author: Price, J.

text:
    Schimmelmann et al. v. The Lake Shore & Michigan Southern Railway Co. et al.

      Railway company and village — Agree to eliminate grade crossing — By building subway under railroad — Village street vacated for subway — Property abutting on vacated street damaged — Owners of damaged property — Entitled to recover from village and railway company.

    The plaintiffs own a lot abutting on a public street running north and south through the center of the village of Nottingham and crossing the said railroad at grade north and near their lot. This street intersects at right angles other streets, one a short street immediately north, and another a few hundred feet south of the lot, and two of these streets are the means of access to the village from different sections of a thickly settled- community, so that the plaintiffs’ premises are in the business portion of the village. They had improved their buildings with reference to the long established grade of the street, for both residence and business purposes, and were conducting a trading business therein. The railway company and the village, by appropriate agreement and for the purpose of eliminating the grade crossing, caused the construction of a subway under the railway right of way, by using for such subway a narrow portion of the east side of the forty-foot street on which the lot abuts,, on which portion a concrete wall surmounted by -an iron fence was erected, so that there is no access by vehicles,/ to the subway, without going to the south end of the same, £
      distance of more than two hundred and fifty feet. This subway is about fourteen feet below the surface of the ground in front of the lot. As a part of the proceedings for the subway, the council of the village vacated that portion of the entire street which crossed the right of way of the railway company, and closed it up, which cut off all access by vehicles to plaintiffs’ premises from the north, northeast and northwest, unless they pass south through the subway and then turn north on the unvacated part of said street.
    The evidence tends to show that the closing of the street at the crossing, and the making of the subway, diverted travel from the unvacated part of the street into the subway and away from plaintiffs’ place of business, causing the business theretofore done to locate in another part of the village, thus greatly reducing the value of plaintiffs’ premises.

      Held: That on establishing the foregoing facts, the owners of the premises are entitled to recover from the village and railway company damages caused by their depreciation in value. (Cohen v. Cleveland,, 43 Ohio St., 190, approved. Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264, distinguished).
    (No. 11672
    Decided March 7, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error sued the defendants in error, in the court of common pleas of Cuyahoga county, to recover damages to their real estate situate in the village of Nottingham, which is east of the city of Cleveland, and perhaps a suburb of that city, and for loss of business which the plaintiffs owned and conducted on their premises.
    It is alleged that these premises fronted for ninety-five feet on the west side of what was once Dille road, afterwards taken into said village as Dille street, and that the premises had a depth of about one hundred and fifty feet. This road extends from Lake Erie southerly to Euclid avenue, if extended, passing through the village, and now forms its principal street, and was forty feet wide in front of plaintiffs’ property. St. Clair road runs through the village from east to west and intersects Dille road or street at right angles about the center of the village.'
    St. Clair road runs from the city of Cleveland to the east line of the county and it is alleged to be a main thoroughfare east and west. Dille road, or street, at its northerly terminus, leads down to a point near Euclid Beach Park, a summer resort on the shore of Lake Erie. The Lake Shore & Michigan Southern railway extends through the village about parallel with St. Clair road and about three hundred and fifty feet north therefrom.
    Immediately south of the railway company’s right of way and by its side and extending westerly from Dille road or street is a street known as South Depot street, which runs along the right of way for some distance and then curves south into St. Clair road. Depot street is little used for travel, the company’s yards lying along the north side of said street, and it has no outlet except on Dille street to St. Clair road. The property of the plaintiffs is on and along the south side of Depot street.
    From Dille street' westerly there is no street or road crossing the railway north and south less than a mile and a half from Dille street, which is in the village of Collinwood. Easterly from Dille street it is about one-fourth of a mile to the next north and south street crossing the railway.
    Gardner road, a few hundred feet north of the said railway’s right of way, branches off from Dille road and leads northeasterly through Beach-land, so called, it being a new part of the village of Nottingham, and connects with Lake road, a main thoroughfare running east and west along the shore of the lake easterly. By this Gardner road much travel came into Dille road, north of the railroad and into Nottingham.
    Many years ago, that part of Dille road lying between the railroad and St. Clair road was improved' and business buildings were erected on the east side thereof, and as the village grew, both sides of the street between the said points were occupied by business structures, both frame and brick, some of them being two and three stories in height. Sidewalks and crosswalks had been constructed. The post office and a hotel were on said Dille street, and it is claimed that all of-these improvements were made with reference to the long established grade, the land in that vicinity being practically level.
    The plaintiffs purchased their property in the year 1900, at a stated consideration of $4,500, and afterwards expended about $3,500 in enlarging the building for business.
    In the year 1903, the railway company and the village began negotiations to effect an elimination of the grade crossing of Dille street over the railroad, and an agreement was reached which is set out in the amended answers of the defendants below. To accomplish this scheme of a subway instead of the grade crossing, the company purchased all the property abutting on the east side of Dille road and extending from its right of way to St. Clair road, which abutting premises were occupied by stores and other business places. After acquiring the said premises on the east side of Dille road, the company agreed with the village to dedicate to public use for highway purposes a strip of the lands so acquired fifty feet wide adjacent to Dille road, extending from St. Clair road to a point about three' hundred feet north of the railway right of way, which would be near the beginning of Gardner road already mentioned.
    In pursuance of the agreement with the village, the railway company proceeded to construct a new highway on fifty feet of the land so purchased adjacent to the Dille road on its east side. The new highway was depressed below the surface grade, commencing at St. Clair road and gradually sloping downward so that a subway was created to go under the railroad and terminate north of the railroad property about the same distance therefrom, where the surface grade was resumed. This subway was accepted by the village, and it vacated that part of the old Dille street which lies between the north and south lines of the company’s right of way, and this part of the old road was closed up.
    The village permitted and authorized the railway company to excavate 3.75 feet on the east side of Dille road, which narrowed it to that extent. This excavation was replaced by a concrete retaining wall of the subway. The top of this concrete wall rises about eighteen inches above the former grade of Dille road, and is surmounted the whole distance by an iron fence four or five feet high. The top of this retaining wall in front of plaintiffs’ property is about fourteen feet above the surface of the road in the subway. At a point opposite the center of South Depot street, a stairway was constructed for pedestrians going down into the subway from Dille road. There are concrete retaining walls on each side of the subway and it passes under the railroad about eighteen feet in depth. Part of the foregoing facts appear in the petition and others are found in the evidence.
    The defendants answered separately, but the allegations of one answer are similar to those made in the other. They admit much that is averred in the petition, but deny the allegations of damages, and then plead the proceedings of the village council which resulted in the vacation of Dille road where it crossed the right of way of the railway company, and also the agreement between it and the village as to the plans and manner of construction of the subway.
    It is also averred that plaintiffs had- knowledge of the plans agreed upon for the subway, and one of them was present in council when the same were discussed, and made no protest, but acquiesced therein. By replies the plaintiffs deny the averments of acquiescence on their part, or that they assented to the change of grade. At the close of plaintiffs’ evidence, on motion of defendants, the court directed a verdict and rendered judgment in their favor, which judgment was affirmed by the circuit court. Error is prosecuted to reverse both judgments.

      Mr. William Howell, for plaintiffs in error.
    A change of grade of street or highway, after improvements have been made with reference to a grade established by long usage or by ordinance, gives a right of action for damages caused to property improved with reference to such grade, is well established in this state. Crawford v. Delaware, 7 Ohio St., 459; McCombs v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229; St. Ry. Co. v. Cummingsville, 14 Ohio St., 523; Cincinnati v. Penny, 21 Ohio St., 499.
    That the grade and the manner of use of a street may be established by long usage as by official action, is determined by Akron v. Chamberlain Co., 34 Ohio St., 328; Smith v. Commissioners, 50 Ohio St., 628.
    The right of an abutting owner in the street extends to the full width of the highway, and any change or obstruction of the street whereby he is obliged to travel beyond his lot lines in order to reach and have access to the traveled way, does him a legal injury. English v. Trustees, 8 W. L. B., 15; Madden v. Railway Co., 21 C. C., 73; Cohen v. Cleveland, 43 Ohio St., 190; 3 Elliott on Railroads, Sec. 1086; Chicago v. Burcky, 158 Ill., 103; In re Melon Street, 182 Pa. St., 397; East St. Louis v. O’Flynn, 119 Ill., 200.

      Messrs. Cook, McGowan & Foote and Messrs. Geier, Farrell & Edwards, for defendants in error.
    The case at bar is governed, we believe, by the case of Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264.
    The supreme court of this state, in the recent case of Anderson v. Cleveland, 79 Ohio St., 451, in which it affirmed without opinion the judgment of the circuit court of Cuyahoga county, has again approved the doctrine of the case of Kinnear Mfg. Co. v. Beatty, supra. The Anderson case is substantially the same as the case at bar, and grew out of the elimination of a grade crossing in the city of Cleveland, and included the laying out of a new street and the construction of a subway by the railway company, with the result that in order to go across the tracks of the plaintiffs instead of crossing at grade directly as before and reaching Detroit avenue by going 263 feet, were obliged to pass over a new street paralleling the railroad right of way until they reached another street; thence passing through the subway to Detroit street, causing them to go a distance of 665 feet. The plaintiffs in their third amended petition in the Anderson case set up the above facts, among others, and alleged that the work was done under contract between the city and the railway company. Demurrers to the petition by the city and the railway company were sustained and judgment entered thereon, and the judgment was affirmed by the circuit and supreme courts.
   Price, J.

