author: Asitburn, J.

text:
    Cowan v. Kinney.
    1. On an issue denying partnership, the declarations of one charged with being a partner are competent against him; but such declarations, made when the other alleged partner is not present, are incompetent to> charge the absent party with that relation.
    2. After the death of G., an action was brought against his administrators,. and one P., charging that P. and G. were, in the lifetime of G., partners in business, and, as such partners, became and are indebted to plaintiff, K. The administrators of G. answered, denying each and every allegation in the petition, except the rejection of the claim. P.. answered: 1. By general denial. .2. Admitting his individual liability, and alleging part payment. 3. Plead his final discharge in bankruptcy, which was not denied by reply or otherwise controverted: Held, Under the pleadings, no testimony was required or admissible to establish a claim against P., and that his declarations tending to prove his liability as a partner of G. were improperly admitted, because calculated to mislead and induce the jury to charge the estate of G. with a partnership-liability.
    3. When the testimony of a witness, called to discredit another for truth,. shows that he is testifying from his personal knowledge, and not from the general reputation of the person whose testimony is sought to be-discredited, it is not error to exclude it. It is error, however, to reject the testimony, when the answer of the witness manifestly shows he testified from a knowledge of the general reputation of such person for-truth and veracity.
    Error to tbe District Court of Ashland county.
    This action was instituted by Jacob Kinney, plaintiff below, defendant in error, to recovera judgment against John Cowan and Robert denn, as administrators of the estate of John denn, deceased, and Luther Potter. It is averred in the petition that in April, 1867, and in the lifetime of' John denn, that he and Luther Potter were partners in the purchase aud sale of sheep, and that as such partners they bought a lot of sheep from plaintiff below, and are indebted to him for the same in the sum of $1,650, for which sum plaintiff asks a judgment, with accrued interest. He avers further that he presented his account to the administrators of John Glenn, deceased, for payment, and it was rejected by them.
    The administrators filed their answer, denying all and each of the allegations of fact in the petition, save the rejection of the account. Luther Potter filed his answer, denying, first, each and every allegation in the petition ; and second, alleged that he purchased the sheep on his own responsibility ; had paid Kinney $400 on the purchase; and further set out a certificate in bankruptcy, granted him by the District Court of the Nnited States for the Northern District of Ohio ; that the debt sued on accrued to Kinney prior to his filing his petition in bankruptcy, upon which the certificate in bankruptcy plead was granted to him.
    The plaintiff replied “ that all and each of the following allegations in said answer are untrue, to wit: ‘ That afterward this defendant paid to the plaintiff the sum of $400 upon the sheep so purchased as aforesaid.’ Plaintiff says no part thereof was paid.”
    The first trial resulted in a verdict against the administrators only, there being no finding as to Potter. A second trial resulted in a verdict in favor of the plaintiff and against all the defendants. Before judgment, Potter made a motion for a judgment in his favor, notwithstanding the verdict. His motion was overruled, and judgment entered upon the verdict against all the defendants.
    The administrators moved the court for a new trial, for reasons assigned, substantially as follows : 1. The verdict is against the weight of the evidence and the law of the case. 2. The court erred in admitting the testimony of sundry witnesses to prove the declarations of Luther Potter, made by him when the decedent, John Glenn, was not present. 3. The court erred in refusing to admit the deposition of John Ditzler and Reed McDonald as to the general reputation of Samuel Bakei", a witness in behalf of plaintiff below.
    The administrators of John Glenn, deceased, filed a petition in error in the district court, assigning for error substantially the causes for relief averred in the motion for a new trial, with, the addition that the judgment of the court of common pleas ought to have been given for the plaintiff in error, instead of for the defendant. The proceedings and judgment of the court of common pleas were affirmed in the district court.
    The bill of exceptions, taken in the court of common pleas, on overruling the motion for a new trial, discloses that plaintiff, to sustain the issue on his part, introduced Samuel Baker as a witness, who testified, among other things, that “ about the latter part of March, 1867, I talked with the defendant, Luther Potter, and the deceased, John Glenn, at Jeromeville; before that time, Glenn and I had talked about buying sheep to go east; I first had a conversation with Potter.” Question by plaintiff — State what was said by the defendant, Potter, in that conversation. To which question the defendants’ counsel objected, but the court held the evidence competent as against Potter alone, overruled the objection, and pei’mitted the question to be asked, to which ruling of the court, the defendants excepted. The witness, in answer to the question, testified to a number of statements made by defendant, Potter, tending to show a partnership between John Glenn, deceaséd, and defendant, Potter, in the purchase of the sheep.
    To impeach the general reputation of Samuel Baker, defendants offered the depositions of Reed McDonald and John Ditzler and others; plaintiff objected to the depositions, because the testimony therein was incompetent; the court sustained the objection, and defendants excepted.
    The witness, Ditzler, testified: “ I live in Chambersburg, Pennsylvania; I am aged sixty-three years; occupation, carpenter; I have known Samuel Baker for twenty years; he was a stock-dealer; about six feet high, stout built, dark complexioned; he resided in Fulton county, Pennsylvania; I had the means of knowing his character for veracity and truth; it was bad; I would hesitate to believe him on oath; I would not consider him a safe witness in a court of justice, where interested in any degree.”
    Reed McDonald testified: “ I reside in Chambersburg; by occupation, clerk of hotel; I have known Samuel Baker for twenty years; I mean Samuel Baker, who lived in Eulton county, Pennsylvania, until he removed west, and the same person who was engaged with Glenn, Miller, and Kennedy, in driving sheep ; I had means of knowing his character for veracity and truth, by my knowing nearly all the people resident in the county of Eulton, Pennsylvania; his character for truth and veracity was and is bad; I would not believe him upon his oath.”
    The errors assigned in the Supreme Court, and upon which the judgments of the lower courts are here sought to be reversed, are—
    1. That the court of common pleas which tried the case, and the judgment of which was reversed by said district ■court, erred in admitting the testimony of certain witnesses, namely, Samuel Baker, Gilbert Britton, James Baker, Robert Aultz, and Job Kiuney, as to the declarations of one Luther Potter.
    2. That the said court of common pleas erred in refusing to admit the depositions of certain witnesses, namely, Reed McDonald, John Ditzler, and Logan Kennedy, in regard to the character of one Samuel Baker for truth and veracity.
    3. That the district court erred in affirming the judgment •of the common pleas in said action.

      William Osborn, and McGoombs § Curtis, for plaintiff in •error.

      T. J. Kenney, for defendants in error.
   Asitburn, J.

The record presents two principal questions for consideration:

1. The admission of certain testimony offered by plaintiff below; and,

2. The rejection of certain testimony offered by the administrators of John Glenn, deceased, defendants below.

The action was brought, as the testimony discloses, by Kinney, to recover the price and value of a lot of sheep bargained and sold by him to the defendant, Luther Potter; that, at the time of the transaction, Kinney had no-knowledge of the existence of any partnership relation between Luther Potter and John Glenn. Plaintiff below charged in his petition the existence of a partnership between them, and relied, for a recovery against the estate of' Glenn, solely upon the supposed fact of an actual partnership between Potter and Glenn at the time of the sale, but' to him unknown, until some time after the transaction.

The fact of a partnership was put directly in issue by the-answer of the administrators of Glenn. This, so far as the-liability of the estate of Glenn was concerned, cast the burden of proof upon the plaintiff, to show the actual existence of a partnership between John Glenn, now deceased,, and Luther Potter, at the time of the purchase of the sheep.

On the trial -below, the court permitted the plaintiff to-show, by the testimony of the witness, Samuel Baker, and others, the declarations of Luther Potter, made in the absence of Glenn, tending to show the existence of a partnership between Potter and Glenn. To this, the administrators objected and excepted. The court held the testimony competent against Potter, under the-issues in the case, and therefore admitted such declarations. Now, if the issues-raised any controverted fact or question as to the liability of Potter under the contract of purchase, then it would be-competent to prove the declarations of Potter, to show his liability, whether under the alleged partnership or otherwise. On the other hand, if the issues clearly admit the-liability of Potter on the contract, and also his full discharge from liability thereon, the declarations of Potter were wholly unnecessary to charge him with an original liability; so that the only purpose his declarations, which were admitted, could serve, was to show a partnership between Potter and Glenn, tending to charge the estate of Glenn.

An analysis of the pleadings between Kinney and Potter shows that Potter distinctly admits his personal liability to Kinney for the price and value of the sheep, to the amount claimed, less $400, which sum Potter avers he paid Kinney on the contract. He also pleads his discharge in: bankruptcy, granted to him by the order of tbe federal court for tbe Northern District of Ohio, on bis petition for that purpose, after this debt in favor of plaintiff bad accrued. By bis reply, plaintiff denies that Potter paid him $400, but takes issue upon no other question of fact in the-answer of Potter. Tbe answer alleging bis discharge in bankruptcy was admitted, on a failure to reply to it. Ontbe issues thus made, tbe plaintiff, on Potter’s admission, was entitled to a judgment against him for tbe full amount of bis claim, without proof. Potter, to avail himself of tbe benefit of bis alleged payment, must introduce proof to sustain it; otherwise, having admitted be purchased the-sheep, at tbe price charged, judgment must go against him for tbe full amount on tbe pleadings. But proof of'payment could in no conceivable way involve tbe question of partnership, so as to render competent, on that question, tbe testimony objected to.

