author: ^Hitchcock, C. J.

text:
    *John Kugler v. Thomas J. Wiseman and Henry W. Borchelt.
    The judgment of an inferior court will not he reversed on error for an erroneous charge to the jury, unless such charge he upon questions material to the ease, and such as have resulted prejudicially to the plaintiff in error.

    Where persons agree on the 18th of April, in writing, to perform certain work by August 1st, and the written contract is signed by the parties, and is . also signed by a surety as such, for the performance of the work, and afterward, the work having been commenced, is suspended at the instance of the party for whom it was contracted to be done, with the intention not to have the work completed, and again resumed a month after the time fixed by the contract for the completion of the work, at the instance of the party for whom the work was, by the contract, to be done, upon his promise to pay, over and above the contract price, the additional cost of the work, in consequence of an increase in the price of wages and materials, and the work being finished in January following, suit is brought, not on the contract, but for the work and labor, the original contract is competent evidence to the plaintiffs, and it is no objection that the surety is not a party plaintiff.
    In such case it is competent, as a means of arriving at the increased cost of the work, in consequence of a rise in the price of wages and materials, to inquire of a witness generally the difference in the price of wages and materials in the spring and summer months, and the fall and winter months—although the question is not limited to the particular year in which the work is done. Inquiry may be made as to the difference in prices generally, and then ascertain whether the difference in this particular year varied from others.
    It is competent to prove, in such case, the difference in the way of per centum, between the price of materials and labor in the early and latter part of the year 1846 (the year the work was done).
    In such case, the surety in such contract is a competent witness for the plaintiffs seeking to recover for their work and labor. The suspension of the work released the surety from liability.
    In such case, the party sued for the work, being entitled, under the statute, to swear to his book-account against the plaintiffs, but not availing himself of the privilege, can not offer his book of accounts in evidence against plaintiffs, upon proof that the book is his book of accounts; that the plaintiffs compared their memorandum book with it at one time, and there appeared to be no difference, so far as the witness observed—being at that time engaged about his own business in posting books.
    The suspension of the work by the party for whom it was to be done, until after the time when the work was to have been completed, releases the other parties from obligation to complete the work under the contract, and puts an end to contract; but the party thus suspending the contract is liable for a breach of it.

      In the case stated, the plaintiff is entitled to recover for labor and materials before the suspension of the work as well as after. If, after the plaintiffs had been released from the contract, by the suspension of the work, a new contract was made by which the work was resumed, it is for the jury to determine what that contract was, and whether time was to be given as in the original contract, for making a portion of the payments for the work.
    *Error to the Supreme Court of Hamilton county.
    The original action wás assumpsit, commenced by Wiseman and Borchelt against Kugler, in the court of common pleas of Hamilton county. The declaration contained the common counts, for work and labor, goods sold, money paid, had and received, etc.
    To this declaration the then defendant, Kugler, pleaded the general issue, and gave notice of set-off.
    At the November term of the court, A. D. 1849, the case was tried by a jury, a verdict returned in favor of Wiseman and Borchelt, and their damages assessed at ,175. A motion was then made for a new trial, by Kugler, which was overruled by the court, and judgment entered upon.the verdict. Kugler, by his counsel, then presented a bill of exceptions, which was signed and sealed by the judges, and made part of the record.
    The bill of exceptions is of great length, setting forth all the testimony in the case; but it is believed that sufficient appears in the opinion of the court to show, not only the points decided, but also the evidence, so far as it had any reference to those points, and it is deemed unnecessary, by the court, to insert in the report the bill of exceptions at length.
    The errors assigned in the Supreme Court were:
    “ 1. The court of common pleas admitted improper and illegal testimony, and ruled out competent and legal testimony.
    “ 2. The court erred in its charge to the jury.
    “3. The court refused to charge as requested.

      “4. The court refused to grant a new trial.
    “5. The court gave judgment for Wiseman and Borchelt.”
    The Supreme Court of Hamilton county affirmed the aforesaid judgment, and this writ of error is prosecuted to reverse the judgment of the Supreme Court.
    The errors assigned in the court are, in substance, that the Supreme Court erred in affirming the judgment of the court of common pleas.

      *Fox & French, for plaintiff in error:
    I. The plaintiffs, in order to sustain their action, gave in evidence the original agreement between the parties, dated April 18, 1846. It purports to be an agreement between “ John Kugler of the one part, and H. W. Borchelt and Thomas Wiseman, principals, and John Wiseman, as security, all of Cincinnati, of the second part."

    By this agreement, the party of the second part, for $5,300, agrees to furnish materials and labor for erecting three houses, etc.
    The first exception is on the admission of the contract offered by the plaintiffs below, to the admission of which the defendant below objected, because it was a contract in the name of Kugler, on the one part, and Thomas J. Wiseman, Henry W. Borchelt, and John A. Wiseman, of the other part, and the latter was not a party plaintiff in the cause. Stage v. Olds et al., 12 Ohio, 147; 12 Ohio, 167 ; 1 Chit. PL 6 ; 2 Greenl. Ev., sec. 110 ; 3 Scam. 536; 8 Shep. 111; 2 Ib. 295.
    II. Another question propounded by the plaintiff in these words was objected to, viz: “ State generally what is the difference in the prices of labor and materials in the spring and summer months, and fall and winter months, particularly lumber and bricks, and carpenters’ work and bricklayers’ wages.”
    The objection urged to this question was, that the question was not confined to the year 1846.
    It appears perfectly clear that the question ought to have been confined to the year 1846—what difference did it make in the case if there was any such increased price in 1844 or in 1848?
    Again, the question was objectionable because it was to prove a general fact instead of a specific fact.
    III. Another objection urged during the progress of the trial, was as to the admissibility of John A. Wiseman to testify in the cause. He was offered by the plaintiffs, objected to by the defendants, but the objection was overruled.
    Mr. Wiseman is one of the contracting parties, and as such, *was directly interested in the event of the suit. It is claimed he was a surety merely, and therefore competent. If we admit the fact that he was a mere surety (which we do not), the principle is the same. He was directly interested ih establishing the cause of the complainant, for, by so doing, he would relieve himself from liability on the contract with Kugler. But the fact is, this is a joint contract. 12 Ohio, 167.
    IV. We asked the court to charge, that all the plaintiffs could recover in the action is the value of the extra labor and materials occasioned by the suspension of the work, provided the original contract was not altered or changed further than to pay for any extra price which such materials and labor cost.
    This the court refused to give, because, they said, if there was no other alteration, no recovery could be had.
    Now, it is well settled that where a carpenter or builder agrees to erect any building for a particular sum of money, but additions or alterations are afterward made, the tradesman is bound by the contract as far as it can be traced, and entitled to recover on a quantum meruit for the excess only. 2 Com. on Cont. 360.
    So in Wright v. Wright, 1 Litt. 182, it is said, as far as it (the contract) can be traced, the parties should be bound by the contract, and for any excess of labor in consequence of the enlargement of the plan, etc., damages commensurate with the value may be recovered. Bank of Columbia v. Patterson’s Adm’r. 7 Cranch, 299; 2 Pet. Cond. 501; Story on Bailments, see. 441.
    And in Chitty on Contracts, it is said, “ and where additions are ordered and made to a building which a workman contracts to repair or erect and finish, for a certain sum, the original contract shall exist as far as it can be traced to have been followed, and the excess only paid for according to the usual rate.”
    V. The third charge asks the court to instruct the jury, that the plaintiffs can not recover the items of $1,325, due in six months, and $1,325, due in twelve months after the buildings *were completed, because they were not due when the suit was.brought.
    The modification of the charge can not affect the case, because there was no evidence of an abandonment of the contract—no evidence that either party did not rely upon the original contract for everything, except as to the additional compensation by reason of any rise in the price of.materials. The party himself, on the trial, relied upon the original contract, as still subsisting, to prove the value of the work done and materials furnished. Without this contract he offered no evidence as to the value of the work done.
    VI. The fifth charge asked, was, that if there is no evidence of any new contract except as to the additional cost of the work and materials, the written contract must govern the parties as to time of payment, without regard to the question whether the defendant has paid money faster than the same was due. Chit, on Cont. 566; Koon v. Greenman, 7 Wend. 123. .
    YII. During the progress of the trial the defendant offered in evidence the original book of items, showing the amounts actually paid to the plaintiffs during the progress of the work, connected with the testimony of Richard Lloyd, who stated that he was present (in the office of P. Andrews, for whom he is clerk, and where Kugler also kept his office, near to the buildings in question), about the time the buildings were nearly finished, when Wiseman, one of the plaintiffs, and Kugler, came into the office; that Kugler then took the book in question, which the witness identified, and Wiseman also had his memorandum-book; they then compared notes, and they appeared to agree in relation to the items entirely, and there was no difference between them j there was no objection raised by Wiseman to Kugler’s account.
    The question is, can not this book, with the evidence of Lloyd, be submitted for the consideration of the jury? We do not claim it is conclusive, but ask if it is not competent ^evidence to-be left to the jury as an admission made by the party. Greenléaf on Ev., see. 199.
    It is well settled that if a merchant renders an account to another merchant, and it is not objected to, it is considered as allowed. 1 Greenleaf on Ev., sec. 197; Freeland v. Herron, 7 Cranch, 147 3 Johns. Ch. 575; 1 Stark. 327; Coe v. Hattere, 1 S. & R. 406.
    YIII. It is claimed, however, that the contract was evidence to show the original amount of the contract price, and that for all •the extra price the two plaintiffs (and not they and John A. Wise-man) alone could recover. If this was so, still the verdict is wrong, because in that view of the case, all that these plaintiffs could recover would be the extra price or cost of materials and labor; but they have added to the original price twenty per cent, for extras, and in that way only can they begin to sustain the verdict.
    But this view is directly contradicted in 2 Fair. 348; Robinson v. Godfrey, 3 Com. L. 101; 4 Wend. 291.
    Every authority cited by defendants in error, when examined will be found to sustain every position assumed by the plaintiff in ■error. They establish these principles:

