author: Burket, J.

text:
    Brockway v. Jewell, Guard.

      Habitual drunkard — Notice of proceedings to appoint guardian— When sale, gift, etc., to convey property is invalid — Section 6818, Revised Statutes, construed.

    1. Section 6318, Revised Statutes, which provides that, “ from the time of the service of such notice until the hearing' or the day thereof, as to any persons having notice of such proceedings, no sale, gift, conveyance or incumbrance of the property of such intemperate person or habitual drunkard shall be valid,” does not prohibit such drunkard from purchasing and paying for necessaries after the service of such notice, and before the appointment of such guardian; and such payments may be made in money or personal property when made and accepted in good faith.

      2. C. being in a drunken fit of sickness requiring a nurse and attendant, requested B. to nurse and take care of kirn, and as compensation for such service promised to deliver to B. a harness ; B. accepted, and performed the service and received the harness on the order of C. Held, That the delivery of the harness to B. was a payment for his services, and not a sale to him.
    (Decided December 18, 1894.)
    Error to the Circuit Court of Trumbull county.
    The action below was commenced before a justice of the peace by defendant in error, against plaintiff in error, in replevin,' to recover a single harness with gilt trimmings. On appeal to the court of common pleas, the plaintiff below filed his petition, the defendant below filed his answer, but there was no reply.
    A trial before a jury resulted in a verdict for defendant below, finding him to be the owner of the harness, and assessing- his damages at thirty dollars.
    A motion for a new trial was filed by the plaintiff below, the seventh ground of which is founded upon a supposed error in the charge of the court, appearing in the opinion later on.
    The motion for a new trial was overruled, and judgment rendered on the verdict, to which plaintiff below excepted, and filed his petition in error in the circuit court of Trumbull county, which court, on hearing the case, reversed the judgment on the sole g-round that the court of common pleas erred in giving- the charge as set out in the seventh ground of the motion for a new trial. Thereupon defendant below, plaintiff in error here, filed his petition in error in this court, to reverse the judgment of reversal of- the circuit court.

      C. S. Barrow and E. B. Leonard, for plaintiff in error.
    It is competent certainly for the plaintiff in error to deny that Clark ever owned this property. It is also competent for him to say that Clark parted with the title to the said Brockway. Either of these would make a perfect defense. Both are pleaded. We believe that neither at common law nor under the code is it required that different defenses shall be consistent with each other. Citizens’ Bank v. Closson, 29 Ohio St., 81; Field’s Lawyers’ Brief, volume 1, section 90; Reed v. Reed, 93 N. C., 465; Siter v. Jewett, 33 Cal., 92; Nudd v. Thompson, 34 Cal., 47; Railway Co. v. Whitley, 27 S. W. Rep., 853; Cohrs v. Frazier, 5 S. C., 351; 1 Chitty on Pleading, 542; Howard’s Practice, 289; State v. Reddick, 48 N. W. Rep., 847; Murphy v. Carter, 1 Utah, 17; Buhne v. Corbitt, 43 Cal., 269; Quigley v. Merritt, 11 Ia., 147; Kavanaugh v. Quartet Mining Co., 27 Pacific Rep., 245; Am. & Eng. Ency. of Law, volume 18, p. 565, and cases there cited.
    No motion was made by the defendant in error to strike out any portion of this answer on the ground of variance or inconsistency, but a trial was had and a verdict was rendered as the answer stood; this without objection upon the part of the defendant in error. Pomeroy’s Remedies and Remedial Rights, section 724; McQuillan’s Pleadings and Practice, section 359; Schafer v. Causey, 8 Mo. App., 142; Field’s Lawyers’ Briefs, volume 1, section 90; Trimble v. Doty, 16 Ohio St, 118; Tuttle v. Skidmore, 26 N. E. Rep., 248; Cassidy v.
      Daly, 11 Weekly Digest, 222; Kerr v. Hayes, 35 N. Y., 336; Conway v. Clinton, 1 Utah, 215; Cohrs v. Frazier, 5 S. C., 351; Whitman v. Foley, 26 N. E. Rep., 725; Billings v. Drew, 52 Cal., 565; Shannon v. Pierson, 10 Ia., 588.
    Even if the property passed directly from the defendant, Clark, to Broekway, such transfer did not come within the provision of this statute.
    The statute under which the guardian claims title to the property is one which creates a disability, and of course must be construed strictly. This statute provides that from the time of giving notice of the pendency of any proceedings to appoint a guardian, ‘ ‘ no sale, gift, conveyance or incumbrance of the property of such intemperate person or habitual drunkard shall be valid. ’ ’
    It is perfectly clear that up to the time of the appointment of the guardian, Clark had a right to do everything not forbidden by this statute. Even if Clark at one time owned this harness and it was delivered to Brockway by him, in conformity with the evidence in this case, it was not a sale, gift, conveyance or incumbrance of his property. At the time of the commencement of the proceedings for the appointment of a guardian, nobody was authorized to make any contracts for Clark. He must be provided with necessaries, and no guardian had the rig’ht to provide them for him. Bush v. Sproat, 43 Ark., 419; 2 Greenleaf, section. 526; Abbott’s Trial Evidence, 799; Pomeroy’s Remedies, section 701; Morehouse v. Northrup, 33 Conn., 380; Hart v. Crawford, 41 N. Y., 197; Tinsley v. Ryan, 9 Texas, 405; Am. and Eng. Ency. of Law, volume 18, p. 186; Benjamin on Sales, volume 1, p. 3.

      Even if this transaction was not a payment and was made after notice of the pendency of proceedings, and the title of the property had once been in the defendant in error, it was a perfectly valid transaction .between the parties. Smith v. Spooner, 3 Pick., 229; Myer et al. v. Tighe, 151 Mass., 354.

      George M. Tuttle, for defendant in error.
    I. Upon the first trial of the ease, in the court of common pleas, and in the circuit court on error to the first judgment of the common pleas, the plaintiff in error rested his claim upon proposition numbered 3 in his argument, and I take that proposition first.
    The proposition of counsel now adverted to is, that notwithstanding the provisions of the statute, and that the proceedings under it resulted in placing the inebriate’s property under guardianship, and that the attempted sale by him to the defendant was after the proceedings were instituted and notice served upon the inebriate, and with full notice to the defendant, the transaction was a valid sale to bind the guardian. This is placed upon the ground that the consideration received by the inebriate was of the character of necessaries. The proposition, as a construction of the statute, is something of the baldest.
    So far as the cases cited by counsel are concerned, it will be observed that they do not at all stand upon the idea of an exception to the general provisions of the statute allowed or instituted in favor of necessity. The necessity which the law requires does not relate to the character merely of the things furnished. It relates to the infant’s potential condition. It does not exist when he is supplied by others. 1 Parsons, 314; Johnson v. Lines, 6 Watts & Serg., 80; 10 Am. and Ency. of Law, 663, note 2.
    In support of the second proposition, the learned counsel makes the proposition that the transaction between Clark and Brockway, was not within the words of the statute. He holds that, within the meaning of the statute, it was not a sale nor a conveyance. The point is equally as pertinent to the third point as to the second and we consider it here.
    Within the meaning of the statute, the transaction between these parties, was a sale and a conveyance. If, to embrace this transaction, it were necessary to suppose the legislature used the term sale, here, in a sense more extensive than its technical sense, to include mere exchange of good for labor with no reference to money price, there would be high authority and certainly good sense in holding that such was the legislative sense of the term. Howard v. Harris, 8 Allen, 299.
    But upon the only construction, admissible under the proof, the transaction in question was a sale in the most technical sense of the term. Barre v. Parker, 1 H. Bl., 283; Hands v. Burton, 9 East., 349; Sheldon v. Cox, 3 Harn. & Cress., 420; Forsythe v. Jervis, 1 Stark, 437; Reed v. Hutchins, 3 Campb., 352; Harmon v. Lake, 14 M. & W., 139; Ingram v. Shirley, 1 Stark., 185; Porter v. Talcott, 1 Cowen, 359.
    The text cited by counsel does not, we presume, mean something’ entirely contradictory to the authorities cited in support of it; and if it does not, it does not sustain their views; and if it does, then so much the worse for the proposition of the text. In that case it is contradictory, not to these authorities only, but to the whole body of judicial experience. And the principle equally applies where the respective prices of the subject of change are left for further determination, provided they are to be determined as the basis of final adjustment, and the determination is to be based upon an estimate of actual value or actual difference of value. That is certain, which can be made certain. Herbert v. Barstow, 1 Stalk., 25; Hill v. Hill, 1 N. J. L., 261; Picard v. McCormick, 11 Mich., 69; Shenck v. Saunders, 13 Gray, 41; Clark v. Fairchild, 22 Wend., 572; Way v. Wakefield, 7 Verm., 223.
    I do not think it necessary to enlarge on the transaction as a conveyance. But a conveyance in its most general sense applies to goods as well as to lands. In such signification, it is equal to transfer. Anson on Contracts, 58.
    II. Under the second proposition advanced by counsel, which I take last, it is somewhat elaborately urged that the transferring this harness to the defendant was the payment of a debt due to him. If a debt was at the same time due from Clark to Brockway for service, it either stood from hence as payment of so much or as a setoff against it; and, to all the purposes of this question, it is wholly immaterial which. Just so certain as an executory promise to procure a thing and sell it, is not a sale; as a right to damages, at most nominal, for the nondelivery of the thing, is not the ownership, of the thing itself; as jus ad rem is not jus in re; as the displacement of the one condition and the substitution of the other requires a competent, voluntary act of a competent person, just so certain was this holding in contravention of the most express words of the statute.
   Burket, J.

