author: Burket, J.

text:
    Karb et al. v. The State ex rel.

      Pension to members of fire department — Determination by trustees as to disability of claimant, final — Mandamus to compel trustees to make determination — Duty of medical officer— Benefits of fund available to whom — Construction of statute— Section 17, act of Aprit 13, 1892 (89 Ohio Laws, 259).

    1. Where a new right with its remedy is given by statute, and there is no provision for a review or appeal from the determinations of those who administer the statute, such determinations are usually final.
    2. Under section 17 of the act granting pensions to members of the fire department, 89 O. L., 259, the board of trustees of the pension fund is charged with the duty of determining whether the disability of the claimant was caused in, or induced by, the actual performance of the duties of his position as such member, and such determination, when made in good faith, is final.
    3. If the board of trustees refuses, upon proper application, to make such determination, it can be compelled by a mandamus to do so ; but if the result of such determination is against the applicant, the board cannot be compelled to further act on the case.
    4. If the determination of the board is in favor of such applicant, it then becomes the duty of the board to order his examination by the medical officer, and upon refusal, the board may .be compelled by mandamus to make such order.
    5. Upon such order being made, it becomes the duty of the medical officer to examine the applicant, and determine whether he has a partial or permanent disability, and such determination of the medical officer, when made in good faith, is final.
    6. In a case where the board of trustees has not determined that the alleg'ed disability of the applicant was ‘ ‘caused in, or induced by, the actual performance of the duties of his position as such member, ” and no order has been made by the board for his examination by such medical officer, and there has been no examination under any such order, -it is error for a court to grant a peremptory writ of mandamus against such board, commanding the admission of such applicant to the benefits of the pension fund, even though the chief engineer of the fire department may have relieved such applicant from actual service at fires, and recommended him to the board for a pension.

      7. In such case the mandamus should command the performance of the first act which is left unperformed by those administering the statute, and as to the performance of which they have no discretion.
    8. The benefits of such pension fund, are available only to those who are at the time of making their applications, members of the fire department, and if the applicant has been wrongfully discharged, he should be reinstated before making his applicátion.
    [Decided March 31, 1896. ]
    Error to the Circuit Court of Franklin county.
    The case in the court of common pleas was a petition in mandamus, by the state on the relation of August Pirsig, against the mayor and other persons, constituting the board of trustees for the distribution of the fireman’s pension fund of the city of Columbus. After stating the grade and class of the city of Columbus, and that the persons named constitute said board of trustees, the petition is as follows: “On the 16th day of February, 1893, and for about two years and • one-half immediately prior to said date, the relator was a member of the fire department of said city of Columbus,.and on said 16th day of February, 1893, incurred a partial permanent disability while in the actual performance of the duties of his said position in this, to wit: that while riding one of the horses belonging to said fire department for the purpose of exercising him, the saddle girth broke, and said horse ran away and fell, throwing and falling on the relator, and injuring his left knee and causing stiffness and lameness thereof, and said knee has ever since been and still is disabled, and the relator is lamed and disabled thereby; and he avers that the said injury is permanent and is a permanent partial disability of relator, and was caused and incurred in the actual performance of the duties of his position as such member of said fire department.
    “On or about the 1st day of July, 1893, on account of said disability of relator, upon an examination of the relator by a medical officer, ordered by said board of trustees, the fire chief of said department duly relieved the relator of actual service at fires, and he has ever since been relieved from such duties. The relator has remained and still is a member of said fire department. His salary was stopped at said date.
    “On or about the 9th day of August, 1893, the relator applied to the defendants and requested them to authorize the payment, monthly from the firemen’s pension fund to him, of the sum. to which he is entitled by law, on account of said disability, and made such application and demand afterwards on the 12th day of August, 1893, and at several subsequent times. But said defendants refused and still refuse to authorize said payment, or any payment to the relator, though there was then and is ample pension fund on hand to pay the said claim to the amount of $40 monthly.
    “Wherefore relator prays that a writ of mandamus issue, commanding defendants to authorize the payment to him out of the said fund, the sum of forty dollars, monthly, from and after July 1, 1893.”
    The answer admits the grade and class of the city of Columbus, that said George J. Karb .is the mayor of said city, that the persons named, constitute said board of trustees, that relator was a member of the fire department on the 16th day of May, 3 893, and denies each and every other allegation in said petition contained.

      The court of common pleas found in favor of the respondents and dismissed the action. The case was taken to the circuit court on appeal by the relator, and upon trial in that court, a judgment was rendered in favor of the relator against the respondents, commanding them to admit the relator to the benefits of such pension fund, and that said board authorize the payment to the relator monthly, from said fund, a sum not less than thirty nor more than forty dollars, or in proportion to the number of beneficiariés of said fund, as the condition of the fund might 'warrant.
    A motion for a new trial was overruled, and exceptions taken. A bill of exceptions, containing all the evidence, was allowed and filed, and the case comes into this court upon petition in error, seeking to. reverse the judgment of the circuit court.

      Gilbert II. Barger, Ellsworth O. Irvine and Florizel Smith, for plaintiffs in error.
    Since mandamus is a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, the existence of all the facts necessary to put the holder of such office in default must be shown before the writ will issue;

      State ex rel. v. Yeatman, 22 Ohio St., 546; Fordyce v. Goodman, 20 Ohio St., 1; Dutton v. Hanover, 42 Ohio St., 215; Ross v. Board of Education, 42 Ohio St., 374; High Ex. Leg. Rem., section 116; State ex rel. v. Hays et al., 50 Mo., 34; Commissioners of Putnam County v. Auditor Allen County, 1 Ohio St., 322; Butnett v. Auditor Portage County, 12 Ohio, 54; State ex rel. v. Commissioners, 26 Ohio St., 364; Cincinnati College v. La Rue, 22 Ohio St., 469; State v.
      Cappeller, 39 Ohio St., 460; State v. Moore, 39 Ohio St., 487; Patton v. Sheriff,, 2 Ohio, 395; Allan v. Parish, 3 Ohio, 187; Dodge v. Gridley, 10 Ohio, 173; State v. Blake, 2 Ohio St., 147; Bloom v. Richardson, Ohio St., 387; State v. Turnpike Co., 16 Ohio St., 2 308; Medical College v. Zeigler, 17 Ohio St., 52; State v. Franklin Co., 20 Ohio St., 421; State ex rel. v. Commissioners, 35 Ohio St., 458.
    Mandamus will not be issued to control discretion confided by law to public officers, nor for much greater reason will the writ be awarded when its effect would be to dispense with the exercise of such discretion with regard to matters dependent upon such exercise.
    Where, therefore, a statute provides that in case of the partial permanent disability of a fireman, caused in the actual performance of his duties as such, the fire chief, upon an examination of such fireman by the medical officer ordered by the board of trustees of a pension fund shall have power to relieve such fireman from actual service at fires, and that said trustees, upon such member being so relieved, shall authorize the payment of a pension to such fireman, such statute confides to such trustees, medical officer and fire chief discretionary powers ; and it is an error to issue a peremptory writ of mandamus commanding the payment of a pension and thereby dispense with the exercise of such discretionary powers.
    Courts have no authority, by proceedings in mandamus, to control the discretion confided by law to inferior officers, boards or tribunals, whether it be judicial, or only quasi judicial, in its nature. Section 6742, Revised Statutes. In re Turner, 5 Ohio 542; Ex parte Black, 1 Ohio St., 30; Commissioners of Turnpike Road v. Commisioners, 1 Ohio St., 149; State v. Harris, 17 Ohio St., 616; Commissioners v. Commissioners, 24 Ohio St., 401; State v. Board Fire Commissioners, 26 Ohio St., 24; State v. Commissioners, 31 Ohio St., 351-7; State ex rel. v. Crites, 48 Ohio St., 460 ; State ex rel. v. Comissioners, 49 Ohio St., 301; 14 Amer. & Eng. Ency. of Law, 108-111; State ex rel. v. Commissioners, 36 Ohio St., 330; Conger v. Barker, 11 Ohio St., 1 Williams v. State, 35 Ohio St., 175; State v. Vanderbilt, 37 Ohio St., 640; Allen v. Russell, 39 Ohio St., 337; Heck v. State, 44 Ohio St., 536; State v. Stockley, 45 Ohio St., 304; Gardener v. Woodyear, 1 Ohio, 170; Swasey v. Blackman, 8 Ohio, 5; Ash v. Ash, 5 Ohio St., 383; Tyler v. Winslow, 15 Ohio St., 364; Jackson v. State, 36 Ohio St., 281; Bishop’s Written Laws, section 98; Daily v. U. S., 17 Ct. of Cl., 144; U S. v. 25 Fed., 470: Stokely v. De Camp, 2 Grant, Cas., 17; U. S. v. Shindler, 10 Fed., 547; Boughton v. U S., 12 Ct. of Cl., 330 ; Portland Co. v. U. S., 5 Ct. of Cl., 441; Nicoll v. U. S., 7 Wall., 70 ; Dougherty v. U. S., 6 Ct. of Cl., 90; Turner v. U. S., 9 Ct. of Cl., 367; U. S. v. Kaufman, 96 U. S., 567; Campbell v. U. S., 12 Ct. of Cl., 470; First National Bank v. U. S., 15 Ct. of Cl., 225.
    The partial permanent disability or injury for which the relator seeks a pension was not caused in or induced by the a?tual performance of the duties of his position as a fireman.

