text:
    Brill vs. Singer Manufacturing Company.
    1. Where a patented machine becomes known to the public by a distinctive name during the existence of the patent, any one at the expiration of the patent may make and vend such machines, and use such name; and no one, by incorporating such name into his trade-mark, can take away from the public the right of so using it.
    2. Where machines during the time they are protected by a patent become known and identified in the trade by their shape, external appearance or ornamentation, the patentee, after the expiration of the patent, cannot prevent others from using the same modes of identification, in machines of the same kind manufactured and sold by them.
    Error to the Superior Court of Cincinnati. Reserved in the District Court of Hamilton County.
    The original action was brought by the Singer Manufacturing Company, the defendant in error, against Andrew J. Brill, the plaintiff in error, in the superior court of Cincinnati. The petition alleges as follows, to wit:
    “ The plaintiff is a corporation duly organized and existing under the laws of the state of New Jersey, and is now, and for many years has been, engaged in the business of manufacturing and selling sewing machines in all parts of the United States and Great Britain and in other countries, as the successor of The Singer Manufacturing Company, a corporation of the state of New York, which corporation succeeded the firm of I. M. Singer & Co., by whom said business was established in the year A. D. 1850; and the plaintiff is the owner of the good will and trade-name and trade-marks of its said predecessors in said business, which business has been carried on successively by said parties as a continuous business from the time of its establishment. During all said period, the plaintiff and its predecessors have manufactured sewing machines of many different kinds and varieties, and from the first have called and advertised and sold such machines as ‘Singer’ sewing machines, and have spent hundreds of thousands of dollars in advertising them by that name; and sewing machines manufactured by the plaintiff or its predecessors have always been called, and are now, and for many years have been, universally known as ‘ Singer ’ sewing machines, and by that name have acquired a world-wide reputation for the excellence of their workmanship and other merits.
    “Said adoption and appropriation of said name was original with said I. M. Singer & Co., and they and their said successors have ever since used the same continually and exclusively as a designation for the sewing machines manufactured by them.
    “The defendant in violation of plaintiff’s said rights is, and for some time past has been, engaged in selling sewing machines not manufactured by plaintiff, but having the form, shape, outline, ornamentation and appearance of \machines of plaintiff’s manufacture, which he calls and advertises and sells as ‘ Singer ’ Sewing Machines, and as English Singer Sewing Machines, and by other colorable imitations of plaintiff’s said trade-name; and the defendant advertises said machines by means of cuts and prints which are imitations of plaintiff’s cuts and prints, and which are representations of machines of plaintiff’s manufacture, and the defendant in other ways gives out and represents that the sewing machines which he sells are manufactured by the plaintiff, whereas in truth they are not.
    “ Wherefore, the plaintiff praj^s that the defendant may be enjoined from in any manner advertising, invoicing or selling any sewing machines not manufactured by plaintiff, as Singer Machines or as English Singer Machines, or by any colorable variation upon or imitation of the name Singer, and from using in any manner the name Singer, either alone or combined with other words, as a designation of, or in connection with any sewing machine not manufactured by plaintiff, and from selling or advertising for sale in any manner any sewing machine having the form, shape, outline, ornamentation or appearance of the sewing machines manufactured by the plaintiff, and from representing in any manner that machines not of plaintiff’s manufacture are ‘Singer’ Sewing Machines, or that they are manufactured by plaintiff. And the plaintiff also prays for an account of profits and for all other relief to which it may be entitled, and its costs.”
    A demurrer to the petition having been overruled, the following answer thereto was filed, to wdt:
    “ The defendant for answer to the plaintiff’s petition states that he knows nothing of the truth of the averments concerning the business and property rights of I. M. Singer & Co., and of the Singer Manufacturing Company of New York, or of the plaintiff, or of the plaintiff’s rights of suecessorship or ownership therein, and to the good will, trade-names and trade-marks of its pretended predecessors, and doth therefore deny all' allegations of the petition touching the same.
