author: Johnson, J.

text:
    Railroad Company v. Furnace Company.
    Tire board of directors of a railroad company, who are anthorized by tbe acf of incorporation to construct, maintain and operate a railroad, and, for that purpose, are empowered to make contracts and ‘‘to do all acts needful to carry into effect the objects for which it was created,” including the right to demand and receive for the transportation of passengers and property a compensation not exceeding a maximum rate, may, within that limit, make contracts for transportation for a fixed future period. Such a contract, if otherwise valid, is*not ultra vires and void, for the reason that it binds the corporation for a fixed period of time.
    Error. Reserved in the District Court of Cuyahoga County.
    The action below was brought by the ITimrod Furnace Co., to recover damages for the breach, by the Cleveland & Mahoning Railroad Co., of an alleged contract, to receive and dock at Cleveland, and to transport from thence over its road, to plaintiffs’ furnaces at Youngstown, all the Lake Superior iron ore which the plaintiff should require in the manufacture of pig iron at its furnaces.
    As alleged in the petition, and as proved to the satisfaction of the jury on issue joined, which required such proof, the railroad was bound for ten years from February 15, 1860, to receive, dock, and transport said ore, at the rate not exceeding $1 per ton, for five years, and for a further term of five years, at a rate not exceeding $1.20 per ton, and not exceeding the lowest freight charged to others, during the whole period of ten years.
    The breach alleged was, that although the railroad company had fully performed said contract, by carrying plaintiff’s ores at the agreed rate, down to 1864, yet on the 1st of November, of that year, it refused longer to recognize or be bound by said contract, and thereafter refused to carry, unless at a much greater rate, which the plaintiff was compelled to pay, and did pay under protest, there being no other mode of supplying said furnaces. ■
    The action was commenced April 11, 1868. The existence, as well as the validity of said contract, was put in issue. The trial resulted in a verdict in favor of plaintiff, including, by way of damages, all overcharges exacted and paid the railroad company for receiving, docking, handling and transporting ores, from the time when the company refused longer to observe the contract, to the commencement of the action, and also including expenses paid to others than the railroad company for docks at., Cleveland, and for handling the ore at that point.
    On á motion for a new trial, as well as in the petition in error, numerous reasons are assigned, why this judgment should be reversed. Noné of these have been sustained, except as to the amount paid other parties at Cleveland for dockage, &c. As to that item a remittitur has been entered, and the judgment, less that amount, has been affirmed. Only one of these questions has been reserved for report, and the facts specially relating to it will be stated in the opinion.

      R. P. Ranney, for plaintiff in error:
    I. The contract, if any existed, was one beyond the power of the directors of the plaintiff to make, and is directly opposed to public policy, illegal and void. This action assumes, and to affirm the judgment the court must make good the assumption, that a mere quorum of railroad directors, without notice to their associates, may meet at any time or place, and make on authorize a contract that the freights to be paid by a person shall never exceed the lowest j>aid by others, and for ten years shall not exceed a given rate, whatever may be the rate fixed for such transportation and charged to others, if such person vill make an erection of establish a business on the line of the road, calculated to increase its business in that line of. transportation ; and this, although such person comes under no obligation to make the erection, or establish the business, or to furnish the company for transportation all or any part of the freights needed in his business. I insist, that such a contract, even if made by a whole board of directors at a regular meeting, signed and sealed, is beyond the powers conferred upon the directors, and in so far as it operates to discriminate against others paying regular rates of transportation, violates a great principle of public policy, and is null and void. Thomas v. Railroad Co., 101 U. S. 82; Pearce v. Railroad Co., 21 How. (U. S.) 441; Coleman v. Railroad Co., 10 Beav. 1; Zabriskie v. Railroad Co., 23 How. 398.
    II. Public franchises, belonging to the whole people, cannot be bartered away by the agencies to which their exercise is committed for the public benefit, or so used as to discriminate between those having equal right, by favoring some of the patrons of a road, while others are more heavily burdened. Railroads are public highways. Railroad Co. v. Commissioners, 1 Ohio St. 11; Giesy v. Railroad Co., 4 Ohio St. 308; Alcott v. Supervisors, 16 Wall. 678; Morgan v. Louisiana, 3 Otto, 223; Railroad Co. v. Iowa, 4 Otto, 123, 161. A railway company cannot by contract or' otherwise divest itself of any franchise or property, necessary to perform its obligations and duties to the state, without legislative authority. York & Maryland Line R. R. Co. v. Winans, 17 How. 30; Black v. Canal Co., 22 N. J. Eq. 399; Thomas v. Railroad Co., 101 U. S. 71.
    III. Another phase of this assumed contract, exhibits perhaps the virus of illegality in a more striking manner than any other feature of it. It presents the corporation in the attitude of not alone attempting to contract about matters outside of its corporate powers, and upon considerations which are forbidden to it—nor ye.t alone stipulating for a partial surrender of its functions in favor of particular parties, while it remains free to exert them upon all others—but of positively providing for the most injurious discriminations between its own patrons in the use of the public highway. Discriminations, not accidental or temporary, but as a settled policy for a long series of years; not compensated by anything valuable to the company' in the way of assisting in the transportation, but resting alone upon the inducements I have already examined. This subject is of such commanding importance, and arising so constantly in the every-day business of the railroad companies, that I should feel bound to express fully my views upon it, if I did not (very fortunately for myself and the court,) find myself fully anticipated in the opinions of Chief Justice Beasley, in the supreme court of New Jersey (36 N. J. 407), in the case of Messenger v. Pennsylvania Railroad, Co., and of Mr. Justice Bedle, in the same case, m the court of errors and appeals. 8 Vroom, 531.

      S. Burke, also for plaintiff in error,
    on the same points, in addition to authorities cited by Judge Ranney, cited 67 Ill. 11; 18 Ill. 460; 49 Ill. 33; 47 Penn. 338; 62 Id. 218; 68 Id. 370.

      Stanley Matthews, and S. 0. Griswold, for defendant in error:
    It is in nowise contended by the defendant in error but that a railway company, like all corporations, is limited to its charter powers or those implied therefrom, or that, as they are in a certain sense public corporations, they cannot unjustly or unreasonably discriminate in favor of some, as against the general public. But we insist that there is nothing in our statute from which this railroad company derives its powers, nor is there any reason of public policy, which' prevents a railroad company from contracting, for good and sufficient reasons, to carry a particular class of freight in a particular mode at less than its general rates, nor are the authorities cited opposed to this claim of the defendant in error. Not only do the authorities not support the claim of the plaintiff in error, but, on the contrary, we assert that a railroad company, which is a common carrier, may for good reasons and for its own advantage make an agreement with parties to carry particular kinds of freight or to carry freight in a particular manner, at less than its ordinary rates. Railroad Co. v. Gage, 12 Gray, 393; Nicholson v. Railroad Co., 5 Com. Bench, 366.

      It is said that if this contract is permitted to stand, railroad companies may bargain away all their freight. The sky may fall, but without doubt, until then, railroad managers will endeavor to get the highest rates for freight they can for the stockholders or themselves. It will be time enough when a contract made in fraud of the rights of stockholders comes into court, for the court to hold it void. To reverse the judgment on this ground would in effect be saying, that under no circumstances can the directors make a time contract for freight, although neither discrimination or other wrongful purpose taints the contract attempted to be made.
   Johnson, J.

A former judgment in favor of the plaintiff in error was reversed and reported in Himrod Furnace Co. v. C. & M. R. R. Co., 22 Ohio St. 451. For a full statement of the pleadings, and of the points there decided, we refer to that report. It is sufficient for our present purpose, to say, that it was there held, that certain evidence was admissible to prove the alleged contract, and that said contract, if proved, was not void for want of mutuality of obligation between the parties nor for want of a sufficient consideration.

On the last trial, this contract was proved as alleged, and a verdict and judgment resulted which it is sought to reverse. This judgment, as to all overcharges paid by the plaintiff below to the plaintiff here, has, after a careful consideration of all the points made, been affirmed, a remittitur of all overcharges paid to others than the plaintiff in error having been entered. Among the errors assigned is one we have reserved for report.

It is now claimed, that this contract for transportation, though not void for want of mutuality, nor for want of a sufficient consideration to support it, is so for want of capacity of the corporation to make it. It is insisted with earnestness and marked ability that the laws of Ohio do not confer upon the directors of a railway corporation the power to make such a contract for a term of years which will bind that or any future board of directors. The claim is, that the franchise conferred upon railway corporations as the agents of the state, for the operation of a public highway, to transport persons and property and to receive a reasonable compensation for it, was given to be used for the equal benefit of those to whom it equally belonged, and not to be abused; to be preserved in all its integrity, for me from time to time, as the exigencies of the corporation and the public good might require, and not to be frittered away by alienation or contract in favor of individuals or classes, or to build up monopolies or other interests .... To hold that this judgment and discretion of the directors’ in performing their duties, under the authority of this franchise, might be suspended for periods of ten years in succession, would certainly be attended with strange if not disastrous consequences.” (Judge Ranney’s brief.)

The substance of this claim is, that a board of directors of a railway corporation have no authority to bind the corporation for a term of years, or for any future time, however short, which in any manner abridges or suspends the discretion of the same or any future board, to fix rates such as the exigencies of the corporation and the public good might require,”—in short, that such a contract is ultra vires, notwithstanding the contract, when made, is based upon a sufficient and valuable consideration received by the corporation, and was in all respects fair and reasonable.

In the discussion of this proposition, it is of the first importance that it should be carefully distinguished from other questions of somewhat kindred nature, which the learned counsel have blended with it in the argument.