      (a.) He was violating his duty at the time of the accident.
    (5.) -His leg was crippled, weak and disabled for years prior to the time of the accident.
    A person so at fault will not be heard to complain. Krause et al v. Morgan, 52 Ohio St., 662;
      Hammond v. Railroad Co., 35 W. L. B., 231; Cleveland v. Stofer, 33 W. L. B., 227.

      J V. Lee and D. T Ramsey, for defendant in error.
    The pleadings in mandamus have the same effect and are to be construed as in civil actions. Revised Statutes, sections 6751, 6752. State ex rel. v. Otenberger v. Hawes, 43 Ohio St., 16.

      First — The decision of the court is not, and the findings upon which it is based are not, sustained by sufficient evidence.

      Second — The decision of the court is contrary to law.
    No exceptions having been taken upon the trial, the only error assigned, as we understand it, is the ■ overruling of the motion for a new trial.
    "We submit it that the relator was entitled to judgmeut upon the testimony, the objection that the proof does not conform to the allegations of the petition is not available. Such objection should be made at the trial when the testimony is offered. Sections 5114, 5115,' Revised Statutes, Hoffman v. Gordon, 15 Ohio St., 211; Benninger v. Hess, 41 Ohio St., 69; Dayton Insurance Co. v. Kelly, 24 Ohio St., 345. The board of trustees never did pass upon the application of the relator. On the contrary, they failed and refused to pass upon it. Having’ made no determination as to his rights, their action is not final. The object and purpose of this proceeding was to compel them to perform a duty resulting from their office which they had refused to perform. In what sense their action or non-action can be regarded as final, we. do not perceive.

      It is immaterial whether their action was in good faith or not, if, in fact they failed .or refused to perform their duty.
    We submit that mandamus is the proper remedy, and the only remedy which the disabled fireman had. State ex rel. Anderson v. Harris 17 Ohio St., p. 608.
   Burket, J.

The relator founds his claim to a pension upon the act of April 13, 1892, 89 O. L., 259, and especially upon section 17 of the act, which is as follows:

‘ ‘In case of a partial permanent disability of any member of said fire department, caused in or induced by the actual performance of the duties of his position as such member, or which shall have occurred before the expiration of ten years’ service in said fire department, the chief engineer, fire marshal, or fire chief of such fire department,upon an examination of such partially permanently disabled member by the medical officer ordered by the board of trustees, shall have power to relieve such partially permanently disabled member from actual service at fires, and the said board of trustees, upon such member being so relieved, shall authorize the payment to such partially permanently disabled member, monthly from said pension-fund, a sum not less than thirty dollars nor more than forty dollars, or in proportion to the number of beneficiaries of said fund (as the condition of said pension fund) may warrant. The member so partially permanently disabled and relieved from active service at fires, shall remain a member of said fire department, subject to the rules governing the same, and may be ordered by the said official head of said fire department to the performance of such light duties as the medical officer ordered by said official head of said fire department may certify him qualified to perform, and the said official head of said fire department shall, out of the general fund of said fire department, fix and pay such additional compensation for the performance of said light duties as the circumstances and merit of each case (in its discretion) may warrant. Such pension and additional compensation so paid to such partially permanently disabled member mentioned in this and the preceding sections of this act, shall be in lieu of any salary received by such member at the date of his being so relieved from active service at fires, and the said city shall not be liable for the payment of any other claim or demand for services hereafter rendered by such partially permanently disabled member.”

If the subject-matter of this act — pensioning firemen — is of a general nature, and it seems to be so, it is difficult to maintain the constitutionality of the act, in view of the recent decision of this court in the ease of the City of Cincinnati v. Steinkamp, 54 Ohio St., 284; but as that question was not argued or even mentioned in the briefs of counsel, it is left undecided.

To entitle a person to a pension under this statute, it must appear that he is a member of the fire department, that he has a partial permanent disability, that such disability was caused in, or induced by, the actual performance of the duties of his position as such member, or that the disability occurred before the expiration of ten years’ service in the fire department.

As to what is meant by this sentence, ‘ ‘or which shall have occurred before the expiration of ten years’ service in said fire department, ” it is difficult to determine. To say that the “or” should be read “and,” it would make the statute read that in order to be. entitled to the pension, the disability must have occurred during the first ten years of his service as fireman, and yet it would be naturally supposed that a disability occurring after ten years of service, would be as meritorious as a like disabilily occurring earlier. To hold that the word “or,” really means “or,” then the sense would be that any partial permanent disability occurring during the first ten years of service, would entitle the fireman to a pension, even though such disability was not caused in, or induced by, the actual performance of his duties as such member. So it seems that in either sense of the word “or, ” this sentence does not comport with the spirit of the remainder of the statute, and is most likely the result of some mistake, as it seems to lead to an absurdity.

But as this sentence is not the point upon which this case turns, it may be left out of further consideration, and this case may be determined upon the other necessary facts.

How and by whom are these other necessary facts to be ascertained? It would seem that the first step should be by the disabled fireman himself in the form of an application to the board for a pension, and such was the course pursued in ■ this ease. Upon such application being made, the board of trustees must become satisfied in some manner that the applicant is a member of the fire department. That being determined in his favor, the next step is to ascertain whether his alleged disability was caused in, or induced by, the actual performance of the duties of his position as such member! By whom shall this be ascertained and determined? The statute does not expressly say, but manifestly it is to be done by the trustees, because it is by the existence of that fact, that the trustees became authorized to order his examination by the medical- officer; and as there is no other person named to ascertain that fact for them, it must follow that they must determine it for themselves. As the statute provides for no appeal or review from the finding and determination of the trustees as to what caused or induced his disability, it must follow that the findings and determination of the trustees in that behalf are' final. It is a rule of construction, that where a new'right with its remedy is given by statute, and there is no provision for a review or appeal from the determination of those who administer the statute creating the right, such determination is usually final. In such case an adverse decision cannot be overcome by appeal or original petition to a court of justice. Had the legislature intended that the cause of the disability should be ascertained by litigation in court, it would have made provision therefor in the statute. The theory of the act seems to be that the board of trustees can be trusted to do full justice in each case.

In case the board of trustees find that the alleged disability was caused in, or induced by, the actual performance of the duties of the fireman’s position as such member of the fire department, it becomes the duty of the board to order his examination by the medical officer and upon refusal to order such examination the board may be compelled to do so by mandamus.

Upon being ordered to do so by the board of trustees it becomes the duty of a medical officer to examine the applicant and determine whether he; is disabled and whether such disability is partial or total, and whether of a permanent or temporary nature, and his determination in good faith is final, as there is no provision for a review or re-examination.

Should the applicant, upon such examination, so duly ordered, be found to be partially and permanently disabled, the chief engineer, fire marshal and fire chief have jjower to relieve such applicant from actual service at fires, but such chief engineer, fire marshal and fire chief cannot be ’ compelled to exercise such power; but if they or either of them do exercise such power, and do in fact relieve such applicant from actual service at fires, and still retain him as a member of the fire department, then it becomes the duty of said board of trustees to authorize the payment to him of a pension of from thirty to forty dollars per month as the state of the pension fund may warrant, and upon refusal to do so, may be compelled by writ of mandamus.

The relator states the facts of his case very meagerly in his petition, in this, that while he avers that he made his application for pension to the board of trustees, he fails to aver that the board found and determined that his alleged disability was caused in, or induced by the actual performance of the duties of his position as such member; and while he avers that he was examined by the medical officer upon the order of the board of trustees, he fails to aver that upon such examination the medical officer found him with a partial permanent disability. But granting that these omitted averments are necessarily implied from the facts stated and allegations in the petition, if they are so implied, they are denied by the general denial in the answer, and upon the trial required proof.

How then stands the proof upon the trial? There is no evidence tending to prove that the trustees found and determined that the alleged disability was caused in, or induced by, the actual performance of the duties of the applicant’s position as such member of the fire department. There is no evidence tending to prove that any examination by the medical officer was ordered by the board of trustees, and no evidence tending to prove that the board of trustees refused to make such order. There is no evidence tending to prove that an examination was made by such medical officer under such order.

Without a determination by the trustees that the alleged disability was caused in or induced by the actual performance of the duties of his position as such member, without an order of the trustees based thereon for his examination by the medical officer, and without such examination under such order, the chief engineer, fire marshal and fire chief had no power to relieve him from actual service at fires with a view of having him placed upon the pension rolls, and if they, or either of them, did so relieve him, such action did not authorize said trustees to cause him to be placed upon the pension rolls.

Counsel for relator in their brief, in speaking of the duty of the board of trustees to pass upon his application, say: “It is sufficient to say that the board of trustees never did pass upon the application of the relator. On the contrary, they failed and refused to pass upon it. ” If this be true the board should have been compelled to act upon the application, but the result of their action would rest within their own sound judgment. Failure of the board to act, would not supply the place of favorable action by the board, because upon acting on the application, the board might find and determine that the alleged disability was not “ caused in, or induced by, the actual performance of the duties of his position as such member.”

Suppose the partial permanent disability was caused by a railroad wreck on an excursion while' the fireman was enjoying a vacation off duty, or while taking a pleasure ride with his own team, it would not be contended that such injury would entitle him to a pension; and in case of his application for a pension for such or any other injury the first duty, and first step of the trustees, after ascertaining that he is a member of the fire department must be to determine whether the alleged disability was caused in, or induced by, the actual • performance of the duties of his position as such member, or by some other cause, and such determination in good faith, must be final.