The discharge in bankruptcy, covering this debt, being-admitted, Potter was entitled to a verdict in bis favor, without other proof. His admitted discharge released him from liability on that debt, and no proof was admissible to ■ show bis liability. Plis declarations were not competent, as against him, on the state of tbe pleadings.

Tbe only effect of Potter’s declarations would be, it seems to us, to prejudice tbe interests of tbe estate of Glenn. They would almost necessarily, if credited, have an undue influence on tbe minds of tbe jurors, in inducing-a belief in tbe existence of a partnership between Potter and Glenn, and a verdict against plaintiffs in error. Prom tbe nature of tbe pleadings, such testimony, when admitted,, could be used for no legitimate purpose. Tbe statement of tbe court, on their admission, that they could only be used against Potter, was vain, for tbe reason that, under tbe pleadings, they could not be used for such purpose. No-valid judgment, under the admitted plea in bankruptcy, was possible against Potter. "We think tbe admission of' tbe declarations of Potter, made when Glenn was not pres■ent, were calculated to mislead the jury, and injuriously affect the interests represented by the administrators.

On an issue of partnership the declarations of one of the .alleged partners, made in the absence of the other, can not, as against the one absent, be used to establish the controverted fact of partnership. This rule of evidence seems to be well established. See Grafton Bank v. Moore, 13 N. H. 99 ; McPherson v. Rathbone, 7 Wend. 216 ; Welsh v. Speakman, 8 Watt. & Serg. 257 ; Jennings v. Faster et al., 16 Me. 323; Tuttle v. Cooper et al., 5 Pick. 414 ; Whitney v. Ferris et al., 10 Johns. 66.

It is assigned for error here that the court of common pleas erred in excluding the depositions of Reed McDonald, John Ditzler, and Logan Kennedy, in regard to the character of one Samuel Baker for truth and varacity.

The testimony of Kennedy and Ditzler was properly ruled out. The witnesses testify to their personal knowledge, and not to the general reputation of the witness, Baker, for truth and veracity. The scope of the question put to either witness, eliciting his answer, does not appear, but it is clear they do not speak from the general character or reputation of Baker. The rule of law on this point, as stated in Bucklin v. The State of Ohio, 20 Ohio, 18, is sound, and, tested by that rule, both depositions were properly excluded. The witness, McDonald, testifies :

“ I have known Samuel Baker for twenty years; I mean Samuel Baker who lived in Fulton county, Pennsylvania, until he removed west, and the same person who was engaged with Glenn, Miller, and Kennedy, in driving sheep; 1 had means of knowing his character for veracity and truth, by my knowing nearly all the people resident in the county of Fulton, Pennsylvania; his character for truth and varacity was and is bad; I would not believe him upon his oath.”

The testimony of this witness, we think, was improperly excluded. The record does not show the form of the question put to the witness eliciting his answers, but we think it appears, by the answer of the witness, that his mind had grasped and considering tbe subject of Baker’s general-reputation for truth and varaeity; and from that consideration he made'answer that he had the means of knowing Baker’s character in that respect from knowing the people-amongst whom Baker had lived a long time. Erom a knowledge of his character for truth, thus acquired, he testified. In all such cases the fact to be ascertained by the inquiry is the public estimation for truth in which the witness proposed to be impeached is held. 5 Ohio St. 605 ; 26-Ohio St. 574. The witness uses the word character instead of reputation. That did not render the testimony incompetent. Character, in the sense used by the witness,, is synonymous with reputation. If the deposition of McDonald was, as stated by counsel, ruled out because the-witness used the word character and not reputation, the reason for the ruling was insufficient. 20 Ohio, 18 ; 2 Ohio-St. 44.

We think the deposition of McDonald, to the extent we-have quoted, was competent testimony, aud that the court erred in excluding it.

Judgment reversed.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    Powers v. The Hazelton and Estonia Railway Company.
    1. Where a railroad company proceeds to appropriate land for its use, it is-essential to a judgment of condemnation that it should prove its corporate existence, and that it has complied with the law giving it the right to exercise the power of eminent domain.
    2. It is essential to the exercise of the right of eminent domain for the company to prove that it has fully organized, by the election of directors, and that they are unable to agree with the owner of the property upon-the compensation to be paid therefor.
    3. But a judgment rendered in a proceeding for the appropriation of land under the act of April 80, 1852, will not be reversed for failure to malee such proof on a hearing before the court preliminary to the-impaneling of the jury, if it be made at any time during the trial before judgment.

      i. Where, in such proceeding, the company has filed in the proper court a. written statement, specifically describing the property sought to be appropriated, no further written or record evidence of the line of the road is essential to the right of the company to have an assessment by a jury of the compensation to be paid for the property so described.
    . 5. Where it is stated in a record that, for the purpose of proving a series of specified facts, most of which were inadmissible as evidence, a number of witnesses were asked a series of specified questions, without showing what was expected to be proved in reply to any particular one; a judgment will not be reversed on exceptions for ruling out the questions; for it can not be told which one, if any of them, was excluded to the prejudice of the party excepting.
    < 6. Where land is appropriated for a public use, a compensatory, not a speculative remuneration is guaranteed by the law for land taken, and for the damage occasioned thereby to the remainder of the premises. The difference in the value of the owner’s property, with the appropriation and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situation, and surroundings. It can not be enhanced by proving facts of a contingent and prospective character, such as the probable rents that may be derived from the property, or its special value as a prospective monopoly of a road-way to the adjoining lands of other persons.
    '7. In a proceeding by a railroad company before a probate judge, underthe act of April 30, 1852, for the assessment of compensation to be paid for land appropriated for its road, it was incompetent for the land-owner to prove, for the purpose of defeating the proceeding, that the corporators procured the incorporation of the company, not for a public use, but for their private purposes merely, and were exercising the corporate privileges in abuse of the law ; nor was it competent to prove for that purpose that there was no public necessity for the road. These questions were not committed by the law to the determination of the probate judge, nor to the jury; but pertained to other proceedings and other tribunals.
    8. Where no special ground is laid therefor, account-books of persons not parties to the proceeding are not of themselves admissible in evidence to prove the value of the property affected by the appropriation, and quantity of products transported over it from the lands of other parties.
    '9. Where, on the trial, the land-owner, against the objection of the company, was permitted to ask a witness how much less valuable his land would be in consequence of the appropriation, and the witness named a definite sum; and the same question, when asked another witness by the company, was, at the instance of the land-owner, not permitted to be answered; it was not error for the court to withdraw from the jury the answer to the question asked by the land-owner.
    •10. A general exception to a charge of the court to a jury, where it contains a number of distinct propositions, some of which are sound in law, is insufficient to bring in review the particular points of the charge claimed to he erroneous. *■
    21. Where a court, after reading a written charge to the jury, added a remark, not in writing, which as soon as the jury had retired, was excepted to, because not in writing, it was not error to recall the jury, add the remark in writing to the charge, and read it to the jury.
    Reserved in the District Court of Mahoning county.
    The case is sufficiently stated in the opinion.

      B. F. Hoffman, for plaintiff in error.

      George M. Tuttle, for defendant in error.
   Day, J.

The case originated in a proceeding before the Probate Court of Mahoning county, to appropriate land for ■a railroad. The judgment of the probate court, condemning the land for a railroad, and in favor of the plaintiffs in ■error for $2,000, as compensation therefor, was, on error, affirmed by the court of common pleas ; and a petition in ■error, filed in the district court, was reserved for decision in the Supreme Court.

The record is voluminous, and the questions made thereon are numerous, but they may be classified under three general heads: 1. Such as are of a preliminary character; 2. Those arising in the progress of the trial to the jury; 3. Those made on the charge of the court to the jury.

In considering the preliminary questions, it must be borne in mind that the proceeding was not under the act now in force, but was under that of April 30,1852 (S. & C. ■311). That act did not, like the present one, require the court to determine certain matters preliminary to the calling of a jury; but it was essential that the company, before it could demand a judgment of condemnation, should show that it had a corporate existence, and had complied with the law giving it the right to exercise the power of eminent ■domain.

The company did prove its incorporation by producing the certificate of the secretary of state, which the law declares shall be sufficient- evidence of that fact; hut it offered no further evidence preliminary to the bearing before the' jury. Thereupon the land-owners moved the court to dismiss the proceeding, for want of further proof of the organization of the company; for failing to prove the inability of the parties to agree on the compensation to be paid by the company to the land-owners; and for not proving by record or paper evidence the line of the road adopted by the company.

To the extent of the appropriation sought to be made, the line of the road adopted was sufficiently described in the statement filed, as required by the statute, for the’ making of the appropriation. No other record or paper evidence was required by the law as preliminary to the right of the company to have the compensation for the-land so described assessed by a jury.

The general powers of a railroad corporation, after it receives its certificate of incorporation, fall into two classes r such as may be exercised before, and such as can not be until after the election of directors. Among the former is the right to receive subscriptions to the capital stock, and the election of directors; and among the latter, the location and construction of the proposed road. Ashtabula and New Lisbon R. R. Co. v. Smith, 15 Ohio St. 328. The condemnation of land for the construction of the road comeS' within the powers to be exercised by the corporation through its directors. It was therefore incumbent on the company to show, in - addition to the fact of its incorporation, that it had brought itself into a condition to exercise its powers for the construction of the road, by a full organization in the election of directors.