1st. It is distinguishable from that class of contracts sometimes made by common carriers, which are held to be void because they unjustly discriminate in favor of one shipper over another. The invalidity of such contracts arises from the fact, that it is against public policy to. allow any common carrier, whether an individual, or a corporation, to give an illegal preference to one shipper over another, for the same kind and amount of service. When such is the nature of the contract for transportation, its validity or invalidity doss not depend upon the individual or corporate character of the carrier, but upon the provisions of the contract itself, unless the terms of the charter of the corporation limits its power to contract in this respect.

These contracts are not enforceable because they are against public policy, and not because they are ultra vires. An act of a corporation is ult/ra vires when it is beyond the chartered powers of the corporation, and is therefore said to be void. It may also be void because it is against public policy as declared by statute, or the fundamental law, or for any reason that would make a like contract of an individual, void. In the case before us, the court charged the jury as to what constituted an invalid contract on account of discrimination. That.charge was not prejudicial to the plaintiff in error. The jury found as a fact that this contract was not obnoxious to this objection. A careful review of the evidence satisfies us that the jury were warranted in so finding. This eliminates from the problem the question of the invalidity of this contract on the ground of discrimination.

2d. That such a contract is not void for want of a sufficient consideration to support the promise of the railroad company, nor for want of mutuality of obligation between the parties, was settled in this case, when it was here before. Himrod Furnace Co. v. C. & M. R. R. Co., 22 Ohio St. 451. We see no reason to disturb that decision.

3d. This is not a question of the abuse, by the board of directors, of the judgment and discretion vested in them by law, to contract for transportation. Neither the stockholders nor the public authorities are here complaining. It is not even insisted that the rates fixed by the contract are not reasonable and advantageous to the railroad company, nor that the board of directors did not act in perfect good faith.

In view of the evidence and the verdict, we have the right to assume that the contract was to the mutual advantage of both parties, that it was made in good faith, and that its performance for the whole term would not have been injurious to the inter•est of the stockholders, or in any way suspend or abridge the powers conferred to discharge the duties the corporation owed to the public as a common carrier, to carry for all on equal terms.

4th. Neither does the length of time the contract has to run, affect the question of power. A contract for a less time than ten years, or indeed for any time, is invalid if there is no' corporate power to make time contracts for transportation. If the power exists to make a time contract for transportation, the discretion thus vested may be abused to the prejudice of the corporation and its stockholders. For such abuse of vested powers, the law furnishes a remedy in proper cases, as in other cases of a breach of trust by boards of directors of corporations. So it might by such a contract grant a monopoly to one shipper, and thus render it incapable of carrying for others. It is not claimed that the existence of this contract impairs the capacity of the company to carry for others as its public duty requires. We are thus brought to the question, whether the board of directors had the power or capacity to make a contract to transport property for a fixed time. This depends upon its chartered powers.

The Cleveland & Mahoning Railroad Company was chartered February 22, 1848, with authority to construct a railroad from Cleveland to Warren, Trumbull county, with the right to extend it east to the state line. The company was to have “ all the powers and be subject to all the restrictions and provisions of the ‘ act regulating railroad companies,’ passed February 11, 1848.” 1 Ohio Railway Rep. 545. By the act of February 11, 1848, this corporation was endowed with a corporate capacity “to sue and be sued, plead and be impleaded, defend and be defended, contract and be contracted with, acquire and convey at pleasure all such real and personal estate as may be necessary and convenient to carry into effect the objects of the incorporation; . . . and do all needful acts to carry into effect the object for which it was created; and such company shall possess all the powers and be subject to all the rules and restrictions provided by this act, except so far as modified by the special act incorporating the saíne.”

By section 7, the directors are vested with the exercise of these corporate powers, and are to “transact all business of the' corporation.”

By section 12, “ such corporation may demand and receive for the transportation of passengers on said road, not exceed ing three and one-half cents per mile, and for the transportation of property not exceeding five cents per ton per mile, when the same is to be transported a distance of thirty miles or more, and in case the same is transported for a less distance than thirty miles such reasonable rate as may be from time to time fixed by said company.” 1 Ohio Railway Report, 14-17.

In this act the power “ to contract and be contracted with, . . . and to do all needful acts to carry into effect the objects for which it was createdclearly embraces the power to transport pei’sons and property as a common carrier for hire.

This obviously includes the right to charge and collect compensation, at a rate not exceeding the maximum fixed by section 12 of the statute.

Substantially the same provisions are found in the general act of 1852, relating to railroads. The object for which the charter was granted was to construct, -maintain and operate a railroad for the individual benefit of the stockholders, as well as for the public benefit. Here, there is an express power to make contracts for transportation, and to agree with the shipper upon rates. The only limitation which the statute imposes is that the rates shall not exceed the maximum fixed by section 12 of the act.

Every undertaking to carry persons or property rests upon contract, express or implied. It may be the result of an express contract, agreed upon by the parties, or it may arise by implication of law. In either case' it is a contract which gives the company the right to demand and receive compensation.

The power that exists to make a contract for a single shipment, will authorize a contract lor a series of shipments or for a period of time.

Whether the rates be fixed by a schedule and posted up, or by separate contract in each case, is not material. In either way, it is a lawful exercise of the power to contract with the shipper for a compensation.

We fully agree that this corporation is the creature of the law, and that, being such, “ it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence” (Dartmouth College v. Woodward, 4 Wheat. 518, 636); and that grants of power to individuals to construct, maintain and operate a railroad, as a body corporate, which are primarily designed for the profit of its stockholders, should receive a strict construction. “ The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation.” Beaty v. Knowles, 4 Pet. 162. This does not exclude the right to use any appropriate means to carry into effect the powers expressly granted, or necessarily implied. There is a clear line of distinction between cases involving the mode of exercising granted powers, and those where the power to do the act is wanting. If the power to do an act is clearly conferred, either by express grant or by necessary implication, the corporation may adopt any appropriate means, not expressly forbidden. The mode or manner in which the act shall be done, is, in the absence of limitations imposed by the charter, left to the sound discretion of the corporate authority.

In this case, the power to make contracts for transportation cannot be questioned.

Whether such contracts shall be made by a published tariff of rates, or as expressed in the bill of lading which accompanies each shipment, or by a general contract with each shipper for a longer or shorter term, rests, we think, in the sound discretion of the board of directors. If either method is resorted to it is but the exercise of a' power expressly granted, which is necessary and essential to carry out one of the leading objects of the corporation, namely, to earn money for the proprietors. If this were not so, railroad corporations would possess immunities that no individual has.

A contract made to-day, might be repudiated to-morrow, or even while goods are in transit upon agreed rates, under the plea that the exigencies of the corporation require it. If such a principle be sound no reason exists why it should not apply to all executory contracts which the corporation is authorized to make, as well as to contracts for transportation.

In thus holding, we do not controvert the principle that the company cannot alienate its franchise or property, which are essential to tlie performance of any duty it owes to the public. This corporation is clothed with powers and franchises of both a public and private nature. It could not, without express authority, divest itself of its power to perform all obligations it owed to the public or to the state. It could not do this either by mis-user, non-usel', or by contract, without liability to the state, or to those having the right to demand their performance. As a private corporation, it also possessed powers and franchises, such as the power to contract and be contracted with, and generally to do all acts needful to carry out the object of the incorporation. Included in this class of powers is that of demanding and receiving compensation for transportation. Its power to contract, in this respect, is limited by the maximum rate fixed by statute, also by the rule, above stated, that it cannot impair its ability to perform its public duties. To make a contract for transportation binding for a greater time than a single shipment, is within the scope of its author ity, if it is otherwise valid ; and if the power to perform all the duties it owes to the public are not impaired or abridged.

An examination of the cases cited and relied on in the argument, will show that they are all cases where it has been held there was a want of power to do the act, and not where the exercise of a discretion in doing an act is expressly authorized.

Thus, in Thomas v. West Jersey R. Co., 101 U. S. 71, it was held, that a lease by a railroad company of all its road, rolling-stock and franchises, for which no authority is given in the charter, is ult/ra vires and void ; that the general power to contract with other companies for the mutual transfer of goods and passengers, did not include the power to lease. It was further'held, that any contract, by which the company renders itself incapable of performing its duties to the public, or which attempts to absolve itself from its obligation, without the consent of the state, violates its charter, and is forbidden by public policy.

In this we concur, but cannot see its application to the case at bar. It is not even pretended that this railroad has, by this contract, rendered itself incapable of performing its duties to the public, or that it has attempted to absolve itself from any obligation to tbe state, or to the public as a public carrier, under the act of incorporation.

State v. Consolidation Coal Co., 46 Md. 1, was decided on the same principle, where it was held, that the power to sell and convey all its property and franchises, and thus escape its obligations to the public, could only be conferred by express legislation. To the same effect are Black v. Delaware & Raritan Canal Co., 24 N. J. 455; s. c., 22 N. J. Eq. 130; Middlesex R. R. Co. v. Boston & Chelsea R. R. Co., 115 Mass. 347; Richardson v. Sibley, 11 Allen, 65.

These, and other cases that might be cited, rest upon the principle that the corporation owes duties to the public ; that the franchises granted to it, impose a trust, and that without express authority, it cannot disable itself from the performance of these duties, or the faithful execution, of the trust.

For aught that appears, or is even suggested, the plaintiff in error has performed all its corporate duties to the public, and has faithfully discharged the trust reposed in it by the grant of its franchises, to the satisfaction of the state and of the public. The existence of this ten-year contract has not, so far as we are advised, incapacitated the corporation from the performance of all such duties and trusts.

Neither the state, nor the public, who are benefited by this public highway, nor the stockholders, are complaining. Why should the corporation be allowed to absolve itself from a contract, fairly made, of mutual obligation and advantages, when made, supported by a valuable consideration, received in great part, and free from any discrimination, sim ply because it may prove less profitable than was anticipated ?