As a suitable epitome of the verbal diagram of the premises involved herein, which is attempted in the foregoing statement of this case, we observe they have a frontage of ninety-five feet on the west side of Dille street and a depth of about one hundred and fifty feet. The Dille road was forty feet in width and that is its width as Dille street, which, before the changes made by the defendants, was one of the principal thoroughfares of the village of Nottingham. On the north side of the plaintiffs’ premises is South Depot street, which extends east and west a short distance beyond the end of their lot, and then it curves to the south into St. Clair road, which runs east and west in the village, crossing Dille street at right angles two hundred and fifty to two hundred and seventy-five feet south of plaintiffs’ premises.

The railroad runs east and west, and, before the change, crossed Dille street north of plaintiffs’ property the width of South Depot street. This grade crossing was vacated by the council and the crossing closed up so that all travel by vehicles has now to pass through the subway, which, in front of plaintiffs’ property, is about fourteen feet below the surface, and the concrete wall and the iron fence thereon make a complete barrier between the unvacated part of Dille street and the .subway. One coming from north of the railroad in vehicles, desiring to reach plaintiffs’ place of business, must pass through the subway to St. Clair road, and then turn and go north on the unvacated part of Dille street two hundred and fifty to two hundred and seventy-five feet. The evidence tends to show that after the railroad company purchased the business properties opposite the plaintiffs on the east side of Dille street and constructed the subway, the business of the village gathered on St. Clair road and the plaintiffs’ locality for business was practically abandoned, and that the business formerly conducted there declined and had to be discontinued, and that the real estate which was formerly worth $10,000 to $11,000, by reason of the subway, has been reduced in value several thousand dollars. It is claimed that while it formerly was the most prominent corner in the business section of the village, it has been left in a cul de sac and away from the line of travel.

The evidence tends to show that plaintiffs sought to have an allowance of damages by the council in the proceedings to vacate the road or street, but none was made.

Does the law afford a remedy? The interest in a public street which the owner of an abutting lot may have, has been involved and discussed in several cases decided by this court, commencing with Goodloe v. Cincinnati and Smith v. Cincinnati, 4 Ohio Rep., 500-514. In those cases it was charged that the city by its agents acted illegally and maliciously in changing the grade of the street to the damage of the lot owner. It was contended by the city that if anyone was liable, it was the agent or servant and not the corporation. The court held: “When the corporation of a town grades the streets, the object is the benefit of the whole town. If an individual is injured it is right he should have redress against all upon whose account the injury was perpetrated. There is no justice in sending him to seek redress from an irresponsible agent. There is no propriety in compelling the injured party to look for compensation to the mere agent, who acted in good faith, according to the direction of his employers * * Recovery was had in both cases.

In Scovill v. Geddings, 7 Ohio (part 2), 211, officers and agents of the town were sued for damages done the lot owner by changing the grade under orders of the trustees of the town. It was held that these officers were not liable and the remedy was against the corporation.

In Hickox v. Cleveland, 8 Ohio Rep., 544, it was held that the corporation of a town acting under an act of the legislature authorizing the grading of a street and providing a mode of assessing damages and compensating adjacent proprietors, was not liable for an act done in the legal execution of the duties prescribed.

In Rhodes v. Cleveland, 10 Ohio Rep., 160, the court took an advanced step from the holdings in the former cases, and decided that “corporations are liable like individuals for injuries done, although the act was not beyond their lawful powers.” In the opinion by Lane, C. J., after reviewing the earlier cases above cited, it is said: “Upon the whole, then, we believe that justice and good morals require that a corporation should repair a consequential injury which ensues from the exercise of its functions, and that if we go further than adjudicated cases have yet gone, we do not transcend the line to which we are conducted by acknowledged principles. We hold, therefore, that corporations are liable like individuals for injuries done, although the act was not beyond their lawful powers.”

In McCombs v. Town Council of Akron, 15 Ohio Rep., 475, the court had again under consideration the liability of the corporation for change in grade of a street. The principle announced in Rhodes v. Cleveland, supra, was reasserted in the following headnote: “A municipal corporation, like .an individual, is liable for injuries resulting to the property of others from the acts of such corporation, though acting within the scope of its corporate authority, and without any circumstances of negligence or malice.” The latter clause is a growth on the former doctrine and shows progress in the development of the original question.

That was an action for cutting down a street, and plaintiff’s counsel asked the court to charge the jury that, “if the plaintiff’s property had sustained a real and substantial injury by reason of defendant’s act in grading the street, that the plaintiff might recover, even though the corporate authorities acted strictly within their legal authority and without any intent to injure the plaintiff’s property.” The court refused to so charge, and this was the error assigned. This court, as then constituted, reversed the judgment of the lower court, for error in refusing the charge requested, and remanded the case. In the opinion of the court, by Read, J., Rhodes v. Clevelandsupra, is referred to with approval, and endorses the heroic assertion of Lane, C. J.: “If an individual, exercising his lawful powers, commit an injury, the action on the case is the familiar remedy. If a corporation, acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it,, and no reason occurs to the court why the same remedy should not be applied to compel justice from them.”

Having thus quoted, the court proceeds to say, in the McCombs case: “We recognize the doctrine of that case (Rhodes v. Cleveland) as laid down by this court, as founded in the most solid reason, right and morals, and a majority of the court have not the slightest disposition to impair its obligation, but by the light of such example and assurance, hope the whole subject-matter of corporations will, in the end, be reduced to the control of incontestable principle.”

There is another reason, says the court: “If a municipal corporation, for the good of all within its limits, see proper to cut down a street, it is nothing more than right that an injury there done to a single individual should be shared by all.”

The case having been again tried, the proceedings in the second trial, wherein the lot owner recovered, are reviewed in Town Council of Akron v. McComb, 18 Ohio Rep., 229. Avery, J., states the case in the opening of his opinion as follows: “The plaintiff in the action was the owner of a lot in Akron upon which he had erected a brick house and had fitted it up for the purpose of merchandising. He had made his improvements with an express view to the level and grade of Howard street, adjoining which the building stood: After he had made his improvements, the town council caused the ground in front of his building to be excavated, and the street to be sunk several feet, in consequence of which the value of his house and lot was greatly impaired.”'

The difference between that case and the one at bar, is that in the former we assume that the entire street was sunk, • while in the present case only a few feet were taken, of which we will speak more fully hereafter.

The judgment of the lower court was affirmed, the court adhering to the doctrine of Rhodes v. Cleveland, supra, and cites authorities from other states which were also considered.

We again hear of the same question in Crawford v. Village of Delaware, 7 Ohio St., 459, in which our prior cases are noted and the law laid down in Rhodes v. Cleveland, supra, and Akron v. McComb, supra, is approved. For the first time in the chain of Ohio cases, we have in the Crawford v. Delaware case, distinct definition of the interest an abutting lot-owner has in the street. As a basis for a proper application of the law to the instant case, we think a restatement of the definition is in order. On page 469, the court say: “Distinct from the right of the public to use a street, is the right and interest of the owners of lots adjacent. The latter have a peculiar interest in the street, which neither the local nor the general public can pretend to claim: a private right of the nature of an incorporeal hereditament, legally attached to their contiguous grounds and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be comparatively of little value. This easement, append-ant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itself.”

In connection with this announcement the court quotes approvingly the language of Lane, C. J., in Bigham v. Doane, 9 Ohio Rep., 167, concerning a highway, to-wit: “Its existence generally contributes to the enjoyment of the adjacent lot, and confers additional value upon it, and any act of another, which impairs that value, or interferes with that enjoyment, may be the subject of a suit. * * * The easement — the privilege of the road — the advantage it confers on the land is his, but not the road itself. The right lies not in livery, but in grant.”

And applying the principle so announced, the court says on page 470: “We hold that when the avenue to the place of business of the lot-owner, and the use of the streét as an incident to his permanent erections, is thus blocked up or taken from him, after the establishment, and by the alteration of a grade, the private rights of- the owner, inherent in and incident to the erections upon the lot, are invaded, and no curt phrase like damnum absque injuria, can conceal the invasion or substantial injury. It is as positive and substantial an injury to private property, and as direct an invasion of private right incident to a lot, as if the erections upon the lot were taken for public use. It comes not within the letter but manifestly within the spirit of the provision of the constitution which requires compensation for property taken for public use.” There can be. no doubt about the meaning of the language quoted.

The latter case, as to our subject, was approved in Cin. & Spring Grove Ave. St. Ry. Co. v. Village of Cumminsville, 14 Ohio St., 523.