The statute under which the proceeding was conducted proceeds on the theory that the high power of eminent domain shall be invoked only in case the necessity arises from the inability of the corporation to agree with the land-owner upon the compensation to be paid for the land' appropriated. The inability of the parties to agree must then be proved.

For the failure of the company to prove, on the preliminary hearing before the probate court, the full organization of the company, and its inability to agree with the landowners, the court might well have dismissed the proceeding ; and its failure to do so would be fatal to its final judgment of condemnation, in favor of the company, had it not been shown, during the progress of the trial, that the company had elected and was acting by its directors, and that they were unable to agree with the land-owners upon the compensation to be paid to them. The statute did not then, as now, require the facts, preliminary to the right of a corporation to condemn land, to be shown before the impaneling of the jury. It was sufficient, to sustain a judgment of condemnation, if such facts were proved at any time before the judgment. It appearing, from the record, that these facts were shown to the court during the trial, its judgment can not be reversed for not granting the motion of the land-owners to dismiss the case.

After the jury were duly qualified, they were permitted, as allowed by the statute, to view the premises where the appropriation was sought to be made. A large amount of evidence was then given, affecting the amount of compensation to be assessed. Many questions were asked of numerous witnesses, by the land-owners, which were objected to by the company, and the objections being sustained by the court, they excepted to the ruling; but the record does not show what was expected to be proved in response to any one of the questions. In regard, however, to one class of questions which were ruled out, it is stated in the record, that they were asked for the purpose of proving numerous facts set forth in a long statement, most of which, if not all, was inadmissible as evidence; but in no instance is it stated what was expected to be proved in reply to any particular question, so that it is impossible to say which one, if any, of the questions was excluded to the prejudice of the party excepting. Eor this reason, therefore, a strict adherence to a well settled rule would. forbid a reversal of tbe judgment for ruling out this class of questions.

But if it be assumed that the aggregate answers to this series of questions, proposed and ruled out, would have proved the facts stated, the substance of the testimony must have been inadmissible, for the general scope of the facts, not given in response to admitted questions, related to a remote and speculative value of the premises which were sought to be appropriated.

The land-owners were permitted to prove the quantity of land owned by them; the existence and probable quantity of coal thereon; the manner the coal mines were worked, and of the conveyance of the coal to market; the location and cost of a private railroad owned by them, through their lands; the extent and condition of the coalfields belonging to other persons adjoining their lands; the convenience of a ravine, in which the appropriation was sought to be made, as a roadway for all that coal region; the effect the appropriation would have on their private railroad ; and much other evidence touching the compensation to be assessed.

Thereupon the land-owners further proposed to prove that the ravine had a special value as the only roadway to market for coal on lands not owned by them, and the amount of rent that had been and could be obtained per ton for conveying coal on their railroad from mines belonging to other persons. This, so far as can be gathered from the record, was the character of the testimony ruled out. It related, not to the present actual value of the property appropriated, but to a contingent use of the property of others, which prospectively might enhance the future profits derived from the property taken. In this mode a speculative value was sought to be added to the property. This would be so far entering the domain of speculative values, that, as applied to the compensation to be assessed for property taken for a public use, it can not be said that the land-owners were clearly prejudiced by the ruling out of this class of questions.

Undoubtedly the owners of the ravine, as against private persons, might demand any price, however speculative, for the supposed monopoly connected with their land; but when the land is appropriated by the state for a public use, a compensatory, not a speculative, remuneration is guaranteed by the law for the land taken, and for the damages occasioned thereby to the remainder of the premises. The difference in the value of the owner’s property with the appropriation and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situation, and surroundings. It can not be enhanced by proving facts of a contingent and prospective character, such as the probable rents that may be derived from the property, or its special value as a prospective monopoly of a roadway to the adjoining lands of other persons. Patten v. Pailway Co., 33 Penn. St. 426; Phodes v. Baird, 16 Ohio St. 573; Goodin v. Canal Co., 18 Ohio St. 169; Lake Shore Railway v. Cin. S. & C. Railway, 30 Ohio St. 604, and cases cited on page 624.

The rejected evidence proposed by this class of questions related to an advantage or a monopoly which the landowners were supposed to have by reason of the eligibility of their ravine as a roadway for transporting coal belonging to others from adjoining lands to market. But this monopoly was contingent on the will of others to make it available, and could exist only so long as there were no other roads available for the same purpose. They had no property right in the land or coal of other parties. They could not require the coal to ,be mined, or if that was done, thej' could not demand its transportation through their ravine or over their private railroad. The construction of other roads, either private or public, though it destroyed the monopoly they could otherwise have, would be no ground for the recovery of damages, for it would not invade any right of theirs; but would be a mere destruction of one of the contingencies on which their monopoly depended. Private advantages based on such contingencies must give way to the public good. No right of property existing in them, and being merely contingent and speculative in their character, they afford no ground for compensation.

Another class of questions, ruled out without the record showing what answer was expected to any particular one, related to the validity of the corporation which was causing the appropriation to be made. It is stated, however, that they were asked with a view to prove, by the aggregate testimony in response thereto, that there was no public necessity for the road, and that the incorporators of the company procured its incorporation, not for the public benefit, but for their own private purposes, and to thereby defraud the land-owners, who are parties to this proceeding, out of their property.

The testimony was not offered to disprove the due organization of the company in accordance with all the requirements of the law, nor of the abuse of its powers by the corporation itself, but to show an abuse of the law by the corporators.

As the law then stood, such questions could not be tried in a proceeding merely for the assessment of compensation for land taken in due form of law by a corporation duly organized and authorized so to do. The proceeding was by, and in the name and right of, the company, not of the corporators. Their abuse of the law, in procuring and using corporate powers, could be tested only by a proceeding in another tribunal against them to enjoin, or oust, them from the exercise of the corporate franchises. For the statute, as it then stood, proceeded on the theory, that any railroad, constructed in accordance with its provisions, by a corporation duly authorized under it for that purpose, was a public road; and that a compliance with the statute, creating a corporation for that purpose, was a legislative declaration of the public necessity for the road. There was, then, no error in ruling out the questions of that class.

The land-owners further offered in evidence the account books of a firm composed of certain persons who became stockholders and officers of the company, to show the amount of coal mined on their land, and thewate and amount of rent paid for transporting coal from other lands over the land and private railroad of the plaintiffs in error during three or four years previous to the incorporation of the company. The books were rejected by the court. They were not of themselves admissible; for, aside from the objection already alluded to as to the subject-matter of the books, they related solely to transactions between those not parties to the proceeding, and no foundation was laid for their admission on special grounds. They were, therefore, properly rejected.

On the trial, one of the land-owners was permitted to answer, agaiust the objection of the company, the following question, viz: “ Iiow much less valuable will your land be in consequence of this appropriation ?” Afterward, substantially the same question was asked of another witness on the part of the company; to which the land-owners objected, and the court sustained the objection; but in so doing, at the same time, ruled out the answer already given by the land-owner; to which he excepted.

The ultimate ruling of the court, in regard to the propriety of the question as asked on both sides, would seem to be sustained by the holding in A. & G. W. R. R. Co. v. Campbell, 4 Ohio St. 583; and C. § P. R. R. Co. v. Ball, 5 Ohio St. 568. But however this may be, the ruling was made at the instance of the land-owners; therefore, they can not complain; nor can they complain because the court withdrew testimony they had given, which was admitted contrary to the holding of the court made at their instance, for the same principle was applicable to both sides of the case.

Other questions arose during the progress of the trial, in regard to the testimony, but they were of minor importance in the case, and had no such bearing on the result as to require further notice. It is sufficient to say that the rulings of the court in relation to them could work no substantial prejudice to the plaintiffs in error.

The laud-owners submitted to the court a series of pi’opositious, which they requested to be given in its charge to the jury; some of which, for reasons that justified the court in its rejection of evidence already alluded to, were clearly unsound in law. Without, expressly responding to the request, the court charged the jury in such a manner as to exclude some of the propositions, and include the others. The land-owners excepted to no point of the charge in particular, but excepted in general terms to the refusal to charge as requested, and to the charge as given. The charge being for the most part, if not entirely, correct; and some of the propositions requested to be given to the jury beipg unsound, under a well settled rule, such general exception raises no question on any particular point, on either the refusal to charge as requested or the charge as given. Adams v. State, 25 Ohio St. 584.

One specific objection, however, relates to the charge. The charge was in writing, and read to the jury ; but at the conclusion, the court added an unwritten remark, to which, as soon as the jury retired, the land-owners excepted. Thereupon the court recalled the jury, added the remark in writing to the charge, and read it to the jury; to which recalling, writing, and charging the jury anew, the landowners excepted. There was no error in the proposition added to the charge, nor in recalling the jury and giving it to them in writing with the rest of the charge.

It is said in argument that a hundred and fifty exceptions were taken in the case. "We have not counted them; but, so far as they are properly presented by the record, and affect the substantial rights of the parties, they are, it is believed, included and disposed of under one or the other of the classifications we have made of them; no further discussion, therefore, in regard to them is required.