The facts and circumstances out of which this action grew, as shown by' the record, are as follows: On and before March 1, 1885, Grove E. Clark and the defendant below, James W. Brockway, were close friends and frequently went about the country together. Mr. Clark had inherited quite a fortune, and fell into the habit of drinking to excess, and had spent some ten thousand dollars of cash, and often borrowed of his friends. Matters grew so bad that on the second day of March, 1885, application was made to the probate court of Trumbull county for the appointment of a guardian for Mr. Clark, on the ground that he was an inebriate. Notice of this application was served on Mr. Clark on the fourth or fifth day of March, and Mr. Brockway had notice of the application on the same day. The application was set for hearing on March 9, and was continued and the appointment of the guardian was finally made o.n March 28, 1885.

About the last of February, 1885, Mr. Clark took sick at the Sawdy hotel, at Kinsman, in Trumbull county, and was in a condition to require the services of a nurse to wash and cleanse him and his clothes and bed, and he employed the defendant below to nurse him during his sickness, and in payment for his services agreed to supply him with a harness. Defendant ■ accepted the employment on the terms named, and at once went to the harness shop and looked oyer the stock on hand, and among others the harness in question, but made no selection at that time. Defendant nursed Mr. Clark for about two weeks from and after the last day of February or first day of March, under and- in pursuance of this contract between them. On the 10th day of March, Mr. Clark gave defendant below an order on the harnessmqker for the harness, which, was presented the same day and not honored. Thereupon Mr. Clark and defendant on the same day went to the harness shop together, and Mr. Clark requested the harness maker to let defendant have the harness, which was agreed to. Afterward on the same day the harness maker delivered the harness to defendant, in the absence of Mr. Clark, and afterward on the same day, in the absence of defendant, received, from Mr. Clark his note for thirty.dollars for the harness. Defendant retained the harness until about May 1, 1885, when it was taken from him in this action of replevin.

The petition in the common pleas avers that defendant at the commencement of this action, and for ten days before that time, wrongfully detained from plaintiff, the following goods and chattels of the plaintiff, as guardian, to-wit: One single harness with gilt trimmings.

It will be noticed that this petition does not claim that the defendant detained the property for a longer period than ten days before the suit was commenced, and does not aver that plaintiff as such guardian was owner of the harness for a longer period than the ten days during which the property was so detained.

The answer admits that the case came into court by appeal and denies each and every other allegation therein contained. The answer further avers that, at the time of the commencement of the action, the defendant was lawfully in possession of the harness, that he was the owner thereof and that it was delivered and given to biun in good faith, as a consideration for necessaries, furnished, to Grove E. Clark, who was then owner of the same, and that said necessaries so furnished consisted of care and nursing of said Clark while he was in a fit of sickness.

The ownership and rightful possession of the harness, at the time of the commencement of the suit, and for ten days previous thereto, is clearly put in issue by both the general denial, and the further averment that defendant was the owner and had lawful possession thereof, and this is as far as any issue is made up by the pleadings.

The defendant goes further in his answer and shows how he became owner, and avers that Mr. Clark was owner of the harness at the time it was delivered to defendant, as a consideration for necessaries furnished to him. No reply appears in the record, so' that the manner of- acquiring ownership is not denied;-'and it stands admitted that the harness was delivered and given to defendant in’ good faith, as a consideration for care, nursing and necessaries furnished to Mr. Clark while he was in a fit of sickness. The time of the sickness and of the delivery of the harness, does not appear in the pleadings, but the testimony shows that it was the last day of February or fore part of March, as above stated.

There is no inconsistency in the pleadings, and the latter part of the answer does not modify or contradict the general denial. While the answer avers that at some time Mr. Clark was owner of the harness, and that he delivered it to the defendant below, it -was claimed upon the trial, as one defense, that the title to the harness was never in Mr. Clark, but passed directly from the harness maker to the defendant; and evidence was introduced, without objection, and the trial proceeded upon that theory, notwithstanding the state of the pleadings.

If the charge of the court, excepted to, had reference to this phase of the case, as so made by the evidence, it was clearly right, because if defendant below did not derive title to the harness from Grove E. Clark, but from the harness maker, his title was unimpeachable. That the court had the right to submit the case to the jury upon the evidence introduced, notwithstanding the state of the pleadings, is shown by the case of Mehurin v. Stone, 37 Ohio St., 49-58.

As another phase of the ease, the defendant below claimed that the contract of hiring and promise to pay for the services rendered by delivery of the harness, completed the sale, if sale there was, as of the date of - the hiring, even though the harness was handed over by the harness maker some days later.

As still another phase of the case, the defendant below regarded the delivery-of the-harness as a payment for services rendered under a contract made before application was made for the appointment of a guardian for Mr. Clark.

Opposed to these three phases of defense the plaintiff; below regarded the transaction as a sale of the harness by Mr. Clark to defendant below, after notice of the application for the appointment of a guardian, and therefore void under the statute. .

Upon the phase of a sale of the property as claimed by the parties, the court charged the jury as follows:

“The court says to you, as matter of law, that to constitute a valid sale of this harness by Clark to. Brockway, it must have been before Brockway had notice of the application for the appointment of a guardian for Clark, and any sale after notice upon Brockway would confer no title upon the defendant. ’ ’

To this charge there was no exception.

Upon the phase of the case that the delivery of. the harness was in payment of the services rendered under the contract of hiring’, the eoúrt charged the jury as follows:

“You are further instructed that if you find from the evidence that Grove E. Clark and the defendant entered into an agreement prior to the time of the filing of this application for guardian, or before he had notice of' the same, that in consideration of services rendered by the defendant, said Grove E. Clark would purchase a harness for the defendant, and that pursuant to such an agreement the services were rendered as agreed, and that said harness was selected by the defendant, and delivered to him by James Clark (the harness maker), upon the order, either verbal or written, of said Grove E. Clark, and that the harness remained in the possession of the defendant until taken on the writ of replevin in this ease, then you should find for the defendant, and assess him such damages as is shown to you that this property was worth at the time it was taken.”

There was an exception to this part of the charge, which resulted in the reversal of the judgment of the court of common pleas.

A transfer of property for cash, is a sale by one, and a purchase by the other. It is not a sale by both, nor a purchase by both. A party who hires a hand may pay him in cash or personal property, and the receipt of the property instead of cash, is not a purchase by the hand, but a payment to him.

Whether a delivery of the harness to defendant below was a sale or payment, depends upon the circumstances. If Mr. Clark was in a fit of sickness and required a nurse to take care of him, and applied to defendant and said to him, “If you will nurse and take care of me I will give you a harness as compensation,” and defendant having accepted and rendered the service, and. received the harness, the delivery of the harness was clearly a payment. On the other hand, if the defendant below desired to procure a harness, and applied to Mr. Clark therefor, and proposed that if Mr. Clark would deliver to him a harness, he would work for him to the value of the same, or nurse and take care of him in payment therefor, and in that way obtained the harness, such transaction was a' sale on the part of Clark, and a payment on' the part of defendant.

There was evidence strongly tending to show that Mr. Clark was seeking a nurse; that he stood in sore need of one, and agreed to make payment by the delivery of a harness, and that defendant below accepted the offer, rendered the service and received the harness as payment therefor.

Such a transaction is not prohibited by section 6318, Revised Statutes, which is as follows:

“At least five, and not more than ten days, prior to the time when the application for the appointment of the g’uardian authorized by the foregoing section shall be made, a notice, in writing, setting forth the time and place of the hearing of the application, shall be served upon the person for whom such appointment shall be sought; and from the time of the service of such notice until the hearing, or the day thereof, as to all persons having notice of such proceeding, no sale, gift, conveyanee, or incumbrance, of the property of such intemperate person or habitual drunkard, shall be valid.”

It will be noticed that the inebriate is not prohibited by this section of the statute from making either purchases or payments. Only sales, gifts, conveyances and incumbrances are prohibited.