What effect such a contract would have on the rights of other shippers we have not considered, as they are not here complaining. We hold that the making of this contract was in the exercise of the sound discretion of the board of directors, granted to them in the charter of the company, and is not ultra vires and void.

Judgment affirmed.

[This case was decided before Longwortit, J., came on the bench.]


source: Caselaw Access Project

author: Okey, C. J.

license: Public Domain

text:
    Pennsylvania Company v. Wentz.
    1. The power of a railroad company to make and enforce a regulation that one or more designated passenger trains on its road shall not stop at specified stations or places, is subject to legislative control; and by the act of 1852, § 26, as amended in 1867 (S. & S. 114; Rev. Stats. § 3320), such power is taken away as to municipal corporations containing three thousand inhabitants.
    2. Where one traveling on a passenger train of a railroad company, presents to the conductor a ticket issued by such company, authorizing him to ride from one to another designated station, “only on such trains as stop regularly at both stations,”'and is ejected from the cars by such conductor between such stations, it will be no defense to the passenger’s action against the company for damages, that by the regulations of the company, the train on which he was traveling did not stop at the latter station, if the ticket was issued since the passage of the act of 1867, and such station was in a municipal corporation which, at the time the ticket was issued, had a population of three thousand inhabitants, and the passenger believed when he took passage on the train that it stopped at both stations.
    Error to the District Court of Crawford County.
    In 1876, John Wentz commenced an action in the court of common pleas of Crawford county,.against the Pennsylvania Company, operating the Pittsburgh, Fort Wayne and Chicago Railroad, to recover damages sustained by being ejected from a train of cars of the Pennsylvania Company in which he was riding as a passenger. The facts are as follows: Wentz has resided, since 1869, on his farm, one and one-half miles from Bucyrus, a municipal corporation containing, in 1870, and ever since, more than three thousand inhabitants, and being the county seat of Crawford county. He desired to attend the Centennial Exhibition at Philadelphia, and seeing that the Pennsylvania Company was selling railroad tickets to and from Philadelphia at reduced rates, he applied at the office of the company, in Bucyrus, for a ticket to Philadelphia. He was informed, however, that he could not obtain such ticket there, but could obtain it at Crestline, twelve miles further east on the company’s road. He then bought a ticket from Bucyrus to Crestline and return. That ticket contained these words : “ In consideration of the reduced rate at which this ticket is sold, the'purchaser agrees to use it only on such trains as stop regularly at both stations named (Bucyrus and Crestline), and for a continuous trip each way only.” He went to Crestline on August 11, 1876, presenting his ticket, which was a sufficient voucher for his fare to that place, and retaining such ticket as a voucher that his fare was paid for his return from Crestline to Bucyrus. At Crestline he purchased of the company a ticket to Philadelphia. He remained at Philadelphia until August 21, 1876, when he purchased of the company a ticket from Philadelphia to Crestline, and took passage for the latter place. At Pittsburgh he and the other passengers were required to change cars, and were placed in what was called the limited mail, a passenger train of the company running from New York through Pittsburgh, through Crestline, thence through Bucyrus, and on to Chicago. Arriving at Crestline, where the train was stopped for a few minutes, he retained his seat, and when the cars had reached a point about four miles from Crestline, and within eight miles of Bucyrus, the conductor came to him for his fare. lie presented the ticket he had purchased at Bucyrus, but the conductor informed him that the limited mail, on which he was then riding, did not stop at that place, and that he would be carried to Eorest, which is twenty-eight and one-half miles west of Bucyrus, on payment of eighty-five cents. He said he was willing to pay eighty-five cents, but not willing to go to Eorest, and he insisted on stopping at Bucyrus. The conductor then stopped the train and told him he must get off or be put off, and thereupon he left the train. This was about one o’clock at night. He walked home, arriving there at five o’clock in the morning. Soon afterward he brought suit against the company and obtained a verdict and judgment for $87.50 That judgment having been affirmed in the district court, this petition in error was filed to reverse both judgments.
    By the printed rules and regulations of the company, the limited mail did not stop at Bucyrus.
    By section 26 of the act relating to incorporated companies, as amended in 1867 (S. & S. 114; Rev. Stats. § 3320), it was provided as follows: “ Sec. 26. That every railroad company in this state shall cause all its trains of cars for passengers to entirely stop, upon each arrival at any station, at any town or village having a population of three thousand, and all trains advertised by such company to stop at any station for the receiving of passengers shall stop the same at such station for a time sufficient to receive and let off .passengers; and every company, and every person in the employment of such company, that shall violate, or cause, or permit to be violated, the provisions of this section, shall forfeit and pay for each offense 'not more than one hundred, nor less than twenty-five dollars, to be recovered in a civil action, on complaint of any person before any justice of the peace of the county in which such violation shall occur, and in all cases of violation of the provisions of this section, the company whose agents shall cause or permit such violation shall be liable for the amount of such forfeiture, and in all cases the conductor upon such train shall be held prima facie to have caused the violation of this section, which may occur by the train in his charge, and said forfeiture to be recovered in the name of the state of Ohio for the use of common schools.” ■

      J. T. Brooks, for plaintiff in error:
    The agreement to use the ticket only on trains which regularly stopped at Bucyrus was valid, notwithstanding the act of 1867 (S. & S.-114.), and the ejection was lawful. Railroad Co. v. Powell, 40 Ind. 37; Fink v. Railroad Co., 4 Lan. 147; Nuzum v. Railroad Co., 50 Ind. 141; Railroad Co. v. Applewhite, 52 Ind. 540 ; Railroad Co. v. Fitzgerald, 47 Ind. 7, 9 ; Powell v. Railroad Co., 25 Ohio St. 70; Crawford v. Railroad Co., 26 Ohio St. 580; Shelton v. Railroad Co., 29 Ohio St. 214; Railroad Co. v. Rogers, 28 Ind. 1; O'Brien v. Railroad Co., 15 Gray, 20; Railroad Co. v. Whittamers, 43 Ill. 420; McClure v. Railroad Co., 34 Md. 532. The statutory remedy is exclusive, and beyond that the statute has no force. Sedg. Stat. & Con. L. 94, 96, 401; Smith v. Lockwood, 13 Barb. 209; Lanning v. Smith, 8 Cow. 146; Ren

      wick v. Morris, 7 Hill, 575 ; 1 Hilliard on Torts, 111; Brown v. Railroad Co., 22 N. Y. 195.

      S. R. Harris, for defendant in error:
    64 Ohio L., 142 ; Welsh v. Railroad Co., 10 Ohio St. 65; Railroad Co. v. Curran, 19 Ohio St. 1; Brockway v. Lascala, Edm. Sel. Cas. 135 ; Hanley v. Harlem, R. Co., Id. 359 ; Oliver v. Railroad Co., Id. 589; Caldwell v. Steamboat Co., 47 N. Y. 282; Cook v. Railroad Co., 3 Keyes, 476.
   Okey, C. J.

The claim is urged that when Wentz purchased the ticket at Bucyrus, and also when he retained his seat in the limited mail at Crestline, he knew that train did not stop at Bucyrus ; and hence, that in making the agreement the parties were in pari delicto, and that in retaining his seat at Crestline, Wentz was guilty of negligence, either of which facts should defeat a recovery. But we need not determine how far such knowledge should affect a recovery. It is sufficient to say the court charged the jury that such knowledge, if he had it, would defeat Wentz’s action, and that the jury found in his favor. This, therefore, was in effect a finding of the jury that he did not have such knowledge; and, after a careful examination of the evidence, we cannot say such finding was clearly wrong.

A further claim is made, that there was a special contract between Wentz and the company. No doubt a special agreement between the parties that Wentz should only use the ticket he purchased at Bucyrus upon a particular train would have been valid, whether made before or after the passage of the act of 1867. But no such agreement was proved. Nobody testified to anything of the sort. Indeed, there was no evidence whatever that any conversation concerning any special agreement between the parties was ever held. The only facts to show such agreement were the words on the ticket, the printed timetable posted in the offices of the company, showing that the limited mail did not stop at Bucyrus, and the residence of Wentz in the neighborhood of Bucyrus for several years. But it is perfectly well settled that these facts do not prove any special agreement. Railroad Co. v. Campbell, 36 Ohio St. 647. Indeed, there is no evidence that the attention of Wentz was ever directed to the words on the ticket or the time-table, or that he ever saw such table.

Conceding, however, the claim of the company that when Wentz purchased the ticket at Bucyrus, he assented to the conditions appearing thereon, the question remains whether, even then, his right of action is defeated, the jury having found, as already stated, that he did not know, when he presented the ticket, that the limited mail did not stop at Bucyrus. The place at which he was ejected was not at a station, nor at any habitation, but in or near woodland, and the time was one o’clock at night. The sole ground of ejection was that he would not consent to be carried twenty-eight miles beyond the station named on his ticket. Even laying out of view the statute, it would be difficult to maintain the proposition that such ejection was justifiable. Thompson’s Car. of Pas. 340.

But Hie right to recover may be placed on broader ground. The stipulation on the ticket was, as Ave have seen, that the holder would not use it on trains which did not regularly stop at Bucyrus. In the absence of statutory provision to the contrary, a railroad company may adopt a regulation that a certain train or trains of passenger cars running regularly on its road, shall not stop at designated stations or places, and one traveling as a passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going. Pittsburgh, &c. R. Co. v. Nuzum, 50 Ind. 141; Ohio, &c. R. Co. v. Applewhite, 52 Ind. 540 ; Ohio, &c. R. Co. v. Swarthout, 67 Ind. 567 ; Chicago, &c. R. Co. v. Randolph, 53 Ind. 510. And, in the absence of such ^statutory provision, where the conductor of a road which has made such regulation, finds, after the train has started, a passenger who holds a ticket for a station at which that train does not stop, and the passenger is mrwilling to ride to a station at which such train does stop, he may, in a proper manner, be removed from such train. Thompson’s Car. of Pas. 375. But tlie power of a railroad company to adopt ox- enforce such regulation is subject to legislative contx-ol. Com. v. Eastern R. Co., 103 Mass. 254; Shields v. The State, 26 Ohio St. 86; s. c., 95 U. S. 319; State v. New Haven, &c. Co., 43 Conn. 351; New Haven, &c. Co. v. State, 44 Conn. 376; Pierce on Rail, (ed. of 1881) 460; Const. Art. 13, § 2.