Judgment affirmed.


text:
    Owens v. Ramsdell.
    1 Under an assignment, for the benefit of creditors, it is essential to the right of a creditor to participate in the distribution of the assets, that his claim should be allowed as a valid claim, either by the assignee or by order of the court.
    2. The provision of section 6 of the act regulating assignments, which requires a creditor to present his claim to the assignee for allowance within six months after the publication of notice of his appointment, does not bar the right of a creditor from presenting his claim and having it allowed after that period has elapsed, at any time before the settlement of the trust.
    3. A creditor may come in at any time for his equitable share of the assets unadministered, or not lawfully disposed of, at the time he presents or prosecutes his claim for allowance in the mode required by the statute.
    4. Where a creditor presented a valid claim duly verified to the assignee for allowance more than six months after the publication of notice of his appointment, which he refused to allow, except with the qualification that the allowance should be without prejudice to a dividend that had been made, which dividend was afterward set aside, and the trust remained otherwise not fully settled. Held: 1. That in a suit pursuant to the statute for the allowance of the claim, the creditor was entitled to a judgment against the assignee that he allow the same in the settlement of the trust. 2. ‘That the offer of a qualified allowance of the claim by the assignee affected the question of costs only, and not the creditor’s right to an unconditional allowance of his claim. 3. That the disposition to be made of the claim so allowed was not to be determined in such suit, but must be controlled by the tribunal having jurisdiction of the settlement of the trust.
    Error to the District Court of Cuyahoga county.

      Prentiss § Vorce, for plaintiff in error.

      J. E. Ingersoll, for defendant iu error.
   Day, J.

A brief statement will sufficiently present the case. C. C. Beckwith & Co. made a general assignment to the defendant for the benefit of the creditors of the firm. The firm was indebted to the plaintiff in the sum of $1,610.85. He presented his claim to the assignee for ah lowance as required by section 6 of the “ act regulating the mode of administering assignments in trust for the benefit of creditors.” S. & O. 709. The assignee refused to indorse on the claim an unqualified allowance. Thereupon, pursuant to the statute, the plaintiff-brought his action against the defendant, as assignee, to enforce the allowance of the claim.

The defendant, not denying the justness of the claim, set up as a defense that the claim was not presented until more than six months after the publication of notice of his appointment; that he had filed an account in the probate court; that a dividend had been made; that he had paid out all the money in his hands; and that he had offered to allow the claim without prejudice to the dividend that had been made and paid.

The plaintiff replied that the defendant knew of his claim; that it was presented for allowance before any creditor was paid; that the defendant never gave proper notice of his appointment; that the dividend declared was set aside by the probate court; and that the defendant had acted in bad faith to favor a certain favorite creditor.

It appeared in evidence, on the trial, that notice of the defendant’s appointment as assignee, was first published in a daily newspaper, on Tuesday, April 25, 1871, and from that time daily (except Sundays) until Monday, May 15, 1871, inclusive; that the defendant filed his account in the probate court, November 20,1871, when a dividend was ordered; that on November 25, 1871, the plaintiff- presented his claim to the assignee for allowance, who refused an unqualified allowance of the claim, but offered to indorse thereon: “Allowed as a valid claim without prejudice to my rights for declaring a dividend by order of the probate court;” and that, on motion of the plaintiff, the probate court set aside the dividend declared November 20, 1871, and disallowed $150 of the amount of the assignee’s fees credited to himself in his account filed, and ordered the assignee to file an inventory of the property that came to his hands as assignee, together with a schedule of the liabilities of the assignees.

The court of common pleas rendered judgment in favor of the defendant; and, on error, the district court affirmed the judgment. To reverse these judgments a petition in error was prosecuted in the Supreme Court.

It is not essential, to the present case to determine all the questions made in the record. The suit was one of a special character, brought under section 6 of the act regulating assignments, which is as follows :

“ Creditors .shall present their claims within six months after the publication of the notice provided for in section 4 of this act, to the assignee for allowance, and the assignee shall indorse his allowance or rejection thereon, and claimants whose claims are rejected shall be required to bring suit against the assignee to enforce such claims within thirty days after the same shall have been rejected, in which, if he recover, the judgment shall be against the assignee, that he allow the same in settlement of his trust, with or without costs, as the court shall think right: Provided, however, that the assignee may make any defense to such action that the assignee might have made to a suit instituted against him before the assignment,for the same cause of action.”

No defense to the merits of the claim was interposed. The controversy relates solely to the plaintiff’s right to have his claim allowed by the assignee in the settlement of his trust. What effect should be given to the claim, after its allowance, in the distribution of the assets, was not a question for determination in this case. That matter, in the first instance, falls within the jurisdiction of the probate court, where the administration ot the assignment is to be settled. But the allowance of the claim was an essential prerequisite to the plaintiff’s right to demand any portion of the assets, for the distribution thereof is limited to such claims only as have been allowed according to law. Nor, without such allowance, could the plaintiff’s contest of the validity of the account and dividend that had been made, be of any avail to him.

As to the defense against the allowance of the claim that the assignee had filed his account, and that a dividend had been made and paid before the claim was duly presented for allowance, it is sufficient to say, that it appeared on the trial that the dividend had been set aside, by the probate court, before the action was brought, and that a small sum remained in the hands of the assignee and not included in the dividend said to be made and paid.

It is immaterial to the present case what effect the setting aside of the dividend might have in the settlement of the trust. The fact that it was set aside, together with the fact of unadministered assets in the hands of the assignee, show that there had been no final settlement of the trust, and, therefore, that defense can not prevail.

Nor was it a good defense that the assignee offered to allow the claim without prejudice to the dividend that had been made, for that dividend was a matter which the plaintiff had successfully contested, and there was besides a fund that had not been distributed. He was, so far as. this objection goes, entitled to have his claim allowed, in the settlement of the trust, for whatever, under (lie direction of the probate court, it might be entitled to. At most, the offer of such qualified allowance by the assignee, could affect only the question of costs, and not the plaintiff’s right to a judgment against the assignee for an unqualified allowance of the claim. Such an allowance would determine nothing more than that the claim should be allowed and not rejected in the settlement of the trust. How it should be disposed of in the settlement of the trust, as we have said, was a matter to be determined, not in this case, but by the tribunal having jurisdiction of the settlement of the trust.

Nor was it a good defense that the claim was not presented to the assignee for allowance within six months after the publication of notice of his appointment; for the requirement of the statute that creditors must present their claims for allowance within that period, was not intended to be a limitation in bar of their right to a subsequent allowance of claims, but was intended to expedite the settlement of the trust, and to protect the assignee in any lawful dividend or settlement that may have been made, and vigilant creditors in such rights as they may have acquired thereby. Whatever a creditor may lose by not presenting his claim for allowance within the statutory period, by reason of a partial settlement of the trust, he may come iu at any time for at least his equitable share in the assets unadministered, and not properly disposed of, at the time he presents or prosecutes his claim for allowance, in the mode prescribed by the statute.

This view of the case renders it unnecessary to detei’mine whether the notice of the appointment of the assignee had been published “ for three consecutive weeks,” as required by section 4 of the act regulating assignments; for, since the statutory period of six months for the presentation of claims does not bar the right to their allowance, the sufficiency of the notice which fixes the beginning of that period, is not material to the question of the allowance of the claim. The sufficiency of the notice is material only upon other matters appertaining to the settlement of the trust. We do not, however, wish to be understood as expressing a doubt as to the sufficiency of the notice. On the contrary, we have assumed that it was in full compliance with the statute, and that the plaintiff’s claim was not vei’ified as required by section 13 of the act regulating assignments, and presented to the assignee for allowance until more than six months after the publication of the notice.

It follows that the judgment of the district court and that of the court of common pleas must be reversed, and that the cause must be remanded to the court of common pleas for further proceedings.

Judgment accordingly.


author: Ashburn, J.