If the transaction was as claimed by defendant, the charge was correct. Defendant had a right to have this phase of the case submitted to the jury, and let the jury pass upon the question, and say whether the real transaction was as claimed by himself, or as claimed by the plaintiff.

The phase of the transaction, as claimed by each, was fairly submitted to the jury. True, the charge complained of is not as clear and definite as it might be, but clearness would only have made the case more favorable for the defendant.

In reversing the judgment of the court of common pleas, the circuit court erred.

Its judgment will, therefore, be reversed, and that of the common pleas affi/rmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Thomas, Adm'x, etc., v. Moore, etc.

      Appeal from justice of peace — Appellant described as administrator but not party to judgment in fiduciary capacity — Appeal bond— Section 6584, Revised Statutes — Personal liability of execiUors and administrators.

    1. An appeal from the judgment of a justice of the peace, by a party described in the action as the administrator of an estate, is not perfected without an undertaking therefor as required by section 6584, of the Revised Statutes, unless the appellant is a party to the judgment in his fiduciary capacity, and the appeal is in the interest of the trust.

      2. Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay foi, and receive credit for the expenditure in the settlement of his accounts.
    3. A judgment recovered against the executor or administrator on a claim for such services, must be treated as a judgment against him in his individual, and not in his representative capacity, and to perfect an appeal taken by him from such judgment rendered by a justice of the peace, an undertaking for the appeal is necessary.
    (Decided December 18, 1894.)
    Error to the Circuit Court of Brown county,
    John R. Moore, as the surviving partner of the firm of McKnight & Moore, a partnership formed for the practice of the law, brought his action before a justice of the peace of Brown county, against Elizabeth J. Thomas, as administratrix of the es - tate of David Thomas, deceased, to recover for legal services rendered the defendant by the firm. The bill of particulars states that the services were performed by' the firm for the.“defendant, and at her request, in various suits brought by and against her as such administratrix, and that McKnight died before the bringing of the suit, leaving the plaintiff the sole surviving member of the firm.” An itemized account of the services and their value, is attached to the bill. The defendant waived process, entered her appearance, and by consent of the parties the case was set for trial on a particular day, when the parties appeared before the justice, and the trial took place, which resulted in a judgment for the plaintiff. The judgment is in the following form: “It is this day day considered and adjudged by me that the plaintiff recover from the defendant, the sum of one hundred and fifty-two ($152.00) dollars debt and three dollars and five cents costs.” The justice’s transcript then shows that:
    “Thereupon the same day came Elizabeth J. Thomas by her attorneys, Young & McBeth, and gave written notice of appeal to the common pleas court of Brown county, Ohio, and it. appearing that said Elizabeth J. Thomas, as administratrix of the estate of David Thomas, deceased, has givén ample bond in the probate court of Brown county, Ohio, as such administratrix, no appeal bond is required. ”
    In due time, the defendant to perfect the appeal, filed in the court of common pleas of Brown county, the transcript of the docket entries of the justice, and the original papers, but gave no appeal bond; and that court, on motion of the plaintiff, dismissed the appeal, for the reason that no bond for the appeal had been given.
    The defendant excepted, and prosecuted error to the circuit court, where the judgment of the court of common pleas was affirmed. ■
    Error is prosecuted here to obtain the reversal of both judgments.

      Young & McBeth, for the plaintiff in error.
    No brief for defendant in error.
   Williams, J.

The single question for adjudication in this case is, whether an undertaking was necessary to perfect the appeal taken by the defendant from the judgment of the justice of the peace? , The jnstices’ code requires, in all cases of appeal,, that the appellant shall enter into an undertaking with sureties to be approved by the justice, conditioned for the prompt prosecution of the appeal, and the satisfaction of the judgment rendered by the appellate court. Revised Statutes, section 6584.

Section 5228 provides that, “ a' party in any trust capacity, who has given -bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal.” This section, however, in view of all its provisions, seems applicable only to appeals from the court of common, pleas to the circuí t court. But, section 6408, contains the general provision, that “when the person appealing from any judgment or order in any court, or before any tribunal, is a party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.” The provision just quoted is applicable to appeals from justices of the peace, and dispenses with the necessity of an undertaking for an appeal from their judgments, in eases within its scope, namely, where the appellant is a party to the judgment in a fiduciary capacity, and the appeal is in the interest of the trust; so that, the inquiry here is, whether the defendant’s appeal presents a case of that kind. We think it does not. The judgment is not against the defendant in her fiduciary character. Though described in the proceedings as the administratrix of her intestate’s estate, ’the judgment rendered is not a judgment de bonis intestatoris, her designation in the proceedings, as administratrix, being descriptive of her person, merely, and execution issued upon the judgment can run only against her property. Beside, the obligation upon which the judgment was rendered was the personal obligation of the defendant, and created no liability against the estate. The general rule is, that when the cause of action upon which a personal representative is sued, arises in the lifetime of his decedent, or afterward, upon an obligation of the deceased, the liability is that of the estate, and the representative is bound only so far as assets come to his hands applicable to its satisfaction; but upon contracts made by the personal representative, though for services and expenses necessary in the due execution of his trust, he is individually liable, for he is without authority to bind the estate by his promise. In the case of Austin v. Munro, 47 N. Y., 360, 366, it is said: “The rule must be regarded as well settled, that the contracts of executors, although made m the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, as for services rendered, goods or property sold and delivered, or other consideration moving between the promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered, or goods or property furnished, or other consideration moving from the promisee, are such that the executors could properly have paid for the same from the assets, and been allowed for the expenditure in the settlement of their accounts. The principle is, that an executor may disburse and use the funds of the estate for purposes authorized by law, but may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator. ’ ’ This doctrine is well established. Woerner on ■ Administration, section 356; Williams on Executors, p. 1776; Waldsmith v. Waldsmith, 2 Ohio, 156; Howard's Adm'r v. Powers, 6 Ohio, 92; Taylor v. Mygatt, 26 Conn., 184; Luscomb v. Ballard, Executor, 5 Gray, 403; Wait v. Holt, 58 N. H., 467; Page's Estate, 57 Cal., 238; In re Moore, 72 Cal., 335, 342. In a class of cases, where the personal representative has received money or property belonging to another person, and used it in the payment of the decedent’s debts, or otherwise for the benefit of the estate, as, where he collected rents which belonged to the widow or heirs, and administered them as assets, and other cases of like character, it has been held that the person entitled to the money or property, may, at his election, look to the estate, and charge the representative in his trust capacity, or resort to his individual liability. Conger v. Atwood, 28 Ohio St., 134, is a case of that kind, and other cases of the same kind are cited in the opinion of the court in that case.

These eases recognize the general rule as we have stated it, and may be regarded as creating an exception to it, involving another principle, analogous to the right of the owner to follow the fund into which his money or property has been converted. But a claim for professional services rendered under employment by the personal representative, does not appear to be within the exception. While it is undoubtedly the rig-ht, and in most cases the duty of such representatives to employ counsel to advise and assist them in the performance of their official duties, it cannot be determined that the services rendered by the counsel, or their value, constitute a part of the fund in the hands of the representative, however important and valuable those services may have been in collecting the assets, or resisting unjust claims against them. The law contemplates that the representative will himself pay the value of such services, and be reimbursed, by receiving credit for the amount paid, in the settlement of his accounts. Such items constitute a part of the expenses of administration, which, together with the funeral expenses, take precedence, under our statute, of all other demands. Revised Statutes, section 6090. In that way the estate may be interested in the amount allowed and paid for counsel fees, but it is not interested in a judgment for them recovered against the representative, for, although the judgment is conclusive against the defendant, it has not that effect against the estate, or those beneficially interested in it. Any one interested in the estate may appear in the court having in charge the settlement of the administration account, and oppose the allowance of any credit claimed for counsel fees paid, on the ground that the services were unnecessary, or became necessary from the wrongful act or neglect of the representative, or, that the amount paid was unreasonable. The rule is, that the administrator can be allowed credit only for counsel fees which he has actually paid, and no more than is reasonable compensation for the services rendered to the estate, no matter what the administrator has actually paid or contracted to pay; and the burden is on him to prove the necessity and value of the services.’-’ Woerner on Administration, section 515. And see Wait v. Holt, 58 N. H., 467. So' that, a judgment against the representative, for such services, establishes nothing against the estate he represents or the persons interested in itand an appeal by him from the judgment is not an appeal in the interest of the trust, but in his individual interest. In some instances it may seem unjust to hold the personal representative liable beyond the amount for which he.receives credit in the settlement of his accounts, and we see no reason why he may not, by agreement .with his counsel, limit his liability to such sum; but in the absence of a stipulation of that kind, he may be compelled to pay the judgment recovered against him, notwithstanding it exceeds the credit he receives. It follows that the judgment recovered against the defendant must be treated as a judgment against her in her individual, and not in her representative capacity, and, therefore, an undertaking was necessary to perfect her appeal, and for want of'it, the appeal was properly dismissed.