      1. That where a special contract has been made, it is binding upon the parties, both as to price, terms of payment, etc.
    2. That if additional or extra work has been done, or if the work has been delayed and again resumed, and done and accepted, the contract is binding, so far as it goes, and the value of the additional work, or the extra price occasioned by the season of the year in which it was done, may be recovered. (In this case this was the exact agreement made.) The agreement made, and the one which would have been implied if no agreement had been made, are the same.
    3. If the original contract was in the name of two, and the extra work was done in addition, both original parties may recover for the original price, and for the additional price.
    Pugh & Pendleton, for defendants:
    ♦Kugler directed Wiseman and Borchelt to stop the work and abandon the contract of April 18,1846. Some time afterward, however, Mr. Kugler made application to Wiseman and Borchelt to renew the contract and proceed with the work. They refused to do so, it appears, because the delay would throw the job on their hands during the fall and winter months, when wages, materials, etc., were commanding much higher prices than during the months originally allotted for it. Mr. Kugler assented to the justice of this objection, desired them to undertake and finish the houses according to the original plan, and promised to pay them (specifying no times of payment) the enhanced value of the work and materials. He declared his perfect willingness, also, to pay whatever “any man” would say was right.
    On this footing, as the proof shows, Wiseman and Borchelt recommenced the work. The surety, John A. Wiseman, was not even notified of the renewal; much less, therefore, did he consent to become liable again. And after all the work had been completed, Kugler told him, the surety, that he had never expected to hold him.
    We claim, then, to recover the price and value of labor performed and materials furnished by Thomas J. Wiseman and Henry W. Borchelt for John Kugler, in the erection of three houses; which labor was performed, and which materials were furnished under a parol agreement or contract, to which John A. Wiseman was not a party, and of which (at the time it was made) he knew nothing. The agreement was that the defendants in error should-perform the work and furnish the materials specified in a certain paper and in'the manner therein specified ; which paper purported to be a contract signed by John Kugler of the one part, and Thomas J. Wiseman and Henry W. Borchelt, principals, of the other part, and to which also, as surety, John A. Wiseman had pub his name. And which paper—the contract of April 18, 1846— furthermore, had once been a contract between its signers, but had been set aside, and abandoned, at John Kugler’s own instance. We *claim that the defendants in error, by that parol agreement, were entitled to receive the compensation mentioned in that paper (§5,300), and such further sum as the increased rate of wages and price of materials in the fall and winter months of the year would render honest and l’easonable.
    On this claim, and no other, the jury found a verdict, and the court of common pleas gave judgment.
    The plaintiffs below proceeded with their evidence in this order:
    1. They proved, by exhibiting the paper, the quantity and bind of work to be performed and-materials to be furnished.
    2. They proved that the paper was no longer a contract, and at whose instance it was abandoned.
    3. They proved the terms of the parol agreement.
    4. They proved the fact of an increase in the rate of wages and prices of materials during the fall and winter months of every year, and the reasons for it.
    5. They proved that the year 1846 was not an exception to the course of other years.
    6. They proved what was the rate of increase, in 1846, both as to wages and materials.
    I. Was the contract of April 18, 1846, competent evidence? It was offered as any specification, memorandum, or other document, which the parties had before them, or to which they made reference, might have been offered. The parol agreement, upon which we sued, referred to the paper as specifying the work to be performed and the materials to be furnished, and as aiding the parties to fix the compensation payable. Jewett v. Weston, 2 Fair. 346.
    The paper was competent and necessary, also, as a standard for estimating the price payable under the parol agreement. Jewett v. Weston, 11 Maine, 348.
    II. The general question as to difference in value of labor and materials in spring and fall. 2 Phil. on Ev., Cow. & Hill’s Notes, 294; Seller v. Norman, 4 C. & P. 80; Dwight v. Brown, 9 Conn. 83.
    *111. Was John A. Wiseman a competent witness? We claim he was. Stage v. Olds, 12 Ohio, 167; Smethurst v. Woolston, 5 Watts & S. 106.
    An objection to the witness, in limine, must be certain, clear, and apparent; for if his competence be doubtful or depend upon further developments, he will be sworn—subject to the court’s charge or subsequent direction.
    We offered testimony which tended to prove, in the court’s opinion, an abandonment of the written contract; we then offered John A. Wiseman as a witness, and his evidence was received. But the court instructed the jury, time and again, that unless we had proven the abandonment claimed, to the jury’s satisfaction, we could not recover anything—neither with nor without John A. Wiseman’s evidence.
    IV. Defendant below asked the court to charge that, if the original contract had only been altered in respect of the pfiice to be paid, the plaintiffs below could only recover a certain amount The court charged the jury that, in such an event, we could recover nothing.
    Now, when a party can gravely assign, for case of error, that the court gave him more than he asked, we do not think it a matter for argument.
    V. The third instruction prayed by the plaintiff in error was, in effect, that the times of payment specified in the written contract had been carried into the subsequent parol contract, and that, therefore, two installments of money were not due.
    This was a question of fact, to be determined by the jurors themselves. The abandonment of the written contract, and the terms of the parol contract, were the very matters in dispute. But the court told the jurors to examine this evidence, and to give effect, by their verdict, to any contract which the parties might have made; and that, if no specific price had been fixed, they must take the market price, at the time, as a rule for ascertaining the value. This instruction, we submit, was perfectly correct.
    *V1. The fifth instruction prayed is divisible into two branches. The court has given the first branch,.in charge, by its first instruction. The second branch, we submit, was unwarrantable, and properly refused. Any and every variation from the terms of a written contract, by the express or implied assent of the parties, must afford some proof upon the question whether the contract was or was not abandoned. To have instructed the jury that any variation could have no effect in deciding that question, would clearly have been erroneous.
    TIL Was-Kugler’s book of account competent evidence ? We claim not, for these reasons:
    1. Mr. Kugler did not offer to swear to its correctness, as the statute, in the case of a book-account, requires.
    2. It was not proven to be in' the handwriting of a clerk who was either dead or absent. 1 Phil. Ev. 259.
    3. It was not even proven to be in Kugler’s own handwriting. 1 Greenl. Ev., sec. 118.
    4. The entries were not proven to have been made contemporaneous to the payments or transactions themselves. 1 Greenl. Ev., see. 118 ; Walker v. Bollman, 8 Watts, 544.
    5. Besides the charges for articles said to have been obtained from people living in Cincinnati, by the plaintiffs below, on Kugler’s order, the charges were all for money alleged to have been paid to Thomas J. Wiseman himself. Cram v. Spear, 8 Ohio, 494, decides that money paid is not properly proven by a book-account.

      Finally. The counsel for plaintiffs below asked this question : “ State the difference, by way of per centum, between the prices of materal and labor in the early and latter jiarts of 1846.”
    This was a proper question.
    Robson v. Godfrey, 1 Holt’s N. P. Cas. 85; Oldfield v. Lowe, 9 B. &. C. 73; Lucas v. Goodwin, 3 Bing. N. Cas. 737; Pepper v: Burland, Peake, 103; Dubois v. Delaware and Hudson Canal Co., 4 Wend. 285 ; 12 Wend. 334; Chit. on Cont. 110, 541.

       See the authorities upon this point cited in argument in Choteau v. Raitt; in Ash v. Marlow, and Washington Mut. Ins. Co. v. Reed & Brown, in this volume of Beports.