It is sufficient that we state here the principles of the 4th, 5th and 6th paragraphs of the syllabus. The 4th is: “ — the legislature may authorize the occupation of the easement, originally acquired by grant or appropriation, in any manner calculated to further the general objects of the acquisition; but may not divert it to purposes which exclude the original uses, or lay additional burdens upon the land, or desfroy or impair the incidental easements of adjoining lot-owners in the street or highway.” It is declared in the 5thj that the “interest of an adjoining lot-owner is property protected by the constitution, and subject to be taken or appropriated only upon the condition that compensation be made.”

In order to leave no doubt about the extent of the lot-owner’s rights, it is said in the 6th paragraph that, “when the public authorities have taken possession of a street or highway, and regularly defined the interests and improvements necessary for the use by establishing grades, etc., lot owners have the right to make their improvements in reference thereto, and no subsequent change, which obstructs or impairs access to such improvements' can be lawfully made without compensating for the injury.”

We pause here to ask, did not the closing and vacating of Dille street at the grade crossing and the creation of the subway and concrete fence on top of the concrete wall impair the incidental easement of the plaintiffs as lot owners? Did the new exclude or impair the old use, or lay additional burdens upon the use of the easement and therefore on the adjoining lot? Did the change in the street impair access to plaintiffs’ improvements — not their own access necessarily, but having business structures there — access by people accustomed to trade and transact business with plaintiffs? — for all this the evidence in this record tends to prove.

Or did the change in the street affect the avenue to the place of business of the plaintiffs, and their use of the street as incident to erections on their lot, as phrased by the court in Crawford v. Delaware, supra, 470? Did the plaintiffs sustain direct'consequential injury to their real estate as improved to former grade by the acts of the defendants ? The evidence tends to show that they have sustained such injury. If so, where is the escape from the operation of the rules so clearly settled by the Ohio cases referred to?

In Railway v. Lawrence, 38 Ohio St., 41, this court held that, “where the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall be first acquired under proceedings instituted against such owners as required by law for the appropriation of private property.” And it is there said that in such case it is not material whether the fee is vested in the city or abutting lot owners.

It seems that defendants rely largely on the fact that they did not depress Dille street immediately in front of plaintiffs premises. That is true, speaking literally; but they constructed what is to plaintiffs an insurmountable barrier on 3.75 ’feet on the east side of the street opposite their lot and along that strip from St. Clair road to the north side of the railway right of way, except the stairway for pedestrians going down into the subway from near South Depot street. The plaintiffs easement and property in Dille street extended the full width of the forty feet, and extended north and south of the front of their lot as well.

What is a street? It does not consist of that part only which exists in front of the plaintiff’s lot. To be a public street or highway, it is essential that it pass in front of more than the lot owned by the plaintiffs. If defendants had closed Dille street at St. Clair road and left it open thence to South Depot street, and closed it there, could it be correctly said they had not closed the street in front of plaintiff’s lot, 'which is between those streets? We think not. The acts done, as we have recited them, make an obstruction — a change of grade — a vacation, differing only in degree, from a change of grade in the entire street.

However, we are told that this case is ruled by Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264. We do not so understand it.

In that case, Mrs. Beatty brought suit to enjoin the erection of a certain building by the Kinnear Manufacturing Company upon the vacated portion of a certain alley at the rear end of her lot in Columbus. This alley extended from Hamlet street on the west to Fourth street on the east. In the statement of that case appears a map of the said streets and alley which clearly shows the location. Her residence fronted on Warren street. The city authorities had by • appropriate proceedings vacated that portion of the alley which extended east from her lot, but did not vacate that part on which her lot abutted. The court was called upon to decide as to what became of the vacated portion, and it decided that it reverted to the abutting lot owners, subject to such rights as other property owners on the alley might have therein as a means of access to their property.

It will be observed, also, that while vacating the east, part of the alley, the city opened an alley fifteen feet wide along the entire length of her lot to Warren street, upon which her residence fronted. She had the old alley from the west to and along the rear of her lot and the new fifteen-foot alley its entire length to Warren street, and of course that street was open and improved. Therefore she had better means of access to her lot —surely no worse — than she had before vacation. Moreover, there was no chang-e of grades or excavation to inflict any inconvenience or injury. The situation of Mrs. Beatty’s property after the vacation was not such as to justify an injunction against erection of a building partly on the portion of alley vacated. And the court state in the second section of the syllabus that, “to entitle a party to any relief in such cases, the inconvenience he suffers must differ in kind from that of the general public.” And as she had reasonable access to her property by other streets and alleys, the court declined to enjoin.

The case. here differs widely from that. It is not an action to enjoin the carrying out of the purposes of vacating part of Dille street, in' order to effectuate the elimination of- a grade crossing, which is a commendable purpose and beneficial to the public — but it is an action for damages for the-depreciation of individual property caused directly by the defendants in eliminating the grade crossing — real and substantial consequential damages which plaintiffs sustained, differing in kind from those, if any, sustained by the general public.

We have a case better fitted to the facts before us, in Cohen v. Cleveland, 43 Ohio St., 190 — a case prior in date to the case of Kinnear Mfg. Col v. Beatty, sitpra, but it was not overruled or modified by the latter decision. In the Cohen case, a viaduct was constructed sixty-four feet wide, with a level roadway across the Cuyahoga river, covering a part of Superior street, about thirty-seven feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect, Superior street, which was ninety-three feet wide, was reduced in width between Water street and the river, and opposite Cohen’s premises to sixty-six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen, on the north side of Superior street the elevation is forty-five feet. His lot did not abut on the viaduct, and the street below was still open in front of the premises. In his suit for damages, he alleged that the viaduct diverted travel from that part of Superior street, impaired the light and air to his premises, caused noises and jarring of his house day and night, and impaired the value of his property and reduced its rental value. The plaintiff at the trial 'gave evidence tending to show that, he was entitled to a verdict; but it appearing that he had filed no claim for damages in accordance with the municipal code, the court so instructed the jury that it found against the plaintiff. Judgment on the verdict was affirmed by the district court.

This court held Cohen was entitled to recover, and reversed the judgments of the lower courts. It is announced in the syllabus and opinion that the viaduct was a lawful structure, and that on the facts and proof of his injury Cohen was entitled to damages.

In the opinion, on page 193, it is said: “He is not entitled to compensation under the letter of the constitution, article I, section 19, but may be entitled to such compensation in analogy to that provision. Injuries resulting from the change of established grades in streets, though made in accordance with the statute, and without negligence or malice, and other injuries of a kindred character, have been held to afford' ground for the recovery of damages against municipal corporations.” The court then considers the earlier Ohio cases we have cited and strongly approves them.'

The court further remark concerning the viaduct that it “has furnished a new route of travel, and has largely diverted it from that part of Superior street.” The street was still in existence in front of Cohen’s premises, but it is forty-five feet below the viaduct — the newly traveled way. So it appears that the making the viaduct which diverted the travel from the street below was the gravamen of his complaint.

In the case at bar, the defendants left the plaintiffs’ lot and buildings high above the new highway, and it is alleged and the evidence tends to prove, that the new way has diverted travel from their premises and caused the business of the village to center elsewhere. The evidence shows that because of the concrete wall and fence on the west side of the subway, the plaintiffs could not, by making a sub-story to their buildings, get access into the subway.

A case very much in point is found in Chicago v. Burcky, 158 Ill., 103, where it is held that “the vacation of part of a street constituting a thoroughfare across railroad tracks, and the erection of a viaduct in another place, damage a land owner whose property is thereby left upon a blind court in a manner different from the general pub^ lie, and entitle him to damages, although his property only touched the vacated portion at one corner.” Many cases are cited in the opinion. Worthy of attention as valuable authorities are Field et al. v. Barling et al., 149 Ill., 556, and Stetson v. Faxon, 19 Pick., 147.

We think the case at bar is largely controlled by Cohen v. Cleveland, supra, as a reading of the entire case will demonstrate.

The courts below erred in denying relief to the plaintiffs and their judgments are reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Reversed.

Spear, C. J., Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Green v. Bass et al.

      Owner of senior chattel mortgage — By recovering judgment on note — Does not waive priority of his lien, when.

    The owner of a senior chattel mortgage does not, by recovering a judgment on the note which it secures and causing execution to be levied on the chattels mortgaged, waive the priority of his lien. (Frost v. Shaw, 3 Ohio St., 270, approved and followed.)
    (No. 11540
    Decided March 7, 1911.)
    Error to the Circuit Court of .Cuyahoga county.
    A sufficient statement of the facts will be found in the opinion.

      Mr. Alexander H. Martin,. for plaintiff in error.
    A suit may be brought upon a judgment, but not upon the former cause of action, whilst the judgment remains in force. Brigel v. Creed, 65 Ohio St., 44; United States v. Leffer, 11 Pet., 100; Brown’s Legal Maxims, 330.
    A chattel mortgage is something more than a mere security. It is a conditional sale of chattels, and operates to transfer the legal title to the mortgagee, to be defeated only on a full - performance of the condition. Upon breach of the condition the mortgagee may take possession of the prop7 erty, and so far as the legal rights of the parties are concerned, he may' thereafter treat it as his own. Jones on Chattel Mortgages (5 ed.), Sec. 1; 5 Am. & Eng. Ency. Law (2 ed.), 947; Robinson v. Fitch, 26 Ohio St., 659; State v. Lacy, 18 C. C., 379.