The act of 1867, set fox-th in the statement of this case, is such legislative control. While it is clear that this action was not prosecuted under that section, it is equally clear that the alleged contract, whereby Wentz purchased a ticket from Bucyrus to Crestline and return, must be construed with reference to such section. Lindemann v. Ingham, 36 Ohio St. 1, 10. This is an action for the alleged wx-ong done to Wentz, and it is not material whether it should be regarded as in tort •or on contract, for in either case the question is whether he had a right to x-etain his seat on production of his ticket. Sometimes it is difficult to determine whether a matter is so far illegal that it cannot be the subject of an agx-eement. But in this case the provision is express, that all passenger trains shall stop on arrival at a municipal corporation having a population of three thousand; this is a • statxxtory regulation for the benefit of the public; and, moreovei-, a penalty is provided for a failure to comply with the requirement. An agreement— assuming that one was made—x-ecognizing the validity of a l-egulation to disregard such statutory provision, is, according to the authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio, 442; State v. Findley, 10 Ohio, 51; Bloom v. Richards, 2 Ohio St. 287; Huber v. Ger. Con., 16 Ohio St. 371; Delaware Co. v. Andrews, 18 Ohio St. 49; Hooker v. De Palos, 28 Ohio St. 251; Leake on Con. 723.

The pux-ehase of the ticket, authorizing Wentz to ti-avel on passenger trains of the company from Bucyrus to Crestline and return, was manifestly lawful, and that purchase was fully executed when Wentz paid the money and received the ticket as ids voucher .that such fare was paid. It is tx-ue that the ticket contained a stipulation that the purchaser thereof “ agrees to use it only on such trains as regularly stop at both stations named,” that .is, Bucyrus and Crestline. But as the law required all passenger trains to stop at Bucyrus, and as the train upon which he was riding was a passenger train, he might well and properly assume that the law would be obeyed. Moreover, such limitation on the use of the ticket, being in violation of the statute, should be disregarded, while the payment of fare for a passage from Bucyrus to Crestline and return should be held to create an obligation on the part of the company to perform such service for Wentz on any passenger train of the company. This is in accordance with Pigot's ease, 11 Coke, 27 b, in which it was resolved, “ that if some of the covenants of an indenture, or of the conditions indorsed upon a bond, are against law, and some good and lawful, that in this case, the covenants or conditions which are against law are void ab initio, and the others stand good.” This principle has been reasserted in many cases. The whole subject is ably considered in Wald’s Pollock on Con. ch. VI.

If there was any error in the rulings in the court of common pleas, it was not to the prejudice of the plaintiff in error. In any view that can be taken of the case, the judgment below is

right. Judgment affirmed.


text:
    Fanning v. Insurance Company.
    1. To entitle a person to become a member of a corporation, which is being organized under “An act to regulate insurance companies” (S. & S. 205), his contract to take shares therein must be in writing, and be mutually binding on both parties.
    2. A verbal promise to take shares, while the stock is being subscribed which is necessary to authorize an organization, does not constitute the promisor a stockholder or member of such corporation, and a promise to pay for such shares is without a sufficient etnsideration to support it. A recovery on such promise to pay cannot he had, in the absence of facts showing that the promisor is estopped from setting up such want of consideration.
    Error. Reserved in the District Court of Cuyahoga County.
    The Hibernia Insurance Company, for a cause of action in the court below, in which it was plaintiff and said Mary Fanning was defendant, alleged that. it was a corporation under the laws of Ohio; that on November 1, 1870, the defendant executed and delivered her promissory note for $3,000, payable to plaintiff on demand, with interest at six per cent, together with a mortgage on certain real estate, to secure the same, and that said note is due and the condition of said mortgage is broken ; wherefore judgment is asked for the amount due and for the sale of the mortgaged premises. The defendant alleges, that plaintiff was never lawfully organized as a corporation and has no legal capacity to sue, and that said note and mortgage are without consideration and void, by reason of certain fraudulent representations set out, and for the reason that she was not a subscriber for the stock in said company, for which said note and mortgage were given, nor was she ever a stockholder in said company.
    The reply put the allegations of the answer in issue. The trial resulted in a verdict for plaintiff, and a judgment for the amount of said note and mortgage. There was a motion for a new trial for error in admitting evidence and in charging the jury, as well as for other causes, which was overruled, a bill of exceptions was taken, and on error to the district court the case was reserved for decision in this court. On the trial the plaintiff offered in evidence the certificate of incorporation of the company, dated March 2, 1870 ; proved that this note and mortgage were given November 1,1870, for a subscription to the capital stock thereof, which was then being made up preparatory to an organization, and that it commenced business January 1, 1871, as a fire insurance company. The defendant then offered evidence tending to show that after obtaining the charter, the incorporators did not open books for subscriptions to stock, but placed the stock through the agency of canvassers, who took in payment notes and mortgages, as well as cash, approved by an executive committee, or temporary board of directors, selected by a meeting of those engaged in forming the company as stockholders. In the case of defendant, it was shown that she verbally agreed with one of these canvassers, to take $3,000 in stock, and gave this note and mortgage in payment, but that she never subscribed for stock, in a subscription book for that purpose, or by any contract in writing, and never received any certificates of stock from the company.
    In rebuttal, for the purpose of creating an estoppel, plaintiff produced and offered in evidence, without first proving its execution, a proxy, purporting to be signed by defendant, authorizing one Lavan to vote her stock in 1875, on which he voted said stock. This paper was put in evidence over the defendant’s objection.
    Among other things the court charged the jury, that, “ if she ” (the defendant) “ subscribed for, or agreed, to take, capital stock, and she could agree verbally, it is not necessary she should sign any book or anything of that kind; if she agreed to take capital stock, she owed so much money.”
    The bill of exceptions and charge of the court contain other matters for review, but only so much is stated as raise the points passed upon.

      Arnold Green, for plaintiff in error:
    A contract of subscription must be in writing, and cannot be established by parol testimony. Angell & Ames on Corp. 539; 21 Ill. 96; Thames Tunnel Co. v. Sheldon, 6 B. & C. 341; Railroad Co. v. Lacy, 3 Younge & J. 80; Railroad Co. v. Gazzam, 32 Pa. St. 348; Vreeland v. N. J. Stove Co., N. J. Eq. 188, 191; Railroad Co. v. Clark, 29 Pa. St. 146, 152; Brown v. Appleby, 1 Sandf. 170.
    The admission in evidence of what purported to be a proxy of Mrs. Fanning, was clearly erroneous. No evidence was offered to prove it was executed by her.

      W. S. Kerrnish and S. Burke, for defendant in error.
   Johnson, J.

1st. It was clearly erroneous to allow the paper purporting to be the proxy of Mrs. Fanning to vote her stock, to be read in evidence over her objection without first proving its execution. If its execution had been proven to the satisfaction of the court, it might have been competent, as tending to show that she was estopped from taking advantage of any irregularity in the organization or informality in her obligation to take stock, but until such preliminary proof was made it was error to allow it to go to the jury.

2d, Did the court err in its charge that a verbal agreement to take stock created an indebtedness to the corporation %

It appeared that the certificate of incorporation was dated March 2, 1870. This charter was obtained under the act of April 15, 1867 (S. & S. 205). Under this statute, any number of persons, as Required by the act. entitled “ an act to provide for the creation and regulation of incorporated companies in the state of Ohio,” passed May 1, 1852, may form an insurance company, other than life insurance, by giving notice of their intention so to do, four weeks in a public newspaper in the county and by making a certificate, specifying the name of the company, its object, the amount of capital, and place of business, which on being properly executed shall be filed with the secretary of state. If approved as required by section 2 of the act, it shall be recorded and copied as provided by section 2 of the act of 1852; “ and said persons, when incorporated, and having in all respects complied with the provisions of this act, are hereby authorized to cany on the business of insurance as named in said certificate of incorporation,” &c. By section 4, the persons named in the certificate, or a majority of them, shall be commissioners, to open books for the subscription of stock . . and shall keep the same open until the full amount specified. in the certificate is subscribed. Section 5 provides for an election of a board of directors after the stock is all taken.

It is a fact in this case that this note and mortgage were taken before the corporation was authorized to elect directors and officers. It also appears, that +he note and mortgage were received and counted as part of the amount of stock necessary to make the amount to be obtained, before holding such an election.

Waiving all questions arising out of alleged irregularities in obtaining the requisite amount of capital stock to authorize the company to organize, or make loans, let us inquire what validity there was in the promise of Mrs. Fanning to pay for capital stock, based upon a verbal agreement, made with an agent of the company, to take that amount of stock.

In the manner in which the charge was given on this point, the jury might, and probably did, find in favor of the plaintiff below, independent of any question of ratification or estoppel. There was evidence tending to show that Mrs. Fanning had, by her acts, estopped herself from taking advantage of any defects in the organization, or any informality in the agreement ; but this charge, that a verbal agreement to take stock was sufficient to create an indebtedness, left the jury free to find for the plaintiff, without passing upon the question of estoppel.