   ^Hitchcock, C. J.

The questions presented for the consideration of this court are precisely the same as were presented to the Supreme Court in the county of Hamilton, and although in form the case comes before this court by writ of error, it is, in fact, rather in the nature of a rehearing.

The record, including the bill of exceptions, is very voluminous, and various points of law were made and ruled, in the progress of the trial, in the court of common pleas, to the ruling of the court, upon which exceptions were taken, and in which ruling it is now insisted that the court of common pleas erred.- That court was requested by the counsel for the plaintiff in error, to give certain specific instructions to the jury, which were not given, and herein it is claimed there was error. It is further claimed that there was error in refusing a new trial. These several matters I propose to examine in the order in which they are presented by the record.

Before doing this, however, it may be proper to give a general view of the case, as presented by the bill of exceptions.

On April 18, 1846, a written contract or agreement was entered into between John Kuglcr, the plaintiff in error, of the one part, and Thomas J. Wiseman and Henry Borchelt, defendants in error, and John A. Wiseman, of the other part; John A. Wiseman signing as surety.

By the terms of this agreement, the party of the second part agreed, for the consideration of $5,300, to finish and complete three houses on East Front street, in Cincinnati, they furnishing the materials, of the dimensions and after the manner specified in the contract—to be completed on the 1st day of August then next following.

For this work Kugler agreed to pay $5,300; a part in advance; a part during the progress of the work; $1,325 six months after the buildings were finished; and a like sum of $1,325 in twelve months from the same time, with interest. Wiseman and Borchelt were to commence at and complete the building from the top of the cellar wall.

In pursuance of this contract, Thomas J. Wiseman and Borchelt *made preparations for and commenced the work. Quantities of lumber and other materials were prepared. At about the time they were prepared to put in, or were putting in the first tier of joists, Kugler, having sustained, or supposing he had sustained heavy losses in his business, and believing he should not be able to complete the buildings, put a stop to the work. This was probably the latter part of May, or some time in June. The exact time can not be ascertained from the testimony; but there is no controversy but that the work was suspended by his procurement. Ho visited New Orleans, and perhaps other places, and-ascertained that his losses had not been as great as he had apprehended. After his return to Cincinnati, he was anxious that the buildings should be completed, and applied to Thomas J. Wise-man, or "Wiseman and Borchelt, to persuade them to go on with, the work. Wiseman objected, on the ground that the work was to have been done in the spring and early part of the summer, when labor and materials were of less value than in the latter part of the summer and fall. Kugler urged him to go on, assuring him that he should lose nothing, and that he would pay in proportion, or according to this increased value. Finally, Wiseman and Borchelt went on with the work, and finished it in January following. It does not appear that John A. Wiseman had ever any concern with the work, or that he was a party to this arrangement, pursuant to which the work was recommenced, after it had been suspended. How long the work was suspended does not appear; but it would seem but a small portion had been dono when the suspension took place. One witness, and I think he is the only one who speaks of the recommencement, says he supposes it was recommenced about the last of August, or 1st of September, one month after, by the terms of the contract, the entire work should have been completed. Such is the general aspect of the case, although, owing to the diversity of testimony, there may, perhaps, as to some matters stated, be some doubt.

On the trial of the case, the plaintiffs below first offered in evidenee to the jury the written contract before referred to. *To this testimony the counsel for Kugler objected, because that instrument was signed by John A. Wiseman, and he was not a party to the suit. This objection was overruled by the court, and the written instrument went to the jury. In this, it is said that the court of common pleas erred. We think otherwise. The .action was not based upon the contract. It was a claim set up, not by the two Wisemans and Borchelt, but by Thomas J. Wise-man and Borchelt, to recover compensation for work and labor which they had done and performed for Kugler, not strictly in pursuance of that contract, but in pursuance of an arrangement made, as they claimed, after they had been prevented, by the act of Kugler himself, from the performance of that contract, but which had reference to it, so far as the price to be paid was concerned. It was an item of evidence which might properly go to the jury. The legal effect would depend upon other testimony, which might subsequently be introduced. But if, as Kugler’s •counsel contends, the work was done under this original contract, .and John A. Wiseman was a party to that contract, and should have been a party plaintiff, Kugler could not well have objected to the introduction, by the plaintiffs, of this contract, as the only effect would have been to prove themselves out of court.

In the further progress of the trial, the plaintiff’s counsel propounded the following interrogatory to a witness: “ State generally what is the difference in the prices of labor and materials in the spring and summer months, and the fall and winter months, particularly lumber and brick, and carpenters’ and brick-layers’ wages.” This question was objected to, because the question was confined to the year 1846—the year in which this4work was done. The court, however, overruled the objection, and permitted the question to be propounded and answered-. Now if the object was to ascertain the difference in this particular year, we do not see that there could be any substantial objection to the interrogatory, as propounded. Inquiry might be made as to the difference of prices ^generally, and then ascertain whether the difference in this particular year varied from other years.

Another witness was inquired of by the then plaintiff’s counsel to “ state the difference, in the way of per centum, between the price of materials and labor in the early and latter part of the year 1846.” To this question the counsel for defendant below objected, because the question was incompetent, as not showing the actual increased expense of the price of materials and labor to the plaintiffs, but the court overruled the objection, and permitted the question to be propounded and answered.

Whether the decision upon this question was proper, must depend upon the peculiar circumstances of the case, and the previous testimony in the case. The previous evidence conduced to prove that the original contract had been ended by the act of the defendant below. He had prevented the other parties to the contract from complying with that contract. Ho had caused them to suspend the work, after but comparatively little had been done, until long after the entire job should have been completed. Subsequently he persuaded them to resume the work under an engagement to pay them, in addition to the contract price, either the enhanced price of labor and materials in the latter part of the year, or what should actually be the increased cost to the builders in consequence of such enhanced price. What the contract was,, in this particular, the jury must determine from the evidence. The evidence not being perhaps explicit, it was proper that this question should be propounded and answered; and if the jury should be satisfied that the contract was for the enhanced price, as contended for by the plaintiffs below, then they would have the evidence before them from which to ascertain the amount.

Among others, the plaintiffs below offered, as a witness, John A. Wiseman, and he was objected to as incompetent, on the ground that he had signed the original contract, which had been given in evidence, and therefore was interested in the event of the suit. This objection was overruled, and he was *examined. This decision of the court was excepted to, and it is claimed to have been erroneous:

If John A. Wiseman could gain or lose by the event of the suit, then he should have been excluded. But it is impossible for this court to see how he could have gained anything, or could be subject to any loss. Counsel say that a verdict against the defendant below might, by possibility, prevent him from the recovery of any damage upon the original contract, in consequence of the work not having been well done. Even admitting this, which we do not, it does not constitute that direct and certain interest which is necessary to exclude a witness.

But the testimony introduced before this witness was offered, conduced to show that the performance of this contract had been prevented by the act of the defendant below, by which John A. Wiseman was discharged from any obligation imposed upon him by”that contract. And it conduced to show further, that much the largest portion of the work was done in pursuance of a new arrangement, entered into between Kugler and Thomas J. Wiseman, and Borchelt, after the time when, according to the original contract, the whole work should have been completed. To’this latter arrangement John A. Wiseman was not a party, nor had he in it any interest. We think he was a competent witness.

In the further course of the trial, and in making his defense, the then defendant brought forward a book, and proved by a witness that it was his (the defendant’s) book of accounts—in which was an account against the plaintiffs below. The witness further testified, that on one occasion, toward the close of the work, Wiseman was in the office, and had his memorandum-book with him; that Wiseman and Kugler were looking over the book of accounts and the memorandum-book, and that there appeared to be no difference between them. At this time the witness was engaged about his own business, in posting books. Having offered this testimony, the book itself was offered in evidence. It was objected to by plaintiffs’ ^counsel, and the objection sustained. In this, it is claimed, that the court erred.

We are not prepared to say that there was any error in this decision of the court. I suppose it was intended to infer from the circumstances, that the correctness of the account was admitted. Those circumstances were not sufficient to justify such inference. The defendant in error, under the statute, might have sustained his account by his own oath. This, for some cause, he did not do, and not having done it, I think the court very properly sustained the objection to receiving the book in evidence.

After the evidence in the case was closed and the arguments of counsel, the defendant below, now plaintiff in error, requested the court to instruct the jury, “that if they believed the original contract was only altered, so far as to pay for extra price of materials and labor done, between the price of such materials and labor in the time mentioned in said contract, and what such materials would be worth at the time the work was actually done, then all the plaintiffs can recover in this suit is the amount of such difference in the costs of labor and materials, and they can not recover the original contract price.”

