no information would have been conveyed to the opposing party that was not conveyed by this motion. He would have been informed, if the words of the statute had been copied, that the newly discovered evidence was material for the party applying for the new trial, and that he could not, with reasonable diligence, have discovered and produced the evidence at the trial; but this information was as clearly conveyed by the'whrds used in this case, for, unless that condition of things existed, a new trial could not have been granted on the ground of newly discovered evidence. Indeed, it seems clear that the clause of the statute concerning newly discovered evidence, has relation, not to the form of the motion, but the diligence required of the party moving and the character of the evidence upon which such new trial may be granted.

A question of far more importance is, whether the court can not compel the party moving to make such an assignment of grounds for a new trial more definite and certain by setting forth therein, in general terms, the newly discovered facts. "We do not doubt the existence of such power, nor that its proper exercise would go far to j>re-vent baseless applications. It may be that newly discovered evidence is sometimes assigned as a ground for a new trial, when the mover has far greater hope of sustaining the assignment by something thereafter to bo discovered, than by any thing then known to him. No such practice should be tolerated, and, if the evil exists, it should be remedied either by rule or statute.

In this case, as we have seen, the plaintiff asked leave to amend his motion, by setting forth therein the newly discovered facts, and the names of the witnesses by whom they could be proved, and leave was refused. This, of itself, is not ground of reversal. It is also time, that the record does not contain the rejected affidavits, or the facts which they tended to prove; and that, ordinarily, will be a fatal objection to a reversal. Himrod Furnace Co. v. Cleveland, etc., R. R. Co., 22 Ohio St. 451. But, as will be presently shown, this proceeding in error should not be defeated by the application of either of these rules, for the error does not consist merely in refusing leave to amend, nor in excluding a particular fact or item of evidence.

Smith v. Bailey, 26 Ohio St. 1, cited as authority that this court will not review the action of the district court as to that part of the motion, does not sustain the proposition. In House v. Elliott, 6 Ohio St. 497, and other cases following it, the rule was perfectly well settled that, under the code of civil procedure, there was no power in this court to review the judgment of the court below, where the ground of reversal was that the verdict or finding was contrary to the weight of evidence. Then came the act of 1858, which conferred such power. Ide v. Churchill, 14 Ohio St. 372, followed in many cases. In Bailey v. Smith, it was held that the act of 1858 did not extend to the decision of the court in overruling a motion for a new trial based on the ground of newly discovered evidence. But here we are not called upon to determine as to the weight or sufficiency of evidence. It is wholly immaterial whether the affidavits did or did not make a case for a new trial. The error consists, not in weighing, but in excluding the whole evidence, without regard to its weight. The court refused to pass any judgment on the sufficiency of the affidavits, while the record shows they contained material evideuce. The error is entirely analogous to the rejection of a competent witness, which affords ground of reversal, although no fact sought to be established by him is stated in the record. Hollister v. Reznor, 8 Ohio St. 1; Wolf v. Powner, 30 Ohio St. 472. Other illustrations of the same principle are found in our reports. Thus, in Newman v. Cincinnati, 18 Ohio, 323, the plaintiff had proved, by his evidence, a prima facie case, but the evidence offered on the other side was regarded by the court below as decisive of the case in favor of the defendant, and a verdict in the defendant’s favor was directed. In delivering the opinion in this court, Hitchcock, C. J., said: “ We do not consider this a mere technical error,but we look upon it as an invasion, by the court, of the province of the jury, which should always be guarded against; and, although upon the whole case as exhibited to us, we are of opinion the plaintiff has no claim, either in law or equity to the premises in controversy, we feel ourselves bound to reverse the judgment.” " And see Jones v. The State, 26 Ohio St. 208.