text:
    Bean v. Green.
    1. A married woman, called as a witness, may testify to all matters within her knowledge, except that she is incompetent to disclose communications between herself and husband made during coverture, or acts done in the presence of each other while the marriage relation between them exists, unless such communication was made or act done in the known presence, hearing, or knowledge of a third person competent of being a witness.
    2. On the trial of an action brought by a wife, under the provisions of section 7 of the “Act to provide against evils,” etc., as amended (67 Ohio L. 102), to recover damages for alleged injury to her means of support, in consequence of the intoxication of her husband, sales of intoxicating liquors, by defendant to her husband made after the commencement of the action, may be given in evidence and considered by the jury, but only in assessing exemplary damages.
    3. Where defendant, on cross-examination of plaintiff’s witness, shows the general nature of the business in which he is engaged, it is competent for plaintiff, on re-examination, to inquire into the particulars of his business so far as it reflects upon the issues.
    4. Whether testimony will be admitted out of time, in the progress of a trial is a question addressed to the sound discretion of the court, and where that discretion is exercised without abuse of the power, the mere irregularity of its admission is not a sufficient ground for the reversal of a judgment.
    5. When intoxicating liquors are sold, by the drink, under a fictitious name, a person, who has drank of the liquor sold under such fictitious name, may, as a witness, give his opinion as to its true name and quality.
    6. Where a question put to a witness on the trial is excluded by the court as incompetent, to make such rejection a valid ground for error it must appear in the record what was proposed to be proved thereby, and that it was something material, the rejection of which would be prejudicial to the plaintiff in error.
    7. Where a single proposition selected from the charge by bill of exceptions is claimed to be erroneous, and other propositions to which it refers as given and to be given in connection with it, are not found in the record, a reviewing court in support of the judgment will presume the charge as a whole was a correct statement of the law of the ease.
    Error to the District Court of Portage county.
    Mary A. Green, plaintiff below, brought an action against Moses Bean, defendant below, to recover damages for an injury to her means of support, occasioned by the unlawful sale of intoxicating liquors to her husband, a person in the habit of getting intoxicated. The petition avers, substantially, that Bean sold intoxicating liquor to her husband, Charles Green, well knowing Charles Green to be a person in the habit of getting intoxicated; that Bean at divers times, for a period of about four years, and up to about August 17, 1873, unlawfully, willfully, and maliciously sold intoxicating liquors to her husband, thereby causing him to frequently become intoxicated and unable to labor for her support, and, in consequence, loss of means of support during the period of three or four years, and for her future life; that, in consequence of his long-continued intoxication, her husband become infirm and partially unable to labor for her support, upon which she was dependent, etc.
    The answer admits that plaintiff and Charles Green are husband and wife, and denies each and every other allegation in the petition.
    Plaintiff recovered a verdict for four hundred dollars. After verdict and before judgment thereon, plaintiff asked leave to amend her petition to make it conform to the proofs, which was granted, in this, to insert after the following words in said petition, to wit: “thereby causing him thus frequently to get intoxicated,” the following words, to wit: “and also unlawfully sold and gave to him, the said Charles Green, intoxicating liquors while he was intoxicated;” and the court granted said motion. By consent of parties, the amendment was made by interlining the same into the original petition, and no exception taken.
    A motion for a new trial was made, overruled, and exception taken to the judgment overruling this motion.
    In the record is a bill of exceptions, containing the testimony of a large number of witnesses for both the plaintiff and defendant. But it nowhere appears that this bill of exceptions contains all the testimony offered and received on the trial.
    A fragment of the court’s charge to the jury is found in the bill of exceptions. But the entire charge, and the requests to charge, if any were made, are not found in the record.
    A petition in error prosecuted in the district court re-stilted in the affirmance of the judgment of the court of common pleas. These proceedings in error, seek a reversal of the judgments of the lower courts. It is assigned for error that the district court erred in affirming the judgment of the court of common pleas. It becomes necessary, therefore, to examine the errors alleged to have been committed by the court of common pleas on the trial..
    The errors complained of are substantially :
    1. In permitting Mary A. Green to testify in her case.
    2. In not allowing the defendant to ask Mrs. Green, on cross-examination, whether it was not her intention on the termination of this suit to get a divorce from her husband
    3. In allowing plaintiff to show that defendant kept a place where intoxicating liquors were sold in violation of law.
    4. In allowing the witness, Farrell, to testify as an expert.
    5. In permitting matter in chief to be elicited on cross-examination.
    6. In allowing proof of sales of intoxicating liquors by defendant to Green, after the commencement of the action.
    7. In giving the following charge to the jury:
    “If you find that the defendant sold Charles Green intoxicating liquors within the period mentioned in plaintiff’s petition, while said Green was intoxicated, that wrould be an unlawful sale for which plaintiff could recover in this action, provided you find for plaintiff' on the other essential points to which your attention has been aud will be called.”
    8. In refusing to grant a new trial.

      II. C. Ramsey, E. B. Taylor, and E. B. Hatfield, for plaintiff in error.

      J. H. Nichols, for defendant in error.
   Ashburn, J.

The objection to the competency of Mary A. Green as a witness, based on the facts of coverture, is not well founded. As shown by the bill of exceptions, her testimony was in relation to facts within her own knowledge, and discloses nothing that can be considered confidental communications made or acts done, springing out of the marriage relation, and which would, by reason of that relation, have been excluded at common law.

The statute (67 Ohio L. 113, 114), made her a competent witness, except as to communications made between husband and wife during coverture, or acts done by either in the presence of the other during that time. When, however, such communications are made, or acts done in the known presence, hearing, or knowledge of a third person competent to be a witness, husband and wife become competent witnesses in respect to them. Communications and acts, at common law privileged, are no longer so when made or done in the presence of such third person.

On cross-examination of Mrs. Green, defendant put the question: “Do you not contemplate obtaining a divorce from your husband when this suit is over.” To this plaintiff objected, the objection was sustained, and defendant excepted to the ruling of the court.

The question and exception fail to disclose what the exceptor expected to prove by the witness, or that the response to the question would have disclosed evidence material, the exclusion of which was prejudicial to the party excepting. It has been ruled in this state as often as the question has come before the Supreme Court, that an exception to the overruling of questions in the form here made is insufficient. Where a question is asked of a witness which is objected to and rejected, the party taking an exception to the ruling should bring, upon the record, a statement of what is proposed or expected to be proved by the rejected testimony, and this must appear to be something material, the rejection of which as evidence would be prejudicial to the party excepting. 6 Ohio St. 294, 295 ; 9 Ohio St. 1; 11 Ohio St. 114; 17 Ohio St. 628; 19 Ohio St. 573; 26 Ohio St. 371; Stull v. Wilcox, 2 Ohio St. 570. The rule, in civil and criminal cases, is the same. The proposed question which indicates the matter proposed to be proven, was not proper cross-examination, therefore, not subject to the rule that a party need not, on a legitimate cross-examination, disclose what he proposes to prove by the question.

W. W. Carnahan, a witness called by plaintiff, on cross-examination, answered-:

“Never have seen Mr. Green drink any thing but cider. Defendant kept a grocery, and kept tea, coffee, sugar, etc., for sale.”

Re-examination : Plaintiff's attorney asked witness what else defendant kept — if he did not keep intoxicating liquors for sale; to which defendant’s counsel objected, and the court overruling said objection, and allowing such proof, defendant excepted. Witness, in reply to the question, stated: “ Have been in the back room. Bean kept ale, beer, eider, and wine. Never saw whisky sold by the glass. Had cherry wine. Have bought whisky by the bottle.”

Defendant having put in evidence that he kept a grocery, where he had tea, coffee, etc., for sale, it will be presumed he did so for some purpose beneficial to himself. Perhaps to show, what the testimony would tend to prove, that, at his place of business, he kept no intoxicating liquors. To rebut any such presumption it was clearly competent for plaintiff, on re-examination of the witness, to show that defendant both kept and sold intoxicating liquors at his grocery. It was competent for Bean to show, that during the time he was charged with unlawful sales to Green, he had no intoxicating liquors at his grocery, or elsewhere, to sell or give away. He having, without objection, introduced testimony of that tendency on cross-examination of plaintiff’s witness, it was competent for plaintiff, on the reexamination of the witness, to rebut the tendency of such testimony by showing that defendant both kept and sold intoxicating liquors at his grocery.

Plaintiff' called W. Farrell, as a witness, who testified:

“ Have known Charles Green five years. Have seen him very frequently. Have seen him at defendant’s one-half dozen times. Always in good condition to work. Have seen him when he felt a little, perhaps, the influence of some drink. Perhaps more than once. Have heard him call for whisky at Bean’s. Have heard him call for cider, beer,, and wine. Got what he called for, I believe. I tasted the-wine. Question: ‘What was this wine?’ Witness said, he didn’t consider himself a judge, and had not the means' of kn vwing, and thereupon defendant’s counsel objected,, and the court overruling said objection, defendant excepted, and witness, in reply to the question, said he thought it ■was whisky. He called it whisky.”

The Ohio liquor law recognizes the fact that it is possible for persons engaged in the unlawful sale of intoxicating liquors, to resort to shifts and devices to evade the provisions of the statute. One of the common devices is to give to, and sell the intoxicating liquor by some fancy name, which being understood by the vendor and purchaser, answers all the purposes of calling it by its ordinary commercial name. Where whisky has received the name of wine, it is competent to ask the witness what the article, sold as wine, was in fact. If the witness hesitates, or evades a direct answer, which he probably will, his opinion is frequently the best evidence the case affords. Where the witness manifestly desires to evade a direct answer as to the true name and quality of the liquor, and says he does not know or is not a competent judge, he may be pressed for an answer. We think the court ruled correctly.

Alva Hurtle, a witness called by defendant, ' on cross-examination, was asked by plaintiff:

“ How often have you seen Charles Green drink at defendant’s?” Objected to by defendant’s counsel. Objection overruled by the court, to which ruling and admission of said testimony, defendant excepted. Witness, in answer to said question, testified: In the course of three or four years, probably have seen Mr. Green drink at defendant’s a few times. I think a man is drunk when he staggers or gets down.”

The objection was based on the ground that plaintiff could not, by the rules of law, introduce matter in chief on cross-examination. The extent to which the examination of a witness may be carried on cross-examination rests largely in the sound discretion of the court. Where that discretion is xxot abused to the substantial prejudice of the objecting party, its exercise affords no ground for error. See S. & S. 552, subdivision 4 of section 266 of the civil code. In the case of The Philadelphia & Trenton Railway Co. v. Simpson, 14 Pet. 448, it was held that the cross-examination must be coufmed to the facts and circumstances connected with the matters stated in the direct examination of the witness. In the case of Moody v. Rowell, 17 Pick. 490, 499, a different rule was recognized and acted on.