In response to this, the court instructed the jury “ that if that was the only alteration the plaintiffs were not entitled to recover at all, because John A. Wiseman, under that view- of the case, would have a right to recover, and he was not a party.”

In this it is claimed there is error. I am not fully satisfied myself with the charge, but how the plaintiff in error can complain, is not so readily seen. His request was, that in a certain hypothetical state of case, the plaintiff below could recover only to a certain extent. The court replied that in such state of case, the plaintiffs could not recover anything. Admitting the court to be wrong, no injury was done to the plaintiff in error, unless it would have been better for him to have a verdict against him to a limited amount, than a verdict in his favor. For an error committed by an inferior court, the-^superior court will not reverse a judgment, unless that error was calculated to do an injury to the party seeking the reversal.

The plaintiff in error, by his counsel, further requested the court to instruct the jury “ that if they believed the defendant agreed to pay, in addition to the contract price, such additional price for materials and labor, as the cost of such materials and labor would amount to, more than the same materials and labor would have cost, if the buildings had been erected in May, June or July, according to the terms of the original contract, it is incumbent on the part of the plaintiffs to prove the amount, which the additional cost and labor amounted to, and they can only obtain such additional costs of materials and labor, in addition to the original contract.”

This instruction the court refused, but instructed as before, with the addition, “ that if a subsequent parol contract was made, by which the parties accepted the original contract to regulate the price, they must look to the evidence to see the difference between the old and new contract, that the plaintiffs would be entitled to the market value of labor and materials, according to the course of trade.”

As before, the court instructed, that in the hypothetical case supposed, there could be no recovery, but added, in substance, that if there was a subsequent parol contract, as claimed by plaintiffs below, the plaintiffs were entitled to the market value of labor and materials, without positive proof of the actual increased cost to them.

In this we think there was no error.

Again, the plaintiff in error requested the court to instruct the jury, that the plaintiffs can not recover in this case, the items of $1,325, due in six months, and $1,325, duo in twelve months after the buildings were completed, because the time for such payments had not arrived when this suit was brought.”

The court refused to give this instruction, as charged, but told the jury if the original contract was abandoned, they must look to the subsequent contract; and if by that there was *to be paid the $5,300, and also the additional price in the materials and wages, the plaintiffs were entitled to the fair market value in the rise of materials and labor, no matter what the same might have cost the plaintiffs.”

Did the court err in refusing this instruction as asked ? By the terms of the original contract, a credit was to be given, and the great struggle through the whole case seems to have been—on the one side, to make out that the work was done upon this contract, with some little addition of payment to be made for the rise of materials and labor, in consequence of the work having been delayed by the plaintiff in error; and on the other side, to establish •the fact that a subsequent contract was made, by which the old one was abandoned, with the exception of the price therein fixed to be paid for the erection of the buildings. That the original contract was not complied with, was not the fault of the builders, but of the owner of the property. In consequence of his supposed embarrassments, he stopped the work, and would not permit the builders to complete it according to contract, and he kept it suspended until the time had elapsed within which the work should have been done. Undoubtedly, by this conduct, the other contracting party was released from all'obligation under this contract. Not only so, but by his own conduct, the plaintiff in error had rendered himself liable to the other contracting party for a breach of the contract. That contract was put an end to.

At a subsequent period, and after the time when the buildings should have been completed, Kugler applied to the builders, requesting them to go on with the work. The evidence recited in the bill of exceptions, shows that they refused to do it, assigning for cause of refusal that materials and labor were more expensive in the latter part of the year, than at the time, when, by the terms of the original contract, the work should have been done, they would have been. In other words, that building was more expensive in the latter part of the year than in the early. The proposition was then made by Kugler, to pay this increased expense. At least such is the claim, and the *proof seems to warrant it. It does not appear that in this new arrangement anything was said about the time of payment. Whether there was such a new contract was for the jury to determine, and they have found that there was. At least they must have found this, in order to have found for the plaintiff. Besides, had the suit been brought upon the original contract, even had John A. Wiseman been a party plaintiff, there could have been no recovery, for the work was not done in accordance with the contract. By that contract it should have been done' by the 1st of August—it was not done until the January following. In some of the instruction requested, the counsel for plaintiff in error seem to suppose that, although the defendants in error might have recovered for the labor performed and materials furnished after the work was recommenced, yet they could not recover for the labor and materials furnished before -the work was suspended, because John A. Wiseman is not a party. How it is impossible not to understand the relation of these parties. True, John A. Wiseman signed the contract; but he signed as security that Thomas JWiseman and Borclielt would do the work and furnish the materials. It could not have been expected that he was to do one or the other. If they failed, he then would be liable. In no court could he gain anything. The only interest he had in the matter was to see that they performed the contract. Such is the commonsense construction of the whole matter. And under such circumstances, it seems to me that in an action like the present, they would be entitled to recover, as well for the work and labor performed, and materials furnished, before as after the suspension of the work.

If there was such a new contract as claimed by the plaintiffs, below, and in it nothing said as to the time of payment, then the court might well withhold the instruction last referred to.

Again, the court was requested to instruct the jury, “that if there is no evidence of any new contract, except as to the additional cost of the work and materials, the written contract must govern the parties as to the time of payment, without *regard to the question whether the defendant has paid money faster than the same was due. That the mere fact that Kugler has paid money faster than the contract called for, at plaintiff’s request, will not affect the matter, as to the times of jiayment mentioned in the contract.”

This charge the court refused to give, but instructed the jury in the hypothetical case stated, the plaintiffs could not recover at all.

If there was error in this, it certainly was not an error of which the plaintiff in error can complain. It was not an error by which he could be injured.

The next instruction requested was, “that the jury can not allow anything for extra wages-for work done, or costs of materials, by a per centage on the whole amount of the contract-price ; but must confine themselves to the actual advance prices paid for materials and labor furnished and performed; and that for all such items of materials and labor done and furnished at the same prices they would have been charged, if done or furnished in the time mentioned in the original contract, they are not entitled to additional credits.”

This charge was requested upon the assumed hypothesis that the original contract was still in force; that the work was done under it, and that there was no new contract except as to the increased value of labor and materials. The court had repeatedly told the jury that if such was the state of case, the plaintiffs could not recover at all. As to the instruction requested as last stated, the court refused to give it as requested, but charged the jury “that the difference might be estimated by a per centage, and they might ascertain the customary prices of labor and materials in the spring and fall, and allow the fair average difference, no matter what it cost the plaintiffs, whether more or less than the average.” This is complained of as error.

If the contract, in pursuance of which this work was done and the material furnished, was as claimed by the plaintiffs below; that is, if, when the work was resumed, the defendant below agreed to pay the original contract price, and in ^addition thereto, the increased price of labor and materials, in consequence of the advanced prices, then the increased price might be ascertained by ascertaining the per centage advanced, or in any other feasible manner. Such seems to have been the opinion of the court of common pleas, and we think it was correct in principle.

Other instructions were requested, which were given. Those above referred to, are all in which it is complained that any error intervened.

The last error alleged is, that the court of common pleas did not grant a new trial.

We have carefully examined the whole record, voluminous as it is, and from that examination, are satisfied that the verdict of the jury was in accordance with the evidence, and no new trial should have been granted.

The judgment of the Supreme Court is affirmed.

       As to new trials, see note to Swan’s" Pwevised Statutes, 614, 496; 5 Ohio, 544; also Wilcox Dig. Exceptions must be taken to any ruling of the court at the time it is made, or such ruling can no't be assigned for error. Geauga Iron Co. v. Street, 19 Ohio, 300. The overruling of a motion for new trialbeeause the finding of the court or jury was against evidence, can not be re, versed on error unless the bill of exceptions discloses all the evidence. Wagers v. Dickey, 11 Ohio, 439, Hicks v. Person, 19 Ohio, 426.


source: Caselaw Access Project

author: Spalding, J.