The most difficult question remains. In hearing the case on this motion for a new trial, based on the ground of newly discovered evidence, will the district court be authorized to look to the evidence discovered since the September term, 1874 ? In my opinion, this question should be answered in the negative. A party may obtain a new trial upon motion, but the motion must be filed during, and not after, the term at which “the verdict, report, or decision is rendered.” Civil Code, § 299. Where the grounds are discovered subsequently to the term when “ the verdict, report, ... or decision was . . . rendered,” relief can only be had by petition. § 301. A motion, ordinarily in the briefest terms, may be, and usually is, heard in a summary manner upon ex parte affidavits ; while a petition is a substitute for the remedy by bill 'in equity for a new trial, on the ground of newly discovered evidence (Stevens v. Hey, 15 Ohio, 313; Brown v. Luehrs, 79 Illinois, 575 ; Hilliard on New Tr. (2 ed.), 604; 2 Nash’s Pr. 1048); though, on the one hand, the remedy is broader than by bill in equity, and, on the other hand, section 301 may not provide for all the cases in which relief may be had where the principal ground is newly discovered evidence.

A partjq in my opinion, has his election to abide by his motion, where one has been properly filed, in which case he should be confined to evidence discovered during the trial term, and subsequently to the findings; or, where the cause has been continued on such motion, and he discovers evidence subsequently to the trial term, he may abandon his motion and proceed by petition, which must contain the substance of the evidence offered on the trial, as well as that newly discovered, and show diligence (Sanders v. Loy, Shigley v. Snyder, 45 Ind. 229, 543); and on the hearing of such petition, the evidence must be delivered orally in open court, or by deposition, with full opportunity for cross-examination (§ 801); and the whole evidence, without regard to the time it was discovered, will be considered by the court. What the practice is where the petition for a new trial has been sustained is well settled. Frazier v. Williams, 24 Ohio St. 625; Watson v. Payne, 25 Ohio St. 340; Bank v. Slemmons, 34 Ohio St. 142.

The reasons for the view I have stated are as strong as if judgment had been rendered at the trial term, and all the new evidence had been discovered subsequent to that term. Admitting that the words of the statute will admit equally well of either construction, it seems to me the one I have indicated should be followed. It is certainly a reasonable rule, that where a statute regulating practice admits of two probable but conflicting constructions, neither of them leading to serious inconvenience, that construction is to be preferred which seems best calculated to secure the due administration of justice; and where, according to one construction, the party moving for a new trial may, on the hearing, offer evidence secretly collected, it may be during a period of several months, or, in an extreme case, even years, and without any opportunity for cross-examination, while, according to the other construction, the testimony of no witness can be offered without an opportunity of cross-examination — the importance of which is sometimes inestimable — the latter construction, I think, must be the proper one. True, the person testifying by affidavit may, on application of the opposing party, be afterward compelled to testify, on the hearing of the motion, by deposition, or even orally if within the jurisdiction of the court; but every lawyer knows that, in actual practice, this is no effectual check on the abuses incident to a hearing supported by affidavits, where the motion has been pending for many months.

But while my opinion is as I have stated it to be, the other members of the court, it may be thought with better reason, unite in holding that the sections of the civil code relating to new trials (§§ 297-301), construed in connection with the sections providing in what manner judgments and orders may be vacated in the courts where rendered or made (§§ 534-542), fully authorized one who filed a proper motion during the trial term, on evidence then discovered, to support such motion, on its hearing at a succeeding term, by evidence discovered subsequently to the trial term, as well as evidence discovered during that term, but after the verdict was rendered, or report or finding made. They admit that a party who has made no motion for a new trial may file a petition for a new trial, under section 301, where the ground is discovered subsequently to the term when the verdict was rendered, or report or finding made, even though judgment may not have been rendered; but they hold that this peculiar language was used with a view of preventing a failure of justice in cases where a verdict has been rendered, or a report or finding made, aud the cause has been continued without judgment, for want of time or other cause, and subsequently to the trial term ground for a new trial is discovered, which can not be taken advantage of by motion, for the reason that no motion assigning that ground was filed during the term; and that it is not necessary to resort to a petition under section 301, where the cause has been continued on a motion for a new trial, the general language of which is broad enough to embrace the case that would be made by petition. And the conclusion arrived at by the majority is, perhaps, strengthened by the remarks of the code commissioners, appended to section 301; and also by the general principle, apparent in the code, that a multiplicity of suits and proceedings should be prevented.

We hold that, under the circumstances, the court was not authorized to treat the statement of the ground for a new tidal, that is, newly discovered evidence,” as a nullity; and for this error the judgment, as well as the oi’der ovex’ruling the motion, so far as it relates to that ground for a new trial, must be reversed; but the finding at the September term, 1874, and the order overruling the motion for a new trial, as to all other grounds except newly-discovered evidence, will remain undisturbed.