If it be true that the board refused and neglected to act upon the application of the relator, it should be compelled by mandamus to take such action, and determine how the alleged disability was ' caused, unless it should appear that the applicant, at the time of making his application, was not a member of the fire department.

If he was not a member at that time, but- had been wrongfully discharged, he must first secure a reinstatement, but if he had been properly and legally discharged before making his application, so that he was not at that time a member of the department, he was not entitled to the benefits of the pension fund, and in such case the board was under no obligation to determine the cause of his alleged disability.

A fireman may be lawfully discharged for many causes other than disability, and if he so conducts himself after he has become disabled as to warrant his discharge, and the proper officer in fact discharges him for such misconduct, he cannot thereafter while no longer in the department, legally claim the benefits of the pension fund.

It is urged by counsel for defendant in error that the petition should be amended so as to conform to the evidence.

The case is one of failure of proof, and to amend the petition so as to conform to the evidence, would so weaken the same as not to be sufficient to sustain the judgment.

Amending the petition to conform to the .evidence, is available only, when the evidence is stronger than the petition; but here the petition is much stronger than the evidence, so that an amendment would only make the case worse. It follows that the judgment of the circuit court must be reversed, and the ease remanded to that court for a new trial, or such other disposition as the facts and law of thecase may warrant.

■Judgment reversed and case remanded.


source: Caselaw Access Project

author: Williams, C. J.

license: Public Domain

text:
    Hosler v. Beard et al.

      Promissory note of person non compos mentis, invalid — Exceptions to the rule — Burden of proof as to consideration — Note made by person under disability not negotiable — Purchaser takes it with notice of invalidity.

    1. As a general rule the promissory note of a person non compos mentis, is invalid ; but the rule is subject to the qualification that when such a note is given for necessaries, or for other adequate consideration of benefit furnished the maker in good faith without knowledge of his unsound mental condition, it may be enforced to the extent of the value of the consideration so furnished.
    2. Such mental incapacity of the maker is prima facie a complete defense to an action on a note signed by him, and when interposed, the burden is upon the plaintiff to prove the consideration for the note, and other facts necessary to overcome such defense and entitle him to recover.
    3. A note signed by a person under such disability, though negotiable in form, is not within that rule of commercial law which protects negotiable paper in the hands of a bona fide holder for value against defenses to which it was subject in the hands of the payee. The purchaser takes it charged with notice of the maker’s disability, occupies no better position as against him than the payee, and is subject to the same burden of proof when the maker’s incapacity is pleaded in defense to an action brought by the holder.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Wood county.
    Action was brought in the court of common pleas of Wood county, by Peter Hosier against George- Beard and the guardian of his estate, upon a negotiable promissory note signed by Beard on the 13th day of May, -1879, and payable six months after its date. The petition alleges that the payee sold and transferred the note to the plaintiff for a valuable consideration before it became due, and that Beard, at the time of its execution was of sound mind, but was thereafter adjudged to be an imbecile, and a guardian of his estate was duly appointed who has' in his hands sufficient property of the ward to pay the. amount due on the note; for which amount the plaintiff prays judgment against both guardian and ward.
    The guardian answered, admitting his appointment, denying the transfer of the note to plaintiff before its maturity or for value, and alleging that his ward when the note was signed by him was an idiot, incapable of understanding or making any contract, which was then well known to the payee who procured the note by fraud and without consideration, and that the ward has ever since continued to be so lacking in capacity to contract. The allegations of the answer were controverted by reply. The cause was tried to the court and judgment recovered by the plaintiff.
    A motion filed by the defendant for a new trial having been overruled, a bill of exceptions was duly allowed and filed, from which it appears that the plaintiff gave evidence tending to prove his ownership of the note, and that he obtained it before maturity, for value, and without notice of the maker’s incapacity, and then rested. The defendants then read in evidence a statement of facts upon which (with such other evidence as the parties might choose to introduce), it was agreed that the case should be heard and decided, and which is as follows:
    “It is admitted by the plaintiff for the purposes of this suit, that at and for a long time prior to the giving of said note sued on in this case, said George Beard was idiotic, and of imbecile mind; so that he was not competent to contract, and that he has ever since been and now is idiotic and imbeeile as aforesaid. Also that the payee of said note, Aaron Glathart, has been intimately acquainted with said Beard ever since the year 1861, and knew and was legally chargeable with the knowledge of the said condition of the said Beard, at the time of the transaction, of which the giving of said note was a part. And it is agreed that no testimony shall be required to establish the aforesaid facts, and none shall be admitted to controvert the same. ”
    And thereupon the defendant rested; and the bill shows, that “no other or further evidence or testimony having been offered or introduced by either or any of the parties, and this cause having been submitted to the court upon said evidence, the court found upon the issues and gave judgment for the plaintiff, and against the defendants.” ■
    The circuit court reversed the judgment upon the ground, as stated in the journal entry, that the court of common pleas “erred in finding and giving judgment in favor of said Peter Hosier, against said George Beard and Alexander Beard, as guardian of George Beard, and in not finding for and rendering judgment in favor of said George Beard and said Alexander Beard, as guardian of George Beard and against said Peter Hosier, upon the pleadings and the evidence adduced.”
    The case is here for a review of the judgment of reversal.

      Dodge & Ocma/ry, for plaintiff in error.

      Pcm'her c& Moore, for defendants in error.
   Williams, C. J.

In support of the judgment rendered by the trial court,it must be presumed that the evidence offered by the plaintiff was sufficient to 'establish, the facts it tended to prove; and so regarding them, and giving those admitted by the parties their proper effect, the material facts which that court had before it, as shown by the record were, that the defendant, when he signed the note in suit, was an idiot incapable of understanding or making any valid contract, which was then known to the payee, and he has since continued in that condition; but that the plaintiff acquired the note for value, before its maturity, and without knowledge of the maker’s incapacity; and the question presented is, was the plaintiff, upon that state of facts, entitled to recover on the note; neither party having given any evidence tending to show whether any consideration was, or was not paid or given for it, or received by the maker ?

It is contended in behalf of the plaintiff, that the note, notwithstanding the admitted incapacity of the maker to contract, imports a consideration, which imposed the burden on him of showing a want of consideration in order to defeat a recovery on it; while on the other hand, it is claimed that before any recovery could be had on such a note, if an action could be maintained upon it at all, it was incumbent on the holder to prove a meritorious consideration which was received by the maker, and which alone could give rise to any liability upon it, against his estate. There appears to have been a time in the earlier history of the English law when the contracts of persons non compos mentis were enforced like those of persons who were competent to contract; it being held, that a party should not be allowed to stultify himself by alleging his own incapacity; but that doctrine was so repugnant to justice and common sense that it was not long adhered to, and now finds no support anywhere.' On the contrary, the rule is now established both in England and this country, that the contracts of persons non oom/pos mentis are not binding on them either in law or equity; and that rule rests upon the elementary principle that to the making of a valid contract the consent of the contracting parties is essential; their minds must meet and agree upon the terms and consideration of the contract, and where there is not capacity to understand or agree, there can be no contract. Many authors and courts have declared the executory contracts and promises of such persons to be utterly void. Edwards on Bills, 63; Byleson Bills, 150. In Story on Promissory N otes, it is said: ‘ ‘Every contract presupposes that it is founded on the free and voluntary consent of the parties, upon a valuable consideration, and after a deliberate knowledge of its character and obligation. Neither of these predicaments can properly belong to a lunatic, an idiot, or other person non compos mentis. Hence, it is a rule not merely of municipal law, but of universal law, that the contracts of all such persons are utterly void. ” And, it is held that it can make no difference in this respect that the party dealing with such person was ignorant of his incapacity, for if he have no contracting capacity, the fact that it was unknown to the other party cannot deprive him of his right to be protected against his misfortune. As stated by Tenterden, C. J., in Sentance v. Poole, 3 Car. & P., 1, 1827: “It is a hard case either way, but it is very important that courts of justice should afford protection to those individuals who are unfortunately .unable to be their own guardians.” It has accordingly been held that a note signed by a lunatic is void as against him, in the hands of every holder however innocent. Seaver v. Phelps, 11 Pick, 304; Van Patton v. Beals, 46 Iowa, 62; 1 Parsons on Bills and Notes, 149.

Other authorities maintain that the notes and other contracts of such non-sane persons are voidable only, like those of infants, and may become valid by ratification when their infirmity is removed, as may those of infants by an act affirming them after arriving at full age. But as such contracts remain invalid until so ratified, it is not of much practical importance whether they be treated as void, or voidable in the sense indicated. Not only in this respect, but in others also, are the contracts of infants similar in their- effect to those of persons laboring under mental incapacity. Thus, to the general rule that their contracts are invalid, an exception obtains applicable alike to those of both classes of persons, where the contract is for necessaries actually furnished them. Those exceptional contracts are held valid at least to the extent of the value of the necessaries actually furnished. In Byles on Bills, in a note to page 64, it is said that, “the executed contracts of a non compos mentis, for necessaries stand on the same footing of infants contracts for necessaries.” In Maxwell-on Code Pleading, 448-9, the law on this subject is accurately stated as follows: The executed contracts of a per. son non compos are very much like those of infants, and when necessaries suitable to his station in life have been furnished, and the transaction is fair, and no undue advantage taken, he will be liable for the value of the goods.”