The note was a promise to pay for stock which the maker had verbally agreed to take. Had Mrs. Fanning been a subscriber to the stock she would have been entitled to be treated as a stockholder. This would have been a sufficient consideration to have supported a promise either express or implied to pay for the stock. The agreement must be mutual and binding upon both parties. If the corporation are not bound to treat her as a stockholder, her promise to pay is a mud/um pactum, for want of a mutual promise by the corporation to award her the stock. In the absence of proof that she had received the stock, or of any other consideration to support her promise, or of any acts by her, creating an estoppel, her promise to pay for stock for which she has not subscribed, and which the corporation is not bound to deliver at the proper time, is without a sufficient consideration to support it.

The constitution of the state provides for the individual liability of stockholders, and the statute prescribes the mode by which those who constitute themselves such, preliminary to an organization of the corporation, shall become stockholders and entitled to rights as such. The law contemplates such proceedings as will constitute the members of the proposed corporation stockholders by requiring them to be subscribers to the stock. By the act of thus becoming a stockholder, they acquire an interest in the franchises and business of the company, and are subject to all the liabilities of stockholders, including the obligation to pay for the the stock subscribed. If this obligation is not mutual and equally binding upon the corporation, the promise to pay is not supported by a sufficient consideration. The criterion of liability is whether any act has been done by which the corporation is compelled to recognize the promisor as a stockholder. If the corporation was not bound by what took place, to recognize Mrs. Panning as a stockholder1, neither is she bound to pay for stock. Angell & Ames on Corp. ch. 15, et seq. ; Thompson on Liability of Stockholders, §§ 105-110 ; Valk v. Crandall, 1 Sandf. Ch. 179 ; Tonica v. Petersburgh R. R. Co., 21 Ill. 96; Chelsea Glass Co. v. Dewey, 16 Mass. 94; Spear v. Crawford, 14 Wend. 20; Selma & Tenn. R. R. v. Tipton, 5 Ala. 787; Phillips Limerick Academy v. Davis, 11 Mass. 113; New Bedford v. Adams, 4 Mass. 138; Essex Turnpike Co. v. Collins, 4 Mass. 292; Lake Ontario, A. & N. Y. R. R. Co. v. Mason, 16 N. Y. 451; Vreeland v. N. J. Stone Co., 29 N. J. Eq. 188; P. & S. R. R. Co. v. Gazzam, 32 Pa. St. 340; Thames Tunnel Co. v. Sheldon, 6 B. & C. 341.

A careful consideration of the statutes authorizing the formation of such corporations, as well as of the authorities cited, requires us to hold that a mere verbal agreement to take.stock in a company whose promoters are engaged in securing the amount of stock required before it can organize, does not constitute the promisor a member of such corporation, and is without a sufficient consideration to support it.

Judgment reversed.


text:
    Fanning v. Insurance Company.
    1. The plaintiff may, in reply to new matter set up in the answer by way of defense, allege any new matter, not inconsistent with the petition, which in law constitutes an answer to the new matter relied on by the defendant.
    2. If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead suuh former judgment. It is not admissible in evidence under a general or special denial of the new matter contained in the answer.
    Error to the District Court of Cuyahoga County.
    This case was taken out of its order to he heard with Mary Fanning v. Hibernia Insurance Co., j ust reported. That action was to recover on a note and mortgage given for stock in said company, while its promoters were engaged in placing the amount of stock required by its charter, as preliminary to its organization. This action is to recover upon a note executed by said Mary Fanning to said company to pay an assessment upon said stock, made some two years after the company commenced doing business, on account of losses incurred in the Chicago fire.
    This note, in addition to an assessment of 33 per cent, on the $3,000 of capital stock, included one year’s interest on the note involved in the case just reported, and was for $1,170. The same defenses were made to the payment of this note, as to the former one of $3,000.
    At the time the case was tried, final judgment had been rendered in the former case, and a petition in error was pending to reverse the same. The record in that case was offered in evidence in this case without being pleaded, as a bar to the defenses set up in this action. It was admitted against the objection of defendant below. The court charged the jury that the record in that case was conclusive evidence that there was a consideration for that note, and that, if there was no fraud in obtaining the former note, there was none in obtaining the one now sued on. The trial resulted in a verdict for the plaintiff below, followed by the overruling of a motion for a new trial. Some of the errors assigned are, the overruling of the motion for a new trial; the admitting in evidence the record of the former case, and in charging that it was conclusive in this case as to the alleged want of consideration, and as to fraud in obtaining it, and the rendition of the judgment on the verdict. The bill of exceptions sets out all the evidence. The district court affirmed the judgment of the common pleas. This proceeding is to obtain a reversal of the judgments of the courts below.

      Arnold Green, for plaintiff in error.

      W. S. Kerrnish, for defendant in error.
   Johnson, J.

The petition was upon a promissory note for the recovery of money only. The answer set up new matter as defenses, among them facts showing want of consideration, and fraud in procuring the note. The reply denied each of the allegations contained in the answer.

On the trial, and as a bar to the defenses above stated, the record in the former suit was introduced, and the court charged the jury that it was conclusive upon the defendant, both as to the question of fraud and want of consideration.

The code (section 101), provides, that the plaintiff may demur to an answer, or where, as in this case, it contains new matter, “ he may reply to such new matter, by denying, either generally or specifically, each allegation controverted by him, and he may allege . . . any new matter not inconsistent with his petition constituting an answer in law to such new matter.” To this reply the defendant may demur. The answer contained new matter by way of defense.

If the former adjudication was a bar to this new matter of defendant, it was new matter, not inconsistent with the petition, which could have been set up by reply.

The defendant could then have demurred. In this way there would been presented to the court a question of law. The code, therefore, furnishes an opportunity to plead the former adjudication. The object of requiring pleadings in wilting is, to advise the opposite party of the facts constituting their respective claims and defenses. This object is defeated by allowing the record to be offered in evidence without notice by pleading, that it is relied on, after the defendant had offered in evidence the facts constituting his defense.

The former adjudication is new matter, which the code practice requires should be pleaded. It is matter expost facto, and should be specially pleaded, so that the court may, as matter of law, determine as to its effect. This was the settled rule at common law, whenever there was an opportunity to plead such former adjudication. The code having furnished that opportunity to plead it, we think the record was inadmissible as evidence. Vooight v. Winch, 2 B. & Ald. 662; Brazil v. Isham, 12 N. Y. 9, 17; Pomeroy on Rem. § 702; Clink v. Thurslin, 47 Cal. 21; Ransom v. Stanberry, 22 Iowa, 334; Phillips v. Van Shaick, 37 Iowa, 229; 2 Smith Lead. Cas. notes 629, 630, 631; Gray v. Massie, 17 Vt. 419 ; Lockwood v. Wildman, 13 Ohio, 430.

Judgment reversed.


author: McIlvaine, J. White, J.

text:
    Wert v. Clutter.
    1. Under the act of May 5, 1868 (65 Ohio L. 146), to protect the citizens of Ohio from empiricism, it is not unlawful for a person of good moral character to practice medicine and surgery for reward or compensation, who has been engaged in the continuous practice for ten years or more.
    2. Such ten years of continuous practice may embrace time since, as well as before, the taking effect of said act.
    3. It is immaterial whether the services rendered during such period of practice were gratuitous or for compensation.
    Error to the District Court of Crawford County.
    The original action was brought by T. IT. B. Clutter, defendant in error, against David Wert, plaintiff in error, to recover for services rendered by the plaintiff as a physician and surgeon, at the request of the defendant. The plaintiff alleged that at the time of rendering the services, to wit, on and after March 17, 1874, he was a person of good moral character and had been continuously engaged in the practice of medicine for a period of ten years and more, &c. These allegations were denied by the defendant.
    On the trial in the court of common pleas, the plaintiff offered testimony tending to prove the rendition of the services as alleged in his petition, and that previous to such services he had been continuously engaged in the practice of medicine for more than ten years, but it was not claimed that he had been so engaged for a period of ten years before October 1, 1868: and it was also admitted on the trial, that at the time the alleged services were performed by the plaintiff, for the defendant, on the said 17th day of March, 1874, he the said plaintiff had not attended two full courses of instruction and graduated at some school of medicine, either of the United States or some foreign country; that he did not have and could not now produce a certificate of qualification from any state or county medical society; and that he then was, and now is, a person of good moral character.
    Whereupon the defendant, by his counsel, asked the court to charge the jury: “ That in order to recover in this case, the plaintiff must satisfy the jury by a preponderance of evidence,’ that prior to the time the alleged services were performed by plaintiff, as alleged in his petition, that he, the said plaintiff, had attended two full courses of instruction and graduated at some school of medicine either of the United States or some foreign country; or could produce a certificate of qualification from some state or county medical society; or, that prior to October 1, 1868, he had been continuously engaged in the practice of medicine for a period of ten years.” Which instructions the court refused to give to the jury, but did charge the jury that, “ If the plaintiff had been continuously engaged in the practice of medicine, for a period of ten years prior to rendering the services alleged in his petition, and if the services were performed at the request of the defendant;, under a promise of the defendant to pay him therefor, he will be entitled to recover what the testimony shows the services were reasonably worth, with interest.” To which refusal to charge as requested, and to the charge as given, the said defendant excepted.
    A verdict and judgment' were rendered for the plaintiff, which judgment was afterwards affirmed by the district court.
    This proceeding is prosecuted to reverse the judgments below.

      Finley & Swigart and S. R. Harris, for plaintiff in error.

      Nathan Jones, for defendant in error.
   McIlvaine, J.