In Legg v. Drake, 1 Ohio St. 286, it was held, “ Where a witness is produced and examined by a party in an action, even though he be interested to testify against the party calling him, the other party is not limited, in his cx’ossexamination, to- the subject-matter of the examination in chief, but may cross-examine as to all matters pertinent to the issue on trial; limited, however, by the rule, that a party can not, before the time of opening his own case, introduce his distinct ground of defense or avoidance, by the cross-examination of his advex'sax-y’s witness.”

The order in which, and the time when, he may introduce his evidence on the trial of a cause must, as before stated, to a great extent rest in the discretion of a court having in view the purposes of justice. The plaintiff’s case was before the jury, and the testimony admitted over defendant’s objection, was only cumulative oil the point. In its admission we discover no abuse of discretion on the part of the court, nor wherein defendant was- materially prejudiced.

A. Green was called as a witness by plaintiff. It was proposed to prove by this witness, among other things, that the defendant sold intoxicating liquors to Charles ■Green after the petition herein was filed, and the summons served upon him, to which defendant’s counsel objected. Whereupon the court overruled said objection, to which holding and decision of the court defendant’s counsel excepted. The court thereupon cautioned the jury that no testimony of this kind could go to constitute plaintiff’s cause of action.

In relation to this class of evidence the court afterward instructed the jury as follows: “I have allowed testimony to be given to you tending to show that defendant has sold intoxicating liquors to Charles Green since the commencement of this suit. If you find, from the proof, that since ■the commencement of this proceeding the defendant, Bean, has sold intoxicating liquors to Charles Green in violation •of law, that would afford no ground whatever for a recovery on the part of the plaintiff; but, if you do find that the plaintiff ought to recover for intoxicating liquors sold to her husband during the four years previous to the beginning of this suit, you have a right to consider the fact that it has been repeated, and the unlawful sale to him indulged in since its commencement, for the purpose of throwing light upon the mind of the defendant at the time he sold said liquors to Charles Green during the four years prior to plaintiffs filing her petition ; you have a right to consider it in aggravation of her damages, or as a reason why they .should or may be increased You can not found her right to recover upon any such sales, but the most you can do would be to increase her recovery by way of exemplary damages for such sales, if she is otherwise entitled to a verdict.”

The statute giving this right of action (67 Ohio L. 102), contemplates that the injured party may recover a compensation, in the form of damages, for the injury occasioned to her means of support, resulting from the unlawful acts of defendant. Also, that the transgressor be punished by an assessment of exemplary damages against him. The jury may award exemplary damages, under this statute, without any proof specially showing such damages. The policy of the statute being to provide punishment, by both criminal and civil proceedings, that will most effectually prevent the evils arising from the unlawful sale of intoxicating liquors. An assessment of punitive damages, in favor of a wife, entitled, by the proofs, to compensatory damages, is a mode provided by the law to-prevent an evil.

There can be no reasonable doubt, that where a defendant who has notice of an action against him, that plaintiff' claims to have been injured, in her means of support, by unlawful sales, by him, of intoxicating liquors to her husband, shows a wanton disregard of her rights, by continuing to debauch her husband, by selling him intoxicating liquors after such notice, proof of such fact may be given, to enhance the exemplary damages. In this case, the court, by carefully-guarded limitations, hedged in the use of the testimony so that the jury could not have mistaken .its application.

Did the court err in saying to the jury: “If you find that the defendant sold Charles Green intoxicatiug liquors within the period mentioned in plaintiff’s petition, while said Green was intoxicated, that would be an unlawful sale, for which plaintiff could recover in this action, provided you find for plaintiff' on the other essential points to which your attention has been, and will be, called.”

We can not answer in the affirmative, for the reason that we are unadvised as to what other instructions the court gave, in connection with this, before and after. The instruction clearly indicates that some others were given in connection with it, and, we may reasonably presume, upon the same subject-matter, so that any vice that might be in the charge, standing alone, was removed by the whole charge.

It is an uncontroverted rule of construction, that when bills of exception will admit of more than one construction, they will be most strongly construed against the party excepting. Perminter v. Kelly, 18 Ala. 716; Andress v. Broughton, 21 Ala. 200. The bill of exceptions, in this case, failing to bring upon the record these portions of the charge referred to, and we presume explanatory of it because referred to, the exception is imperfect, and in that case the legal presumption is in favor of the general correctness of the whole charge and the validity of the judgment. In this state of the record we deem it unnecessary to enter upon a consideration of the question, whether the instruction is sound as a single proposition. We are not prepared to pronounce it clearly erroneous. It was within the discretion of the court, under the provisions of section 137 of the code, to allow the petition, after verdict, to be .amended by inserting another allegation material to the •case. The amendment made by plaintiff’ did not change •substantially the plaintiff’s claim. In was in conformity to the proofs as they appear of record, and we will presume the amendment was in harmony with all the evidence in the case.

Considering the whole record, we are of opinion the court of common pleas did not err in overruling defendant’s motion for a new trial.


author: Wright, J.

text:
    Gaff v. Flesher.
    1. The Southwestern Transportation and Wharf-boat Company was incorporated under the law (66 Ohio L. 125), which provides for incorporations for the purpose of “building and repairing steamboats and other water-craft.” This corporation, under quo warranto, was ousted of the liberties, privileges, and franchises of using a wharf-boat for the purpose of receiving or delivering, storing or forwarding merchandise and freight. Subsequently the corporators exercising such privileges only were ousted from being a corporation. Such ousters do not determine that a corporation can not be organized for the purpose of “building and repairing" wharf-boats merely, under a proper certificate to that effect.
    2. Under the above statute for “building and repairing” water-craft, a certificate for the purpose of “building, repairing, and maintaining” water-craft, authorizes a corporation de jure for the purposes named in-the statute.
    3. The cases of Ohio ex rel. v. The Southwestern Transportation and Wharf-boat Co., 23 Ohio St, 166, and State ex rel., etc. v. McCoy et al., unreported, distinguished.
    Motion for a rehearing.

      G. K. Skunk, for plaintiff' in error.

      Lincoln, Smith $ Stephens, for defendant in error.
   Wright, J.

A motion for rehearing has been made in-this cause, upon the ground that the original decision was in conflict with the holding of the Supreme Court; and although motions of this kind are ordinarily disposed of without explanatory remark, the ground assumed by counsel is of that gravity that we set forth our reasons for refusing the motion.

The original action was by Elesher, a creditor of “ The Southwestern Transportation and Wharf-boat Company,” against Gaff' and others, who had subscribed to the stock of that corporation. Gaff>& Co. assigned their subscription (though perhaps this assignment was colorable), and notified the company that they would not be liable for debts thereafter contracted. Subsequently the debt toElesher was created, and he now seeks to make Gaff & Co. liable on their subscription. In 1873, a proceeding in quo’ warranto was instituted against McCoy and others, who-were assuming to act as “ The Southwestern Transportation and Wharf-boat Company,” and judgment of ouster was rendered December 11, 1873, which was after the liability to Elesher had arisen.

In the present action, the defense by Gaff and others-was’, that this corporation, to the stock of which they had subscribed, never was a corporation at all and never could be. The certificate of its organization stated, “ 3. The business of said company shall be the building, repairing,, and maintaining of wharf-boats, at Cincinnati, Ohio, and ■other points.” This certificate was supposed to be under the law (66 Ohio L. 125, probably repealed by 67 Ohio L. 57), which authorizes “building and repairing steamboats and other water-craft, . . . carrying on business usually connected with the main object of the corporation aforesaid.” Gaff’s defense claimed that a wharf-boat -was not a •water-craft, and could not be comprehended within the terms of this law, and there being no legal authority to authorize a wharf-boat company to incorporate, this certificate was null and void, and there never was any such legal entity as “ The Southwestern Transportation aud Wharf-boat Company.” From this it follows that the subscription of Gaff & Co., to the corpoi’ation, was null and void, and they could not be held thereon.

This defense, it will be observed, depends upon the proposition that a wharf-boat was not a water-craft, and this is maintained by counsel for Gaff & Co., and they insist, with great earnestness, that the Supreme Court have so decided. If it were so, we of course would consider the question settled; but it remains to be seen whether such effect is to be given to the action of that tribunal.

No opinion was pronounced, as far as we are aware, by the Supreme court, in the quo warranto proceeding, and we gather, from the record, what the legal conclusions in the matter were. The statute, it will be remembered, authorized corporations for the “building and repairing steamboats and other water-craft.” This is all. The certificate of incorporation is, not simply for “ building and repairing,” which is all the statute allows, but it is for “ building, repairing, and maintaining of wharf-boats, at Cincinnati and other points.” This certificate, therefore, seems to comprehend, not only that which the statute provides for, but something more; and while it might be valid, to the extent of statutory power, it might be invalid as to the excess.

When we read, in the law, that these organizations may be created for the purpose of “building and repairing vessels,” we at once understand that such means and appliances may be resorted to as shipyards, dockyards, marine ways, etc., the object of which, in the first place, is, out of wood and iron, to construct boats, vessels, and that kind of craft, as one would build a house out of new material. In the second place, the object is to put' in order those which have become dilapidated. Perhaps it is a vain labor to attempt, by explanation, to make obvious the meaning of the words “ build and repair.”