To the general rule that the notes and other contracts of a non sane person are invalid and will not be enforced, another exception has been made, analogous to that relating to necessaries; or, it might with, propriety be «aid, that exception, has been enlarged and extended to embrace cases where the note has been obtained or contract entered into in good faith, in ignorance of his want of capacity to contract, and for a full and adequate consideration of money paid or property delivered to him, or other sufficient consideration actually received by him, so that, in such cases the contract can not be avoided by him or his representative, without restoring the consideration so received. This doctrine is not universally accepted, but is, we think, sustained by the weight of authority, and seems fair and reasonable, with the qualifications and limitations prescribed for the protection of those who are deprived of the requisite capacity to enter into a valid agreement; the remedy against them in such eases being based not so much upon the contract, as upon the benefit actually received by them.

In Matthiessen v. McMahon, 38 N. J. L., 536, it is held that: “The general rule is that contracts with lunatics and insane persons are invalid, subject to the qualification that a contract made in good faith with a lunatic for a full consideration, which has been executed without knowledge of the insanity, or such information as would lead a prudent person to the belief of the incapacity, will be sustained. ’ ’’ The true scope of the doctrine is stated in the opinion of the court in that case, where, after stating that contracts for necessaries constituted an exception to the general rule that lunatics were not liable on their contracts, the court says: “Other contracts with lunatics not strictly for necessaries, which have been fully executed, and on which a consideration of benefit to the lunatic has been given, may be within the reason of this exception, where the transaction is shown to be perfectly fair and reasonable, at least so far as to allow the recovery back of the consideration given, or prevent a recision by the lunatic or his representative without restoringtheconsideration whenever a restoration is practicable. The liability of the lunatic in such eases is upheld, not on the ground of the contract, but on the fact that the lunatic has received and enjoyed an actual benefit from the contract. ” And in Yauger v. Skinner, 1 McCarter, 389, it is said by Chancellor Green, ‘ ‘ that if the proof be clear that an executory contract to purchase was made in good faith, and for a fair price when the lunacy of the vendor was neither known nor suspected, and that the contract was executed on the part of the purchaser without knowledge or belief of the existence of the incapacity of the grantor, the contract will be upheld. ” In the case of Loomis v. Spencer, 2 Paige 153, it is said by Chancellor Walworth, that: “There is no doubt of the propriety of the courts refusing to enforce executory contracts entered into by a lunatic or infant; and probably no recovery could be had in either ease in a court of law. The courts proceed upon the ground that neither has legal capacity to contract, although a contract of purchase made by either, except for necessaries, could not be enforced, yet. a court of equity ought not to interfere where the infant or lunatic has actually had the benefit of the property, if the contract was made in good faith, without knowledge of the incapacity, and where no advantage has been taken of the situation of the party.” And it is held in Young v. Stevens, 48 N. H., 133, that: “As a general rule, insanity may be pleaded, or given in evidence, in bar to an action founded either upon an executory or executed contract;” but “where a person, apparently of sound mind, and not known to be otherwise, enters into a contract ‘ for the purchase of property, which is beneficial to the purchaser, and otherwise fair and bona fide, and which has been fully completed, paid for, and enjoyed, and cannot be restored so as to put the parties in statu quo, such contract will not afterward be set aside either by the lunatic or his representatives. ” This doctrine is maintained by many cases, among them the following: Insurance Co. v. Hunt, 79 N. Y., 541; Scanlan v. Cobb, 85 Ill., 296; College v. Wilkinson, 108 Ind., 315, 320; Gribben v. Maxwell, 34 Kan., 8; Burnham v. Kidwell, 113 Ill., 425; Alexander v. Haskins, 68 Iowa, 73; Riggan v. Green, 80 N. C., 236, 239; Bank v. Moore, 78 Pa. St., 407.

We are not aware of any authority which has extended the liability of infants or insane persons on their contracts, beyond those for necessaries actually furnished them, and those falling within the doctrine of the cases referred to, where a full and adequate consideration of value was actually paid or delivered, in good faith, and without knowledge of their incapacity; and it is obvious that, to the maintenance of an action on a contract of the latter class, something more is required than where it is sought to recover on a contract for necessaries ; that is, not only must there have been a full and adequate consideration paid, but the transaction must have been a fair and reasonable one, made in good faith by the plaintiff, without knowledge of the defendant’s want of capacity to contract. -

It is well settled that in all actions upon notes or contracts claimed to have been made for necessaries furnished to an infant or insane person, the burden is upon the plaintiff to prove they were furnished to the amount or value of the note. He may allege that the defendant was a person of one of the classes-named when the contract was made, and that it was for such necessaries, and when the latter allegation is denied it is incumbent on him to prove it; or, if he declare on the note or contract generally, without disclosing the incapacity of the defendant, it is a complete bar to plead the defendant’s incapacity at the time of the making of the contract; to overcome which, the plaintiff may reply that it was made for such necessaries, and must support his reply by the necessary proof. In Edwards on Prom. Notes, 63, this rule is stated as follows: “When the action is upon a note given by an infant, it is barred by the plea that it was given by an infant, and unless the plaintiff proceeds then to show that the note was given for necessaries his action fails.” So, in 1 Parson on Notes and Bills, 150, it is said that, “to defeat a promissory note, it is only necessary to prove a condition of mind which makes self-protection impossible.” In Byles on Bills, p. 61, note, the rule is thus stated: “Infancy is prima facie a g’ood defense to a suit on a note, and as the holder must in answer prove the consideration to be necessaries, that throws open the whole question for the benefit of the infant. ” And in Maxwell on Code Pleading, 449, it is declared that: “Insanity is generally a bar to an action on an executory contract.” On page 448, the same author says : “In pleading infancy it may be alleged in the answer. that at the time of making the contract set forth in the petition the defendant was under the age of 21 years. If the consideration for the contract was necessaries, or the defendant had ratified the contract by a new promise after he became of age, these facts may be stated in the reply. In those states where no reply is required the necessary facts, such as ratification, necessaries, etc., must be stated in the petition, and in any case where the infancy appears from the facts stated, additional facts must be pleaded which show that infancy is no defense.” And, in pleading the defense of insanity it is sufficient to allege “that at the time of entering into the alleged contract the defendant was of unsound mind, and incapable of understanding the same or entering' into a contract.” A similar practice obtained before the code. 3 Swan’s Practice and Precedents, 694-5-6. Wilcox’s Ohio Forms and Practice, 129-9.

The reasons for placing the onus on the plaintiff of overcoming by proper proof the defense of infancy or insanity when pleaded to an action on a contract for necessaries, require that the plaintiff take the like burden in all actions on contracts of persons under those disabilities, when the defense is interposed; for it is as complete a defense in actions on contracts other than those for necessaries, as in actions brought on contracts for necessaries; and it is just as essential that it be overcome by proper evidence in the one case, as in the other, before the plaintiff can recover. And such appears to be the established rule. It is laid down in Bailey on Onus Probandi and Preparation for Trials, 144-5, as follows: “The creditor may show in reply to proof of insanity, that the contract was for necessaries, even if a note be given therefor. So the creditor may, taking the burden, reply to evidence of insanity that the contract was made during a lucid interval or in reply to the defense of insanity, it may be shown that such insane person, being apparently of sound mind, and not known to be otherwise, entered into the contract for the purchase of property which is fair and bona fide, and which is executed and completed, and the property, the subject matter of the contract, has been fully enjoyed and cannot be restored so as to put the parties in statu quo.'1'1 It would seem, therefore, that no contract of a person non compos mentis, in whatever form it may be put, whether in that of a promissory note or otherwise, can, on account of his want of capacity to make a valid execution of it, so import a consideration as to cast upon him the burden of proving a want of consideration, in an action brought upon it, or dispense with proof of an adequate consideration to support it as against him or his representative. The difference in that respect between such a note or contract, and one obtained from a person of weak understanding merely, is obvious, and need not be pointed out here.