The cause will be remanded to the district court. It will stand there for hearing on the motion for a new trial, on which hearing each party should be permitted to offer any proper testimony as to the newly-discovered facts, and the motion should be disposed of as if no other ground for a new trial had been assigned. As already indicated, however, the defendants below should be permitted to offer any proper evidence discovei’ed since the September term, 1874, as well as proper evidence discovered during that term, but subsequent t'o the finding.

Judgment reversed.


text:
    The Fireman’s Insurance Company of Dayton v. Parley C. Holt, Receiver of the Washington Woolen Mills Company.
    1. A condition in a fire policy against subsequent insurance, is not broken by the taking of subsequent policies by the insured which never took effect by reason of conditions therein contained.
    2. The receipt of payment on such subsequent void policies is not matter of defense in an action on the prior policy.
    Error to the District Court of Lucas county.
    The action in the court of common pleas was brought by Holt, receiver of the Washington Woolen Mills Company, on a policy insuring its property against loss by fire, issued by the Fireman’s Insurance Company of Dayton on the 10th of July, 1868, between which time and the 8th of January, 1870, five additional policies were taken out by the Woolen Mills Company, on the same property, all of which policies, if they were valid, were in force at the time the property was destroyed by fire on the 27th of March, 1870.
    The policy issued by the Fireman’s Insurance Company, which was valid at its inception, and was the first insurance on the property, contains this condition : “ And if the said assured, or their assigns, shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to this ■ company, and have the same indorsed on this instrument by the secretary, or otherwise acknowledged by them in writing, then this policy shall cease and be of no further effect.” The principal defense, and the only one that will be noticed, was, that this condition had been broken by the insured, in taking out subsequent insurance, without the consent or knowledge of the insurer, on the same property ; and that the rights of the insured under the policy were thereby forfeited. One of the conditions common to the subsequent policies was (quoting from one by way of example), that “ if the property to be insured be held in trust, or on commission, or be a leasehold interest, or equity of redemption, or if the interest in the property be other, than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured; it must be so represented to the company and expressed in the written part of the policy, otherwise the policy shall be void.” The condition in each of the others, if not in the same words, was, in legal effect, the same.
    After the destruction of the property, the companies that had issued the subsequent policies compromised with the insured, and paid a part of the amounts insured by them respectively, which was accepted in satisfaction of the whole.
    The reply to the defense above stated was, that the subsequent policies “ were uncollectible, invalid, and void, and were not other insurances on said property ; and so denies the averments of the answer in relation thereto.”
    There was a judgment for the defendant below in the court of common pleas. On error prosecuted by the plaintiff below, the district court found that the subsequent policies “ were not other subsisting and valid policies of insurance, and that they did not in fact and in law contravene or violate any conditions contained in the policy of insurance sued upon by plaintiff, and that the same were not and are not in fact and in law a bar to prevent the recovery by plaintiff of the amount due to him on said policy of defendant.” The judgment of the common pleas was thereupon reversed, and judgment rendered in favor of the plaintiff below for the amount due on the policy.
    The finding and judgment of the district court are assigned for error here.

      R. & E. T. Waite, for plaintiff in error.

      Osborn & Swayne, for defendant in error.
   Gilmore, C. J.

If the subsequent policies taken out by the insured constitute breaches of the condition against further insurance contained in the policy sued on, the district court erred in reversing the judgment of the common pleas; if not, there is no error.

The insurer held the affirmative of the issue made by the pleadings on this point; and as it was insisting that the insured had forfeited all rights under its policy, by the breach of a condition inserted therein for its own benefit, it was bound to strictly prove that the condition had been broken. The evidence upon which it relied for this purpose consisted of the several subsequent policies procured from other companies by the insured, on the same property, without the knowledge or consent of the defendant below.