The only questions for decision in this ease arise on the statute of May 5, 1868 (65 Ohio L. 146), which is as follows: An act to protect the citizens of Ohio from empiricism, and elevate the standing of the medical profession.” “ Section I. “ That it shall be unlawful for any person within the limits of said state, who has not attended two full courses of instruction and graduated at some school of médicine, either of the United States or some foreign country, or who cannot produce a certificate of qualification from some state or county medical society, and is not a person of good moral character, to practice medicine in any of its departments for reward or compensation, or attempt to practice medicine, or prescribe medicine or medicines, for reward or compensation, for any sick. person in the said state of Ohio; provided that in all cases when any person has been com tinuously engaged in the practice of medicine for a period of ten years or more, he shall be considered to have complied with the'provisions of this act, and that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions.”

“ Section II. Any person living in the state of Ohio, or any person coming into said state, who shall practice medicine, or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operation upon any person within the limits of said state, in violation of section one of this act, shall, upon conviction thereof, be fined not less than fifty nor more than one hundred dollars for such offense, and upon conviction of a second violation of this act, shall, in addition to the above fine, be imprisoned in the county jail of the county in which said offense shall have been committed, for the term of thirty days, and in no case wherein this act shall have been violated, shall any person so violating receive a compensation for services rendered; provided, that nothing herein contained shall in any way be construed to apply to any person practising dentistry.

“ Section III. This act shall take effect and be in force on and after the first day of October, 1868.”

The defendant in error claims, that the admission of his good moral character excludes him from the operation of the statute. The letter of the statute sustains this claim, but we think the evident intent of the legislature, being “ to protect the citizens of Ohio from empiricism,” as declared in the title of the act, was to exclude from the profession of medicine and surgery all persons who do not possess both qualifications and character, by making it unlawful for any person who has not the prescribed certificate, or a good moral character, to practice medicine for reward or compensation. In construing the statute in this respect, we must substitute the disjunctive “ or” for the copulative “ and.”

The principal question in the case, however, is: In order to entitle the medical practitioner to a reward or compensation for his services, under the proviso in the first section, must it be shown that the period of ten years of continuous practice elapsed prior to the taking effect of the act, • or is it sufficient to show that the period was complete at the time of rendering the service for which compensation is claimed % By the purview of the first section it is made unlawful for any person to practice medicine or surgery in the state of Ohio for reward or compensation, without having graduated at a school of medicine, or producing a certificate of qualification from some state or county medical society.

The evidence of qualification here prescribed is without limit as to date—it is sufficient that it can be shown to exist at the time when the right to practice is drawn in question. By the proviso, a period of ten years’ continuous practice is made exactly equivalent to the evidence of qualification prescribed in the purview; and there is no reason, as far as the protection of the public is concerned, why a different rule should prevail as to the time when a person may qualify himself for the practice of medicine. If the experience of an empiric, for ten consecutive years before the passage of the act, was sufficient to protect “ the citizens of Ohio ” from the evils to be apprehended from unskilled practitioners, the like experience, after that date, should also suffice. That this was the legislative view is evident from the language of tho proviso: “ That in all cases when any person has been continuously engaged in the practice of' medicine for a period of ten years or more, he shall be considered to have complied with the provisions of thi3 act.” In the opinion of a majority of the court, this proviso is a clear declaration, that whenever the right of a person of good moral character to practice medicine or surgery for reward or compensation, is questioned, such right may then be established by showing, that previous to that time he had been continuously engaged in the practice for ten years or more.

The latter clause of the proviso, “ that where persons have been in continuous practice of medicine for five years or more, they shall be allowed two years in which to comply with such provisions,” does not conflict with this view. We admit that the five years here referred to must antedate the taking effect of the act. But the case here provided for does not exclude the empiric from practicing for reward or compensation during the two years of probation, while the empiric seeking to qualify himself by continuous practice subsequent to the taking effect of the act is debarred from reward or compensation until the whole period of ten years is completed.

It must be observed that this statute does not declare the practice of an empiric, ipsofaoto, unlawful, but only such practice for reward or compensation. The provision in the penal section of the act (section 2) that “in no case wherein this act shall have been violated, shall any person so violating receive a compensation for services rendered,” does not extend the inhibitions of the first section. Hence, for this reason, the judgments below could not be disturbed, as the record does not show that the plaintiff below practiced for reward or compensation, after the passage of the act, until his period of ten years’ continuous practice was complete.

But, a majority of the court do not put their judgment of affirmance on this ground; but on the broader grounds that ten years of continuous practice of medicine, whether before or after the taking effect of the act, and whether for compensation or not, relieves the practitioner from the inhibition im- - posed upon empirics by its provisions. Unquestionably, if such period were devoted to the practice beyond the limits of this state, such practitioner -would not be amenable to the provisions of the statute. True, it may be said that such probationary practice is not in violation of the act; but that circumstance does not add or detract Rom the knowledge or skill which the statute assumes is gained from experience, and which is deemed to constitute the necessary qualification of a practitioner.

We fully appreciate the force of the argument on the other side, that a statute should not be so construed as to create a right in one who acts in violation of its provisions. But that rule of construction does not apply in this case. This statute was not intended to create a right in any one to practice medicine. It was simply intended to prohibit the exercise of the right (which before was universal) by unqualified persons. The right remains in all persons exeejff those from whom it is taken away by the statute, and it is not taken away from a person who, at any time, has been in the continuous practice for ten years or more. Such, we think, is the manifest intent and purpose of the act when considered as a whole, and a manifest purpose cannot be defeated by any general rule of construction.

Judgment affirmed.

White, J.

dissenting. Section 1 of the statute makes it unlawful for any person to practice, or attempt to practice, medicine, for reward or compensation, without having the qualifications therein prescribed. By the proviso two classes of persons are excepted from the operation of the act: (1) persons who lime been continuously engaged in the practice of medicine for a period of ten years; (2) persons who hme been in the continuous practice of medicine for a period of five years. The last named class is allowed two years within which to comply with the prescribed provisions. The second section of the act declares the practice, or attempt to practice, in violation of the first section, an offense, and prescribes the penalty to be not less than $50, nor more than $100. For a second offense, imprisonment is added. The act was passed May 5, and took effect October 1, 1868. Its object is declared to be to protect the citizens of Ohio from empiricism, and it should receive such construction as will promote this object. In the opinion of the majority of the court this is accomplished by the continuous violation of the statute for a period of ten years, thus during that time exposing the citizens to all the evils of empiricism. The claim is, as I understand it, that ten years of such practice is by the statute made equivalent to having the other qualifications prescribed. This, in effect, makes the statute operate to reward and punish the same acts or conduct. To this reasoning I cannot assent. The proviso embraces only the two classes named, who had been engaged in practice five and ten years respectively at the time the act took effect, and was intended ‘solely for their benefit.

Oket, C. J., concurs in the foregoing dissenting opinion.

       The term “ empiric ” is here used, as in the statute, to mean a medical practitioner who has not graduated in a medical college, or has a certificate of qualification from a medical society, or has not been engaged in the continuous practice for the period prescribed in the statute.


author: White, J.

text:
    Piatt v. Sinton et al.
    1: A devise by a testator of all of his property, of every description, whether real, personal or mixed, after paying all his just debts, is a devise' of the fee, without the aid of a statute declaring such to be the eifect of the devise.
    2. Where there is a devise in fee, with a provision in the will that in -case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Mies v. Gray (12 Ohio St. 320), followed.
    Error to the Superior Court of Cincinnati.
    The plaintiff in error, Lucinda Francis Piatt, who was the plaintiff below, is the devisee of William Piatt, whose will bears date, March 2, 1832, and was admitted to probate in 1834. The testator was the owner in fee simple of the land in controversy.
    The dispositive provisions of the will are as follows:
    “ I will and bequeath to Lucinda Francis Piatt, now at the school of Mrs. Ryland, in this place, all of my property of every description, whether real, personal, or mixed, after paying all mp just debts; excepting, however, such other bequests as are hereinafter named, viz.: To my nephew', Daniel S. Piatt, son of my deceased brother, Daniel Piatt, my fowling piece, which was presented to me by Colonel Riano, of the Spanish Royal Army ; then to my nephew, William Piatt, son of 'my deceased brother, Daniel Piatt, I will and Bequeath my sword and pistols, being the same which I used at the siege of New Orleans; these I wish to have retained in the family, if possible ; my wearing apparel I will and bequeath to E. Demond Piatt, William Piatt, and Daniel S. Piatt, sons of my deceased brother, Daniel Piatt, to be equally divided between them ; and in case the aforesaid Lucinda Francis Piatt should die without leaving any legitimate heirs of her body, then I wall and bequeath all my property, of every description, such as would be granted to her by this will, unto Catharine Wheeler, E. Demond Piatt, William Piatt, and Daniel S. Piatt, children and heirs of my deceased brother, Daniel Piatt, to be equally divided.”
    In July, 1844, the plaintiff uniting with her husband conveyed, for the consideration of $3,100, a parcel of the real estate devised to her, to John C. Wright, by a deed in fee simple, with full covenants of warranty.
    In 1866, the widow and heirs of Wright, by like deed conveyed the same premises to the defendant, David Sinton.
    It is charged in the petition, in substance, that the plaintiff only in fact sold an estate for and during her life in the premises; and that the deed in fee simple was executed by mistake and in ignorance of her rights. It is also charged that Sinton purchased with notice of her rights. The plaintiff also claims that she took by the devise only an estate during her natural life.

      The court below found, “ that Lucinda Francis Piatt took a fee in the real estate described, in the petition, under and by the will of her testator, William Piatt, subject to be defeated only by her dying without leaving legitimate heirs of her body.”
    And the court found the other issues joined for the defendants ; and rendered judgment accordingly.
    On error, the superior court in general term affirmed the judgment; and the present petition in error is prosecuted in this court to reverse these judgments.

      Taylor & Hollister, for plaintiff in error.