Judgment affirmed.


author: Minshall, J.

text:
    Koelsch v. Mixer, Adm'r.

      Judgment — When conclusive in subsequent litigation — Co-sureties— Suit for Contribútion.

    1. A judgment rendered in an action is not conclusive on the parties in subsequent litigation, unless they were adversary parties in the former suit.
    2. In a suit wherein the plaintiff sought to recover from an administrator, contribution to the sum paid by the plaintiff in satisfaction of a judgment recovered on a bond, claimed to have been signed by the plaintiff and the decedent as co-sureties, the defendant answered, that he was sued With the plaintiff in the suit on the alleged bond, and, by the verdict of a jury]was relieved from liability thereon : Held, that the judgment rendered on the verdict was not conclusive between the parties in the suit for contribution.
    (Decided December 18, 1894.)

      Error to the Circuit Court of Hamilton county.
    The suit below was an action brought by the plaintiff, Koelsch, against William Mixer, as administrator of B. A. Mecum, deceased, to recover contribution for money claimed to have been paid by the plaintiff as- a co-surety of the deceased. He averred that he and the deceased, Mecum, were sureties on the official bond of one Wichmann, treasurer of the school district of Reading, Hamilton county, at the April term of the common pleas ; that a judgment was recovered on this bond by the school district against himself as surety for the sum of $1890.58 damages and $33.47 costs ; and that on the 25th day of July, 1889, he was compelled to pay and did pay, in satisfaction of the judgment, $1725.05; and that he should recover of the defendant as administrator the sum of $862.52, the contributive portion of the deceased. That the claim has been presented to and rejected by the administrator; and he therefore asks judgment for the amount.
    The defendant answered as follows:
    “That he admits that he is the legally appointed administrator of the estate of Burton A. Mecum, deceased, and is the sole administrator of the said estate.
    “That at the April term of the court of common pleas of Hamilton county, Ohio, 1889, the state of Ohio, for the use of the village school district of Reading, Ohio, recovered a judgment, by the consideration of said court, against this plaintiff, in the sum of $1890.58 damages and $33.47 costs of said case.
    “That the judgment so rendered against the said plaintiff was satisfied and settled by the said plaintiff in the manner and form as alleged in the petition, by the payment of $1691.58 damages, and $33.47 costs, to the board of education of the said village school district of Reading, Ohio, on or about the date alleged.
    “The defendant further says that the suit on which the said judgment was so recovered against the said plaintiff was a suit filed against this plaintiff and this defendant, on a certain paper writing, purporting to be a bond, and upon which it was alleged that this plaintiff and this defendant were sureties, and that they were so sued as sureties upon the said paper writing so purporting to be a bond.
    “That a trial, duly ánd legally conducted was had, on or about the date alleged in the plaintiff’s petition, before the Honorable Clement Bates, one of the judges .of the court of common pleas of Hamilton county, Ohio, and a jury duly and regularly impaneled and sworn to try said case.
    “That all of the parties to the said suit were in court, and represented by counsel, and that the evidence on the part of the plaintiff and defendants was heard and the case argued by counsel, and thereupon after the jury had been charged by the court, it retired to deliberate, and that after due deliberation, the said jury arrived at a verdict whereby they held this defendant wholly exonerated from any liability on the said paper writing, and held that this plaintiff was the only person liable thereon, and that' they then and there rendered said verdict in the manner and form prescribed by law.
    “That this said judgment so rendered against the said plaintiff has been duly and regularly settled by the said plaintiff, as set forth in his. petition, and that the record of the said cause has, been finally made up and closed, and the matter of the defendant’s liability finally settled, disposed of, and adjudicated by the court.
    “ Wherefore, the said defendant having fully answered, prays the court here that he may be dismissed, hence with his costs herein expended.”
    The plaintiff demurred to the answer, the demurrer • was sustained, and, the defendant not pleading further, judgment was entered for the plaintiff for the amount claimed. On error the circuit court reversed the judgment for error in sustaining the demurrer; and error is prosecuted here to reverse the judgment of the circuit court and affirm the common pleas.

      William Cornell and Gorman & Thompson, for plaintiff in error.

      Irwin & Murry, for defendant in error.
   Minshall, J.

It is averred in the petition, and not denied in the answer, that the action in which the judgment was rendered against Koelsch, was upon a bond made by one Wichmann as principal, with Koelsch and Mecum, then in life, as co-sureties, for the faithful performance of the duties of the principal as treasurer of the school district of Reading’, in Hamilton county. The substance of the answer is, that the action in which the judgment was rendered, was prosecuted against the plaintiff and the defendant, as administrator of' Mecum, on what purported to be a bond, both being sued as sureties; and that it was determined therein by the verdict of the jury that the defendant was not liable on the bond, and that the plaintiff alone was liable thereon. What the issues between the obligee and the defendants or either of them,, were, is not stated. Hence, the ground of the defense must be, that', as both were parties to that action, the judgment, irrespective of what the issues were, releasing one of the defendants, is conclusive of his liability upon the bond as against the other, and*of any liability to contribute as a co-surety to the one who was held and compelled to pay the judgment. We do- not regard this as the law. Whilst the exact limits of the doctrine of res judicata in its application to some cases, are not definitely settled, it is accepted as generally true, that the judgment relied on for that effect in subsequent litigation, must have been pronounced upon the same issues, between the same parties, or their privies, standing in an adversary character to one another. By this is not. meant that they should have stood upon the record as plaintiff and defendant, but that this should have been their real attitude upon the issues tried and determined. As before observed,/the defendant does not state what the issues were in the former action. If any were joined between himself and the plaintiff in this action, the determination of which may be relied on as conclusive of the rights of the parties, they should have been pleaded. They cannot be left to conjecture. The mere fact that it was there determined that he was not liable on the bond to the obligee, cannot conclude the plaintiff in this action from demanding contribution from the estate of his deceased co-surety, if, as a matter of fact, they were co-sureties on the bond, and the plaintiff has been compelled to discharge all, or more than his just proportion, of the common liability. The subject matter of the two actions is different. The former was a suit on a treasurer’s bond by the obligee against the makers as co-defendants to recover lor a breach of it. The present is a suit by one surety on the bond against the estate of another for contribution; and had not accrued at the time of the former suit. . It is not based upon the bond. In the language’ of McIlvaine, J., in Camp v. Bostwick, 20 Ohio St., 337: “It,” the right to contribution, “is an equity which springs up at the time the relation of co-sureties is entered into, and ripens into a cause of action when one surety pays more than his proportion of the debt. From this relation the common law implies a promise to contribute in case of unequal payments by co-sureties. ’ ’ And he adds, “Neither the creditor, the principal, the statute of limitations, nor the death of a party, can take it way. ’ ’ And so, it was there held, that though the estate was, by the statute of limitatations, released from its direct liability to the creditor, it, nevertheless, remained liable to contribute to a co-surety who had paid more than his moiety of the debt. See also, Kinkead’s Code Pleading, section 457.

It is not enough that an issue may have been joined between the obligee and the defendant, as to the liability of the latter on the bond. Whatever that issue may have been, it was not an issue between himself and his co-defendant, the plaintiff in this action, and could not therefore conclude the latter; though parties to the suit they were not such in an adversary character, being simply co-defendants to the suit on the bond. The plaintiff in this suit could not in the former suit, as a matter of right, have insisted on the admission or rejection of evidence on the trial of the issue; had no right to move for a new trial, nor prosecute error if aggrieved by the rulings of the court; and hence he cannot be held bound by the judgment in any subsequent litigation to which he may be a party. Vose v. Morton, 4 Cush., 31.

It is the general rule that parties to a judgment are not bound by it, in a subsequent controversy between each other, unless they are adversary parties in the original action. Freeman on Judgments, § 158; Blacken Judgments, § 599; 21 Am. & Eng. Enc. Law, 151; McMahan v. Geiger, 73 Mo., 145; Gardner v. Raisbeck, 28 N. J. Eq., 71; Buffington v. Cook, 35 Ala., 312; Harvey v. Osborn, 55 Ind, 535; Cox’s Adm'r v. Hill, 3 Ohio, 412, 424.