By conditions contained therein, each of these subsequent policies requires that, “ if the interest in the property be other than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured, it must be so represented to the company, and expressed in the written part of the policy; otherwise, the policy shall be void.” The bill of exceptions shows that, prior to the issuing of the subsequent policies, the insured convoyed the property covered by all the policies, by a deed absolute on its face, to one Amos Babcock. In each of the subsequent policies, the insured is described in the written part thereof as the owner of the property, without qualification. The record does not show that the insurers issuing the subsequent policies had any notice or intimation that this description of ownership was false. Under these circumstances, as between the parties to them, neither of these subsequent policies ever took effect; they were void ab initio. Mutual Assurance Society v. Holt, 29 Grat. 612.

Counsel for plaintiff in error admit that this may be true as regards a policy void upon the face of it, and possibly as to one that has been actually and legally avoided; but claim that it is not true as regards one that has not been avoided, and can only be after a reference to extrinsic facts. They ask: Who is to determine whether such a policy can be avoided or not ? The answer is, that if a policy is voidable on its face, at the election of the party issuing it, such party alone can elect to avoid it, and, until the election is . made, the policy would be regarded as obligatory upon the parties to it; and the same rule would apply, if the fact that the policy was voidable was made to appear by admissible extrinsic facts. But the doctrine applicable to voidable policies has no place here. Each of the subsequent policies in question is valid upon its face, and, prima facie, binding on the parties to it. And, by the terms of the condition upon which its character in this respect depends, it must be either valid or void, as between the parties, and it can occupy no middle ground.

Having already said that the subsequent policies never took effect between the parties, by reason of the breach of the conditions therein contained, we hold that the condition against further insurance in the policy sued on was not broken by such subsequent policies. The condition contemplates subsequent valid insurance, and is not broken by an attempt to obtain further insurance, which was, in legal effect, all that was done by the insured in this case.

But, notwithstanding this is so, counsel for plaintiff in error further claim that the compromise and settlement made by the Woolen Mills Company with the companies making the subsequent insurance, estops the plaintiff below from setting up or claiming, as against the defendant below, that the subsequent insurance is void, and did not constitute such other insurance as entitled the defendant to notice thereof. There are authorities which are eutitled to very great respect that sustain this view. Carpenter v. Providence Ins. Co., 16 Pet. 495; Bigler v. N. Y. Cent. Ins. Co., 22 N. Y. 402; Jacobs v. Eq. Ins. Co., 19 Upper Can. 250.

But, supported as it is by these authorities, we can not sanction the doctrine contended for. In the absence of fraud, which is not claimed, there are no facts shown upon which to found an estoppel. The attempt to obtain further insurance did not of itself prejudice the insurer. If it be said that the belief that it had obtained further insurance was calculated to make the agents of the company and owners of the property less anxious for its preservation, or less watchful in protecting it, and that this increased the insurer’s risk, and was bad faith toward, and prejudicial to the insurer, the answer is, that none of these things, can be presumed, and there is no evidence tending to. prove them. There is no principle upon which the compromise and settlement by the parties of the subsequent void policies can work an estoppel.

The fact that the subsequent insurers may have regarded their policies as valid or voidable did not make them so; and the fact that the insured received a part or the whole of the amount insured by them, did not prejudice the defendant below, nor estop the insured from proving that the subsequent policies were void. The rights of the parties, under the policy sued on, became fixed at the time the loss occurred, and could not be affected by what was subsequently done between the insured and third parties.

We hold, therefore, that the receipt of payment on the subsequent void policies is not matter of defense to an action on a prior policy.

This view is sustained by the weight of authority in this country. See Stacy v. The Franklin Ins. Co., 2 Watts & Serg. 506; Jackson v. Massachusetts Mutual Ins. Co., 23 Pick. 418; Philbrook v. New England Ins. Co., 37 Me. 137; Lindley v. Union Mutual Ins. Co., 65 Id. 368; Gale v. Belknap Ins. Co., 41 N. H. 170; Gee v. Cheshire Co. Mutual Fire Ins. Co., 55 Id. 65; Schenck v. Mercer Co. Ins. Co., 4 Zabr. 447; Thomas v. Builders’ M. F. Ins. Co., 119 Mass. 121; Sutherland v. Old Dominion Ins. Co., Insurance Law Journal, Vol. 8, No. 3, 181; Hubbard & Spencer v. Hartford Fire Ins. Co., 33 Iowa, 325; 29 Grat. supra; Knight v. Eureka Ins. Co., 26 Ohio St. 664.