Knowing, then, the extent of corporate power comprehended within these words of the statute, parties incorporate for the purpose of building, repairing, and maintaining of wharf-boats, at Cincinnati and other points.” Is not here, manifestly, more than is in the statute; that says nothing about “ maintaining.” The idea involved in the word “ maintaining” is not only not comprehended in, but is inconsistent with, the words “build and repair.” The one who “ builds,” under this statute, does not build for himself to keep, but passes the vessel over, when completed, into the hands of one who is subsequently to “ maintain” her; so, when the vessel has been repaired, it again goes to the hands of him who owns, and therefore “ maintains ” her. Building and repairing relate to getting the vessel ready for use; maintaining applies to that series of operations that involve and constitute the use. And when we see that the certificate speaks not only of “ maintaining,” but of “maintaining wharf-boats, at Cincinnati and other points,” it still further impresses the idea that it is the use of the wharf-boats, at different points, that is sought to be authorized, in addition, simply, to building and repairing them.

The law, then, having authorized the “ building and repairing” of vessels, simply, in the quo warranto proceeding, and it appearing that the certificate of incorporation of “ The Southwestern Transportation and "Wharf-boat Company” authorized the “ building, repairing, and maintaining of wharf-boats, at Cincinnati and other points,” might not the Supreme Court, upon such a case, well say: Under the law, while defendants might have the power to build and repair wharf-boats, they have no right to maintain wharf-boats, at Cincinnati and other points, if by the word maintaining, as used in their certificate, they have been, and are, carrying on a business entirely different or distinct from that of building and repairing water-craft. And this is exactly w7hat the corporation was doing. The information says that the party are assuming to act as a corporation, and “to build, repair, and maintain wharf-boats, at Cincinnati and other points; to buy and own a wharf-boat; to use such wharf-boat, moored in the Ohio river, at the Cincinnati wharf, in carrying on the business of receiving, storing, and delivering general merchandise or freight, for reward.”

The agreed statement of facts, after setting forth the certificate of incorporation, proceeds to say that defendants organized thereunder; that they elected directors, caused to be built a wharf-boat; aud in describing the business they engaged in carrying on, it is not said that they were following the line of building and repairing water-craft, or any thing else, but all that is said on the subject, is that they “ carried on business, as a corporation, in receiving, storing, and delivering freight, at Cincinnati.” This is the only thing the corporation ever did, according to this record. Thereupon defendants were ousted from being “ such corporation.” That is, as we understand it, from being a corporation engaged in the business of “ receiving, storing, and delivering freight- at Cincinnati.”

How could it have been necessary to this decision to have held that a wharf-boat was not a w7ater-craft ?

If these proceedings had shown, in the information, certificate, and agreed statement of facts, that the defendants were incorporated for, and were doing nothing but, building and repairing wharf-boats, and then the Supreme Court had ousted them from being “ such corporation,” it might, perhaps, well be argued that the ground of the decision was, because it only could be, that a wharf-boat was not a water-craft, within the meaning of the law. ■ But when they are exceeding their lawful authority, how does an ouster show that they never had lawful authority for anything ?

Before the proceeding above spoken of, an information had been filed against the corporation itself, to oust them of privileges it was claimed they were exercising. The case is reported (28 Ohio St. 166), and we think the opinion, in that ease, still further illustrates the views herein expressed. The court say, that the law in question “ does not confer upon the corporation, so organized, any of the following liberties, privileges, and franchises, to wit:

1. That of having and exercising the right to purchase, own, or use a wharf-boat, for the purpose of receiving, storing, and forwarding or delivering general merchandise or freight.

“ 2. That of carrying on the business of receiving, on said wharf-boat, general merchandise or freight, from any steamboat or steamboats, or from any shipper or shippers; of storing such merchandise or freight on said wharf-boat, and of forwarding or delivering the same to any boat or boats, as aforesaid, or to any consignee, charging a compensation therefor. Judgment of ouster as to said liberties.”

But does this decision say that the law does not authorize a corporation for the building or repairing of wharf-boats ? We do not see how that question is at all involved in the case. The Supreme Court did say that, under this law, a company could not carry on the business of warehousemen, and, as we understand it, this is all that was said.

We fail, therefore, to see the conflict which is said to exist, because we do not see that in either of the quo warranto proceedings it was necessary for the Supreme Court, in reaching the conclusion they did, to hold that a wharf-boat was not a water-craft, or that they, in fact, did so hold.

It is proper'to observe, that the matters herein discussed were fully considered upon the original hearing.

Motion overruled.


author: Scott, J.

text:
    The Union Central Life Insurance Co. v. Bernard and Catharine Pottker.
    1. Where, by the terms of a policy of life insurance, the non-payment, of the required annual premium, at the designated time, is declared to be-a ground of forfeiture, but the uniform custom of the insurance company has been to give notice of the time when the premiums fall due, and to collect the same at the residence of the policy-holder, through a local agent residing in his neighborhood, good faith requires that this, mode of collection should not be discontinued, and payment required at the company’s office, without notice to the insured.
    2. Where the insurance company, under such circumstances, with a view to avoid the policy, gives private instructions to the local agent not to give such customary notice to the insured, .and not to call on him, as usual, for the payment of the premium, no right to declare the policy forfeited arises from a default in payment caused by such strategy and bad faith.
    3. Forfeitures are odious, and there must be no cast of management or-trickery to entrap a party into a forfeiture.
    4. If, in such case, the company wrongfully declares the policy forfeited,. and refuses to accept the premium when duly tendered, and to give the insured the customary renewal receipt evidencing the continued life-of the policy, the assured is, in equity, entitled to demand a rescission of the contract, and a return of the premiums paid thereon, with interest from the times of payment.
    5. Where the judgment of an inferior court is predicated upon a correct basis, but is erroneously entered for too large an amount, by reason of an arithmetical miscalculation; such error may be corrected by a reviewing court, by a proper modification, and the judgment below be in all other respects affirmed.
    Error to tbe Superior Court of Cincinnati.
    On October 14, 1871, the plaintiff in error insured the-joint lives of the defendants in error, who are husband and wife, in the sum of $1,000, to be paid to the survivor, for-an annual premium of $51.87, payable on or before the 31st-day of October, in each and every year, with the privilege-of paying one-third of such premiums in promissory notes-bearing interest payable yearly. The husband was then forty-one years of age, and the wife thirty-eight. They had been first jointly insured in the same sum, and on the same terms as to payment of premiums, on October 28, 1868, in the Home Mutual Life Insurance Company, which transferred this and others of its life risks to the plaintiff in error, which assumed them, and with the assent of the defendants in error, issued its policy to them, and they surrendered to it their policy in the Home Mutual.
    The defendants then resided, and ever since have continued to reside in Newport, Kentucky; and transacted all their business with the company through one of its authorized agents, W. Holtman, who resided near them, and always collected the premiums at their residence. It had been agreed between him and the defendants when they were first insured, that the annual premiums should be thus collected, and that he would give them timely notice, previously to his calling on them for the payment of premiums; and they never knew in what part of Cincinnati plaintiff’s office was situated, till after their policy had been declared forfeited, as hereinafter stated.
    The premiums were regularly paid, as per contract, to the Home Mutual, from October 31, 1888, till its policy was .surrendered; and then to plaintiff in error, till October 31, 1873. All these payments were made by the insured at their residence in Newport, to the said agent, in pursuance of the original agreement; and in the last renewal receipt, given October 31, 1872. Holtman styles himself agent of plaintiff at Newport, Kentucky.
    On the 31st of October, 1873, the defendants in error were ready, willing, and able to pay the premium then falling due, in cash; but no one came, as usual, to receive the same, and they had received no notice to pay otherwise than as formerly. In a few days thereafter, the defendant, Bernard Pottker, saw the agent, Holtman, and inquired why he did not call and collect the premium. In reply, Holtman informed him that he was no longer agent; that the company had adopted a plan to forfeit a number of its undesirable risks, which its secretary had designated by blue marks, and directed him not to call on the parties thus designated, for their premiums, and not to give them notice as formerly. As this plan would involve a number of persons with whom he had dealt as agent, and whom he did not wish to offend, he had thereupon resigned. Defendants then sent the amount of the premium due, to the office of th'e plaintiff in Cincinnati, but the same was refused on the alleged ground that the defendants had forfeited their policy, and the company would not renew the same without proper proof of good health and soundness.
    Defendants in error thereupon brought their action against the plaintiff in error, in the Superior Court of Cincinnati, setting forth these facts substantially, charging the company with bad faith and dishonesty in the premises, and praying the court to order a rescission of the contract, and also praying judgment against the company *for the amount of the premiums which had been paid, with interest thereon from the respective times of payment, and for all proper relief. The company answered, and by its denials made sundry issues of fact. Dpon the trial, in special term, evidence was offered tending to prove the foregoing state of facts. The evidence is all set out in a bill of exceptions. The court found the issues for the plaintiffs below, and, overruling a motion for a new trial, rendered a judgment in their favor for the full amount of the premiums paid by plaintiffs below, with interest on them severally, from the times of payment.
    On proceedings in error this judgment was affirmed by the court in general term.
    Plaintiff in error now asks a reversal of both these judgments on the ground : “ That said judgment at special term was against the law and the evidence, and said judgment at general term should have been reversed instead of affirming the same, as will appear by the record in this cause.”

      Matthews, Harnsey, $ Matthews, for plaintiff in error.