      J. H. Baldwin, for defendant in error.
   White, J.

We find no error in this case. The construction of the will now in controversy is governed by the decision in Niles v. Gray, 12 Ohio St. 320. That case was decided in 1861, and has become aruleof property in this state, and we are not now disposed to reconsider it.

The will in that case, as well as the will now in question, was made prior to the passage of the act of March 3, 1834 (1 Curwen, 145), which declared, in effect, that a devise of lands, in a will thereafter made, should be construed to convey a fee simple, and that' the devisee should take all the estate which the devisor had in the property, unless it appeared hy express words or the manifest intent that a lesser estate was intended. The decision, therefore, in Niles v. Gray, was not founded upon that statute nor upon any subsequent one of like effect; but upon the terms of the will as construed without the aid of such legislation. The language in that case that was held to operate as a devise of the fee was “ the remaining part of my real property.” The language of the devise in the present case is “all of my property of every description, whether real, personal or mixed, after paying all of nay just debts;” and the devise over to the children and heirs of his deceased brother is of the same interest and estate that was given by the will to Lucinda, the first devisee.

The claim on behalf of Lucinda is that she took only a life estate. But it seems to us, that she took all the estate and interest that was subject to disposition by the testator, and that was liable for the payment of his debts, subject to be defeated on the happening of the contingency named in the will, when the estate is to go over to the persons named as the children and heirs of his deceased brother.

The contingency upon which the devise over takes effect, according to Niles v. Gray, is the death of the first devisee, Lucinda, without leaving legitimate heirs of her body or lineal descendants then living; and that until such contingency happens the fee is vested in the first devisee and her grantees.

"Whether the devise over will ever take effect cannot be determined until the plaintiff’s death ; but if it should never take effect, her grantee, Sinton, will, according to the principles decided in Niles v. Gray, hold an indefeasable estate, if the deed to him is valid.

That the deed is valid was- found by the court below upon the evidence; and we see nothing in the record to warrant us in disturbing that finding.

Judgment affirmed.


text:
    Hamet v. Letcher.
    H., title owner of chattels, relying on the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H., in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., as he well knew,—Reid, that the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own use, without knowledge of the fraud, was liable to H. for their value; and the fact that R., at the time the chattels were delivered to him, paid II. part of the priee agreed on, will make no i difference, except as to the amount of recovery against L.
    Error to tbe District Court of Williams County.
    In 1874, O. T. Letcher & Co. were engaged at Bryan, Williams county, in buying and shipping hogs. George "W. Hamet, a farmer residing in that county, had a lot of hogs for sale. On October 16 of that year, Jacob J. Rohner, representing himself to be the agent of O. T. Letcher & Co., bought the hogs of Hamet for $173.25, which was a fair price for the same, paying to him on the purchase $55. Hamet knew Letcher & Co. to be responsible, and would not have let Rohner have the hogs on his own account. He believed Rohner’s representation that he was such agent, and relied on the representation. In fact, Rohner was not the agent of Letcher & Co., nor had he any authority to purchase hogs on their account. Rohner, receiving the hogs under such circumstances from Hamet, drove them to Bryan, where he sold them, as his own hogs, to O T. Letcher & Co., who were ignorant of the fraud by which they were obtained. Believing that Rohner was the owner, the firm received the hogs, paying him full value for the same. Shortly thereafter Ilamet demanded of the firm payment for the hogs, but payment was refused, and thereupon he brought suit against the firm, in the court of common pleas of Williams county, to recover the value of the property. In that court it was held that, on the facts above stated, Hamet was not entitled to recover ; the district court affirmed the judgment, and Hamet, on leave, filed in this court a petition in error to reverse both the judgments.

      Pratt & Bentley, and Sheldon & Boothman, for plaintiff in error:
    In addition to cases referred to in the opinion, counsel cited and relied on Devan v. Shipper, 11 Casey, 239; Barnard v. Campbell, 58 N. Y. 76; Benj. on Sales, §§ 433, 441, 443; Kerr on Fraud, 49; Ballard v. Burgett, 40 N. Y. 527; 74 Ohio L. 41; 66 Ohio L. 324.

      J. Pillars and S. E. Blakeslee, for defendants in error :
    In addition to cases referred to in the opinion, and in brief of plaintiff in error, counsel cited and commented on 1 S. & C. 421, § 9; Voorhis v. Olmstead, 66 N. Y. 117; Keyser v. Harbeck, 3 Duer, 373; Benj. on Sales, § 437 ; Kraft v. Dulles, 2 Cin. Sup. Ct. 116; Pease v. Gloahec, L. R. 1 P. C. 220 ; 3 Moore P. C. N. S. 556; Mowrey v. Walsh, 8 Cow. 238 ; Lower v. Com., 15 S. & R. 93.
   Okey, C. J.

A remark made in Cundy v. Lindsay, 3 App. Cas. 459, is quite applicable here. There it was said, “You have in this case to discharge a duty which is always a disagreeable one for any court, namely, to determine as between two parties, both of whom are perfectly innocent, upon which of the two the consequences of a fraud practiced upon both of them must fall.” Rut our duty in this case, as in all others, is simply to declare the law. The only question here is whether, in view of the facts set forth in the statement of the case, the property in the hogs passed from Hamet. If it did, the judgments in the courts below are right; if it did not, they are wrong. In the decision of cases of this sort, difficult questions are sometimes presented; but the principles upon which they should be determined are firmly established.

If Rohner had offered to buy the hogs for himself, and Hamet had agreed to sell them to him, and had made deli very thereof in pursuance of such sale, the property in the hogs would have passed to Rohner, although the sale had been induced solely by fraudulent representations made by Rohner. That would have been a defacto contract; and while it might have been avoided by Hamet, by reason of the fraud, while the property remained in the possession of Rohner, yet if Rohner had sold the hogs, before the contract was thus avoided, to Letcher & Co., they having no knowledge of the fraud, the latter would have acquired a perfect title. Rowley v. Bigelow, 12 Pick. 307; Hoffman v. Noble, 6 Met. 68; Schaeffer v. Macqueen, 1 Disney, 453 ; Attenborough v. Dock Co., 3 C. P. D. 450; Babcock v. Lawson, 4 Q. B. D. 394; affirmed, 5 Q. B. 284. In a case where this principle was enforced (Moyce v Newington, 4 Q. B. D. 32), Cockburn, C. J. said: “ The reasoning on which this conclusion is based, may not appear altogether consistent with principle, but, agreeing in the result, we should prefer to adopt the view of the American courts, as stated in the case of Root v. French (13 Wend. 570), a case decided in the supreme court of judicature of tlie state of New York, according to which the preference thus given to the right of the innocent purchaser is treated as an exception to the general law, and is rested on the principle of equity that where one of two innocent parties must suffer from the fraud of a third, the loss should fall on him who enabled such third party'to commit the fraud.”

But this was not a sale to Rohner in his own right. He made no proposition to buy in any other way than as agent. Hamet did not agree to sell to any other than Letcher & Co., who never agreed to buy of him, and he was induced to sell solely by reason of Rohner’s representation that he was such agent, which representation was wholly false, as Rohner well knew. This, therefore, was not a contract voidable merely, but an agreement wholly void; and, under the circumstances, the property in the hogs never passed from Hamet. Hence, applying the maxim that no one can transfer a greater right or better title than he himself possesses (Roland v. Gundy, 5 Ohio, 202), it necessarily follows that Letcher & Co. are liable as for a conversion. Moody v. Blake, 117 Mass. 23; Barker v. Dinsmore, 72 Pa. St. 427; Saltus v. Everett, 20 Wend. 267; Fawcett v. Osborn, 32 Illinois, 411; Hardman v. Booth, 1 II. & C. 803; Higgons v. Burton, 26 L. J. Ex. 342; Kingsford v. Merry, 1 H. & N. 503 ; Hollins v. Fowler, L. R. 7 Q. B. 616; affirmed, L. R. 7 App. 757; In re Reed, 3 Ch. D. 123 ; Lickbarrow v. Mason, 1 Smith’s L. C. 2 pt. 1195; Cundy v. Lindsay, supra.

Perhaps the principle here involved was more fully considered in the latter case (Cundy v. Lindsay) than in any-other. The facts briefly stated were as follows: Lindsay & Co. were manufacturers of linen goods at Belfast, Ireland. Alfred Blenkarn, who occupied a room in a house looking into Wood street, Cheapside, wrote to Lindsay & Co., proposing to purchase a certain quantity of such goods, and in his letter used this address, “ 37 Wood street, Cheapside,” and signed the letters (without any initial for a Christian name) with a name so written that it appeared to be “ Blenkiron & Co.” There was a respectable firm known to Lindsay & Co. of the name, W. Blenkiron & Co.,” carrying on business at 123 Wood street. Lindsay & Co. sent letters, and afterwards supplied goods, being all addressed to “Messrs. Blenkiron & Co., 37 Wood street,” which they supposed was the address of the respectable firm above mentioned. The goods were received by Alfred Blenkarn at that place, of which goods he sold 350 dozen of cambric handkerchiefs to the Messrs. Cundy, who had no knowledge of the fraud, and who resold them in the ordinary course of their trade.

On the hearing of the case before the judges of the Queen’s Bench (Lindsay v. Cundy, 1 Q. B. D. 348), in 1876, it was held that the property in the goods passed to Alfred Blenkarn, and consequently that Lindsay & Co. could not maintain an action against the Messrs. Cundy, innocent purchasers. But that decision was reversed the next year, in the court of appeals (Lindsay v. Cundy, 2 Q. B. D. 96), and the latter decision was affirmed in the House of Lords in 1878. Cundy v. Lindsay, supra. That was a stronger case for the innocent purchaser than this case. Indeed, on the latter hearing, Mr. Benjamin, who argued the case for the Messrs. Cundy, admitted that under circumstances such as are presented in this case, the property would not pass to the fraudulent vendee.