In the argument of counsel for the plaintiff in error some stress appears to be placed upon the fact that when the note in suit was signed by Beard, he was doing business in his own name. The nature or extent of that business is not disclosed. The fact could only be material as tending to prove he was sane, and therefore competent to execute the note, and can be. of no importance in that respect in the face of the admitted fact that he was insane and not competent to execute it, and that was known to the payee at the time; nor, is it important as affecting the plaintiff’s relation to the note, in view of the admission that it was transferred to him before maturity, for value, and without notice of the maker’s incapacity to execute it. If such a note so received was protected in the hands of the plaintiff against defenses which the maker might have against the payee at the time of the transfer, it was of no consequence whether the maker was doing any business at the time of its execution, or was not; and it is equally immaterial if it is not so protected; for upon, the admitted fact that he was insane and known to the payee to be so when the note, was ..signed,. .his defense was complete against the latter, and therefore ■ equally so aganst the plaintiff,. notwithstanding he was doing business in his own name when he signed the note. The material question then is, whether that rule of commercial law which protects negotiable paper in the hands of a bona fide holder who has acquired it before its maturity, for value, is applicable to such paper signed by persons who at the time were non com/pos mentis, where there had been no ratification of it; and that it is not, is well settled. Such paper being invalid, except to the extent that it is founded upon a consideration of necessaries, or other valuable consideration actually furnished, an" action, disassociated from such "cdnsideration cannot be maintained upon it, when the incapacity of the maker is shown; and the quality of negotiability does not attach to it, though made negotiable in form; and every holder of such- paper is chargeable in law with notice of the status of the maker as it existed at the time of its execution, and stands, therefore, in no better position, so far as his right of action against the maker is concerned, than the payee from whom he obtained it; and a want of actual knowledge, when he received the note, of the maker’s mental condition when it was signed, makes no difference in "that respect. So far as we have been able to discover, the authorities uniformly maintain that the paper of persons non compos, infants, and femme coverts at common law, all resting upon much the same principle, is not within the commercial rule which protects a bona fide holder of a negotiable note received before it became due, from the defenses which the maker might have made against the payee; and, that in defense to such paper in the hands of such a holder the maker’s incapacity to execute it may be shown. In McClain v. Davis, 77 Ind., 419, it is held that: “A promissory note, payable in bank, given upon an unexecuted consideration to one who knew of the maker’s disability, though it has passed .into the hands of an innocent purchaser, may be dis-affirmed ; ” and that ‘ the purchaser of such paper takes it with constructive notice of all legal disabilities of the parties, such as infancy, coverture and unsoundness of mind. ” In the opinion the court say: ‘Commercial paper is not an exception to the rule which permits a disaffirmance by any one who was of unsound mind at the time of becoming a party thereto. The purchaser of such paper takes with constructive notice of all legal disabilities of the parties, such as infancy, coverture, and unsoundness of mind.” Parsons on Notes and Bills, p. 149, 150 ; Edwards on Bills, pp. 63, 69.

In the case of Moore v. Hershey, 90 Pa. St., 196, it appeared that Moore, when insane, but before he was adjudged to be so, signed a negotiable note which was indorsed by the payee to Hershey, before due, and for value, and without any knowledge of Moore’s insanity. In an action brought by Hershey on the note, Moore’s incapacity to make it was set up as a defense, and as the report states, at the trial, the plaintiff having proven the signature to the note and put the same in evidence, and proven the consideration paid for it, rested. Judgment having been recovered by the plaintiff, the ease was taken on error to the supreme court, one of the errors assigned being that the trial court declined to instruct the jury that it was “incumbent on the plaintiff to show that the defendant, a lunatic, received value for the note in suit, and there being no such proof the defendant was not bound by the note.” The judgment was reversed, In the opinion, the court, after referring to the decision of a former case, Bank v. Moore, 78 Pa. St., 407, and declaring it to be “a just rule,” as there enforced, that “where a lunatic obtains the property of another person who in good faith deals with him in ignorance of his lunacy, he shall not keep both the property and the price,” and that “themost that has been decided is, that when a man deals fairly with a lunatic, and without knowledge of his lunacy, he is entitled to recover the value of what he honestly parted with,” say, they place their decision in the case then before them, upon the broad ground that the principle of commercial law which protects negotiable paper in the hands of a tona fide holder, “does not apply to the case of commercial paper made by madmen;” and, “on the contrary, the true rule applicable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected bj^ the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the ease of a lunatic, however, he may recover provided he had no knowledge of the lunacy, and the note was obtained without fraud, and upon a proper consideration.” The rule thus announced is approved in the subsequent case of Wirebach v. Bank, 97 Pa. St., 543, where it is held: “The holder of an insane person’s note is in no better position than the payee.” Judge Sharswood in his note to the seventh edition of By les on Bills, p. 61-2, states the rule with clearness and accuracy as follows : “It seems very clear that when the security is of such a nature that by the rule of law the consideration cannot be inquired into, then the infant is not liable. In the hands of the payee, hovever, it may be inquired into and it would seem necessarily in the hands of the indorsee. Infancy is prima facie a good defense, and as the holder must in answer prove the consideration to be necessaries, that throws open the whole question for the benefit of the infant;” and further, that “on proof' that the maker is an infant, the negotiability of the note is at an end, but it does not cease to be a note. It may be sued on by the holder in his own name. He stands in the shoes of the original payee, and can recover whatever he would have been entitled to recover.” “The holder, at most, must be subrogated to the rights of the original payee in an action in the name of the payee on a declaration founded on the original consideration. ’ ’ And see Tiedman on Commercial Paper, section 48. Further reference to authorities on that subject would be unprofitable here, since counsel for the plaintiff concede that the paper of insane persons, though negotiable in form, is not negotiable within the commercial rule. But they seek to make that rule so far applicable as to protect such paper in the hands of an innocent holder against all defenses except fraud or want of consideration. Our attention has been called to no such qualified rule of the law merchant as protects negotiable paper in the hands of a bona fide holder against some defenses, growing out of the transaction, which the maker might interpose in a suit brought against him by the payee, and lets in others; and we know of none. The paper of an. insane person, however perfect in form it may be, not having the quality of negotiability within the- rule of the law merchant, by reason of the incapacity of the maker, and the holder occupying no better position with respect to it than the original payee, the plea of insanity at the time of the execution, is as available, and has the same effect as a defense in a suit by the holder, as if the suit were by the payee. In each case it avoids the note and defeats a recovery, unless the plaintiff is able to show it was given for necessaries, or, that the maker otherwise received an adequate consideration for it, in a transaction that was fair and reasonable on the part of the payee, and without knowledge by him of the maker’s mental condition. That requirement is not met nor dispensed with by the fact that the holder paid value to the payee for the transfer of the note; that is necessary to the protection of the holder of negotiable paper under the commercial rule. As said in the case of Wirebach v. Bank, supra: “If the fact that the holder had paid value were enough, the lunatic could not defend for fraud or want of consideration; then an innocent holder could recover, though the judgment would sweep away the lunatic’s estate, and had not been benefited a farthing. ” Upon the case made in the trial court, as shown by the- record, we think the plaintiff was not entitled to recover, and the circuit court committed no error in reversing the judgment rendered in his favor, and remanding the cause for a new trial.

Judgment affirmed.


author: By the Court.

text:
    In the Matter of John A. King on Proceedings for the Revocation of His Admission to the Bar.

      Disbarment of attorney — Judgment remaining unreversed — Cannot apply for admission as in first instance — Must apply for reinstatement to court that disbarred him.

    After an attorney has been disbarred, the judgment remaining unreversed, he cannot apply, as in the first instance, for admission. His remedy in such case is to apply to the courf in which he was disbarred to be reinstated; which may be done on a proper showing of reformation, or for other satisfactory reasons, arising after the disbarment.
    (Decided March 31, 1896.)
    On February 11, 1882, John A. King, then an attorney at law in this state, was disbarred by the judgment of the court of common pleas of Henry county. The charges had been duly filed and a hearing had on the evidence. There were two charges supported by specifications: One that he had been convicted of an offense involving moral turpitude; the other that he had been guilty of unprofessional conduct. Both charges and the specifications were found true; on which the court rendered judgment disbarring him from the practice as an attorney. In June, 1894, on the certificate of an attorney, in the usual form and substance as to moral character, citizenship arid recommendation for admission, he was admitted by this court to an examination, which was conducted by its committee, and on such examination and the recommendation of the committee, was admitted to the practice of the law in all the courts of this state; and the usual certificate of the fact of admission was delivered to him. The facts as to his previous disbarment were not communicated to the court at the time, and it had no knowledge thereof until some time afterward, when they were called to its attention by a member of the bar of the state; and proceedings were then instituted by the attorney-general for the revocation of his admission and the cancellation of his certificate, and notice was served on him. A trial was had and the facts found to be substantially as stated, except that it was shown that the conviction for an offense involving moral turpitiuie, and which constituted one of the grounds of the disbarment, had been reversed by the district court, on the ground that the facts charged did not constitute an offense against the laws of the state. The judgment of disbarment, however, remained in full force and unreversed; and no application had ever been made to set it aside or for a reinstatement. The respondent stated that he had taken the advice of counsel, who gave it as their opinion that his only course was to apply for admission in the usual course, and that this was also the opinion of the common pleas judge of Henry county, to whom he had mentioned the matter. But no one advised him to the effect that he might properly do so, without advising the court as to the history of his case.

      John A. King and Hamilton & Kirby, for plaintiff.

      F. 8. Monnett, Attorney General, for defendant.
   By the Court.

'When a member of the bar of the state has been,upon proper proceedings, disbarred, and the judgment remains in full force and unreversed, the only remedy of the party is, at the proper time and on a proper showing, to apply to the court in which he was disbarred to be reinstated.

The court rendering the judgment of disbarment, retains a continuing jurisdiction over the subject, as in many similar cases; and may, upon a proper showing of reformation of the party, or other satisfactory reasons, arising after the disbarment, reinstate him in the practice of his profession. Readmission, as upon application and examination in the first instance, is not the proper course. And to make such application without communicating to the court the fact that the applicant had been disbarred, indicates a want of moral sense inconsistent with the character of an honorable attorney.

Admission revoked, and certificate ordered canceled., at the costs of the respondent.


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    City of Toledo v. Hosler, Treasurer.

      Gas wells, pipe lines, etc. — Owned by municipal corporation — In use for citizens generally — Exempt from taxation.