The case of McCrory v. Parks, 18 Ohio St., 1, is' much in point. There the action below was a suit by one surety on a sheriff’s bond against his co-sureties for contribution. The question arose on a cross-petition filed by one of them, and the reply of the plaintiff. In the cross-petition the allowance of a claim of money paid on the amercement of the sheriff, to which all had been made parties, was asked. The reply controverted the justice of the judgment, and claimed that it should not have been rendered — that the amercement had been for the alleged failure of the sheriff to pay over moneys made on an execution against the cross petitioner; that, though the court found and adjudged in the former action that the money had been paid, yet, as a matter of fact, it had not been paid, and the judgment was wrongly entered; and the question arose, whether having been a party -to the former ‘judgment, the plaintiff was not con-' eluded by it. The court held not, for the reason that the parties to this suit were not adversary parties in the former suit, and that their respective rights against each other were not in controversy in that suit. The only difference between this case and the one under review is, that in the former case a judgment was pleaded in which the opposite party was held to an obligation, and here he was released. But this can make no difference in the application oh the principle; the conclusiveness of the judgment, in either case, must depend on the same question — whether an issue was joined between the parties and determined in the former; case, material to their respective rights in the subsequent suit; for, as shown by the authorities above cited, and they are sustained by reason, when such is not the case, there is no g’round for the application of the doctrine of res juclicatco; which rests upon that principle of public policy, which requires that where a matter has once been tried and determined on issues joined between the parties in interest in a court of competent jurisdiction, there should in the interest of society, be an end of litigation. It, however, reaches and concludes only parties to the issue; and does not affect persons who, though parties to the suit, were not parties to the issue upon which the judgment was rendered. The latter being strangers to the issue, are, in a legal sense, strangers to the judgment.

Judgment of the circuit court reversed, and that of the common pleas afp/i-med.

Williams, J., dissents.


author: Dickman, C. J.

text:
    Norris v. Dains.

      Conveyance by corporation — Mode of execution.

    Where an assignment of lease, in the granting clause, purports to be made in the name of a person who is therein described as the treasurer of an incorporated company, and such named person, as treasurer of and in behalf of such cdmpany, sets his hand and the seal of the company to the instrument, the assignment will not be held to be the act of the company.
    (Decided December 18, 1894.)
    E RROR to the Circuit Court of Meigs county.
    The original action was in ejectment, brought by the plaintiff in error, George W. Norris, against the defendant in error, Dennis Dains, in the court of common pleas of Meigs county, to recover possession of a tract of land containing eighty-three acres, more or less, situate in said county. Among other defenses the defendant denied that the plaintiff, Norris, was seized of the real estate described in the petition as therein set forth, and, also, that he was entitled to the possession thereof..
    On the trial before a jury, the plaintiff, to maintain the issue on his part, and to show title in himself, offered in evidence what purported to be an original assignment and transfer by the Scipio Iron and Coal Mining company (a corporation duty-organized) to said George W. Norris, of a certain lease for the full term of ninety-nine years, made by Isaac Samuels to John P. Augustus, and by said Augustus assigned and transferred to the said Scipio Iron and Coal Mining company, and which lease included and covered the land described in the plaintiff’s petition. To the admission in evidence of said assignment by the Scipio Iron and Coal Mining company, the defendant objected; the court sustained the objection, ruled out said testimony, and refused to let the same go to the jury, to which ruling the plaintiff at the time excepted.
    A certified copy of said assignment by the Scipio Iron and Coal Mining company from the records of deeds of Meigs county, and a certified copy of the • same assignment from said records attached as an exhibit to sundry depositions taken by the plaiptiff, were also offered in evidence by the plaintiff, and objected to by the defendant. The court sustained the objection; the testimony was excluded from the jury, and the ruling of the court was, at the time, excepted to by the plain - tiff.
    The following is a copy of the instrument purporting to be an assignment of said lease by the Scipio Iron and Coal Mining company to said George W. Norris:

      “Know all men by these presents, That I, George F. Baker, treasurer of the Scipio Iron and Coal Mining companjr, by virtue of the power in me invested by virtue of the vote of directors of said company (a copy of which is hereto annexed), and in consideration of one dollar and other good and valuable considerations to me paid by Georg-e W. Norris, of Chelsea, in the county of Suffolk and Commonwealth of Massachusetts, do hereby sell, assign, transfer, set over and convey unto the said Norris, his heirs and assigns, the foregoing lease and all the right, title or interest which said, company have in, to or under the same, and any and all rights which they may have upon the premises therein described and the covenants therein contained. To have and to hold the same to the said George W. Norris his heirs and assigns, to his and their use and behoof forever, subject to the conditions therein contained, reserving to said company the right to work and mine the same for iron and coal.
    “ In witness whereof,\ I, the said George F. Baker, treasurer as aforesaid, in behalf of said company have hereunto set my hand and the seal of said company this eighth day of November in the year of our Lord one thousand eight hundred and sixty-four.
    “George F. Baker,

      ‘ ‘ Treas. of the Seipio Iron and Coal Mining Co. e ‘ In the presence of
    John F. Augustus,
    Jos. Nickerson.”
    Seal.
    Vote op the Directors at a Meeting Held October 31, 1864.
    “It was voted that the company lease to George W. Norris their property in Ohio for the unex= pired term of their lease, subject to the conditions and restrictions therein contained, reserving to the company the right to work and mine the same for iron and coal, and the treasurer is hereby authorized and empowered to execute any and all assignments, deeds, and leases or instruments which it may be necessary to execute in order to perfect the title of said Norris to the same.

      “A true copy of a vote passed at a meeting of the directors of said company at their meeting held October 31, 1864.

      “Attest: Geo. F. Baker, Glerh. Í Scipio Iron and Coal) Seal. •< Mining Company. > ( Organized 1864. )

      Commonwealth of Massachusetts, ) -»T Suffolk County, ss. ’ f Nov, 1864.
    “Then personally appeared George F. Baker, who executed the foregoing instrument and acknowledged the same to be his free act and deed and the free act and deed of said company before me.
    “Jos. Nickerson,
    “ Justice of the Peace.”

    The case having been submitted to the jury, a verdict was returned in favor of the defendant, and judgment was rendered in accordance with the verdict. The circuit court affirmed the judgment, and this court is asked to reverse the judgment of the circuit court.

      F. C. Russell, for plaintiff in error.
    This assignment purported to have been executed on behalf of the Scipio Iron and Coal Mining’ company, and signed by George F. Baker, treasurer of the Scipio Iron and Coal Mining company, with the seal of the company attached thereto. Did this make out a prima, facie case? We think it did. The attaching of the seal of the company corporation would be sufficient for that purpose. Angel & Ames on Corps., sections 224, 225; Donnally et al. v. Walsh, 3 Johns, 226; Tenny v. East Warren Lumber Co., 43 N. H., 343; Burrill v. Nahant Bank, 2 Metc., 163; Kinzie v. Trustees

      of Chicago, 2 Scam., 187; Murphy v. Welsh, 123 Mass., 489; Haven v. Adams, 4 Allen, 80; Hutchins et al. v. Burns et al., 9 Gray, 367; Sheehan et al. v. Davis, 17 Ohio St., 571; Leggett et al. v. Manufacturing Co., et al., 23 Am. Dec., 728; Kaehler v. Black River Falls Iron Co., 2 Black (U. S.), 715; Miners Ditch Co. v. Zellerback, 99 Am. Dec., 300.
    But, it may be claimed that this assignment offered and rejected did not purport to be, and was not in .fact, the assignment of the company. From the whole instrument it clearly appears that it was the assignment of the company and not the individual assignment of George F. Baker, and •the whole instrument must be looked at. Kelly v. Calhoun, 95 U. S., 710; Flint v. Clinton Company, 12 N. H., 430; Tenny v. Fast Warren Lumber Co., 43 N. H., 343; Magill v. Hinsdale et al., 6 Conn., 464; Vilas v. Reynolds, 6 Wis., 214; Sheehan v. Davis, 17 Ohio St., 571; Haven et al., v. Adams, 4 Allen, 80.
    The statutes of Ohio, section 4111, provide that all deeds, mortgages, powers of attorney and other instruments of writing for the conveyance or incumbrance of lands, tenements or hereditaments situate within this state, executed and acknowledged or proved in any other state, territory or country or in conformity with the laws of this state, shall be as valid as if executed within this state in conformity with the foregoing provisions of this chapter.
    If the assignment of the said lease was executed according to the laws of Ohio,, or the laws of the state of Massachusetts, it is valid and conveys the estate. 17 Ohio St., 571.
    It was executed in such manner as to be a good and valid conveyance or assignment under the laws of Massachusetts. 9 Allen, 80; 9 Gray, 367; 123 Mass., 489.