license: Public Domain

text:
    Myers & Waterson v. Hunter Erwin & Co.
    When a plea in abatement is met by a replication, and issue in fact is thereupon joined and found for the plaintiff, final judgment must be awarded in his favor.
    The legal consequence will be the same whether such issue be tried by the court or the jury.
    Error to the court of common pleas of Butler county.
    *The action was indebitatus assumpsit, brought by Hunter Erwin & Co., against Peter Myers and Thomas W. Waterson, as partners in trade under the name of Myers & Waterson.
    The defendants in the court below pleaded, in abatement of the plaintiffs’ writ, that the several promises in the declaration mentioned, if any such were made, were made by them jointly with one Alexander P. Miller, under the name and style of Myers, Waterson & Co., and not by them alono.
    To this plea the plaintiffs in the court below replied, but the promises were made by the said Peter Myers and Thomas W. Water-son alone, as alleged in the declaration, and, upon this, issue was joined.
    The cause was tried at the September term, 1850, without the intervention of a jury. The court found the issue for plaintiffs below.
    The defendants moved for leave to plead to the merits of the action ; which the court refused, and rendered judgment for plaintiffs for $151.45 damages, and costs of suit. The defendants then submitted a motion for a new trial, which was overruled ; whereupon exceptions were taken, etc.
    The assignment of errors presents the following propositions:
    1. That the court erred in deciding that the judgment, upon a jilea in abatement, when the verdict is in favor of the plaintiff, must he final.
    2. That the court erred in ruling that defendants, by pleading in abatement, and the issuing being found against them, were concluded from trying the cause on its merits.
    William E. Brown, for plaintiff:
    ■ Our statute removes all objections to which this class of pleas in abatement were liable, at common law. It requires the party-pleading them, to swear to the truth of them. Swan’s Stat. 661, sec. 65. It permits the plaintiff, even after a verdict against him on the plea, to amend and issue a summons for the *rest of the defendants. Swan’s Stat. 661, see. 66 ; 1 Swan’s Prac. and Prec. 79.
    If the plaintiff is allowed to amend by making more defendants after a verdict, is it just or reasonable to say that a defendant can not be permitted to try the cause on its merits ? If nothing injurious to the rights of the plaintiff can x-esult from pleading in abatement, in this state, does not the reason of the common law rule, which regai-ds this class of pleas with so much disfavor, fail ? If the reason fails, the rule can not apply.
    The statute makes this perfectly clear. It declax-es “ when a plea in abatement shall be judged insufficient, the plaintiff shall x-ecover full costs to the time of overruling such plea.” Swan’s Rev. Stat. 661, sec. 65. The plaintiff loses nothing by the plea in abatemexxt, nor is the suit necessarily delayed.
    Thomas Millikin, for defendant:
    I. On a plea in abatement, if the jux-y find against the plea, they ought also to assess the damages—otherwise a venire de novo must Be awarded. 2 Penn. 361; 3 N. H. 232.
    On an issue in abatement, the plaintiff must be prepared to px’ove his damages, otherwise he will recover nominal damages. 3 Stax’k. Ev., pt. 1, page (2) and (1) where all the authorities are collected. “The judgment upon a verdict in favor of plaintiff upon an issue in abatement is final, and the jury assess the damages.”
    See note Wilcox, Ohio Forms and Prac. 111-112, (edition of 1848). See note 2, Swan’s Prac. and Prec. 649, note (e).
    II. The decision of the court being sustained by all the common law authorities, the question arises, has our statute changed the law on that subject? I conceive the act of 1831 has not the effect claimed for it, and such is the construction given in Wilcox and Swan’s Practice.
    *111. But suppose the judgment on the issue in abatement was not final, it was a matter resting in the discretion of the court, whether to permit the defendants to plead to the merits; and if the court did err in the matter of discretion, it can not be
      assigned for error. 6 Serg. & R. 510; 6 Cranch, 206, 217; 4 Ib. 237.
   Spalding, J.

The plaintiffs in error claim that the judgment below shall be reversed, because, after issue joined on the plea in abatement and found against them, a respondeat ouster was not awarded. The common-law rule on this subject is well established.

“"When a plea in abatement is regularly put in, the plaintiff must reply to it or demur. If he reply, and an issue in fact be thereupon joined and found for him, the judgment is peremptory, quod recuperet; but if there be judgment for the plaintiff on demurrer to a plea in abatement, the judgment is only interlocutory, quod respondeat ouster.” 1 Tidd’s Prac. 6411

The principles lying at the foundation of this rule of practice are asserted in Eichorn v. Lemaitre, 2 Wilson, 367; Amcots v. Amcots, T. Raym. 118; Bonner v. Hall, 1 Ld. Raym. 338; Medina v. Stoughton, Ib. 593; Crosse v. Bilson, 2 Ld. Raym. 1022; 2 Wms. Saund. 211, n. 3.

The same rule is recognized in Massachusetts, in the case of the Boston Glass Manufactory v. Mary Langdon and Trustee, 24 Picker. 49. The syllabus of this case is as follows: “Where, in an action by a corporation upon a promissory note, the defendant pleaded in abatement, that there was no such corporation as was in the writ supposed, and issue was joined upon that fact, the defendant was not permitted, on the trial before the jury, to allege and prove, in reference to the damages, that there was no consideration for the note, the judgment against the defendant being peremptory in ease of his failing to support his plea in abatement.”

In New Hampshire the court ruled in Lodge v. Morse, *3 N. H. 232, that if issue be taken upon a plea in abatement, and the jury find for the plaintiff, they must assess the damages in the same manner as when an issuo is found for the plaintiff upon a plea in bar. So in Jewett v. Davis, 6 N. H. 518, where Chief Justice Richardson remarks: “ It is objected that there is error in the judgment of the court below, because judgment was rendered for the plaintiff to recover his damages, instead of a judgment of respondeat ouster. But in this respect the judgment was correct.”

In Vermont, the same final judgment is rendered, whether the issue is tried by the court or the jury. Peach v. Mills, 13 Vt. 561.

In New York, Marcy, Judge, lays down in Haight v. Holley, 3 Wend. 262 ; “ Where the judgment is on demurrer, it is a re spondeat ouster, but where the issue of fact, on a plea in abatement,, is found against the defendant, the judgment is final.” McCartee v. Chambers, 6 Wend. 649, is another case directly in point.

In Pennsylvania, Kentucky, and Indiana, the courts have come to the same result. W. Haffy v. Shore, 2 Penn. 361; Moore v. Morton, 1 Bibb, 234 ; John v. Clayton, 1 Black, 54.

In Ailing v. Shelton, 10 Conn. 436, the fact alleged in the plea in abatement was traversed by the plaintiff, on which issue was joined to the jury. After a trial on this issue, the jury returned a verdict for the plaintiff. The court accepted the verdict, and thereupon rendered judgment that the defendant answer over to the plaintiff’s declaration. This was assigned for error by plaintiff, and on this ground alone judgment was reversed. Williams. C. J., in pronouncing an opinion, distinguished for its depth of research, lays down the law distinctly on this subject, “that where the issue is joined to the jury, in a plea in abatement, and they find against the defendant, they must assess damages for the plaintiff.” The true reason, he says, is, “ that pleas of this description are usually merely dilatory pleas, which it is the policy of the law to discourage. *They are those required to be filed early, tried early, and not' allowed to be amended and made conclusive, if the defendant will risk a trial by jury thereon.”

It is proper to remark, however, in this connection, that by a practice long continued and peculiar to the courts of Connecticut, this common-law rule is varied in those cases where the issue has been tried by the court instead of the jury. Upon a finding by the court for the plaintiff, in an issue of fact, made up under a.plea in abatement, the judgments have been, for more than half a century, respondeat ouster. “A distinction,” says Judge Could, in his excellent Treatise on Pleading (page 300), for which it seems difficult to assign any satisfactory reason.”

In this state, an issue in fact, decided by the court, is followed by the same legal consequences as a verdict returned by the jury. The judges, pro hac vice, arc the jury.

The counsel for plaintiffs in error press upon our consideration the suggestion, that the common-law rule, in regard to the effect of pleas in abatement, is essentially modified by our statute.

It is said that pleas in abatement are not admitted without affidavits of their truth—that it permits the plaintiff to amend and make now parties after plea of non joinder; and that where a plea in abatement shall be adjudged insufficient, it entitles the plaintiff to full costs to the time of overruling such plea. In reply, I have only to say that, if, at common law, it was an object to discourage false dilatory pleas, it may be more important, under the operation of our statute, to put a stop to dilatory pleas in which perjury may be assigned. The statute does not permit the plaintiff, after plea in abatement, to issue his summons for other defendants. It remains to be determined whether our courts will permit this to be done after verdict for defendant.

That a judgment for full costs follows the overruling of a plea in abatement, by no means signifies that the legislature designed thereby to change the rule of the common law, in ^regard to the effect of a finding against the defendant, upon such a plea. It evidently means the overruling of a plea for insufficiency, and upon demurrer. In all such cases,, even at common law, the defendant would be required to “ answer over and it is a reasonable requisition of our statute, that he be made to pay full costs. We are fully persuaded that the statute of Ohio has made no inroads upon the rule in question ; and hence the law is so, that if, under a plea in abatement, an issue in fact, tried by the court or the jury, be found for the plaintiff, final judgment must be awarded in his favor.

The judgment is affirmed.