    Gas wells, pipe lines, pumping stations and machinery owned by a municipal corporation and used by it for the conveyance of gas to be consumed by it and by its citizens generally, are used exclusively for a public purpose and are exempt from taxation.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Hancock county.
    The cause was tried in the circuit court on appeal from the court of common pleas.
    The city of Toledo sought a perpetual injunction against the defendant to restrain him from collecting a tax upon so much of its pipe lines, gas wells, pumping stations, telephone line and fixtures as are in Hancock county, the same being used as alleged in the petition, for heating and lighting the city. The defendant having answered, and the cause being submitted to the circuit court upon the pleadings and the evidence, that court made the following finding of facts:
    “That the said city of Toledo is, and continuously ever since the22d day of January, A. D. 1889, has been a municipal corporation, duly incorporated under the laws of this, the said state of Ohio, as a city of the third grade of the first class; that the said defendant, David Hosier, is, and was, at the commencement of this action, the duly qualified and acting county treasurer of said county of Hancock; that under and by virtue of an act of the general assembly of the state of Ohio, enacted January 22, A. D. 1889, and contained in Ohio Laws, volume 86, page 7, said plaintiff has acquired and continuously ever since the times stated in the petition, has been the owner of a certain system of machinery, pipe lines, gas wells, pump station, telephone line and fixtures appurtenant thereto, situate in the townships of Allen and Cass, in the county of Hancock, and state of Ohio; that during all of said time said system of machinery, pipe lines, gas wells, pumping station, telephone lines and fixtures appurtenant thereto, have been and now are exclusively used by the said plaintiff to produce, convey and furnish natural gas to .said city, for public and private use and consumption, and said city of the gas thus produced, conveyed and furnished, sold a part of the same to the private residences of said city for private use in said city, at a fixed and established rate, made so by the ordinance of said city, and from which rate said city derive a revenue, and this was partly the purpose by and for which said city became the owner of said system of machinery, gas wells, etc., as aforestated, and partly the purpose of said city in operating said system of machinery, gas wells, etc., etc., as aforestated. That the said plaintiff owns and controls gas leases in said townships of Allen and Cass, in Hancock county, Ohio, to the extent of 520 acres, which gas leases were of the value of $520.00, and more in the years 1893 and 1894. That all the gas wells, fixtures and pumping stations of said plaintiff are situated on said 520 acres, and are used by said city in extricating and conveying the gas from said 520 acres to the said city of Toledo; for the public and private use of said city as aforestated. That the duly authorized officials of said county of Hancock and state of Ohio, have placed said property of said plaintiff upon the tax duplicates of said county for assessment and taxation, and have levied thereon as taxes and penalties the amounts of money in the petition set forth. That said assessment and taxes levied on aforesaid and said penalties averred as aforesaid, were levied and assessed as provided by the laws of Ohio, for taxing and assessing property owned and controlled by individual partnerships or corporations. That the said defendant as treasurer of said county of Hancock,. was at the commencement of this action upon the refusal of said city to pay said taxes and penalties as aforesaid, about to proceed to enforce the collection of said taxes and penalties by resorting to each and all of the remedies provided by the laws of Ohio for the collection of taxes when said taxes became delinquent.
    Upon those facts the circuit court adjudged that the petition of the plaintiff be dismissed, that a temporary injunction previously granted should be dissolved and that the plaintiff should pay the costs of the suit.
    The reversal of that judgment is the object of this petition.

      Charles F. Watts, for plaintiff in error.

      John Poe, for defendant in error.
   By the Court.

On behalf of the city of Toledo it is contended that this property is exempt from taxation under the eighth subdivision of section 2732 of the Revised- Statutes, as amended March 13, 1891 (88 O. L. 96), which provides for the exemption of:

“All market houses, public squares, or other public grounds, town or township houses or halls used exclusively for public purposes and all works, machinery, pipe lines and fixtures belonging to any town and used exclusively for conveying water to said town, or for heating or lighting the same.”

In support of the judgment of the circuit court it is said that the property is not within the terms of this exemption, and, if it were, the provisions of the statute relating to the exemption must receive such construction as. will make it harmonious with section 2, article 12, of the constitution, which ordains that “Laws shall be passed taxing by a uniform rule all moneys, * * * and also all real and personal property according to its true value in money; but burying grounds, public school houses, houses used exclusively for public worship, institutions of purely public charity, public property used exchosively for cony public purpose, and personal property to an amount hot exceeding in value two hundred dollars for each individual, may by general laws be exempted from taxation.”

The constitutional restriction upon the power to exempt pi'operty from taxation requires that the exempted property must be used exclusively for a public purpose. That the property in question is so used, is determined in State ex rel. v. Toledo, 48 Ohio St., 112. In that case the validity of the act under whose favor the city of Toledo acquired this property was challenged upon the ground that it was an attempt to authorize the city to tax its citizens for a purpose which, in part at least, was not public. The facts found in this case show that the property is used for the purposes contemplated in the act whose validity was there sustained.

Judgment of the circuit court reversed and judgment for plaintiff in error.


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    The Milson Rendering and Fertilizer Co. et al. v. Ronk.

      Jurisdiction of probaste judge — Section 5449, Revised Statutes— Invalidity of execution issued by probate judge on judgment rendered in common pleas court.

    A probate judge has no jurisdiction under section 5449, Revised Statutes, to allow an execution to be issued against the person upon a judgment rendered in the court of common pleas ; and his assumption of such jurisdiction gives no validity whatever to his order allowing such execution to be issued.
    (Decided March 31, 1896.)
    Error to the Circuit Court of Huron county.
    The plaintiff in error having obtained a judgment against the defendant in error, in the court of common pleas of Huron county, for 1385.47, the proceeds of sales of fertilizer sold by him as the ag’ent of the company, and which amount he had converted to his own use, the company applied to the judge of the court of common pleas for an order for execution against the person of Mr. Ronk, on the ground that the judgment was for the payment of money, and that he fraudulently contracted the debt upon which the judgment was rendered. The application for execution against the person of the defendant in that case was made under that part of section 5449, Revised Statutes, which reads as follows: “An execution against the person of the debtor * * * can be issued only when allowed by the supreme court, the district (circuit) court, the court of common pleas, or the probate court, or any judge of either, upon being satisfied, by affidavit, of the judgment credit- or or his attorney, and such other evidence as may be presented, of the existence of one or more of the particulars mentioned in the preceding section.” Tbe judge of the court of common pleas being about to leave the county, refused to hear the application, and suggested that the application be made to the probate judge, which was done and execution allowed, and Mr. Ronk was taken into custody, and imprisoned, where he remained until released on habeas corpus.

    Thereupon he commenced his action against the company and its agents and attorneys for damages for false imprisonment based on the ground that the probate judge had no jurisdiction to allow such execution to be issued upon a judgment rendered in the court of common pleas. Issue having been joined between the parties, the court of common pleas held that the probate judge had jurisdiction to allow the execution, and thereupon directed a verdict for the defendants. Upon petition in error, the circuit court was of opinion that the probate judge had no jurisdiction to allow the execution to be issued, and reversed the judgment of the common pleas and granted a new trial. Thereupon the plaintiffs in error brought the case here seeking to reverse the judgment of reversal, and asking that the judgment of the common pleas be affirmed.

      Johnston c& Leonard and O. P. Wickham, for plaintiffs in error.

      L. P. Strutton and G. T. Stewcvrt for defendant in error.
   By the Court.

A majority of the court hold that in the exercise of the jurisdiction to- allow executions to issue against the person, as conferred upon the different courts and the judges thereof, by section 5449, Revised Statutes, each court is limited to judgments rendered in such court, and each judge is limited to judgments rendered in such court of which he is judge. That the probate judge in the case under consideration had no jurisdiction to allow execution to issue upon the judgment rendered in the court of common pleas, and that his assumption of jurisdiction gave no validity whatever to the order by him made.

The “process,” mentioned in section 5456, Revised Statutes, is evidently the execution, and not the order allowing such execution. An execution can only be issued out of the court where the judgment was rendered- Hence, the court out of which the process issues, and the court where the judgment was rendered, is one and the same court. The judgment in this case could not have been rendered in the probate court, for want of jurisdiction of the subject-matter, and therefore it cannot be said that it might have been rendered in that court.

. In view of the limited jurisdiction of the supreme court under the constitution, it is clear that it can have no power to make an order in a case not pending in said court; and the same may be said of the circuit court. And in Railway Co. v. Hurd, 17 Ohio St., 144, this court held, and we think correctly, that a judge of this court can have no wider jurisdiction at chambers than the whole court in regular session.

Section 5449 becomes in part unconstitutional when construed as authorizing the supreme court or the circuit court, or the judges of either, to allow the issuing* of executions upon judgments rendered in the lower courts; while in limiting each court, and the judge thereof, to judgments rendered in such court, the section is not only constitutional but in harmony with our judicial system. It follows that the judgment of the circuit court must be affirmed.

Judgment affirmed.

Spear and Minshall, JJ., dissent.


author: Minshall, J.

text:
    Harper et al. v. National Bank.

      Agency — Promissory note given by agent — Consideration for use of undisclosed principal — Payee may hold undisclosed principal for money had and received — Such count is valid claim against assignee of principal.