      We claim that the proceedings had by the defendant in error, The Cleveland & Sandusky Brewing Co., in taking judgment on its note and levying execution placed it in the attitude of a general creditor toward Bass, toward .these specific chattels, and all his property. Albright v. Meredith, 58 Ohio St., 194.
    When The Cleveland & Sandusky Brewing Co., having the right to insist upon its priority under its mortgage, originally, saw fit to ignore its mortgage and its acknowledged remedies thereunder, and to proceed at law by judgment and execution, it thereby released its priority and stepped down to the level of a general creditor and we insist that as such it and its assignee, The Standard Brewing Co., must be and are in their rights in said chattels subject to the priority of plaintiff in error’s valid mortgage.
    The great weight of authority is in accord with the doctrine of the above cited Ohio cases.
    Where a chattel mortgage transfers the legal title to the mortgagee, an. attachment by him of the property covered by the mortgage ipso facto constitutes a waiver of the mortgage. 7 Cyc., 55; Cox v. Harris, 62 Am. St. Rep., 187; Jones on Chattel Mortgages (5 ed.), Sec. 565; Pingrey on Chattel Mortgages, Sec. 808; Dix v. Smith, 9 Okla., 124, 50 L. R. A., 714; Thomason v. Lewis, 103 Ala., 429; 28 Am. & Eng. Ency. Law (1 ed.), 555.
    Such attachment is, in itself, a waiver of the claim under the mortgage. The liens respectively created by mortgage and by attachment on the same property are essentially different, and can not co-exist. Evans v. Warren, 122 Mass., 304.
    A mortgagee holding a mortgage upon personal property securing various claims, brought an action upon some of the claims secured by the mortgage, attached the mortgaged property, secured judgment, and satisfied his execution out of the property attached. It was held that he had waived his mortgage as against subsequent attaching creditors, who were held entitled to the proceeds of the property after the execution of the mortgagee was satisfied. Haynes v. Sanborn, 45 N. H., 429.
    The Cleveland & Sandusky Brewing Co. was, therefore, bound by its deliberate election, notwithstanding its efforts to undo the same. 6 Am. & Eng. Ency. Law (1 ed.), 250; Cincinnati v. Emerson, 57 Ohio St., 132.
    The Standard Brewing Co., as assignee of The Cleveland & Sandusky Brewing Co., takes simply what rights its assignor had, and no more. Robinson v. Fitch, 26 Ohio St., 659.

      Messrs. Sanders, Kline & Sanders and Messrs. Higley & Maurer, for defendants in error.
    We claim that the mortgage of The Cleveland & Sandusky Brewing Co. held by assignment by The Standard Brewing Co. is a valid, existing chattel mortgage, is the first and best lien on the chattels it covers, and was not waived by the action of The Cleveland & Sandusky Brewing Co., our predecessors in title, in taking judgment on the note and levying.

      The taking of the judgment by The Cleveland & Sandusky Brewing Co. was not a merger of its mortgage. Railway Co. v. Reid, 6 Dec., 273, 4 N. R., 127.
    A change from a simple contract debt to a personal judgment against the mortgagor does not release a mortgagee. 7 Cyc., 67.
    A mortgagee does not lose his right to the mortgaged property by obtaining judgment on the mortgage note and then seizing it on execution. The property is pledged as security for the debt and is not taken as a liquidation" of it, and a judgment, while it may be a merger of the note so that no other action can be maintained on it, will not extinguish the security; that remains as security for the debt, no. matter what form it takes, until the debt itself is extinguished. Herman on Chattel Mortgages, Sec. 207; Pingrey on Chattel Mortgages, Sec. 936; 2 Cobbey on Chattel Mortgages, Sec. 947; 6 Lawson’s Rights and Remedies, Sec. 3072.
    The note and the mortgage are entirely separate and distinct, and actions may be taken on either one or both concurrently without being a bar to the other. A judgment merges the note or debt secured by the mortgage, but does not extinguish the debt. The mortgaged property will be liable, it seems, to execution thereon, although exempt from execution generally. 1 Field’s Law Briefs, 674.
    A mortgagee may choose his remedy, or, if he wishes, make use of all his remedies concurrently. He may proceed concurrently with actions on note and mortgage. 5 Am. & Eng. Ency. Law (2 ed.), 999; Burtis v. Bradford, 122 Mass., 131.

      A mortgagor, by reducing his claim to judgment, does not waive his security. Jones on Chattel Mortgages, Sec. 758; Juchter v. Boehm, 63 Ga., 71.
    A mortgage is a specific lien, and a judgment is a general lien. Both may be consistently pursued until the debt is satisfied. 27 Cyc., 1164, 1274, 1277; Satterwhite v. Kennedy, 3 Strob. (S. Car.), 457.
    The Cleveland & Sandusky Brewing Co., the predecessor in title of this defendant, The Standard Brewing Co., did not release its priority of mortgage by taking judgment on note and levying execution, did not conclusively elect to abandon its mortgage and did not waive its mortgage lien.
    The mortgagee does not waive his lien by suing and recovering judgment on the note or bond secured, or attaching the property of the mortgagor, in' action on the mortgage debt. Priest v. Wheelock, 58 Ill., 114; Cannon v. McDaniel, 46 Tex., 303; Roberts v. Lawrence, 16 Ill. App., 453; Lanahan v. Lawton, 50 N. J. Eq., 276; Pettibone v. Stevens, 15 Conn., 19; Bank v. Brown, 112 Ind., 474.
    Rendition of judgment on note no bar to, the action for foreclosure. Holmes v. Hinkle, 63 Ind., 518; Dick v. Wilson, 19 Ind., 190; Jenkinson v. Ewing, 17 Ind., 505; Fisher v. Fisher, 98 Mass., 303.
    The commencement of a suit upon a promissory note does not extinguish the lien of a chattel mortgage held as a collateral to the note. Thurber v. Jewett, 3 Mich., 295; Butler v. Miller, 1 N. Y., 498.

      Recovery of personal judgment against the defendant does not amount to satisfaction and does not extinguish the lien. Osborne v. Connor, 4 Kans. App., 609; Frost v. Shaw, 3 Ohio St., 270.
    Recovery or judgment by a mortgagee upon a chattel mortgage not collateral to the mortgage, without satisfaction thereof, will not prevent him from bringing an action of replevin for the mortgaged property. Bateman v. Railroad Co., 96 Mich., 441; Lorch v. Aultman & Co., 75 Ind., 162.
    The pending of a suit at law upon the mortgage debt is not defense to a suit to foreclose the mortgage unless made so by statute. Williamson v. Champlin, 1 Clarke (N. Y.), 19; Tappan v. Evans, 11 N. H., 311; Guest v. Byington, 14 Ia., 30.
   Shauck, J.

The controversy between the parties concerns the. priority of the liens of chattel mortgages respectively held by the plaintiff in error and the principal defendant in error. The mortgage of the defendant in error is prior in date. It is admitted that both mortgages have been perpetuated by refiling, and that the amounts of the debts which they respectively secure are correctly stated in the pleadings of the parties.

The judgment of the circuit court which we are asked to reverse awards priority to the brewing company, the principal defendant in error; and the holder of the senior mortgage. Counsel for the plaintiff in error challenges the correctness of that conclusion because of the fact, which is also admitted of record, that after both mortgages had become absolute, and after the plaintiff had instituted suit for foreclosure, joining as a defendant a prior owner of the senior mortgage, and after such prior owner had answered, it brought an independent action upon the note which its mortgage secured, recovered judgment and caused an execution to be issued and levied upon the property-covered by the mortgages. Later it abandoned its levy and assigned its mortgage to the defendant. It may be assumed without discussion that the defendant, being a purchaser pendente lite, took the position of its assignor. That the assignor, by the suit and levy, waived the lien of the mortgage, or at least its priority, is the claim of plaintiffs counsel, and the conclusion is said to result from the doctrine of merger. That the note became merged in the judgment which was a higher form of the same debt is clear enough upon both principle and authority. But it is not made to appear how it could affect the lien of the mortgage, which, according to the established view in this state, is only a security for the debt. Why should not that which was a security before the recovery of judgment be a security after it? Plaintiff did not, in any way, change his position in consequence of the recovery of that judgment, nor was he, in any way, affected by it. No reason appears why the case should not be governed by the general rule that a security continues until the discharge of the obligation. If the doctrine of merger could be said to be applicable to a case of this character, it would still be true that even with respect to the union of a lesser and greater estate in the same property and in the same person, the estates will not be regarded as merging if equitable considerations require them to be regarded as separate. But in view of our own decisions, an extended discussion of the subject is not necessary. In Frost v. Shaw et al., 3 Ohio St., 271, the precise question was decided in accordance with the view taken in the circuit court. That case was later cited with approval in Colwell v. Carper, 15 Ohio St., 279.