I. The judgment on a plea in abatement is either,

1. That the writ or declaration be quashed—casseter breve, or narratio;

2. Respondeat ouster; and,

3. Einal, quod recuperet.

Judgment is rendered either,

1. Without issue taken on the plea; or,

2. With issue.

Issues are either,

1. Issues in law; or,

2. Issues in fact.

II. Issues on pleas in abatement are either,

1. Such as must be tried by the court; or,

2. Such as may be tried either by the court or jury.

The kind or form of judgment, rendered on an issue upon a plea in abate» ment, depends upon the question whether the issue be found,

1. Eor the plaintiff, and against the plea; or,

2. Eor the defendant, and in favor of the plea.

Of judgment without an issue.

When a good plea in abatement is filed, the plaintiff may omit to take issue upon it, and pray that his writ or declaration may be quashed, in order that he may resort to a bettor one by commencing a new suit. In such case the cause will bo discontinued, and judgment of casseter breve or narratio be rendered. Steph. 109. As to entering nolle prosequi, see 2 Swan's Pr. 31, 75, 900.

As to what issues must be tried by the court.

All issues in law, can be tried only by the court. When, therefore, a demurrer is filed to a plea in abatement, it presents an issue in law, which is to be decided by the court only. When an issue is made, to be tried by inspection and examination of a record, although an issue of fact, such issue can only be tried by the court. Steph. 101; 2 Chit. 602 ; Co. Lit. 117, b. Thus, plea in abatement, another action pending, replication nul tiel record. Such issue must be tried by the court, if upon a domestic record, Johnson v. Hub-bell et al., Wright's S. C. 69. This is the rule as to all domestic records, including those of the courts of other states of this Union. But such an issue upon the records of foreign courts, is not necessarily tried by the court. 2 Swan’s Pr. 652, citing 6 Pick. 227; 1 Greenl. Ev. 547, n.

«0/ judgments on issues which must be tried by the court, where the issue is found for defendant, and in favor of the plea.

On all such issues, whether of law or of fact, the judgment must be that the writ or declaration be quashed, “ upon such pleas as are in abatement of the writ or bill, and that the suit do stay or bo respited, etc., upon such pleas as nre in suspension only.” Steph. on Pl. 107.

Of judgment on issues which must be tried by the court, when the issue is found for the plaintiff, and against the plea.

On all such issues of law, or-of fact, the judgment is respondeat ouster. Steph. on PL 105. It is a general rule that, “on demurrer, the court will consider the whole record and give judgment for the party who, on the whole, appears to be entitled to it.” But “ if a plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster without regard to any defect in the declaration.” Steph. on PL 144. Ho plea in abatement, in the same degree, can be received after a respondeat ouster. 1 Sellon’s Pr. 275; 1 Chit. Pl. 466. After plea in abatement, no-exceptions can be taken to the declaration. Id.

Of issues which may be tried either by the court or jury.

All other issues of .fact, not above specified, may be tried either by submission to the court by consent of the parties, or by a jury, if required by either party. Walker’s Am. L., 2d ed. 525. Act of March 14, 1837; Swan’s Stat. 691, sec. 158; Mills v. Holes, 1 Ohio, 534; 5 Ohio, 277 ; 6 Ohio, 521. The act of 1837 applies to issues of facts, in actions sounding in contract, so that in such cases the court may bo required to try such issues. As to issues of fact not sounding in contract, perhaps the court could not be required to try them, ,but by consent might do so.

Of judgment on all other issues of fact decided by court or jury.

When an issue of fact is decided in favor of the plea, the same judgment is rendered as by the court on such issue—that the writ or declaration be quashed, etc. Steph. on PI. 107. To this rule an exception has been made by our statute, providing that where partners arosued, and the defendants plead in abatement that all the partners are not joined, the suit shall not abate, but the plaintiff may make the other partner a party by service of a writ, and the causo shall proceed. Swan’s Stat. 661, sec. L. As to judgment for costs, when plea is adjudged insufficient, see sec. LXIX.

But when an issue of fact is decided against the plea, the judgment is final, quod recuperet, and no leave will be given to plead. Steph. on Pl. 105; 1 Sellon’s Pr. 273, C., Myers & Waterson v. Hunter Erwin & Co., above.

When a judgment is rendered on an issue, on a plea in abatement, that the writ or declaration be quashed, the plaintiff may again commence his suit in more correct form, whether such issue be decided by the court or jury. Steph. on Pl. 107.

When an issue, in fact, of the kind that may be tried by a court or jury upon a plea in abatement, is submitted to the court or jury, the whole evidence of the plaintiff is received on the hearing, not only in support of the issue, but in support of the plaintiff’s claim, and if the issue is found against -the plea, the court or jury assess the plaintiff’s damages, and return the assessment of damages, with the finding upon the issue. If the jury omit to assess the damages, such omission can only be supplied by a venire de novo. 1 Sellon’s Pr. 274.

Where a fact is pleaded in abatement, and issue taken thereon, the plaintiff should be prepared to prove his damages on such issue, otherwise he will recover «-‘nominal damages only. Weleker v. Le Pelletier, 1 Camp. 479 ; 2 Swan’s Pr. 950, No. 22. But this applies only to actions sounding in damages, for in actions where a specific thing is demanded, as debt, etc., if issue is joined upon a fact in a plea in abatement, and verdict thereon for plaintiff, the judgment thereon is peremptory, quod recuperet. 1 Sellon’s Pr. 274.

Where an issue in fact is joined on a plea in abatement, the defendant, perhaps, can only give such evidence as to the plaintiff’s claim on the merits, as could be given by a defendant, in default for plea.


author: Caldwell, J.,

text:
    John H. Brown & Co. v. George N. Webb.
    A conveyance of goods made for the purpose of defrauding creditors, the vendor and purchaser both participating in the fraud, is void under the statute of frauds, as to the creditors of the party making such conveyance, but is valid as between the parties to such conveyance.

      A creditor of the party making such fraudulent conveyance, with notice of the fraud, may, with the consent of his debtor, take a valid mortgage, in good faith, to secure his claim from the purchaser of the goods thus conveyed, without being required to resort to legal process to reach the goods.

    A mortgage of personal property, where the mortgagor retains possession by virtue of the mortgage, with a power of sale, is void, as against subsequent purchasers, and execution creditors,  but when possession is taken by the mortgagee, the mortgage becomes valid so as to protect the mortgaged property from execution creditors not having made a levy, and against subsequent purchasers from the mortgagor.
    Where a debtor, in contemplation of insolvency, executes a chattel mortgage to one creditor, for the purpose of securing such creditor in preference to others, with an understanding that the mortgagee shall satisfy his claim out of the goods, and then surrender the residue to the mortgagor, the mortgage will be deemed an assignment of property in trust, and the mortgagee will be deemed a trustee, holding the mortgaged property for the benefit of all the creditors in proportion to their respective demands.

    Error to the Supreme Court of Stark county.
    *The original action in the common pleas was trespass, brought by the plaintiffs, Brown & Co., against Webb, who was sheriff of Stark county.
    In February, 1848, Alexander Gamier, of Canton, Stark county, purchased from sundry houses in New York and Philadelphia, goods to the value of about $10,000. He purchased from the plaintiffs, goods to the value of $3,258, the largest purchase made, and about $1,000 greater than the amount purchased of any other house. All the purchases were on credit, for which Gamier gave his notes, falling due in August and September, 1848, except, only, that the purchase from plaintiffs was charged on book, but no note taken, nor was any definite time of payment fixed, though it waa understood by the parties that the principal portion of his indebtedness to plaintiffs was to be paid in April or May, 1848, Garnier not being well acquainted with the English language, or the business of buying goods, took with him Nicholas Bour, to aid in purchasing. The goods were brought to Canton, and Garnier commenced retailing them in the usual way.
    In addition to these facts, it was proved on trial, at the April term, 1849, that on June 23, 1848, Garnier sold his entire remaining stock of goods to Bour for $8,800, for which he received a note, secured by mortgage on Bour’s real estate, for $5,000, and the residue in Bour’s individual notes, payable at different dates.
    In July, 1848, George Dietrick, agent and clerk of plaintiffs, came to Canton, and not finding Garnier able to pay for the goods he had purchased of plaintiffs—finding that Bour had possession of the goods, and being anxious to secure the amount due the plaintiffs, got Bour to take an assignment of plaintiff’s account for $3,258, against Garnier, and to give his own notes to plaintiffs, for the amount, with a chattel mortgage on the goods, to secure the payment of the notes. This was done, in due form, on July 14, 1848 ; and on the same day, plaintiffs took possession of the goods, as they proved, and commenced taking an invoice, which was cornpleted *about the 24th of July. The invoice amounted to about $7,000. The mortgage was duly deposited with the recorder of Stark county, as required by the act of the general assembly, on the day it was executed; Garnier residing at the time in the township where said recorder’s office was located. The plaintiffs proved that they continued in possession, with the view of selling enough to make their claim, until the 24th of July, when the defendant Webb, as sheriff, levied on the entire stock of goods, and took them from the plaintiffs. This levy was made pursuant to a writ of execution, in favor of Walter F. Stone, against said Garnier, dated July 22, 1848, for $3,300, which embraced several of the claims of the “ eastern creditors” of Garnier above mentioned, and who had, by pursuing Garnier to Sandusky, and causing him to be imprisoned, obtained from him a judgment note in the name of Stone, for the amount of their claims, before they fell due. ‘Before Webb would levy, he took full indemnity against all loss or damage that he might sustain in consequence of the levy. He subsequently sold the goods so levied on, before this suit was brought, for about $6,000, which has been appropriated in discharge of said execution, and others, against Garnier. Garnier .and Bour are worth nothing. Garnier has gone to parts unknown.