Finding no errors on the record, the judgment of the district court is affirmed.


author: Q-ilmore, C. J.

text:
    Dye v. Scott.
    1. Oral testimony is admissible to prove that the indorser, as between himself and the indorsee, at the time of indorsing a note in blank, waived demand and notice.
    2. A waiver of demand of payment at the maturity of a note is also a waiver of notice of non-payment.
    3. The uncorroborated testimony of a witness who willfully testifies falsely to a fact material to the issue, may be taken by the jury as unworthy of credence.
    .Error to the District Court of Washington county.
    The original action was by Dye, against Scott, as indorser of a promissory note, made payable to his order by Harmar Plouring Mill Company, dated January 29,1873, and due one day after date. The note was indorsed by -Scott to Dye on the day of its date. It is substantially averred in the petition, that Scott indorsed and delivered the note to Dye, with the understanding and agreement between them, that Dye should give the flouring mill company time on the note, for the payment thereof, beyond its maturity; and that Dye did give the mill company a reasonable time for its payment after maturity, to wit, three months, at which latter period he demanded payment of the mill company, which was refused; of which demand and refusal he gave Scott notice.
    By his answer, Scott denied making the agreement and the giving of notice, as alleged in the petition. The answer also set up other matters of defense that need not be noticed.
    On the trial, Dye gave evidence to the jury tending to maintain the issues on his part, and rested. Thereupon Scolt moved the court to arrest the case from the jury and render judgment for him; which motion was overruled, and Scott excepted.

      Thereupon Scott gave evidence to the jury tending to maintain the issues on his part, and Dye gave evidence in rebuttal; and, the evidence being closed, Scott requested the court to charge as follows: “ If the jury find, from the ■evidence, that Scott agreed with the plaintiff, at the time of indorsing said note, that the said plaintiff was to extend the time for the payment thereof beyond its maturity, ■that then, before the plaintiff can recover in this case he must show, by a preponderance of the evidence, that he made demand on the said mill, defendant, as alleged in said petition, and that he gave said Scott notice of said demand ■or non-payment immediately thereafter, or as soon as it uould be done, taking into consideration the distance be-, tween said Dye’s and Scott’s places of residence.” Which request was refused, and in connection therewith the court ■did charge: “That said notice will be in a reasonable time, and therefore sufficient, if before said notice was given, said mill, the maker of said note, is not shown by the evidence to have become insolvent; the burden of showing such insolvency resting with the defendant.”
    The court further charged: “ That if the jury find from the evidence, written or oral, or both, that any witness in the case is discredited or impeached as to his testimony on .any one material fact, then, and in that case, the jury may, in their discretion, regard the testimony of such witness, not corroborated or supported, as discredited or impeached as to other statements' he makes in his evidence.” To which refusal to charge, and the charges so given, Scott uxcepted. There was a verdict for Dye.
    A motion for a new trial was made by Scott, on the ground that there was error in the rulings above excepted to, and also on the ground that the verdict was against the law and the evidence.
    The motion was overruled, and a judgment rendered on the verdict. A bill of exceptions was taken, setting out all the evidence, which is made part of the record.
    The district court, on error, reversed the judgment, on the ground that there was error in overruling the motion to arrest the case from the jury and render judgment for defendant.
    To reverse the judgment of reversal, Dye prosecutes: this proceeding in error.