      Grosvenor & Vorhes and E. A. Guthrie, for defendant in error.
    It requires no extended argument to show that the assignment of the lease was no assignment whatever. It was made without authority so far as the treasurer was concerned, and there is no evidence offered that he was competent under the laws of Massachusetts to make such an assignment, and the court properly held that assignment absolutely void and as if it had never been made.
    The action of the directors,’ on the 31st of October, 1864, voting to lease their property does not help out this defective execution of their purpose. The court will notice that the transcript of the record of the directors authorizing the lease, and which was made by George F. Baker, as treasurer, is also certified by George F. Baker as clerk, showing the real fraudulent character of the whole transaction.
    There were three items of evidence offered which were excluded by the court below. They all stand on similar footing. If any one of them, however, was incompetent, the case of the plaintiff below failed, and the whole question now is, was the act, or attempt to act, as set out in exhibits ££C,” ££D,” and £<E, ” the act of the Scipio Iron and Coal Mining Company? That is all there is in it.
    We claim that the act of Baker was not the act of the corporation, and indeed that the corporation, has not acted at all and did not act. The au-i thority in the "first place was a vote of the directors. It does not appear that the directors had any power to authorize the lease of this corporation’s property. It was real estate. And not only so but they did not authorize a transfer of this lease. They authorized another lease to be made. There is a vast difference, and this authority must be strictly construed and strictly complied with. What right has an individual, having put his hand xto a document, to take the corporate seal of some corporation which he is trying to act for and use it? That is the whole thing. 17 Ohio St., 581; Elwell v. Shaw, 16 Mass., 42.
    Now, coming to the question as to whether this was a legal assignment or not, we will cite the same case which has already been cited by learned counsel on the other side, that of Hutchins v. Byrnes, 9 Gray, 267. There the corporation attempted to act and did act through their treasurer, and the argument was made that inasmuch as the corporation purported to act and inasmuch as the corporation seal was affixed, it was a good conveyance. The corporation gives, grants, bargains and sells, or the corporation hereby assigns, etc. But not only is this statement wholly obscure in this case but Mr. Baker does not assume to do it. He makes no attempt to make the corporation act, but he acts. He says that he, and he describes himself as the treasurer of the Scipio Iron and Coal Mining Company, a mere description of the person, “(I) do hereby sell, assign, 'transfer and convey the foregoing lease,” and he did not do anything of the kind so far as the corporation is concerned. Under the head of Deeds in the Am. ds Eng. Ency. of Law is the following: “But the general rule is that the names of both the principal and the agent must arppear in the signature,” and cites the cases of Elwell v. Shaw, 16 Mass., 42; Wood v. Goodridge, 6 Cush., 117; Thurman v. Cameron, 24 Wenden, 90.
    In Maine it is held that the principal’s name need not appear in the signature, if it appears in the recitals that he is the grantor. Inhabitants v. Clark, 68 Me., 87.
    The proper mode of signing’ is A (principal) by B (agent); and there are some authorities which hold that no other signature will be a good execution. But the better opinion is that, where the deed purports in terms to be the act of the principal, and the signature is B (agent) for A (principal ), or B as the attorney of A, and the like, it will be a valid execution. Wilkes v. Black, 2 East., 142; Mussey v. Scott, 7 Cush., 216.
    Now, in his case there is no pretense that it is the act of the corporation. So we stand upon two propositions and either one is fatal to the plaintiff in error. First — The power to Baker, which must be strictly construed, was not to assign a lease but was to make a new lease. Second — The corporation did not make any assignment whatever.
   Dickman, C. J.

The record shows that on April 25, 1864, Isaac Samuels, of Boston, in the state of Massachusetts, leased to John P. Augustus, a tract of land situate in Meigs county and state of Ohio, for a term of ninety-nine years. The lease was afterwards, on May 12, 1864, assigned by the lessee to the Scipio Iron and Coal Mining Company, a corporation duly organized, its successors and assigns, for the full term of the demise. On November 8, 1864, an instrument of writing was executed in the commonwealth of Massachusetts, purporting to be an assignment of this lease by the Scipio Iron and Coal Mining Company, through George F. Baker as its treasurer, to George W. Norris the plaintiff in error.

The only question presented for our consideration is, whether the court of common pleas. erred in excluding from the jury as testimony, the assignment claimed to have been made by the Scipio Iron and Coal Mining Company to George W. Norris, which was offered in evidence at the trial by the plaintiff. In other words, was the assignment in question the act of the Scipio Iron and Coal Mining Company?

It appears from a copy of the vote written under the assignment by the company, that at a directors’ meeting''1 held October 31, 1864, it was voted, that the company lease to George W. Norris their property in Ohio, for the unexpired term of their lease; and the treasurer of the company was authorized to execute any instruments which might be necessary in order to perfect the title of Norris to the same. We do not deem it necssary to consider how far the instrument executed by George F. Baker, as treasurer, though containing words of assignment, may, by virtue of its reservations, be construed as not conflicting with the authority given to lease. Suffice it that in the body.of the instrument it is not the company that is made to assign the lease, but George F. Baker with the descriptio personce of treasurer. The language of the instrument is : “I, George F. Baker, treasurer of the Scipio Iron and Coal Mining Company, * * * do hereby sell, assign, transfer, set-over and convey unto the said Norris, his heirs and assigns, the foregoing lease,’’etc. And in executing the assignment, it is “George F. Baker, treasurer as aforesaid in behalf of said company,” who sets his hand and seal of the company.

By section 4111, of the Revised Statutes of Ohio, it is provided: “All deeds, mortgages, powers of attorney, and other instruments of writing for the conveyance or incumbrance of lands, tenements, or hereditaments situate within this state, executed and acknowledged, or proved, in any other state, territory, or country, in conformity with the laws of such state, territory, or country, or in conformity with the laws of this state, shall be as valid as if executed within this state, in conformity with the foregoing provisions of this chapter.”

As the record discloses no proof of the law of Massachusetts as to whether the assignment by the Scipio Iron and Coal Mining Company was executed in conformity thereto, it is to be presumed that in that regard the law of Massachusetts is the same as our own. But, in the absence of such proof, we may have recourse to the decisions of that state, in aid of determining the principles of the common law which should govern, as to the mode of executing' deeds or other instruments of conveyance through the medium of an ag'ent or attorney.

It must be conceded that in respect to the manner in which a deed must be executed by an agent, the law is extremely technical; and yet, in view of preserving the stability of judicial decisions, the rule sta/re clecisis is not to be ignored. In the early leading case of Combes’, 9 Co. 76, it is explicitly said: “When any one has authority, as attorney, to do any act, he ought to do it in his name who gives the authority; for he appoints the attorney to be in his place, and to represent his person; and therefore the attorney cannot do it in his own name, nor as his proper acfc, but in the name, and as the act, of him who gives the authority. ’ ’ This doctrine has been frequently recognized as law by the English courts, and it has also received the approval of the Supreme Court of Massachusetts.

In Elwell v. Shaw, 16 Mass., 42, it was said by Wilde, J.: “It does not appear that the authority of Combed ease is at all shaken by more modern decisions. All concur in laying it down as an indispensable requisite, to give validity to a deed executed by an attorney, that it should be made in .the name of the principal.” In this case the tenant, to maintain the issue on his part, read in evidence a letter of attorney from the demandant Jonathan Elwell to one Joshua Ehoell. A deed executed by Joshua conveying the demanded prémises, proceeded thus: “Know ye that I the said Joshua by virtue of the power aforesaid, in consideration, etc., do hereby bargain, grant, sell and convey unto, etc. In testimony whereof I have hereunto set the name and seal of the said Jonathan, this,” etc.; signed Joshua Elwell, and a-seal. It was held that the letter of attorney and the deed of conveyance were insufficient in law to pass the fee from the demandant to the tenant.

In Hutchins v. Byrnes, 9 Gray, 367, it was objected that the assignment was not so executed by the treasurer as to be the act and deed of the corporation. The objection was not sustained, as the plaintiffs claimed to hold the mortgage by an assignment which purported in the body thereof to be from the corporation — the Bristol County Savings Bank. “The assignment,” say the court, “was made in the name, and as the act, of the corporation, according to the rule laid down in Combes’ case, and always adhered to in England and in this commonwealth. ’ ’

And in Haven v. Adams, 4 Allen, 80, where the mode of execution by the corporation was called in question, the objection was unavailing. In the body of the mortgage it was expressed to be the deed of the corporation, to which they had caused their seal to be affixed, and the name of their president to be signed. Chapman, J., in pronouncing the opinion, said: “The question in such cases is, whether the deed purports to be the deed of the principal, or the deed of the agent executed by him in behalf of the principal. In the first case, it is held to convey their property, because it is their deed; in the latter case, it does not convey their property, because it is his deed.”

In Ohio there is no general statute prescribing the mode in which deeds of conveyance are to be executed by corporations. In Sheehan v. Davis, 17 Ohio St., 571, the deed sets forth that: “This indenture, made this second day of July, in the year 1855, between the Albany City bank of the first part, and Charles Butler, of the city of New York, of the second part, witnesseth, that the said party of the first part, for and in consideration, etc., do grant, bargain, etc., unto the said party of the second part, and to his heirs and assigns forever,” etc., concluding’: “In witness whereof, the said party of the first part have caused their corporate seal to be hereto attached, and these presents to be signed by their cashier on the day and year first above written. ’ ’ It was held that the deed of conveyance by the banking corporation was properly executed, but .this court emphasized the .fact that, “in this case the deed throughout purports to be the deed of the corporation.” The deed did not, as in Elwell v. Shaw, supra, purport to be the deed of the attorney, but purported on its face to be the deed of the principal.