      .While the plaintiffs were taking the invoice, and nearly a week before the levy, they received from Gamier an order on Bour, requesting him to pay plaintiffs their claim. This order, before the levy, was accepted by Bour, and he agreed to pay it in goods. The levy was made peaceably, but against the remonstrance of plaintiffs’ agent. The chattel mortgage to plaintiffs contains these provisions :■ “ Provided always, and these presents are upon the express condition, that whereas the said Nicholas Bour has this day given to the said John EL Brown & Co., his four certain promissory notes, for the respective amounts and payable respectively, as follows: One for $700, payable six months after date; one for *$700, payable one year after date; another for $814.16, payable eighteen months after date; and another for $814.16, payable two years after date—all with interest and current rate of exchange in Philadelphia.
    “ Now if the said Nicholas Bour shall pay the said promissory notes, according to the tenor and effect thereof, then these presents to be void, otherwise in full force; provided, further, and it is hereby expressly agreed, that said Nicholas Bour be authorized to retail said stock of goods and merchandise in order to realize funds to meet and satisfy said several notes—the said John EL Brown & Co. retaining, however, the privilege, either through themselves or their attorneys, Brown & Myer, at any time they may deem the safety of their claims require it, to take possession of the said stock of merchandise, and to sell the same, or any part thereof, as may be necessary to satisfy their claims aforesaid, and also to superintend or have the supervision and control of the sale of said goods, by retail, by the said Nicholas Bour, and to keep an account thereof, or hold the said Nicholas Bour to such regular account thereof. It is also further agreed and understood, that all subsequent supplies to said stock shall be in every way subject to the stock now on hand, under and by virtue of the terms of these presents.”
    The defendant proved, that notwithstanding the invoice, Bour was in possession of the goods at the time of the levy, and did business as usual; that Dietrick was advised to remove the goods, but declined. The testimony as to whether the plaintiffs, by their agents,-or Bour, had possession at the time of the levy, was conflicting. One of plaintiffs' witnesses testified that an agent of plaintiffs remained in the store up to the time of the levy, and the arrangement was, that he was to receive the proceeds of sales until plaintiffs’ claim was paid, but that Bour might be in the store as much as he pleased, and *aid in selling goods; and after plaintiffs’ claim was paid, the balance of the goods was to be given up to Bour.

    The defendant introduced proof tending to show that the sale of the goods, by Gamier to Bour, was fraudulent, and made by hoth parties to the sale to defraud the creditors of Gamier, and that at the time plaintiffs took their mortgage they had notice of said fraud.
    The action in the common pleas was presented against Webb, for levying on, removing, and selling the goods by him sold on the execution aforesaid.
    There was other testimony on the trial not material to the decision in this court.
    The plaintiff asked the court below to charge the jury, “ that, if the proof established the fact that plaintiffs were honest creditors of Gamier, and the mortgage was taken from Bour for the purpbse of securing their claim, the mortgage is good and valid, even though the plaintiffs had notice that the sale from Gamier to Bour was fraudulent.” This the court refused, but did charge, “ that if, at the time of making the mortgage to plaintiffs, Deitrick, as agent of plaintiffs, had sufficient knowledge of the nature of the transactions between Gamier and Bour, to induce him to believe that the same were fraudulent, said mortgage was fraudulent and void, as against existing creditors;” and “that the fact that the mortgage covered an amount of property so much greater in value than the amount of plaintiffs’ claim, might be taken into consideration, by the jury, wfth the other facts in-the case as evidence of fraud on the part of the plaintiffs.”
    The jury returned a verdict for defendant.
    The plaintiffs moved to set aside the verdict, and for a new trial, because of the charge given, the refusal to charge as asked, and for other reasons, not passed upon in the decision *now made; which motion was overruled, and judgment rendered for defendant for costs.

      Exceptions were duly taken, and the cause was removed on error to the Supreme Court of Stark county, by which court the judgment of the common pleas was affirmed.
    This writ of error is prosecuted to reverse the judgment of affirmance.
    Belden & Leiter, Brown & Myers, for plaintiffs, insisted:
    That, if Dei trick had reason to believe (as he had not), that the sale to Bour was fraudulent, as against the creditors of Garnier, it could not affect the validity of plaintiffs’ claim, nor their right to the goods, nor the chattel mortgage. The plaintiffs were co-creditors of the subsequent execution creditors who made the levy. It was not fraudulent in plaintiffs to pursue the goods in. the hands of Bour, if he was a fraudulent vendor of their debtor, nor was it fraudulent in them, as against the other creditors of Garnier, to make any fair arrangement to secure their claim, whether by suit against, or by voluntary agreement with Bour. Ms between Bour and Garnier, however fraudulent their acts and purposes as against the creditors of Garnier, the sale was good, and could not be disturbed. None could disturb it but creditors.

    Suppose this case presented a mere struggle between the creditors of Garnier, and it be admitted that Garnier and Bour had acted fraudulently, not only in buying the goods “ in the east,” but also in the sale of them to Bour, still the question is one of “superior diligence," and if the plaintiffs, by means of their chattel mortgage, got the first lien, and took possession of the goods from the fraudulent vendee, it would be, as it in fact is in this case, a gross fraud on them, for a subsequent execution creditor to come in and sweep away that lien, and appropriate the goods.
    No one can doubt but that the plaintiffs could accomplish, by voluntary agreement with Bour, if he were a fraudulent *vendee, that which the law would undoubtedly have enabled them to do by suit.

    To render the title of & purchaser from a fraudulent vendee void, there must have been a fraudulent intent by the purchaser; because if innocent and bona fide, his title is good. But, it will be borne in mind that the plaintiffs are not mere vendees or mortgagees of a fraudulent vendee, but they are also creditors of the fraudulent vendor. And, we should like to know how the plaintiffs can be said to have intended a fraud, in securing a just debt, by taking a transfer of goods from the fraudulent vendee of their debtor. If the plaintiffs in doing so, intended a fraud, or did that which can be called fraudulent, then, we say, the creditors in the Stone judgment and execution, committed a gross fraud against all the unpaid creditors of Gamier*.
    “An innocent purchaser of goods for a valuable consideration» from a fraudulent vendee in possession, obtains a good title, against the creditors of the fraudulent vendee.” 6 Shep. 391 ; 2 U.S. Dig., 528, 544.

    Upon the same principle, it has been decided that “A mortgage to secure a pre-existing debt can not be a fraud on other creditors. 7 Iredell, U. S. Dig. II Ann., 281, 856; Id. sec. 57; 25 Maine, 414; U. S. Dig., 284, sec. 107, I Ann.
    •We assert there is but one instance known in the law, where it has been held that a sale of goods, obtained by fraud, would affect the title of a subsequent innocent vendee; and that is, where the fraudulent vendee effected his purchase by his own fraudulent conduct toward his vendor, who acted in good faith, and in no way participated in the fraud, but was duped and deceived. In cases of this description, cited in note d, of 2 Kent’s Com. 514, it was held, that the purchaser from the fraudulent vendee could not protect himself, because he could claim no better title than his vendor had, and as he had none at all, the original vendor, who *had been defrauded, could seize the goods in the hands of the innocent vendee.
    Gamier can not dispute the title of Bour, even if the sale were fraudulent. 2 Kent, 512.
    The order from Gamier to Bour, in favor of plaintiffs, beyond all controversy, it seems to us, gives title to plaintiffs for the goods. If the sale from Gamier to Bour was fraudulent against creditors of Gamier, and Bour could not convey title, why Gamier could, with Bour’s consent, as by the order, especially to a creditor. True, when this order was received, plaintiffs were in possession of the goods under the chattel mortgage. But how can that impair the power of the order ? No lawyer will doubt, that, if one get possession of property, under a bad title, the possession may be protected and perfected, by “ getting in ” a good title, before he is deprived of his possession. This order was received by plaintiffs and accepted by Bour six days before the levy by defendant.