Judgment affirmed.

Spear, C. J., Davis, Price, Johnson and Donahue, concur.


author: Davis, J.

text:
    Wright et al. v. Hull.

      Paper offered as evidence of indebtedness — More than thirty years old — Not admissible as “ancient document,” when — Must be accompanied by certain proofs — Q%iestion of presumption of payment — Statute of linvitations.

    1. A paper which is offered as evidence of indebtedness, and the execution of which is put in issue by the answer of the defendant, is not admissible as an ancient document proving itself, but must be accompanied by evidence that it came from the proper custody and evidence of its antiquity, although it may purport to be more than thirty years old.

      2. When such paper or document bears on its face, or is accompanied by, suggestions or circumstances which raise a presumption of payment or that the claim may be barred by the statute of limitations, it must be aided by proof of rebutting circumstances in order to sustain a claim thereunder.

      3. Where the foundation of an action was a certain paper writing purporting to be more than thirty years old and the execution of which was denied in the defendant’s answer, and where the only evidence cm behalf of the plaintiff was proof of presentation to and rejection by the defendant and a paper in the form following: “Received of H. Esq., on the 7th day of August, A. D. 1873, Three Thousand Dollars, to be returned, with , interest, from that date, at the rate of twelve per cent, per

      annum, out of the first receipts, from the sale of lands bought by us from Messrs. C., P. and others in Athens County Ohio, after we are reimbursed for advances for its payment. $3,000.00. (Signed) B. & W.,” together with a statement from the books of B. that B. & W. had on August 1, 1873, procured of H. $3,000 and paid the same on the purchase price of land purchased from C.; and where the only evidence on behalf of the defendant was an endorsement on the back of said paper in -the form following". “One Thousand Dollars of the within three thousand dollars I am to James L. Birkey for that sum belonging to him. Sept. S, 1873. (Signed) PI.,” and also the testimony of, witnesses that the said paper writing was not in the handwriting of B., a direction to the jury by the court to return a verdict for the defendant was not erroneous.
    (No. 11600
    Decided March 7, 1911.)
    Error to the Circuit Court of Licking county.
    The defendant in error brought'suit in the court of common pleas, June 14, 1904, against Henry O. Norris, as executor of the last will of Jerome Buckingham, and others, alleging that before August 7, 1873, Jerome Buckingham and Virgil H. Wright purchased eight hundred’ and forty acres of coal land in Athens county, Ohio, at $75,962; that said Buckingham and Wright procured from the plaintiff $3,000 which they paid on the purchase money for said land; that thereupon the said Buckingham and Wright executed and delivered to the plaintiff, as evidence of their indebtedness for said $3,000, a paper writing, of which the following is a copy:
    “Received of Eli Hull, Esq., on the 7th day of August, A. D. 1873, three thousand dollars, to be returned to him,' with interest from that date at the rate of. twelve per cent, per annum out of the first receipts from sale of lands bought by us from Messrs. Coe, Pherson and others, in Athens county, Ohio, after we are reimbursed for advances in its payment.
    “$3,000. (Signed) Buckingham & Wright/'’
    That said Buckingham and his devisees and the said Wright and his. devisees and heirs at law have ever since been and still are in possession of said lands except as they have leased the same to third parties upon royalties for removal of the coal underlying the surface of said lands, and that they have not sold nor conveyed the same or any part thereof; that neither said Buckingham nor said Wright nor their heirs or representatives have paid said $3,000, nor'any part thereof, and that there is due plaintiff thereon $3,000 with interest from August 7, 1873, at the rate of twelve per cent.; that said Wright died in 1877 and said Buckingham in 1902; that both Wright and Buckingham died testate, leaving certain disposals in regard to said lands; that Buckingham and wife and the heirs and devisees of Wright, on or about the 8th day of May, 1901, leased and sold to the Modoc Coal & Mining Company the coal underlying said lands contained in the great vein called No. 6; that said lease provided that the lessee should pay a royalty of eight cents a ton for lump coal and that the lessee should take out not less than 75,000 tons per annum for twenty years; that the making of said lease disabled Buckingham and Wright and their devisees from selling said lands for twenty years, except subject to said lease; that defendants had made no effort to sell the same; that plaintiff presented said claim to Plenry O. Norris, as executor of Buckingham, in May, 1904,. and same was rejected. The plaintiff prays that a trust be declared in his favor in said lands and interests for the sum of $3,000 and interest thereon from the 7th of August, 1873; that the same be made a lien upon the lands aforesaid, etc.
    Such proceedings were had in the case that all the parties defendant were dismissed from the case, excepting Henry O. Norris, executor of the last will and testament of Jerome Buckingham, deceased.
    The answer of Norris, executor, as a first defense, admitted the purchase of the coal land, the possession of the premises since that time, the decease of Virgil H. Wright and Jerome Buckingham and the provision of their wills; that the land was properly described; the execution of the lease to the Modoc Coal & Mining Company; and denies each and every other allegation in the petition contained. The second defense in said answer sets up the fact that the lands in controversy were coal lands having thereunder .several valuable veins of coal and especially one vein called the great vein, or No. 6; that these veins of coal constituted substantially the entire value of said land and constituted the consideration and inducement of the said Wright and Buckingham to buy the said lands; that the execution of the lease aforesaid was a sale of the coal underlying said lands, being the material which constituted its chief value, and was the only sale of any part of said lands ever made; that Wright and Buckingham paid $75,962.52 for said lands; that they have received in rents and royalties $32,195, and no more from the date of said lease up to and including the month of May, 1906. The third defense of said answer was after-wards withdrawn. The fourth, fifth and sixth plead various clauses of the statute of limitations. The seventh defense sets up usury. The eighth defense was in substance as follows: that if the said Buckingham and Wright ever received said $3,000, or ever executed said paper, which the defendant denies, it was provided by the terms of said agreement that Buckingham and Wright should sell said lands within a reasonable time and pay said $3,000 and interest to said plaintiff, Hull; that reasonable time would be August 8, 1888, or fifteen years from the date of the paper; that this action was not commenced until the 14th day of June, 1904, or more than fifteen years after said cause of action accrued; and that therefore said action is barred by the statute of limitations.
    On the trial of the case in the court of common pleas, a jury having been impaneled, the plaintiff, to maintain the issues upon his part, called the defendant, Henry O. Norris, and proved a certain book which was found among the effects of the late Judge Jerome Buckingham, and offered pages sixty-eight and sixty-nine thereof, which tend to show that the said Jerome Buckingham and Virgil H. Wright procured of Eli Hull $3,000 on the first of August, 1873, and paid the same on the purchase money of the lands in controversy. Whereupon the plaintiff introduced and offered to read in evidence the receipt and contract in evidence, on the ground that it was an ancient document, which was objected to by the- defendant. Thereupon the court admitted the receipt in evidence as an ancient document. Whereupon the plaintiff rested his case and the defendants moved the court to arrest the testimony from the jury and direct a verdict for defendants, which motion the court overruled.
    The defendants, to maintain the issues on their part, offered in evidence an indorsement written upon the back of said receipt and contract sued on in the petition, which reads as follows:
    “One thousand dollars of the within three thousand dollars I am to James L. Birkey for that sum belonging to him.
    “Sept. 5, 1873. (Signed) Eli Hull/"
    This was objected to by the plaintiff, but the court overruled the objection and admitted the indorsement and the evidence, to which the plaintiff excepted. The defendant further introduced the testimony of several witnesses who stated that they were acquainted with the handwriting of Jerome Buckingham and that this paper writing was not in his handwriting. And the foregoing was all the evidence introduced by either party.
    Afterwards, on request of the defendant, tite court directed the jury to return a verdict against the plaintiff and for the defendant, the executor of Jerome Buckingham, deceased, upon the ground that the effect of the indorsement on the back of this receipt or instrument is to transfer to Birkey one thousand dollars of this fund. The plaintiff excepted to this ruling of the court and prosecuted error to the same in the circuit court of Licking county, which reversed the judgment of the court of common pleas, and this proceeding is instituted for the purpose of reversing the circuit court and affirming the judgment of the court of common pleas.

      Messrs. Jones & Jones and Messrs. Nor pell & ■ Nor pell, for plaintiffs in error.
    The paper signed “Buckingham & Wright” was the sine qua non of the right of Hull to recover. Without it there was no case made.
    It was not admissible as an ancient document.
    It almost shocks the sense of legal propriety to propose that a promissory note being the basis’ of an action was admitted in evidence over objection, as an ancient document. 1 Greenleaf on Evidence, Sec. 21.
    It seems to us that the doctrine of ancient documents ought to be confined to cases of deeds and wills and papers relative to pedigree and the identity of persons, and that promissory notes can never become ancient documents for the purpose of enforcement, but only as evidence on the above subjects.
    However that may be, upon the most liberal application of the doctrine of ancient documents, this paper can not be held to come within the rule. Stephen’s Digest, Ohio Ed., 325; Bell v. Brewsler, 44 Ohio St., 694.
    No time is fixed by the paper in which the sale or sales are required to be made, but Buckingham & Wright can not escape their obligation to pay Hull by merfely neglecting to make' sale. They could not put off the sale forever and defeat Hull’s claim. They agree to make sale, and pay him if the sale produces enough.