For collation of other authorities in line with the aforegoing views, see 1 Hare & Wal., L. C.,575; Am. & Eng. Encyc. of Law, vol. 4, pp. 238-242, and vol. 5, p. 440, and cases cited.

Subjecting the assignment claimed to have been made by the Scipio Iron and Coal Mining Company to the plaintiff in error, to the test of the cases we have cited, we do not think it can properly be held to be the act of that company, and it was therefore properly withheld by the court from the jury, when offered in evidence by the plaintiff.'

Section 4110 of the Revised Statutes of Ohio, provides that “No deed of real estate executed by any person acting for another, under a power of attorney duly executed, acknowledged, and recorded, shall be held to be invalid or defective because he is named therein, as such attorney, as the grantor, instead of his principal; nor because his name, as such attorney, is subscribed thereto, instead of the name of his principal.” But it cannot be claimed, that the assignment under consideration in the case at bar was made under a power of attorney, executed, acknowledged and recorded, as provided by the above section of the statutes.

It is suggested in argument, in behalf of the defendant in error, that the court will' notice that the transcript of the record of the directors authorizing the lease, and which was made by George F. Baker as treasurer, is also certified by George F. Baker as clerk, thus showing the fraudulent character of the whole transaction. But the record does not profess to contain all the evidence introducecl at the trial, and does not present to our consideration a question of fraud. The .judgment of the circuit court should, in our opinion, be affirmed.

Judgment accordingly..


author: Bradbury, J.

text:
    Fulton v. Fulton.

      Divorce — Children in custody of wife — Necessaries for children— When wife cannot recover against husband for maintenance of children.

    Where a divorce, a vinculo, has been granted to a husband on account of the aggression of the wife, and the minor children of the parties assigned to the custody of the divorced wife, without an order respecting their maintenance, and while so in her custody she furnished to them necessaries, she cannot recover against her former husband, their father, for her expenditures in this behalf, in the absence of proof of a promise by him to pay for such necessaries or of a request that they should be furnished to the children.. Rrete-inger-^-.Prelzinger, 45"Ohio*St., .452,-distinguished.
    (Decided February 5, 1895.)

      Error to the Circuit Court of Cuyahoga county.
    The plaintiff and defendant were at one time husband and wife, but had been divorced on the application of the husband on account of the extreme cruelty of the wife; in these proceedings the wife was allowed fifteen hundred dollars alimony, and awarded the custody of two small children, the fruit of the mari-iage, the maintenance of whom the decree made no provision; the two children continued to reside with their mother, and were maintained by her, from the time the divorce was granted until the commencement of this action in the court of common pleas, a period of about eighteen months. ' By this action she soug’ht to recover against the father the sum of $390, for boarding the children-seventy-eig'ht weeks, at the rate of two and óne-half dollars per child per week, and the sum of $56.20 for clothing and medical attendance, etc., furnished to them by her and for which she had paid. The father answered that he had been at all times williiig, able and ready to support the children himself at home, in his own family, but was denied the right by the order of the court in the proceedings for a divorce made necessary by the aggression of the defendant in error ;■ and denies that she cared for and supported the children at his request, .but instead avers that she did so against objection and protest. She recoverd in the court of common pleas a judgment for the value that the jury set upon the support • she had given to the children; which judgment was affirmed by the circuit court. Whereupon proceedings were begun in this court to reverse both judgments. ■ • ■ • • '

      W. B. Higby and W. A. Babcock, for plaintiff in error.
    The proposition which the court submitted to the jury and which must have largely influenced them in arriving at a verdict, to wit: that it makes no difference whether it was done with the. defend-. ant’s consent or not, or at his instance and request, plaintiff’s right to recover is not founded in the defendant’s promise to. pay, either expressed or implied, but upon his legal duty to provide for his children. We recognize the duty of the parent to provide for and maintain its offspring. And we recognize the right of the child to pledge the faith and credit of the parent for its support whenever the parent is unfit, unable or neglects and refuses so to do. This is the promise implied by the natural obligation of the case. 10 Barb. (N. Y.), 483; Raymond v. Loyl, 25. Eng. Com. Law Rep., 400; Chillcott v. Trimble, 13 Barb. (N. Y.), 502; Baldwin v. Foster, 138 Mass., 449.
    It is only when a man abandons his child and casts it upon the public that he becomes liable for its support. Fitler v. Fitler, 33 Pa. St., 57.
    After divorce the relations of the husband and wife are as that of third persons, or rather of single persons. 29 Barb. (N. Y.), 124; Pretzinger v. Pretzinger, 45 Ohio St., 460; Stanton v. Willson, 3 Day (Conn.), 37.
    The father being ready, willing and able to support his. minor children and there being no decree of any court of competent jurisdiction deciding" that he was an improper person to sustain such relation and having" by the consent of the mother the ■ custody of. the children in ■ his own home and they being removed against his protest, we insist that he is no longer liable for their maintenance and support, even though • furnished by the mother or his former wife. Finch v. Finch, 22 Conn., 411; Johnston v. Onsted, 74 Mich., 437; Husband v. Husband, 67 Ind., 583; 29 Barb. (N. Y.), 124; Harris v. Harris, 5 Kan., 46; Hancock v. Merick, 10 Cush., 41; Fitler v. Fitler, 33 Pa. Stat., 50; Baldwin v. Foster, 138 Mass., 449; Brow v. Brightmen, 136 Mass., 187.
    We insist that whether there was an agreement or not that if the amount paid and awarded by the court was in the estimation of said court sufficient for the purposes named and that this was so, is evident from the admitted discussion as to the future welfare and support of the children had between the parties in the presence of the court, then this plaintiff in error was absolved from all future obligation. Harris v. Harris, 5 Kan., 47; Bishop on Mar. and Div. Sec., 401, 552, 556.
    The defendant in error has undertaken to plant his case upon the decision of this court in the case of Pretzinger v. Pretzinger, 45 Ohio St., 452, with which we are not at war, for it clearly announces the doctrine that where by the aggression of the father a competent court has decided him to be unfit to have the care, custody and society of his minor children they shall carry with them into the home of a stranger, and such is the divorced wife, the right to pledge his credit for all the things necessary to their welfare during such minority.

      L. A. Willson, for defendant in error.
    It is admitted that in this case, the court of common pleas, for good cause, had decreed the custody of the children to the defendant in error.
    The answer of the defendant in error in the divorce suit avers: “William Fulton is an improper person to have the care, custody, education or control of said minor children, or either of them.” In decreeing the children to Rebecca Fulton, the court must have found this issue in- her favor. If so, then so far as concerns the children, the case is on all fours with the Pretzinger case, 45 Ohio St., 452. While the parties were divorced for the aggressions of the defendant in error, it is not true that the minor children were separated from the plaintiff and given to the defendant on account of defendant’s aggressions.
    ■ The father can never be divorced from his children. It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, to which they are not parties; or to enable the father to convert his own misconduct into a shield against parental liability. It is urged that the father is released from obligation to maintain his infant children, when deprived of their society and services against his will. But if voluntary misconduct on his own part leads to the deprivation, he is himself responsible, and not the court which intervenes for the protection of his children. And if the father, as against a stranger, cannot secure liability for necessaries furnished to his minor' children, though remaining with their mother after the divorce, the mother will not be barred of an action against her former husband, for the expense of maintaining the children. After a dissolution of the marriag’e relation by divorce, the parties are henceforth single persons, to all intents and purposes. All marital duties and obligations to each other are at an end, and they become as strangers to each other.

      Upon the establishment of such, new relations, a promise may be implied on the part of the father, to pay the mother, as well as a third person who has supplied the necessary wants of his infant child. Pretzinger v. Pretzinger, 45 Ohio St., 452; Stanton v. Willson, 3 Day., 37; Finch v. Finch, 22 Conn., 421; Bishop on Marriage and Divorce, last edition, New York, 1210.
   Bradbury, J.

The defendant in error was divorced from the plaintiff in error in a suit brought by him for her aggression. She. was awarded $1,500.00 for alimony, and two small children, the fruit of the marriage, were by the decree, placed in her custody, but no order was made respecting their maintenance. ■

She, living apart from the defendant in error,, supported the two children, and the question to be determined is whether she can maintain an action against him for board, clothing’, etc., which she has furnished to them, in the absence of any proof of a request by him that the support should be provided,.or of a promise to pay for it when provided. Upon this subject .the court of common pleas charged the jury as follows:

“It is conceded that at the September term, '1886, the defendant obtained a decree of divorce from the plaintiff for cruelty to him; that the court gave her alimony in the sum of $1,500.00 and the custody of the children till its further order, and that she has ever since had the children and boarded and clothed them. This easts upon the defendant the legal obligation to pay her what that board and clothing is reasonably worth.
“It makes no difference whether it was done with the defendant’s consent .or not, or. at his instance and request. Plaintiff’s right to recover is not founded in the defendant’s promise to pay, either expressed or implied, but upon his legal duty to provide for his children; and the order of the court giving her. the custody of the children and the caring for them.thereafter by the plaintiff, makes the defendant liable to pay the plaintiff what that board and clothing is fairly and reasonably worth.”