      J. Greutz, for defendant in error.
   Scott, J.

Had the plaintiff in error a right to declare the policy, in controversy, forfeited, for the non-payment of the annual payment falling due October 31, 1873? Under the circumstances disclosed by the evidence offered -on the trial, we are clearly of opinion that it had no such right.

A similar policy of insurance had been issued to plaintiffs below, by the Home Mutual Insurance Company, in 1868. This was effected through one Holtman, a local agent of "the company, residing in the neighborhood of the assured.. He took their application, received the premium then paid, and delivered the policy to them, agreeing at the same time that he would give them notice before the maturing of each annual premium, and would collect the same at their residence.

This arrangement was complied with by the parties, and the premiums were regularly collected at the residence of ■the assured, till October 14,1871; when the risk -was transferred to plaintiff in error, and the policy in question was substituted for that of the Home Mutual. Iioltman’s agency was continued by plaintiff in error; by Mm the change of policies -was effected; and to Mm the assured paid the premiums falling due in 1871, and 1872. He collected these premiums as before, representing to the assured that the change of companies would induce no change in the manner of collecting the premiums. Whether this local agent, Holtman, had authority to bind the company by a verbal agreement at variance with the terms of the policy, we need not stop to inquire. The assured had a •right to show what had been the uniform custom and practice of both the insurance companies in regard to the payment of premiums. On this uniform, and perhaps liberal, mode of dealing between the parties, the assured had a right to rely; and to assume, that it would not be changed to their prejudice, without notice to them. Gfood faith required no less than this. Eor, “ forfeitures are odious, and ■enforced only where there is the clearest evidence that that was what was meant by the stipülatious of the parties. There must be no cast of management or trickery to entrap a party into a forfeiture.” Helme v. Philadelphia Life Ins. Co., 61 Penn. St. 107.

But in October 1873, the company not only failed to give notice to the assured, and send a collector, as usual, for the premium then falling due, but, through its secretary and business manager, it actively intervened to prevent notice being given. The local agent was instructed not to call for the premium, and to give no notice to the assured of, the time for its payment, in order that the company might get rid of this undesirable policy, by declaring it forfeited, if the premium was not paid on the day prescribed by its terms.

It is scarcely necessary to say that no right of forfeiture could arise from a default studiously procured by such disreputable strategy. Plaintiffs below, in their petition, characterize this conduct of the company as an attempt “ to cheat and defraud said plaintiffs out of their moneys already paid;” and we think the evidence sustains the allegation.

Plaintiffs below, in a few days, ascertained that the local agent had resigned his position, and thereupon tendered the amount of the premium to the company, at its office in, Cincinnati, and we think the acts of the company, in refusing to accept the premium, and give a renewal receipt therefor as had been the usual custom, and in declaring the policy forfeited, were unmistakably wrongful and fraudulent.

But it is claimed by counsel for plaintiff in error, that if plaintiffs below were entitled to any redress, they have mistaken their remedy. Their amended petition in the court below is somewhat inartificial; but it evidently seeks a rescission of the contract evidenced by the policy of insurance, and demands thereupon a judgment against the company for the amount of the premiums which it has received from them, with interest thereon from the times of their respective payments. "What other remedies were open tp the insured ? The policy contains but one express stipulation on the part of'the insurance company: that is, to pay the sum in which the joint lives are insured to the survivor upon the death of either of them; provided the annual premiums are regularly paid, etc. Now, since the contingency upon which this liability of the company depends has not yet happened, could an action be maintained to recover damages for its breach ? Counsel for plaintiff in error have argued at length, and with much force, that no such action could be maintained. Perhaps they are right, though upon this mooted question we express no opinion. It is enough to say that such right of action is by no means’ clear.

There are, no doubt, implied obligations devolved on the company by the terms of the policy, among which are the duty to accept and receipt for the annual premiums when duly tendered by the insured. Could an action be maintained to recover damages for the breach of such implied obligations, leaving the question of the company’s liability on its express promise still open ? It has recently been held by the Supreme Court of Connecticut that this can not be done. (We refer to the case of Day v. Conn. Gen. Life Ins. Co., not yet regularly published, in which counsel have furnished us with the able opinion of Judge Carpenter.)

We have no doubt that the plaintiffs below might, without resorting to equity jurisdiction, have adopted another course. They might have continued to tender the premiums as they became due till the policy, by its terms, would become payable, and the survivor might then, by action on the policy, test the question of forfeiture. Rut this cause would furnish a. very inadequate protection to the clear rights of the insured. Eor, as was said by the New York Court of Appeals : “ The contract of insurance, where the policy is to be kept alive by periodical payments, is peculiar, and the duty to pay and the obligation to receive are mutual. It is somewhat different from a simple obligation to pay money, a tender to perform which would bar an action upon it. So, too, a receipt or acknowledgment of the payment is customarily given, and is as essential as evidence of the continuance of the contract as is the original policy. The policy-holder is entitled to some evidence of the performance of the condition on his part, if, as is believed, the universal usage is for the insurers to certify in some way the fact that the annual premiums are paid. And it is fit and proper that both parties to the contract should know their rights; especially is it important to the insured that if the policy is avoided they may seek, insurance elsewhere, and if valid, that they may perform the conditions of the policy.” Cohen v. N. Y. Mut. L. Ins. Co., 50 N. Y. 625.

Eor these and other reasons the equity jurisdiction of'the court to declare the legal status and rights of the parties was, in that case, maintained. So, in Hayner v. The American Popular L. Ins. Co., 69 N. Y. 435, the same doctrine was held.

In the case before us the plaintiff in error sought, by an act of bad faith and dishonesty, to release itself from the whole obligation and liability incurred by its contract of insurance — it wrongfully refused to allow the insured to perform the contract on their part by paying the premiums as they matured — it refused to 'give them the proper and necessary evidence of the continued life of the policy, except upon terms which there is good reason to believe the company knew to be impossible. Eor, while it was so anxious to forfeit the policy as to resort to dishonorable, stratagem for that purpose, it voluntarily offered, as its sec-, retary testifies, to renew the policy upon satisfactory proof of the continued good health and soundness of both, the parties insured.

Under these circumstances, the insured having no- adequate and clear remedy at law, we think they are entitled to relief in equity, either by a decree, which shall- determine the status of the parties by adjudging the policy to be in full force, as was done in the New York cases to which we have referred, or by an entire, rescission of the contract on just and equitable terms. And we think the party insured may elect whether he will have the contract specifically performed or entirely rescinded.

The insurance company has no right to complain if the insured demand a rescission of the contract which it wrongfully, and by an act of bad faith, has declared to be terminated by forfeiture, and which it refuses to perform, on its part, by accepting and giving renewal-receipts for the annual premiums when duly tendered. "We think the only question is in regard to the terms upon which the rescission should equitably be ordered.

Plaintiffs below asked in their petition that, as a result of the rescission, they should be allowed to recover back 'the premiums paid, with interest thereon from the times of payment. This measure of redress was granted them by the judgment of the court below, and the question arises whether the court erred iu so doing.

In McKee v. Phenix Life Ins. Co., 28 Mo. 383, it was held that where the defendant, the insurance company, had wrongfully determined the contract by refusing to receive a premium when due, the party insured had a right to recover all the money which had been paid under it.

And in Helme v. Phila. Life Ins. Co., already referred to, which was an action of the same kind, no doubt seems to have been entertained by the Supreme Court of Pennsylvania of the right of the insured to recover back the premiums paid, if the company wrongfully refuses to receive a premium when duly tendered. And upon principle how stands the case ? The plaintiff iu error, by an act willfully wrongful, has declared its liability as an insurer terminated by a forfeiture of the policy, and refuses any longer to carry the risk assumed by the terms of its contract. And this it does before any loss has arisen to itself, or any benefit has been derived from the risk to the insured. The partial performance of the contract has been wholly on the part of the insured, and has consisted only in the payment of premiums. They have, so far, received nothing of value from the company which it might be against equity or good conscience to retain. They are in no better condition than they would be if no policy had been issued. If the company receives no compensation for the l’isk which it carried for sevei-al years, this result is attributable only to its own willful default. It can not equitably be allowed to retain any part of the premiums received, whilst it wrongfully deprives the insured of all benefits which might hereafter arise to them from their payment. In regard to the compensation to which the insurer might equitably be entitled in a case where the risk is terminated without fault on his part, we think it unnecessary, for the purposes of this case, to inquire. Ve are of opinion that defendants in error were entitled to the relief which they asked and obtained in the court below.

It is objected, however, that the court below miscalculated the aggregate amount of the premiums paid, and the interest accruing upon them respectively, from the times of their payment, and rendered a judgment in excess of the true amount. "We have made a computation, and find the objection is not without foundation. The evidence shows that the cash payments of premiums and interest made on the policies were as follows: October 31, 1868, $34.87; October, 1869, $51.37; October, 1870, $51.37; October, 1871, $39.47; October, 1872, $37.43. Computing interest on tírese several payments, till the 1st of February, 1875, we find the aggregate sum to be $268.89.

The court below rendered a judgment for $305.84, which is found to be the amount of these payments, including interest thereon, till February 1, 1875. This Was $36.95 in excess of the true amount, and, to that extent, the judgment below will be modified, and, in all other respects, be affirmed.

As a result of this partial reversal, the costs of this proceeding in error will be equally divided between the parties.

Johnson, Chief Judge, did not sit in the case.