      Where no time for the performance of a contract is fixed in the contract, it is implied by the law that the performance must occur within , a reasonable time. Nunez v. Dautel, 19 Wall., 560; Lewis v. Tipton, 10 Ohio St., 88.
    We cite also on the proposition that where a contract provides no time of performance, the performance is required within a reasonable time: Stewart v. Herron, 77 Ohio St., 130; Harris v. Oil Co., 57 Ohio St., 127; Van Arsdale v. Brown, 18 C. C., 56; 2 Parsons on Contracts (9 ed.), *661; 11 American Digest, Cent. Ed., 1043, Sec. 945; Ramot v. Schotenfels, 15 Ia., 457; Works v. Hershey, 35 Ia., 340; Williston v. Perkins, 51 Cal., 554; Page v. Cook, 28 L. R. A., 759, 164 Mass., 116; Randall v. Johnson, 59 Miss., 317; Smithers v. Junker, 41 Fed. Rep., 101; Kincaid v. Higgins, 1 Bibb (Ky.), 396; Jones v. Eisler, 3 Kans., 134; Harkinson v. Placer Co., 6 Colo., 269; Culver v. Caldwell, 137 Ala., 125; Ubsdell v. Cunningham, 22 Mo., 124; Noyer v. Barnard, 63 Fed. Rep., 782; Noland v. Bull, 24 Ore., 479; Sears v. Wright, 24 Me., 278; Crooker v. Holmes, 65 Me., 195.

      Mr. B. F. McDonald and Mr. Charles H. Kibler, for defendant in error.
    We refer on the question of admissibility of the paper as an ancient document to 17 Cyc., 443; Bell v. Brewster, 44 Ohio St., 690, and the treatises on evidence.
    We claim on the grounds hereinafter mentioned that there was no error in sustaining the demurrer to that defense. It stated that it was provided by the terms of said agreement that Buckingham and Wright should sell the lands within a reasonable time and pay said money and interest to said Hull; that this time expired on August 8, 1888, when the cause of action accrued and that this action was barred for the reason that it was not brought until June 18, 1904, more than fifteen years after the cause of action had accrued.
    In the eighth defense no facts or circumstances are given, but there is this legal conclusion: “that it was provided by the terms of said agreement (the agreement even is not set forth) that said Buckingham and Wright should sell said lands within a reasonable time and pay said moneys with interest to said Hull,, and that, that time to do it was within fifteen years, etc. There being no facts or circumstances alleged which would justify the conclusion that a reasonable time could be deduced, the court of common pleas was right in sustaining the demurrer to the answer on that ground. Sawyer v. Colgan, 102 Cal., 283, 36 Pac. Rep., 580.
    The double contingency here differentiates this case from others. Coupled with the-fact that Buckingham and Wright were not liable to pay the money, and, therefore, did not owe it, until the two contingencies happened, this case is brought within the doctrine of DeWolfe v. French, 51 Me., 420.
    For cases where the debt is absolute, but payable out of a particular fund when collected or realized, which hold that the statute begins to run at the collection of the fund or when it -is available, and not before, see Scott v. Osborne, 2 Munf., 413; Fernandes v. City, 46 La. An., 1130; Stanton v. Stanton, 37 Vt., 411; Tonkin v. Baum, 114 Pa. St., 414; Middletown v. Hospital, 16 R. I., 319, 15 Atl., 800.
    In case of a pledge, the statute does not begin to run against the debt secured by a pledge as long as the creditor has possession of the pledge. Bank v. Hyams, 42 La. An., 729; Angell on Limitations, Sec. 173.
    For twenty-eight years irom the date of the receipt and agreement the whole matter was in statu quo. Before the expiration of the thirty years, which our opponents graciously allow us in which to complain, a radical change in the situation occurs by the act of Buckingham and the representatives of Wright, who violate their agreement by the execution of the lease.
    We claim that then, for the first time, Hull’s cause of action accrued, and that he had the statutory time in which to complain and sue.
   Davis, J.

If the reason given by the court of common pleas, for directing a verdict for the defendant, were the only reason therefor which may be found in the record, we should feel disposed tó affirm the judgment of the circuit court reversing the judgment of the court of common pleas; because, assuming that the indorsement on the -back of the instrument constitutes an equitable assignment of an interest, it would still seem to be only a matter of making an additional party at the costs of the plaintiff. • There are, however, other considerations' which appear to us to conclusively show the correctness of the judgment in the court of common pleas, notwithstanding a wrong reason was given for it.

Although the paper writing which is set out m the plaintiff’s petition, and which is in form both a receipt and a contract, is put in issue in all respects by the answer of the defendant, it was offered in evidence and admitted, over the objection of the defendant, as an ancient document, without any evidence as to who had the custody of it, from whom it came, or as to the antiquity and genuineness of it, which were disputed; nor any evidence to explain numerous suspicious circumstances which appear on the face of the document and in connection with it; nor any evidence to rebut the presumption which arises after the lapse of twenty years. In short, it was allowed to go to the jury as proving itself in every respect, except with the aid, whatever it may be, of a statement in the book of the decedent, Buckingham, that he and Wright had procured from Hull, the plaintiff, $3,000 and paid it on the purchase price of the land mentioned in the petition. Aside from the proof of presentation of the claim to and its rejection by the executor of Buckingham, this was the whole evidence on part of the plaintiff. The defendant not only objected to the introduction of the paper in evidence, but he clinched his objection at this point by a motion to arrest the testimony from the jury and to direct a verdict. This motion was overruled, and thereupon the defendant offered in evidence the indorsement on the back of the paper; and he also called three witnesses who testified that the paper was not in the handwriting of Buckingham, whose estate is sought to be held liable for this obligation. And this was all the evidence produced on the trial. Was this sufficient to justify the case being submitted to the jury?

An ancient document is one which is not less than thirty years old, the time to be computed from the date of the execution of the instrument. In order to render it admissible as evidence, there must be at least some evidence accounting for its custody andn that it was produced from the proper custody; and there must be at least some evidence of its antiquity, although it may purport to be ancient. The statement sometimes made, and apparently acted upon in this case, that ancient doc-,, uments prove themselves, is too broad and must be taken with the limitations already stated, especially when the document is accompanied with circumstances of suspicion. 2 Elliott on Evidence, Secs. 1323, 1324. In Wilson v. Betts, 4 Denio, 213, Bronson, C. J., said: “But the mere fact that the instrument has existed for more than thirty years, unaided by other proofs, can not be enough to establish it in a court of justice. In the ordinary affairs of men it is very often assumed without proof that he whose name has been affixed to a written instrument placed it there himself. But when signing becomes a matter of legal controversy, it must be established by proof. And showing that the instrument is thirty years old has no greater tendency to prove it genuine than would the fact that it had existed for a single day. The mere fact of existence, whether the time be long or short, has no tendency whatever, in a legal point of view, to prove the due execution of the instrument. It may be said in any case that a deed is probably genuine because it is not probable that any one would forge it; but when the execution of the deed is in question, courts never act upon such presumptions. It has sometimes been loosely said that when there are no circumstances of suspicion, a deed thirty years old proves itself. But there is no just foundation, either in principle or authority, for such a dictum. I need not go over the cases.”

In the case now in hand there was no proof, and there was no attempt to prove, that the paper had been kept by and was produced by the. plaintiff. True it is that it was produced and offered in evidence by the plaintiff’s attorneys, which, if there were no suspicious circumstances connected with it or suggested by it, might be sufficient; but such there are. When and by whom was it made? It bears no date, and while it recites that the money was received by Buckingham and White August 7, 1873, that date is not synchronous with the date in Buckingham’s book, where it is stated that $3,000 was procured from Hull, the plaintiff, and paid as part of the purchase money. There, the date is August 1, 1873, and nothing is said there about return or repayment of the money, or about the terms or manner thereof, as in the paper writing. There was no attempt to explain this discrepancy. The execution of the paper by Buckingham and Wright is put in issue by the answer, and defendant produced testimony that the document is not in Buckingham’s handwriting, and nothing to the contrary appears, nor anything to show that it was in the handwriting of Wright.

Again, both at common law and in equity, after the lapse of twenty years from the maturity of an indebtedness, a presumption that it has been paid arises, and in the absence, of rebutting evidence, the presumption is so far controlling that the court may dismiss the petition or direct a verdict. 22 Am. & Eng. Ency. Law (2 ed.), 591, 595, 599. So again, if the statutory limitation of fifteen years had' elapsed after right of action had accrued, and' that appears from the instrument itself, the court might direct a verdict.