The circumstance that Hamet intended that Letcher & Co. should have the hogs is of no importance. He never intended they should acquire title from any other' than himself, nor do they make any claim to such property under any purchase they made from him. The case would be in no material respect different if Rohner had represented to Iiamet that he was agent of some firm other than Letcher & Co. Nor does the payment by Rohner of $55 on the agreed price have any other effect on the right to recover than to reduce the amount for which judgment should be rendered.

Counsel for defendants in error rely on Stoddard v. Ham, 129 Mass. 383, the syllabus of which is as follows: “ If A. sells goods to B., who sells them to C., the fact that A. supposed he was selling the goods to C. through B. as his agent, and would not have Sold them to B. on his sole credit, will not entitle A. to maintain an action against C. for a conversion of the goods.” But the decision lends no support to the defendants in error. There it appeared that Stoddard & Co., the plaintiffs, had sold bricks to Leonard, believing that he was acting as agent for Ham, the defendant; but Leonard was acting for himself, and subsequently he sold the bricks to Ham. It was expressly found as a fact that Leonard was not guilty of any false representations as to agency, and it was a case of error and mistake on the part of the plaintiffs as .to the principal with whom they were dealing.” Of course, Stoddard & Co. failed in the action.

Defendants in error also rely on a remark of Mcllvaiue, J., delivering the opinion in Dean v. Yates, 22 Ohio St. 388, as to the effect of delivery of possession to a fraudulent vendee. But nothing was determined in that case inconsistent with the conclusion stated in this case. On the contrary, Dean v. Yates is entirely consistent with our decision of this case, and supports it, as it is likewise supported by Sanders v. Keber, 28 Ohio St. 630, also cited by defendants in error.

In the finding of facts in the court of common pleas, it was ascertained that, if Hamot was entitled to recover, the amount then (June 11, 1877) due to him, deducting the sum paid by Rohner, was $137.28. The judgment of the district court and court of common pleas will be reversed, and judgment will be rendered in favor of Ilamet and against the defendants in error for that sum, with interest from June 11, 1877, and costs.

Judgment reversed.


author: By the Court.

text:
    Hornbuckle v. The State.
    A justice of the peace has no jurisdiction of an action on the bond of a constable.
    Error to the District Court of Lawrence County.
    On September 17, 1875, a suit was brought before W. 0. Woods, a justice of the peace of Perry township, Lawrence county, upon tbe official bond of M. T. Hornbuckle. The bond, dated April 9, 1875, is in the penal sum of $1,000, payable to the State of Ohio, recites the election of Horn-buckle, as constable of Upper township, Lawrence county, is conditioned as required by statute (1 S. & C. 802, § 184; Rev. Stats. § 1516), and is signed by Hornbuckle as principal, and James M. Kelley and Thomas Golden as sureties. The action was in the name of the state of Ohio, for the use of Lewis Smith, and against Hornbuckle, Kelley and Golden, and the ground of recovery alleged in the bill of particulars, was that Hornbuckle, having in his hands, as such constable ol Upper township, an execution in favor of said Smith against Peter Schlosser, did, on September 9,1875, make a false return thereof. The return and its falsity, as well as the bond, are set forth in the bill of particulars. Judgment was rendered in favor of the plaintiff and against the defendants, for $47.63 and costs, and that judgment was affirmed in the District Court. This petition in error was filed in this court, on leave, by Hornbuckle, Kelley and Golden, and the question is whether the justice of the peace had jurisdiction of the action.

      W. S. Forgey, for plaintiffs in error:

      State v. Colerick, 3 Ohio, 448; Powell v. Jones, 12 Ohio, 35; State v. Jennings, 14 Ohio St. 73; Ford v. Parker, 4 Ohio St. 576; Hackworth v. Robinson, 31 Ohio St. 655; Hall v. Strong, 1 West. L. Mo. 698; 2 Ib. 105.

      O. S. Collier, for defendant in error.
   By the Court.

Justices of the peace have exclusive original jurisdiction of any sum not exceeding $100, and concurrent jurisdiction with the court of common pleas in any sum over $100 and not exceeding $300, except as otherwise provided by statute. 1 S. & C. 770; Rev. Stats. § 585. They are vested with jurisdiction “ to proceed against constables failing to make return, making false return, or failing to pay over money collected on execution issued by such justice.” 70 Ohio L. 180; Rev. Stats. § 583. On the judgment so rendered, there is no stay. 68 Ohio L. 15; Rev. Stats. § 6652. But the statute further provides, that “ justices of the peace shall not have cognizance . . . in actions against justices of the peace or other officers for misconduct in office, except in the cases provided for in this act” (1 S. & C. 172, § 10; Rev. Stats. § 591), the exception, as applied to this case, being that above stated. In view of these statutory provisions, a justice of the peace has no jurisdiction of an action upon the bond of a constable.

Judgment reversed.


author: Longworth, J.

text:
    Weaver v. Carnahan.
    1. Where plaintiff sues to recover the value of services rendered, and defendant admits the rendition of the services, but denies the value to be as great as claimed, and avers that it does not exceed a certain specified amount, it is error to render a judgment in plaintiff's favor for such amount, and continue the cause for trial, to determine the further value of such services.

      2. Where defendant, in such case, denies the rendition of the services and further alleges that, even if they had been rendered, they would have been worth a specified sum and no more, and the court thereupon, without trial had, erroneously renders judgment against him for such amount, the judgment, if acquiesced in by defendant, is final, and a bar to further proceedings.
    3. Section 376 of the Code, as amended March 13, 1873, (69 O. L. 44), applies only to cases where a part of the emse or causes of action is admitted and part denied. (Moore v. Woodside, 36 Ohio St. 537, distinguished.)
    Error to the District Court of Butler County.
    . Carnahan brought his action in the court of common pleas against Weaver to recover $111.50, with interest, which he claimed to be due him upon an account for medical services, a copy of which account he attached to his petition. The answer of defendant was as follows :—

      “ The defendant for answer denies that there is due to the plaintiff on said account $117.50 as alleged in the petition. He admits the items in said account:
    22 April, 1875,........$4 50
    27 April, 1875, . . ...... 4 50
    3 May, 1875,........ 4 50
    2 July, 1875,........ 4 50
    15 July, 1875, . '.......4 50
    1 August, 1875,' . ......4 50
    8 October, 1875, . . . . . . . • 4 50
    13 October, 1875, . . . . . 4 50
    17 October, 1875,....... 4 50
    $40 50
    “ lie says plaintiff expressly agreed to make no charges for medicine and medical aid rendered defendant’s family, besides his wife. He denies that the value of the residue of said services and medicines and prescriptions were worth as much as stated in the petition. He says said entire amount should not be more than ninety dollars.”
    The plaintiff replied denying each and every allegation of the answer.
    Thereupon, on motion of plaintiff the court rendered judgment against defendant for the sum of $90, and continued the cause for further disposition. The amount thus found due, the defendant paid.
    At the following term the court proceeded to hear the case and found that there was still due to the plaintiff upon the account, aforesaid $26.75, for which sum judgment was rendered against defendant. A motion for a new trial was overruled and the cause coming into the district court for review the judgment of the court below was affirmed.

      Thomas Millikin, for plaintiff in error.

      McKenny & Andrews, for defendant in error.
   Longworth, J.

The answer of defendant, as a pleading, is exceedingly vague and unsatisfactory. Whether by it the defendant offered to confess judgment for the sum of $90, or to deny the rendition of any services, except those expressly admitted, and to allege, by way of alternative, that such services, if they had been rendered, would not have been worth, all told, more that $90, is not as clear as we could desire. The latter construction, however, is the more reasonable. Treated as an admission of the facts stated in the petition, except as to the value of the services rendered, the judgment upon the pleadings would have been final, and the action of the court, in rendering a further judgment in plaintiff’s favor would be too plainly erroneous to admit of discussion.

The court below seems to have treated the case as one of that class to which the provisions of § 376 of the code of proceedure apply. 69 Ohio L. 44. That section provides that defendant having answered “ to a part of the cause or causes of action alleged, the court mjiy, in its discretion, render judgment upon such part or parts as are not put in issue by such <mswerP Under the discretionary power thus conferred the court might, undoubtedly, have rendered judgment in plaintiff’s favor for $40.50 upon the nine items expressly admitted by the answer to have been correctly charged, and then continued the cause for trial upon the issue or issues raised. But this was not done.

As to the remaining items of account the answer either admitted or denied that the services were rendered. If it admitted their rendition the mere denial that they were of the value alleged would be surplusage, and the court might have rendered judgment against defendant as by default, there being no issue of any kind raised by the answer. If, on the other hand, the rendition of services was denied, then it was error to enter up judgment against defendant for $90, without trial, as was done. But of this error the defendant made no complaint; on the contrary, he paid the judgment, and only objected to the court proceeding against him further. Upon either hypothesis the judgment was a finality.

Section 376 of the code applies only to cases where apa/rt of the cause or causes of action is admitted and part denied ; it does not apply where all are admitted or denied.

Moore v. Woodside, 26 Ohio St. 537, in nowise conflicts with this doctrine. True, in that case the jflaintiff had but one cause of action, the suit having been brought to recover the agreed value of goods sold. But the answer alleged that the goods had been sold by sample, and were inferior to the samples in a specified amount, and offered to confess judgment for the agreed price less this amount. Here it is plain that the defendant might have paid the agreed price, and would then have had a right of action against plaintiff for the breach of warranty. Instead of so doing he sought to recoup in the same action; and it was upon the sole ground that the defense was a counterclaim, and not a mere denial of the amount of damages, that the decision in that case was based. The judgments of the district court and court of common pleas will be reversed.

Judgment accordingly.