    H, for Ms own use procured M. to make and indorse a note for $6,000 in Ms own name, and attach thereto certain shares of stock transferred to Mm by H. for that purpose; on this note with the collateral attached, the agent, through a broker, and without disclosing his principal, obtained from a bank, which had no knowledge of the facts, a loan for the amount of the note; the agent had no interest in the transaction other than the accommodation of his principal, and is irresponsible and the stock of no value ; and H. having made an assignment for the benefit of creditors, the bank presented its claim for allowance, which was rejected.

      Held: that the bank has the right to have the amount, so obtained from it, allowed as a valid claim against the estate of H. in insolvency.
    (Decided April 28, 1896.)
    Error to the Superior Court of Cincinnati.
    The Tiffin National Bank, plaintiff below, brought suit in the superior court of Cincinnati ag’ainst E. L. Harper and Hiram P. Lloyd, his trustee in insolvency, for the allowance of a claim against the estate in the settlement of his trust. The court, in special term, sustained a demurrer to the petition, based on the ground that it did not state facts sufficient to entitle the plaintiff to relief. -On error, this judgment was reversed by the general term, and the cause remanded to the special term for further proceedings. The only question presented here arises upon the sufficiency of the petition. It contains two causes of action; but as the second, except as to the maker of the paper, is substantially the same as the first, for the purpose of understanding the objection made on demurrer, it is sufficient to set forth the first. It is as follows: “On May 3, 1887, defendant, E. L. Harper, procured J. H. Matthews to execute and indorse in blank a note, a copy of which is as follows :
    “$6,000.00. Cincinnati, May 31, 1887.
    “On demand, after date, I promise to pay myself, or order, six thousand dollars, for value received, payable at H. B. Morehead & Co’s office, with interest at five per cent., having deposited or pledged as collateral security for the payment of this note, certificate No.-, for fifty (50) shares of the capital stock of the Fidelity National Bank of Cincinnati.
    “And I hereby give to the holder hereof full power and authority to sell or .collect, at my expense, all or any part or portion thereof, at any place, either in Cincinnati or elsewhere, at public or private sale, at holder’s option, on the non-performance of the above promise, and at any time thereafter, and without advertising the same, or otherwise giving to me any notice.
    “In case of public sale, the holder may purchase, without being liable to account for more than the net proceeds of such sale.
    (Signed and indorsed) “J. H. Matthews.”

      “The stock evidenced by said certificate was the property of said Harper, who caused the certificate to be issued in the name of said Matthews to enable the latter more easily to negotiate said note for his benefit.
    “Said note, with the certificate of stock: therein mentioned, was thereupon delivered to H. B. More-head & Co., to be by them sold as brokers and agents for said Harper, and was bought by plaintiff from said Morehead & Co:, agents for defendant, plaintiff paying therefor the sum of six thousand dollars, which said sum was by said Morehead & Co. turned over to said E. L. Harper. Said Matthews acted in the premises, not on his own behalf, but simply as agent for said Harper, and made and indorsed said note without consideration and for accommodation of said Harper. Said note is wholly unpaid. Plaintiff was unaware at the time of the transaction aforesaid, and, until a short time ago, that said Matthews was acting as agent for any one or otherwise than on his own behalf. Plaintiff made due demand for the payment of said note on June 23, 1887, but payment was then refused and plaintiff still holds said note and owns the same. On said date said stock was worthless and said Matthews irresponsible financially. Harlan P. Lloyd is the trustee in insolvency of the estate of E. L. Harper by the appointment of the probate court of Hamilton county, Ohio, in a proceeding wherein said E. L. Harper had made an assignment for the benefit of his creditors under the insolvent laws of Ohio, and the claim herein set forth, duly verified, was presented to said trustee for allowance less than thirty days prior to the filing of this petition, who declined to allow the same'.

      “And the .plaintiff further says that it is, and was at the times hereinbefore named, a corporation by the laws of the United States.”
    The prayer is, that the trustee be ordered to allow the claim as a valid one against the estate of Harper.

      II. P. Loyd, for plaintiffs in error.
    This court in the cases of Anderton v. Shoup, 17 O. S., 125, and Bank v. Cook, 38 O.’ S., 442,established the rule that “parol evidence is not admissible to add a party to the instrument who does not appear upon its face.”
    The plaintiff below, aware of this' rule, has framed its amended petition in the form of an action in assumpsit for money had and received, whereby it seeks to recover from Harper, the alleged principal, theconsideration paid to the broker for the purchase by the plaintiff of the said notes and collaterals.
    Can the plaintiff below maintain an action in that form, when the special contract is a negotiable instrument ? In other words: Does a special action on the case lie, where the special contract relied upon to sustain it is a negotiable instrument? Bliss on Code Pleading, 2d ed. p. 19; Bliss on Code Pleading, 2d ed. 14, citing 1 Sanders, 5 ed. p. 291 (Note); Masters v. Stratton, 7 Hill, 101.
    In any contract like the one under consideration there must be between the parties to the suit a mutuality of rights and obligations. The decisions are uniform and clear upon this point. Note to Thomson v. Davenport, Smith’s Lead. Cas., vol. 2, p.377, citing Ford v. William, 21 How., 287; Elkins v. Boston & Maine R. R. Co., 19 N. H., 337;
      Cushing v. Rice, 46 Me., 305; Chandler v. Coe, 54 N. H., 561; Burton v. Simonton, 3 Col., 346.
    Privity is even more essential than mutuality. In actions in tort no privity is necessary, but in actions on contract privity is indispensable. In the case stated in the petition, no privity is shown between the Tiffin Bank and Harper, and from the very nature of the transaction none could be shown in evidence.
    This rule of law has been rigorously applied by the courts to a large class of eases. Even in a case where money was borrowed by one member of a copartnership, and his notes were given, although the money received went into the business of the firm for the common benefit, on the subsequent insolvency of the individual member an action could not be maintained against the remaining members of the firm to recover on the common counts as for money had and received for the use and benefit of the firm. Rogers v. Coit, 6 Hill, 322; Peterson v. Roach, 32 Ohio St., 374; Allen v. Coit, 6 Hill, 318; Bank of N. America v. Hooper, 5 Gray, 567; Cragin v. Lovell, 109 U. S., 194.
    Any agent entrusted with securities for the purpose of dealing with third parties is deemed the owner of such securities. Cleveland Brown & Co. v. Shoeman, 40, Ohio St., 176.
    A certificate of stock represents property in the same manner as a warehouse receipt. Mathews and Gahr were at least so far as dealings with third persons were concerned, the owners of the stock pledged, and any one else would have been estopped to question their title as against the Tiffin Bank. Story on Agency, Sec. 423; Thompson v. Davenport, Smith’s Lead. Cas., Vol. 2, p. 435; Lincoln v. Crandell, 22 Wend., 102 ; Newcomb v. Clark, 1 Cen., 226;
      Briggs v. Partridge, 39 N. Y., Sup. Ct., 339; Cummings v. Kent, 44 Ohio St., 92.

      Wilby <& Wald, for defendant in error.
    As a matter of ethics, it would be difficult to affirm that Harper, who procured the money in this way and used it for his own benefit, is not bound to repay it.
    It is claimed, however, that as a matter of law, he is not so bound, by reason of a hard and fast rule of law that no person can be sued on a negotiable instrument unless his name appears upon it. We have no disposition to question either the existence of the rule or its rigidity. The petition was carefully framed so as to state a cause of action not upon the note, but for money of plaintiff had and received by Harper. We maintain that Harper, though not liable upon the note, is liable for thecoresideration Pope v. Meadow Springs Distilling Co., 20 Fed. Reporter, 35; Pentx v. Stanton, 10 Wend., 271; Allen v. Coit, 6 Hill, 318; Kayton v. Barnet, 116 N. Y., 625.
    Two of the cases principally relied upon by plaintiff in error, perhaps, deserve comment. Cragin v. Lovell, 109 U. S., 194; Lowell v. Williams, 125 Mass., 439.
    A case much in point is .Merchants National Bank v. Little, 4 C. C. R., 195, opinion by Judge Shauck. And a case precisely like the one at bar upon all the facts is Bank of Chicago v. City Bank of Portage, S. C. Ills. 40, N. E. Rep., 329.
   Minshall, J.

The objection to a recovery on the petition is, that Harper’s name nowhere appears on the note, and that no recovery can be had against him, nór his assignee, for this reason, although, the money was thus raised for his use, and he in fact received it; and authorities are cited to show that parties, cannot be added to and made liable on instruments of this kind by parol. This is conceded to be the rule, particularly where there is a disclosed principal. In such cases the presumption is that the paper was taken on the credit of the parties to it. But such is not this case, and the objection to the petition on this ground misapprehends its character. The action is not on the note signed and indorsed by Matthews, but on the special facts of the case, of which the making of the note is but a part. It is a settled principle of the law founded on the plain principle of justice, that where one receives money that in equity and good conscience belongs to another, the latter may recover it as money had and received to his use. This was the phraseology of the common law, used for the sake of the remedy, assumpsit. ■ Under the code the fiction of a promise is not required — is, in fact, contrary to its rules. By it, where the statement of the facts show a duty neglected on the part of the defendant, and of which the plaintiff has the right to require performance, the petition states a cause of action.