Hence, it becomes important to determine when the cause of action accrued under this instrument, if it be shown to be admissible. A leading case is Hicks v. Shouse, 17 B. Monroe (Ky.), 483, in which it was held that .an obligation to pay five hundred dollars “so soon as I sell my house and lot in the city of Lexington, and until said sale is made I promise to pay eight per cent, interest on said sum,” because due in a reasonable time, and that seven years, which was the time before suit in that case, was long enough for the payee to wait.

“Where there is a present indebtedness due absolutely, and the happening of some future event is fixed as a convenient time for payment merely, and such future event does not happen, the debt is payable within a reasonable time.” Noland v. Bull, 24 Or, 479.

It was held in Williston v. Perkins, 51 Cal., 554, that if a builder of a vessel promises to pay for work done on the same when it is sold, he is entitled to only reasonable time within which to finish and sell it, and if he fails within a reasonable time to do so, the agreement to pay becomes absolute.

In Sears v. Wright, 24 Me, 278, it was held that where a note is made payable “from the avails of the logs bought of M. M, when there is a sale made,” it is not payable upon a contingency, but absolutely, when a reasonable time has elapsed to make a sale' of the logs.

The foregoing are typical cases. There are many others of the same import. We refer to one other, Lewis v. Tipton, 10 Ohio St., 88, which was a case involving construction of a promissory note in the following form: “June 20, 1855. For value received, I promise to pay to the order of James A. Tipton, ninety-five dollars in current money of Ohio, when I can make it convenient, with ten per cent, interest till paid.” This court held that the note was payable in a reasonable time after its date.

Finally, on this point, it was determined by this court, in a recent case, that ordinarily an issue as to the reasonableness or unreasonableness of anything is a mixed question of law and fact; but where the facts are clear and undisputed, it is purely a question of law. Kroll v. Close, 82 Ohio St., 190.

We therefore are warranted in holding that this paper writing purports to be an agreement to pay within a reasonable time. It has no date, but from what appears on its face and in the indorsement on the back thereof, its date may be assumed to be some time prior to September 5, 1873; and in the absence of any evidence of rebutting circumstances, we may safely say that ten years, and even less, was a reasonable time within which the obligors should pay this claim of three thousand dollars and interest. Hence, the statute of limitations, as well as the presumption of payment in twenty years, would begin to run ten j^ears from the time of the execution of the instrument. That is to say, that this paper, the foundation of the plaintiff’s action, would be actually barred by the statute of limitations in twenty-five years from its execution, and the presumption of payment at common law and in equity would be complete in thirty years from its execution, unless it be shown by evidence that a reasonable time for payment would be much longer than we have fixed it. Yet the plaintiff, with all of these presumptions and suspicions against the paper, contents himself, and insists that it proves itself and that it be admitted as an ancient document to stand alone and make out his whole case without any explanation or support whatever. It was so admitted, and that was error. But if it be left standing in the record, we think that the proof fails to sustain the issues on part of the plaintiff.

The judgment of the circuit court is reversed and that of the common pleas affirmed.

Reversed.

Spear, C. J., Shauck, Price and Johnson, JJ., concur. Donahue, J., not participating.


author: Spear, C. J.

text:
    White v. Calhoun et al.

      Power of common pleas court — To order stricken from Mes — A sham answer — Is a common law power — Evidence required— To sustain motion to strike from Mes — Court procedure.

    1. The power of the court of common pleas to order stricken from the files an answer which is a sham answer, one which, although good in form, is false in fact and not pleaded in good faith, is a power existing at the common law, and is one of the powers inherent in the court to be exercised in the due and speedy administration of justice.
    2. A proper case is made for the exercise of such power, and for an order striking off such answer, when, upon the hearing of a motion to strike it off, the evidence introduced discloses no conflict upon any material point, and the entire evidence leaves no reasonable doubt that such order should be made.
    (No. 12263
    Decided March 7, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    A suit was commenced April 3, 1909, in the common pleas of Cuyahoga, by the defendants in error, N. S. Calhoun and Will G. Guenther, partners, against the plaintiff in error, W. B. White, to recover upon an account stated. April 28, following, an answer was filed by White taking issue with the averments of the petition. September 20, following, the plaintiffs below filed a motion to strike the answer from the files for the reason that the same is a sham and false answer, filed in bad faith and for the purpose of delay. On hearing, October 22, 1909, this motion was sustained and the answer ordered stricken from the files. And the court thereupon found that defendant does owe the plaintiffs, as damages, the amount demanded in the petition, and rendered judgment therefor, with costs. This judgment was affirmed by the circuit court. The plaintiff in error seeks a reversal of both judgments.

      Mr. Richard H. Lee, for plaintiff in error, cited and commented on the following authorities:

      Jones v. Procter, 3 C. C., N. S., 649; Cook v. Warren, 88 N. Y., 37; Youngs v. Kent, 46 N. Y., 672; Carpenter v. Adams, 34 Hun, 429; Bank v. Kroder, 13 Misc. (N. Y.), 192; Bank v. Moore, 14 N. Y. Weekly Dig., 334; Griffin v. Todd, 48 How. Pr., 15.

      Messrs. Treadway & Marlatt and Messrs. Calhoun & Guenther, for defendants in error, cited and commented upon the following authorities:

      Christie v. Drennon, 1 O. D., 374; Werk v. Christie, 9 C. C., 439; Whittaker's Civil Code, 377; 1 Bates' Code Pleading, 346, 347; 31 Cyc., 610, 622-626, 666; Anonymous, 7 N. J. L., 160; Wertheimer v. Morse, 23 W. L. B., 455; Larimore v. Wells, 29 Ohio St., 13; Bank v. Lloyd’s Admr., 18 Ohio St., 365; Gostorfs v. Taaffe, 18 Cal., 386; People v. McCumber, 18 N. Y., 315; Dailey v. Chappell, 12 C. C., N. S., 561; Dallas v. Ferneau, 25 Ohio St., 635; sections 5121 and 5328, Revised Statutes.
   Spear, C. J.

It is not contended that the answer interposed by defendant was frivolous, or insufficient in form. Nor is any question made but that the answer tendered an issue and that, as the case stood on petition and answer, the issue thus tendered was a jury issue. A frivolous answer is one that contains no valid defense, one which is insufficient on its face. A sham answer is one good in form, but false in fact, and not pleaded in good faith. The complaint of plaintiff in error is that, in such condition of the pleadings, the answer being perfect in form, the trial court was without power to entertain a motion to strike it off, 'because the defendant had a constitutional right to have his case tried by a jury. And that presents the real question in the case.

The printed record shows that the defendant took a bill of exceptions; that it was filed and notice issued. But 'such bill is not printed, and we do not find it among the original papers, even if its presence there were important, which it is not, because not printed. Nor is there any finding of facts. We are to presume, therefore, in support of the action of the trial court with respect to the motion and the final judgment rendered, that sufficient evidence was adduced to warrant the action of the court, provided there was power in the court to receive and act upon any evidence whatsoever. The striking off on motion of pleadings and papers from the files is recognized by section 5126, Revised Statutes, and is familiar practice in this state. But the precise question involved in this record seems not to have been before this court in any case reported with opinion, although questions of like import have been passed upon in a number of cases in the lower courts, as in the common pleas of Hamilton and Cuyahoga counties, all tending to support the power of the trial court to entertain motions of the character involved in the case at bar. The practice in many of the states is of like character, notably in California, New York, Minnesota, and Indiana, as appears by the authorities cited by counsel, which we need not here repeat. Our statute does not in terms provide, as is provided in the statutes of many states, for the striking off of sham answers. But the authorities cited by the industrious counsel for defendants in error fully support the proposition that the power is inherent and has been exercised from time immemorial as a power existing at common law. And why should such power not exist and why, in a proper case, should it not be exercised? As defined in Gostorfs v. Taaffe, 18 Cal., 385, “it is a power simply to inquire whether there is in fact any question to be tried, and if there is not, but the defense is a plain fiction, to strike out the fictitious defense.” It is objected that the entertaining of such motion deprives defendant of his right to have his case tried by a jury in its regular order and is simply a short cut to a disposition of the case in advance of the other cases on the docket; that to sustain the judgments below would give encouragement to a vicious practice, one leading to vexatious and untimely interference with the due course of justice. But if this objection be a good one as to such motion, why would it not be equally good as applied to a demurrer? If a demurrer to an answer be sustained, it becomes the duty of the court, in actions upon instruments for the payment of money only, to at once render judgment for the plaintiff, unless the defendant satisfies the court that, by amendment, he can present a pleading good in law. Failing this, there simply is no defense, and the plaintiff has a right to a judgment. So, also, as to the motion. It seeks to do by another process what the demurrer has accomplished in the instance stated. It demonstrates, if sustained, that there is no defense. In that situation what is there to try to a jury? Surely nothing, and as surely the defendant has lost no right, constitutional or other; on the contrary, a plain right of the plaintiff has been vindicated and the interests of justice have been subserved. It seems idle, in this day, when the efforts of lawyers, some of them at least of the highest class, are being strenuously exerted in the direction of securing a more speedy administration of justice, to talk about a right of a defendant to stand for months and perhaps years upon a sham defense, thus preventing judgment, a defense which will crumble at the first assault upon it when the case is reached. The very statement of the proposition condemns it. It is simply a bold proposition, the effect of which is to obstruct the due administration of justice.