      Ewart, Sibley & Ewart, for plaintiff in error:
    1. The charge of the court, as to disregarding the testimony of the witness who had knowingly testified falsely to a material fact, was correct. Mead v. McGraw, 19 Ohio St. 55.
    2. As to waiver of demand and notice. 1 Parsons on N. & B. 584-589; Edwards on B. & N. 634, 635; Boyd v. Cleveland, 4 Pick. 525; Barclay v. Weaver, 19 Penn. St. 396; Byles on Bills (5 Amer. ed.), *96; Patterson v. Todd, 18 Penn. St. 126; Lane v. Stewart, 20 Me. 98; Sanborn v. Southard, 12 Shepley (Me.), 409; 22 Penn. St. 26; Hibbard v. Russell, 16 N. H. 410; Goodwin v. Buckman, 11 Iowa, 308; 5 Pick. 436; Worden v. Mitchell, 7 Wis. 161; Ross v. Espy, 66 Penn. St. 481; Sigerson v. Mathews, 20 How. (U. S.) 496; Amoskeag Bank v. Moore, 37 N. H. 539; Sheldon v. Horton, 43 N. Y. 93; Ridgway v. Day, 13 Penn. St. 208.
    3. The foregoing line of authorities clearly establish (1) that an oral agreement or consent of the indorser of a promissory note, contemporaneous with the indorsement, and without consideration, that the indorsee give time for payment of the note, beyond maturity, fixes the liability of the indorser, as such, and is an absolute waiver by him of demand, and notice of non-payment; (2) that proof of such an agreement or consent will “ support the allegation of actual notice” (5 Pick. 436; 16 N. H. 410); and (3) is not “ within the rule which excludes proof to alter or vary the terms of an express agreement in writing.” 66 Penn. St. 481.
    These propositions are, in principle, clearly recognized in this state. Kile v. Green, 14 Ohio, 494; 1 West. Law Jour. 553; Wright, 80; 8 Greenleaf, 213; Daniels on Neg. Inst., § 1093.

      John A. Hamilton, for defendant in error:
    1. We claim that parol evidence of a parol contract, made contemporaneously with the contract of indorsement, can not be given even to waive demand and notice. See Barry v. Morse, 3 N. H. 132; Morris v. Faurot et al., 21 Ohio St. 159; Dale v. Green, 38 Conn. 15 ; Bank of Albion v. Smith, 27 Barb. 489.
    I am aware that the courts in Pennsylvania admit parol evidence to affect written contracts to a greater extent than is sanctioned in other states. Bank of United, States v. John

      O. Dana, 6 Peters, 51.
    We are also aware that a subsequent parol agreement to waive demand and notice made, after the contract of indorsement, is good; and such are the principal authorities cited by plaintiff' in error.
    2. We claim the court was clearly wrong in its charge to the jury in respect to the impeachment of a witness.
   Q-ilmore, C. J.

The questions presented on the record are:

1. Is oral testimony admissible to prove that the indorser, as between himself and the indorsee, at the time of indorsing a note in blank, waived the usual demand and •notice ?

2. Did the court of common pleas err in overruling the motion to arrest the case from the jury, and render judgment for the defendant ?

3. Did that court err in refusing to charge as requested, or in the charges given ?

4. Did that court err in overruling the motion for a new trial ?

First. Erom the indorsement in blank of a note not due, the law presumes that the indorser thereby intends to bind himself to pay the note, on the condition that he has due notice of its dishonor at maturity.

The question presents itself, whether the indorsement is conclusive, or only prima facie, evidence of the contract which the law presumes to arise therefrom.

There are authorities which hold that the contract which the. law implies or presumes, in such cases, is as conclusive and certain as if written out in full, and that parol evidence is not admissible to vary or contradict it. The reason given for requiring such strictness, in substance, is that the indorsement adds to the value of the instrument by giving it currency in commercial transactions; and that its value-would be impaired, and circulation restricted, by admitting oral testimony to vary or contradict the terms of the contract which the law presumes or implies from the indorsement, even as between indorser and indorsee. See Bank of United States v. Dunn, 6 Pet. 51; Dale v. Gear, 38 Conn. 15; Bernard v. Gaslin, 23 Minn. 192; Bartlett v. Lee, 33 Ga. 491.

While we sanction the doctrine that upholds the credit and negotiability of commercial paper in the hands of any bona fide holder for value, we do not, in order to accomplish this, see the necessity of carrying the doctrine quite so far as it is carried in the cases above cited.

As between the indorser and indorsee, we regard the-blank indorsement as only prima facie evidence of the contract which the law presumes to arise therefrom. If the indorsement is made upon no other, that contract will control the rights of the parties. If there was a contemporaneous contract between the parties, upon which the indorsement was made, both reason and justice require that, as between themselves, the actual and not the presumed contract should be enforced; and, as between them, oral testimony should be admissible to prove the contemporaneous contract. This will not necessarily, or even probably, impair the currency or credit of the instrument as commercial paper. Prior parties to it will not be affected, nor will the rights-of subsequent indorsees without notice be impaired or limited in any degree. As to all the world, except the parties-to the special contract, and as between themselves only, the character of the instrument as commercial paper will remain unaffected.