To this portion of the' charge the defendant excepted, and the question in issue between the parties was thus brought into the record. The defendant in error contends that this question is settled in her favor by the case of Pretzinger v. Pretzinger, 45 Ohio St., 452. In that case this court held that: “.The obligation of a father to provide reasonably for the support .of a minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a vinculo, on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum as alimony, but with no provision for the child’s support.” In that case, as in the one under consideration, no question arose respecting the rig'hts of the child to reasonable support. • In both instances the necessaries had already been furnished by the divorced mother, and she was seeking, reimbursement from the father. The contention, therefore, related solely to the relative duties of the father and mother of minor children, where the parents are living separate in consequence of a divorce a vinculo, had between them, and the children had been awarded to the custody of the mother.

Where separation and divorce result from the misconduct of the husband, the Pretzinger case, supra, asserts the primary liability of the father, in a contest between him and the mother, and in such ease, the rig-ht of the mother to recover against the father for such reasonable necessaries as. she has furnished, is established. That case is grounded in the principle that as the primary liability rests upon the father, he cannot, by his own misconduct, shift it to the mother. Dick-man, J., saying in reference to the natural duty resting on parents to support their children, that: “This natural duty-is not to be evaded by the husband’s so conducting himself, as to render it necessary to dissolve the bonds of matrimony. * * * It is not the policy of the law to deprive children of their rights on account of the dissensions of their parents, * * * or to enable the father to convert his own misconduct into a shield against parental liability.” Pretzinger v. Pretzinger, 45 Ohio St., 458. Again: “There is evidently no satisfactory reason for changing the rule of liability, when, through ill treatment, or other breach of marital obligation, the husband renders it necessary for a court of justice to divorce the wife, and commit to her the custody of her minor children.” Ib., 459.

In the case before the court, however, the wife was the aggressor, and it is this feature by which it is to be distinguished from the Pretzinger case, supra, for in that case the husband was in fault.' It does not necessarily follow that because a father cannot by his own misconduct shift from himself to the mother his primary liability to support his minor children, that the mother cannot, by her misconduct, produce that result, at least to the extent of denying to her a right to recover against him for expenses she has incurred for necessaries for their support, in the absence of a request or promise by him in the premises.

The contest is between the parents. By the law of nature, the responsibility of each for the birth of children is equal; the moral obligation of nurture, protection and reasonable support bears upon each according to his or her capacity to afford it. Schouler, in referring to this obligation, says: “This is said to rest upon a principle of common law; but perhaps it may be more reasonably referred to the implied obligation which parents assume in entering into wedlock and bringing children into the world.” Schouler, Dom. Rel.

The common law in an earlier stage of its development, stripped the wife of her personal property, transferred to the husband the income of her real estate, vested in him the right to her earnings, denied to her the power of contracting, and merged her legal entity into his; and to compensate her for these disabilities, it absolved her from nearly every legal obligation and duty, including that of maintaining her children. Nor had she any legal control over them or right to their services. Even her widowhood did not re store this control or right, and this harsh doctrine was at one time recognized and applied by court of deservedly high authority in this country. Thus, as late as 1812, it was held in Commonwealth v. Murray, 4 Binney, 487, in respect of a widowed mother, that “an infant owes reverence and respect to his mother, but she has no legal authority over him, nor any legal right to his services.”

Within the last half century, however, the harsh rules of the.common law respecting the property and domestic rights of married women have gradually yielded to more enlightened and humane notions, and consequently they have been greatly modified and ameliorated. The modifications and ameliorations which affect her property rights are chiefly' the result of legislation, but those affecting her domestic relations aré as much due to those enlightened views, which led to a more humane application of the rules of common law to that relation, as to direct legislative action. And in many instances, legislative action enlarging- her property and personal rights, have gradually led to the imposition of correlative duties, by the application of recognized principles of. the common law.

The husband and father while living with his family is its head, is entitled to the services of his minor children and is liable for théir reasonable support. Revised Statutes, sections 3108, 3109, 3110, 3113; Sharp v. Cropsey, 11 Barb. (N. Y.), 224.

Where, however, the husband is dead, the modern and better rule is that the mother is the head of the family and entitled to the' earnings and obedience of her minor children. Commissioners v. Hamilton, 60 Md., 340; State, for use of Coughlan, v. B. & O. R. R. Co., 24 Md., 84; O. & M. R. R. Co. v. Tindall, 13 Ind., 366; Furman v. Van Sise, 56 N. Y., 435; Matthewson v. Perry, 37 Conn., 435; Hammond v. Corbett et al., 50 N. H., 501; Gray v. Durland, 50 Barb., 100.

And whenever the mother is entitled to the obedience and services of her minor children,- it would seem' to follow, necessarily, that she should maintain them. Harsh and anomalous, indeed, a rule of law must be that would give the earnings and custody of a minor child to a parent who was under no' reciprocal obligation of maintenance. The duty of maintenance by the mother is asserted by Schouler, Domestic Relations, section 293; Mowbry v. Mowbry, 64 Ill.,383; In Dedham v. Natick, 16 Mass., 140, the court say: “The mother, after the death- of the father, remains the head of the family. She has the like control over the minor children, as he had when living. She is bound to support them, if of sufficient ability; and they cannot, by law, be separated from her? ’

The cases, indeed, are rare, where a mother, having the ability, has declined to administer to the wants of her minor child. The law of nature is usually strong enough to secure this, and an appeal to municipal law is therefore seldom necessary. But, if a widowed mother with ample possessions should decline to administer to the necessities of her destitute minor child, a rule of law that would allow this, and suffer her to abandon it to private or public charity, would be a reproach to any system of jurisprudence.

If she is not bound to maintain her child, then she should not be permitted to keep it in subjection to her authority, or receive the wages of its labor. The right to keep her minor children together under her roof and to control their persons, implies the obligation to feed and clothe them; and the great weight of modern authority, as well as of reason, clothes her with those rights. - It may be that the authorities do not speak with equal emphasis upon the question of her duty of support, as they do in reference to her right to the custody and services of her children, but this should be attributed to the want of an occasion, and not to the existence of any rule of law by which she can be vested with the control without the duty of maintaining her minor children.

Where a divorce a vinculo, is decreed, the bonds of matrimony are dissolved, and the former husband and wife become as strangers to each other, and the former wife is relieved from all the disabilities and duties incident to coverture. If children were born of the marriage, the paternal relation remains, and the duties pertaining to it continue. The primary obligation of maintaining .the children was on the husband and father — the foundation of this superior obligation rests upon the general fact that he is most capable of discharging it. His right, however, is to maintain his children in his own way and at his own fireside, where he can have the comfort of their society and the aid of their services. If, by his own misconduct the family relation is destroyed, and the welfare of the children render it necessary that they should be placed in the custody of the mother, he has no just ground to complain if he is compelled to maintain them in her home. However, even under these circumstances, if the mother has an ample fortune, and the resources of the father are comparatively limited, justice might require a modification of a rule founded upon the assumption of conditions, which in the particular case did not exist.

And although the separation and divorce were caused by the misconduct of the mother, it may nevertheless be true that the obligation of the father to reasonably provide for his children will follow them into the custody of the delinquent mother, when circumstances require them to be placed in her custody. If, however, under such circumstances, it does so follow them, the reason and limit of this obligation of the father should be found in the necessities of the children. As to them, the natural obligation of protection, nurture and maintenance, press with equal force upon the parents. By the divorce a vinculo, the mother is as completely absolved from the marital relation as she would be by death, and if, in the course of the proceeding which end in an absolute divorce, the, minor children are put under her control, by her J procurement or in response to her wishes, her/ direct obligation towards them so long as she red tains them would seem to be founded upon as sub-j stantial considerations as if she were a widow J Their daily wants must be satisfied. Constant supervision maybe necessary. Can their divorced mother, who has received them into her custody, abandon them in the one case and not in the other ? We think not. By receiving them into her custody she should be held, as to them, to assume the obligations incident to that custody. If, under these circumstances, where her own misconduct has destroyed the family relation, and deprived the father of the custody and society of his chib dren, she has in fact maintained her children, she has no claim, legal or moral, to demand reimbursement from the father. She has simply discharged a duty cast upon her by -the plainest principles of natural justice, for the reason that the necessity for it arose from her own misconduct.

Judgment ■reversed,