This conclusion is strengthened when we consider the provisions of our statutes respecting interrogatories and the taking of testimony by deposition. As to the first, a party may annex to his pleading other than a demurrer interrogatories pertinent to the issues, which, unless demurred to, shall be plainly and fully answered under oath by the other party. Such answer may be enforced, and where competent may be used by either party. As to depositions, authority is given to either party to commence taking testimony in that way at any time after service upon the defendant. Such depositions may be used where testimony is required upon a motion, or where the oral examination of a witness is not required, and may be used at any stage of the action or proceeding. All this is in the interest of the speedy administration of justice. Having in mind these provisions for facilitating the administration of justice, how would their use affect a situation like one involved in the case at bar? Let us suppose that the plaintiffs had, after the filing of the answer, taken the deposition of defendant, and, under the fire of sharp examination, he had admitted, clearly and without question, that he did owe the debt just as alleged in the petition. That would be his last declaration on paper and under oath in respect to the issues in the case. The deposition in due time would be filed with the other papers, and there it would lie as a companion to defendant’s answer already filed. Now it is the proposition of the objectors that those two papers, the last in date absolutely destroying the effect in law of the former, must lie there on the files until the cause shall be reached in its regular order. Suppose that to be done, then what? To preserve intact that great constitutional right of the defendant to delay justice a jury is called. The plaintiff thereupon proceeds to offer and read the deposition of the defendant, and rests. The defendant has no proof to offer for the excellent reason that he dare not risk a prosecution for perjury by undertaking to deny his last sworn statement. The plaintiff thereupon asks a directed verdict. Why not? What is there for a jury to consider and decide? Absolutely nothing. The result reached is that, to preserve the defendant’s great constitutional right of delay, the plaintiff has been kept out of his own, for a year more or less it may be, and the result otherwise is precisely the same as it would have been had the sham answer been assailed by a motion at any early stage of the case. And all this in the face of our statute, the spirit of which makes it the duty of courts to disregard technicalities and enforce the substantial rights of the parties without delay.

Complaint is also made that the defendant was not given due notice of either.the motion to strike off the answer or the motion for judgment, and had not opportunity to interpose an amendment to his answer. Here again the printed record utterly fails to bear out the objection. Not only is there no finding of facts by the trial court in the printed record, and no bill of' exceptions, but there is no paper even purporting to be a complete certified transcript of docket and journal entries of the common pleas court. It ought not to be necessary to inform counsel, though it seems to be, that it is necessary, if they desire to raise a question of error in a reviewing court, to present a printed record showing the error complained of.

Our conclusion is that a motion to strike off an answer believed to be a sham answer is proper practice, and that the trial court has power to entertain, hear and determine such motion. It may be proper to add, in order to prevent misunderstanding, that the discretion of the court in such case should be exercised wisely and with discrimination, and such motion sustained only upon such showing upon the part of the plaintiff as leaves no question whatever of the truth and conclusiveness of the plaintiff’s evidence. A situation in which there' is conflict of evidence upon any material point, or admitting of a rational doubt as to the proper order to be made, should result in the overruling of the motion.

There is no error in the judgments below, and they will be

Affirmed.

Davis, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    Grooms v. The State of Ohio.

      Bribery and corruption• — Section 13314, General Code — Exclusion from the right of suffrage — Of one who sells his vote — Section 4 of Article V of the Constitution.

    Section 13314, General Code, providing for the exclusion from the right of suffrage of ‘ one who sells his vote is within the express authority conferred upon the general assembly by Section 4 of Article Y of the constitution to exclude “any person convicted of bribery, perjury or other infamous crime.”
    (No. 12897
    Decided March 7, 1911.)
    Error to the Common Pleas Court of Adams county.
    The facts are stated in the opinion.

      Mr. S. L. Patterson; Mr. John A. Eylar; Mr. C. E. Roebuck and Mr. J. R. B. Kessler, for plaintiff in error, cited and commented upon the - following authorities:
    Brightly’s Leading Cases on Elections, 134, 135, 136; Commonwealth v. Shaver, 3 Watts. & Serg. (Pa.), 338; Brown v. Railway Co., 102 Wis., 137, 44 L. R. A., 579; Knight v. Johnson, 1 N. P., N. S., 260; State v. Shock, 68 Mo., 580; 21 Am. & Eng. Ency. Law (2 ed.), 1011; St. Paul v. Traeger, 25 Minn., 253; Turnpike Co. v. Neil, 9 Ohio, 11; Shultz v. Cambridge, 38 Ohio St., 659; Bell v. Smalley, 45 N. J. Eq., 478; Bressler v. Wayne County, 32 Neb., 834; Batter v. Bauer, 2 N. Dak., 108; United States v. Speeden, 1 Cranch C. C., 535; Gridley v. Insurance Co., 14 Blatchf., 107; Webb v. State, 29 Ohio St., 358; Mitchell v. State, 42 Ohio St., 386; McCrary on Elections (4 ed.), Sec. 121; Dillingham v. State, 5 Ohio St., 280; Hallett v. State, 29 Ohio St., 168; Griffin v. State, 34 Ohio St., 301; United States v. Cobb, 43 Fed. Rep., 570; Macklin v. United States, 117 U. S., 348; Ex parte Wilson, 114 U. S., 417; State v. Nolan, 15 R. I., 529; McKee v. Wilson, 87 N. Car., 300; Gudger v. Penland, 108 N. Car., 593; Mason v. State, ex rel., 58 Ohio St., 50; 4 Blackstone’s Commentaries, 4, 5, 139; 1 Russell on Crimes (1853), 154; 1 Hawk P. C., 67; 3 Inst., 145; Holton v. State, 2 Fla., 476; State v. Williams, 7 Rob. (La.), 252; Illies v. Knight, 3 Tex., 312; Kentucky v. Denison, 24 How., 66; State v. Peterson, 41 Vt., 511; Patten v. People, 18 Mich., 314; Sec. 10, Art. I, Const. of 1851; Sec. 4, Art. IV, Const. of 1802; Sec. 4, Art. V, Const. of 1851; 1 Chase’s Statutes, 367; Swan’s Statutes (1841), 1020; Sections 12370, 12372, 13314, 13424, 13441, 13676, General Code.

      Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin; Mr. F. A. Shively; Mr. Will P. Stephenson and Mr. Oscar W. Newman, for defendant in error, cited and commented upon the following authorities:

      Christie v. People, 206 Ill., 337; Barker v. People, 20 Johns., 457; Baum v. State, 157 Ind., 282; State, ex rel., v. Buckman, 18 Fla., 267; Anderson v. State, 72 Ala., 187; Pandects of Justinian, 48-14-1; Rex v. Pitt, 3 Burr., 1335; Mason v. State, ex rel., 58 Ohio St., 50; State v. Gardner, 54 Ohio. St., 34; Clark & Marshall on Crimes, 11, 670; 2 McClain on Crim. Law, Sec. 947; Russell v. Commonwealth, 3 Bush (66 Ky.), 469; 1 McClain on Crim. Law, Sec. 20; Ex parte Wilson, 114 U. S., 393; Black’s Const. Law, 644, 645; Barker v. People, 3 Cowen (N. Y.), 686; Cooley’s. Const. Lim., 183; 6 Am. & Eng. Ency. Law (2 ed.), 921, 922, 923, 924; Sec. 4, Art. IV, Const. of 1802; Sec. 2, Art. VII, Const. of 1802; Sec. 4, Art. V, Const. of 1851; 1 Chase’s Statutes, 367, 625; 2 Chase’s Statutes, 1097; 3 Chase’s Statutes, 1670; Swan’s Statutes (1854), 269, 288, 289, 351; 1 Curwen, 769; 3 Curwen, 1928; 1 Swan & Critchfield, 546, 547, 548; Sections 12372 and 13314, General Code.
   By the Court.

An indictment was found against Grooms, charging that on the 8th day of November, 1910, he agreed, in consideration of ten dollars, to vote for the persons whose names appeared on the ticket of the Republican party on the ballot then being voted. Upon arraignment, he entered a plea of guilty. The sentence which followed included the exclusion of the accused from the right of suffrage for five years next succeeding the day of sentence. Although that portion of the sentence is within the express terms of Section 13314, General Code, it is said to be erroneous because the statute exceeds the authority whiéh the constitution has conferred upon the general assembly in that behalf. This conclusion is based upon the proposition that bribery is not an infamous crime. The authority questioned is granted by Section 4 of Article V of the consti1 tution in these terms: “The-general assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any person convicted of bribery, perjury or other infamous crime.” The words “other” and “infamous” being in the same construction with respect to their qualifying scope, it is obvious that if the latter requires the ground of exclusion to be an infamous crime, the former, for the purpose of this grant of power, affixes that character to bribery. The act is within the express terms of the grant.

Judgment affirmed.

Spear, C. J., Davis, Si-iauck, Price, Johnson and Donahue, JJ., concur.