The only purpose for which oral testimony was introduced on the trial was to prove that the indorser, as between himself and his immediate indorsee, waived the usual demand and notice at the maturity of the note; and it is unnecessary for rrs to go further in this case than to hold, as we do, that oral testimony was admissible for that purpose. This holding is fully sustained by authorities.

In Daniels on Negotiable Instruments, § 1093, it is said: “ It is conceded on all sides, that a verbal waiver is as effectual as a written one ; and the weight of authority sustains the proposition that a parol promise to pay the note absolutely, made by the indorser at the time he indorses it, or a promise to pay it if the maker does not, or a verbal agreement between the parties that payment should not be demanded until after maturity, is admissible to prove a waiver of demand and notice.”

In vol. 1, p. 584, of Parsons on Notes and Bills, it is said : “ Indeed, the law seems quite clearly settled, that a parol promise to pay, made by the indorser to the indorsee at the time of, or subsequent to, the indorsement; an agreement to extend the time of payment; a request made by the indorser for forbearance; ... all have respect-

ively been considered as a waiver of demand and notice.” See also Story on Promissory Notes, § 148; Edwards on Bills and Notes, 634, 635; Barclay v. Weaver, 19 Penn. St. 396 ; Fuller v. McDonald, 8 Greenl. 213; Boyd v. Cleveland, 4 Pick. 525; Lane v. Steward, 20 Me. 98.

From the bill of exceptions it appears that the plaintiffs testimony on the trial tended to prove that Dye had wheat to sell; that Scott, a grain dealer, bought it on time, and sold it to the Harmar Flouring Mill Company, the maker of the note, at an advance on the price paid, and took the note in suit payable to his order in one day after date, but vérbally agreed with the Mill Company that they should have a reasonable time to pay the note ; and that on the day of the date of the note he indorsed it to Dye in payment for his wheat.

At the time he said : “ I will guarantee this — will back it. They want a little time on it.” There was conflict in the testimony; but it was for the jury to decide upon the credibility of the witnesses, and we can not say, from all the testimony, that the finding that Scott had waived demand and notice, as the jury must have done, was manifestly against the evidence. The language, under the circumstances surrounding the parties at the time it was used, was sufficient to sustain the finding. To save recurring again to this point, I will say here that there was no error in overruling the motion for a new trial, on the ground that the verdict was against the evidence.

Second. The refusal of the court of common pleas to sustain a motion, made at the close of the plaintiff’s testimony, to arrest the case from the jury and render judgment for the defendant, was assigned for error in the district court, which reversed the judgment on this assignment. The «court of common pleas was clearly right. It is shown, by what has been already said, that the testimony tended to maintain the issues on the part of the plaintiff'. This being so, he was entitled to have his testimony considered by the jury on the merits of his case. Stockstill v. D. & M. R. R. Co., 24 Ohio St. 83. It is probable that the district court regarded the testimony as inadmissible, on the ground that it varied or contradicted the contract which the law implies from the indorsement. But whether it was upon this, or on the ground that the testimony did not tend to maintain the issues, is immaterial, for the reversal, on either ground, was erroneous.

Third,. We find no error in the refusal of the court to charge the jury as requested by the defendant.

The charge requested proceeds on the theory that where «demand at maturity has been waived by the indorser, that still, when demand is made thereafter, notice of non-payment must be given immediately, and that a failure to do ■so discharges the indorser. This is not the law. The general rule is that a waiver of demand is also a waiver of notice. Where the words were, “ I waive demand of protest,” it was held that this language might be construed as implying an intention to waive both demand and notice. Daniels on Negotiable Instruments, §§ 1090, 1094,1095. Tbe charge given in connection with that requested was riot prejudicial, but favorable to the defendant, as it required such reasonable notice as would show that the indorser was not prejudiced by the delay.

Fourth. There is no error in the charge of the court as to the effect of impeaching a witness as to any material fact testified to by him.

If a witness willfully testifies falsely to a material fact, it so far throws suspicion on his entire testimony that if he is not corroborated his entire testimony maybe rejected bv the jury as not worthy of credence. Mead v. McGraw, 19 Ohio St. 55.

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

Judgment accordingly.