      H. Griswold, for defendant:
    I. A purchaser from a fraudulent vendee, with notice, obtains no better title than his vendor, and the property may be reached in his hands, by execution, at the suit of the creditors of the fraudulent debtor.
    2. But it will be claimed by the plaintiffs that, being creditors
    of Gamier, they had a right to pursue the goods, and having obtained possession of them peaceably, have a right to retain possession against execution creditors. *
    I find but few authorities bearing on this precise question, but such as I do find sustain me in the position that a creditor of the fraudulent grantor can not obtain possession in this way. Owen v. Dixon, 17 Conn. 492; Crowninshield v. Kittridge, 7 Met. 520; Osborne v. Moss, 7 Johns. 161. These authorities show that where there has been a fraudulent conveyance, the creditor, with notice, can not take possession of. the property, except by virtue of legal process, nor can he by *so doing obtain an advantage over other creditors. The property remains in his hands subject to execution.
    3. The chattel mortgage is void, because the possession of the goods was retained by Bour, coupled with a power of sale. 16 Ohio, 547. This authority is applicable to this case, is in point, and conclusive.
    Besides, I claim that the weight of the evidence is, that plaintiffs did not have possession of the goods, and so no vitality could be given to the mortgage by reason of a possession. But, granting (for the argument) the plaintiffs did take possession, still, they thereby acquired no title. The mortgage was void at its inception because of its provisions, and no subsequent act of the parties could give it efficacy. Rowley v. Rice, 11 Met. 333. In the case at bar, the possession was taken solely under the mortgage, if at all.
    4. The plaintiffs’ mortgage was void, because it operated to hinder and delay creditors. The plaintiffs’ claim was about $3,000— the goods mortgaged were worth $7,000. It was correct, therefore, for the court to charge that these facts might be taken into consideration as evidence of fraud.
    5. The mortgage was void because it attempted to cover future purchases of goods. This objection and the preceding one, taken together, establish its invalidity. 16 Ohio, 553.

      The case of Frost v. Goddard, 12 Shep. 414 (1 An. Dig. 284 see. 107), does not conflict with the law as I have claimed it to bo.
    That authority only applies to a nurchaso “ in satisfaction of a debt.”

    G. W. Belden, in reply:
    The proof shows that plaintiffs had possession of the goods before and at the time of the levy.
    Can it be said that plaintiffs are to be prejudiced because, during the time Dietrick had possession of the goods, he permitted Bour, occasionally, to come to the store, and sell a few small parcels of the goods, in discharge of some small claims *due from Garnier? All the plaintiffs desired was that they should have goods enough to make their claims. This is clear evidence that they intended no harm or delay to the creditors of Gamier, and that they were moved by no “fraudulent intents.”
    The case in 16 Ohio, 547, can not be applied to this. In this case there is an express provision, that plaintiffs might, without any contingency, take possession of the goods; and they did take possession, nine or ten days before any other rights supervened, or were asserted. In the case in 16 Ohio, 547, the mortgagees never had possession. The case is in chancery,  and presents facts and circumstances, and matters of consideration, wholly different from those involved in this case.
    The case of Rowley v. Rice, 11 Met. 333, establishes the fact, that if the plaintiffs’ mortgage were invalid, and they merely took possession of the goods, with an understanding between them and Bour, that they were to hold them until they made the amount of their claim, their title was perfect. It is further said in this case, that “if the parties acted under a mistaken belief that the plaintiffs had good title, under the mortgage, it would not invalidate another good title, under which the plaintiffs might claim.” Had not- the plaintiffs, in the case at bar, just as good title, aside from their mortgage, as the plaintiff had in the case of Rowley v. Rice ? I say they had. First. By the order of Gamier, accepted by Bour. Second. By the mutual understanding between Bour and plaintiffs’ agent, Dietrick, when the agent took possession, that the agent should go on and sell enough to make the plaintiffs’ claim.

       Tremper v. Barton, 18 Ohio, 418.

       Morris v. Way, 16 Ohio, 469.

       Collins v. Myers, 16 Ohio, 547; Hombeck v. Vanmetre, 9 Ohio, 153.

        v. Kellogg, 11 Ohio, 394; v. Coe, 10 293; v. Holden, 22 Pick. 269; Henshaw et al. v. Sumner, 23 Pick. 446 ; Low v. Wyman, 8 N. H. 537; Meredith Man. Co. v. Smith et al., Id. 34; U. S. An. Dig., 1847, 52; Baker v. Hall, 13 N. H. 298; Goodrich v. Downs, 6 Wills, 438; 6 Hill, 438; Lang v. Lee et al. 3 Ran. 410; see Bassett & Co. v. Traber, 201 Ohio.

       See Basset v. Traber, 20 Ohio, as to tbe effect of such an arrangement, and as to the liability of such trustees; also 10 Ohio, 230; 12 Ohio, 340; 15 Ohio, 593. See also Davies v. Lowery, 15 Ohio, 655; 18 Ohio, 509; 13 Ohio, 300.

       See Nichols v. Bailey, 10 Ohio, 230.

       Hampson v. Sumner, 18 Ohio, HI.

   Caldwell, J.,

delivered the opinion of the court.

On the trial of this cause, on error, in the Supreme Court, %nany errors were assigned to the ruling of the common pleas, on the trial in that court, on points of evidence, and also to the charge of the court to the jury. We propose, however, to confine ourselves to a single assignment, as that raises the principal question in controversy, and in the opinion of the court is decisive of the case. That question is thus presented by the bill of exceptions: “ The plaintiffs requested the court to charge the jury, that if the proof established the fact that plaintiffs were honest creditors of Garnier, and the chattel mortgage was obtained from Bour for the purpose of securing their claim, the mortgage is good and valid, even though the plaintiffs had notice that the sale from Garnier to Bour was fraudulent. Which chai’ge the court refused to give to the jury, but, on the contrary, the court charged the jury, that if, at the time of making said chattel mortgage, Dietrick, as the agent of the plaintiffs, had sufficient knowledge of the nature of the transactions between Garnier and Bour, to induce him to believe that the same was fraudulent, said mortgage was fraudulent and void as against existing creditors.” The point on which this charge was given was one directly raised by the evidence in the case, and was pertinent to the issue between the parties. Did the court of common pleas charge the law? We think they did not.

Taking it for granted, that the transfer from Garnier to Bour was fraudulent, and that plaintiffs knew of that fact, we do not see why they, as creditors, were deprived of any of their rights, in Securing their claim. The sale from Garnier to Bour was void, and of no effect, as against the rights of creditors, but good as between the parties.

Before the sale of the goods to Bour, the plaintiffs would have had a right to have their claim secured by a mortgage from Garnier on the goods, and we do not see why Garnier and Bourmight not agree, as they did, that plaintiffs might have the benefit of the goods as security for their debt, as though no such sale had taken place. They wore thus doing away the fraud committed by the sale, and using the goods in *tbe way the law required they should be used—in the payment of Garnier’s debts. The creditors who made the levy on the goods, and thus took them, out of the possession of plaintiffs, had no preferred claim on them. At the time the goods were mortgaged to plaintiffs, the claims of the judgment creditor were not due. It was only by obtaining a power of attorney from Gamier, to confess a judgment, that they were enabled to proceed to their claims at the time they did. We do not think it was necessary for the plaintiffs to proceed by legal process, to secure their claim in the goods; but that if, by a fair transaction, they obtained a security on the goods, without execution, such security would bo available, and could not be treated as a nullity.

It is true, that, from all the circumstances attending the taking of the mortgage from Bour, on the stock of goods, the mortgage would probably (if that question were before us for decision), be held to come within the provisions of the statute (Swan’s Stat. 717, see. 68), and inure to the benefit of all the creditors. But that would not vitiate the mortgage so as to render it a nullity; the statute merely gives such assignments a particular direction ; it does not avoid them; it makes an assignment that was intended for the benefit of one or more creditors, exclusively, to inure to the benefit of all the creditors. If, then, this mortgage of plaintiffs was such an assignment, as we think it was, the other creditors had not a right to appropriate the entire property to the payment of their claims by execution; but they .had a right to share equally, under the assignment, with the plaintiffs, in proportion to their respective claims. We think the court of common pleas erred in their charge to the jury, and that the judgment of the Supreme Court, in affirming the judgment of the common pleas, is erroneous. The judgment of the Supreme Court will therefore be reversed.

We have examined the authorities cited in this case, on both sides, and, without going into a detailed examination of them, we would merely remark that we do not think they conflict *with the conclusion to which we have come, but, on the contrary, so far as they apply, we think they harmonize with it. Judgment reversed.