The facts disclosed by the petition are, in substance, that Harper procured Matthews to make and indorse a promissory note for six thousand dollars, payable at the office of a broker, and also transferred to Matthews 'fifty shares of the stock of the Fidelity National Bank to be, and which were attached to the note as collateral security. On this note the broker obtained the money from the plaintiff and turned it over to Harper. Matthews is irresponsible, and neither the note nor the stock is worth anything. Harper’s connection with the matter was nowhere disclosed, although the entire transaction was directed by himself and was for his sole benefit. Good conscience certainly required Harper to pay back this money as a loan to himself; and, being insolvent, it should be accepted as a valid claim against his estate.

The cases and the books fully support a recovery in such case. As observed before, it is not a case where it may be presumed that the plaintiff elected to rely on the credit of the names of the parties to the paper and the collateral security; for the name of the real party in interest was not disclosed, so that there could have been no election, and the action is not on the note, but against an undisclosed principal upon the special facts of the case, making it inequitable and unjust for him to retain the money, or, in other words, not to pay the note he procured to be made and on which he got the money. Pentz v. Stanton, 10 Wend., 271; Allen v. Coit, 6 Hill, 318; Kayton v. Barnett, 116 N. Y., 625; Lovell v. Williams, 125 Mass., 439; Chemical National Bank v. City Bank, (Ill.) 40 N. E. Rep., 328; 1 Randolph Com. Paper, 180; 1 Parson’s N. & B., 93, note 1.

The case of The Chemical National Bank v. The City Bank is quite similar in its facts to the case before us, but not more so, on principle, than the other cases cited. There, Braden who was the cashier of the Chemical National Bank, under an agreement with its president, drew his individual note for $5,000, payable four months after date to Wetmore or order, and attached to it fifty shares of the stock of the bank as collateral, that had been transferred to him by the bank for that purpose, and the money was obtained on the paper from the plaintiff through Wetmore, a broker, and paid over to the defendant. Not being paid, suit was brought on it against the defendant. The declaration contained the common counts and a special one, in which it was charged that the defendant made the note by “the name, style and description of C. E. Braden.” On error, the judgment below for the plaintiff was affirmed. In disposing of the case the court said: “As before observed, the declaration contained the common counts, and, if it was conceded — which it is not — that the defendant was not liable on the note, no reason is perceived why an action for money had and received could not be maintained. ” And after citing other cases, the court continued: ‘Here the Chemical National Bank received from the plaintiff $5,000, which it agreed to pay. Braden, who signed the note, had no interest in the transaction. Wetmore had no interest. He acted merely as an agent in procuring the loan for the defendant, and transferred the note over to the plaintiff without recourse, and passed the money which the note represented from the plaintiff to the defendant. The money is still in the hands of the defendant. It is the person liable to pay the money, and the City Bank of Portage is the person entitled to receive the money; and, in an action for money had and received, we see no reason why the plaintiff may not surrender the note in court, and recover a judgment for the amount of the money. ’ ’ The accuracy of the courts conclusions in this case is sustained by reason and authority, as will appear from the citations before made.

The case of Peterson v. Roach, 32 Ohio St., 374, is relied on by the plaintiff in error, as applicable. We do not thmK so. It was simply a case where one member of a firm borrowed money oh his individual credit and that of a surety, and after-wards applied it to the use of the firm; and such was his purpose at the time he borrowed the money. But there was nothing to show that the loan was made on the procurement of the firm, or that the other member was undisclosed. The member borrowing the money acted for himself, and not for the firm, nor at its instance.

In the case of Bank v. Hooper, 5 Gray, 567, also relied on, it was held that a bank which had discounted bills drawn in his own name by the agent of a disclosed principal, could not sue the latter, nor prove against his estate in insolvency, although the proceeds were applied by the agent to the use of the principal. This is on the principle before stated, that when' the principal is known to the creditor, credit is presumed to have been given to the agent by accepting his paper instead of that of the principal; and, in such case, when the suit is on the paper, new parties cannot be added to it by parol. As pointed out by counsel, the rule in Massachusetts applicable to the case before us, is stated in the later case, Lovell v. Williams, 125 Mass., 430, where it is held: “If a person sells goods to another, who is an agent of an undisclosed principal, and takes the note of the purchaser in ignorance of such fact, the presumption that the note was taken in payment is rebutted, and the seller may resort to the undisclosed principal.” This rule seems so agreeable to the ordinary notions of justice, that it is difficult to perceive why it should ever have been questioned.

Judgment affirmed.


author: Shauck, J.

text:
    Stark v. Simmons.

      Mechanics lien — Liability of building owner to contractor, compensated. pro tanto by valid claim gaa inst contractor — Owner may apply such compensation against sub-lienor.

    1. The liability of the owner of a building to a contractor for labor to be performed thereon is pro tanto compensated and discharged by a valid claim against such contractor, the claim being due to such owner when the contract for labor is entered into.
    2. In the absence of fraud and collusion the owner may insist upon such compensation against a sub-lienor.
    (Decided April 28, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    Simmons filed his petition in the court of common pleas, the first cause of action being as follows:
    First cause of action. Plaintiff says that between the 19th day of April, and the 29th day of April, 1893, he performed four days manual work and labor as painter for one, W. C. Mullen, a painter contractor, which was applied towards the repair of a certain building belonging to and owned by the defendant, E. D. Stark, under and by virtue of a contract between the said W. C. Mullen and the said E. D. Stark at the agreed price of $3.00 a day; that no part of the same has been paid, and there is now due and owing him for the same from said Mullen the sum of twelve dollars. '
    That afterwards to-wit, on the 23d day of May, 1893, this plaintiff filed with said defendant, under the statute for obtaining a mechanics lien by material used and laborers, a true and itemized account of said work and labor done, which same was not disputed by said Mullen within ten days thereafter. Plaintiff says that at the time of filing said account with said owner there was due and owing from said Stark to said Mullen on said contract, so existing between them, a sum of money amply sufficient to satisfy the claim of this plaintiff, and that by reason of the premises there is now due and owing this plaintiff from said defendant the sum of twelve dollars, no part of which has been paid.
    Other causes of action were founded on liens of the same character taken by others on employment by Mullen and by them assigned to Simmons. The sum of the alleged liens was $53.00.
    The first defense interposed by the defendant was as follows:
    “He denies that he ever directly or indirectly employed the plaintiff, or had any contract relation, express or implied, with him or any one of the several persons named in the petition as assignors, to him of claims for work, or that he is in any manner indebted or liable to him or them for wages or anything else.
    “Further answering he says, some days prior to April 19, 1893, this defendant became the owner of a valid claim against Mullen for the sum of $82.00 then past due, and for the purpose and with the intent of getting payment and satisfaction of that amount he engaged Mullen to paint his building at the agreed price of $80.00. Defendant had no knowledge or information that Mullen, being himself a working painter, would employ any other person to work on the job. After the work was done Mullen was not satisfied with the set-off, and refused to accept a satisfaction of the $82.00 claim against himself in payment of the $80.00 claim, though admitting the validity of the account and his obligation to pay, and thereupon set on foot schemes to avoid the set-off.”
    A demurrer to this defense was sustained and a a judgment rendered in favor of the plaintiff, which was affirmed by the circuit court. A reversal of both judgments is sought upon the ground that there was error in sustaining the demurter.

      E. I). Stark, for plaintiff in error.

      E. J. Thobaber, for defendant in error.
   Shauck, J.

It is insisted that the ruling below is justified by Bullock v. Horn, 44 Ohio St., 420. It was there decided that where a mechanic, who under the employment of a contractor, and with the knowledge of the owner, has performed labor upon the construction of a-building, and, the account not being paid, takes the necessary steps to fix the liability of the owner and obtain a lien upon the premises, the owner cannot defeat the claim of such mechanic by setting off against it a claim against the contractor such claim not growing out of the contract and being acquired by the owner after the labor was performed. In that case the owner attempted' to make the subsequently acquired set-off available against the demand of the mechanic to defeat his right to resort to an indebtedness of the owner to the contractor which existed when the mechanic performed his labor. The opinion approves the view expressed in Phillips on Mechanic’s Liens, that the purpose of laws of this character is “to take from the owner money actually owing by him upon his contract, and apply it in the payment for the labor and material which the workman and material-men have contributed toward the performance of the same contract.” Here, however, the. contention of the plaintiff in error is, that upon the facts alleged in the pleadings, he was not at any time indebted to the contractor, and there was, therefore, no money which, within the purpose of the statute could be applied to the discharge of the claims of those who had performed labor upon the employment by the contractor. It does not seem to be doubted, that if the case were not affected by the statute relating to such liens, the plaintiff in error would be entitled to insist that his demand against the contractor, which was due when the contract was entered into, should compensate the demand against him founded upon the contract. Of the provisions of the statute in force, when this question arose, section 3204, is applicable. That section provides, in substance, that if the owner, by collusion or fraud, pays in advance of the payments due under the contract, thereby diminishing the fund available to the sub-lienor, he shall be liable, as if such collusive or fraudulent payment had not been made. This section appears to be exclusive in defining the. circumstances which will give to the sublienor a right to resort to an obligation which, as between the owner and contractor, had been discharged when the sub-lienor’s right accrued. The statute preserves the amount of the indebtedness of the owner to the contractor, as a fund for the satisfaction of the claims of those who take liens in accordance with its provisions; but it does not, for the purpose of creating a fund to which they may resort, enlarge the owner’s liability to the contractor as it may be fixed by the. terms of the contract and by the rules of law relating to the subject.

Judgments reversed and demiorrer overruled.