    “ And for further answer the defendant denies that the plaintiff had any property right in the name ‘Singer,’ and denies that said word ‘Singer’ was its trade-name or trademark, but avers that said name ‘ Singer ’ was used by the plaintiff and understood by the trade and the public generally and in fact was intended, to describe sewing machines of certain particular combinations, and the principle or device used in their construction, and that such name was generally understood to designate and did designate not alone machines manufactured by the plaintiff, but machines constructed after and upon the principle of machines originally invented by one I. M. Singer, and his and others’' improvements • thereon, upon which said invention and improvements letters patent were granted to said I. M. Singer and others,' by the United States of America, and which said letters patent have long since expired; and further that said name did not and does not in-the estimate of the trade or of the public designate a machine made by plaintiffs or by their predecessors.
    “ Defendant for further answer denies that said plaintiff and its predecessors used said name ‘ Singer ’ continuously and exclusively as a designation of sewing machines manufactored by it and its predecessors, and avers that it and its predecessors made and sold other machines of totally different construction, and did not apply the name Singer thereto; that various other parties than plaintiff and its predecessors and defendant have manufactured and sold sewing machines made upon the Singer principle and plan, under the name, and the same were known to the trade and to the public by the name of ‘ Singer Sewing Machines.’
    “ Defendant denies that he ever advertised or otherwise represented that sewing machines sold by him were manufactured by the plaintiff or by its predecessors, but he has sold machines manufactured upon the plan and principle of the Singer patent, and has sold the same as machines manufactured upon said plan and principle, as he had a good right to do, and called the same by their proper name. Defendant avers that the plaintiff stamps or affixes its corporate name, in full size, upon the arm of machines of its manufacture, and that the plaintiff has affixed to machines manufactured by it, a trade-mark consisting of a brass oval, having thereon the words ‘ The Singer Mf’g. Co., N. Y., Trade-Mark ’ and also the stamp of a shuttle, and that defendant has not adopted or used said trade-mark, at any time, and plaintiff has not adopted or used any other or different trade-mark; and that the defendant has sold and does _ sell sewing machines made upon the said Singer principle of plan of construction, to wit: the same covered by said former patented rights and all improvements, on which the plaintiff’s machines are constructed, but defendant has not placed upon any of said machines sold by him the word £ Singer ’ either alone or in combination with any other words, but that the machines sold by the defendant have in all instances had affixed to each and every one of them the name and trademark of the manufacturers thereof, said trade-mark consisting of an oval on which was stamped said name, to wit: ‘Williams Mf’g. Co., Montreal, Trade-Mark’ and also a lion’s head.”
    The issues raised by the petition and answer were submitted to the court at special term, upon the evidence, and determined in favor of the plaintiff below, to which conclusions exceptions were taken. The defendant moved the court to set aside the findings, on the ground that they were against the law, and against the weight of the evidence, and for other reasons, and this motion having been overruled— to which exception was also taken — a final judgment was rendered in favor of the plaintiff below, awarding a perpetual injunction, and referring the case to a master to state an account of profits, and adjudging the costs of the action to the plaintiff below. A bill of exceptions containing all the evidence was tendered to the court, and duly allowed. The case was thereupon carried by petition in error to the district court, and there heard, and by an order of that court, on the motion of the defendant in error, the case was reserved to this court.

      Tilden Sardacre, for plaintiff in error.
    1. The defendant in error had no property in the name “ Singer,” nor any exclusive right to affix it to the machines made by it. Singer Mf’g. Co. v. Loos, 48 L. T. R. N. S., 3; Singer Mf’g. Co. v. Larsen, 8 Biss. C. Ct., 151; Singer Mf’g. Co. v. Stanage, 6 Fed. Rep., 279; Singer Mf’g. Co. v. Riley, 11 Id., 706.
    2. The trial in the superior court proceeded not alone upon the claim before considered in this argument, namely, that the plaintiff below had an exclusive property in the trade-mark itself, but it was also further contended that the defendant had been and was in the habit of falsely representing, that the sewing machine, which was in fact manufactured by Williams & Co., of Montreal, Canada, was a machine manufactured by the Singer Manufacturing Company. This expresses exactly the terms of the issue upon this branch of the case, and the question is, whether that issue was maintained by the evidence. The distinction between these two claims was well expressed and defined by James, Lord Justice, in the case of Singer v. Wilson, 45 Law J. R. N. S. Eq., 490. Leather Cloth Co. v. Am. Leather Cloth Co., 11 H. of L. Ca., 535; Bradbury v. Beeton, 39 L. J. R. N. S., 57; Partridge v. Menck, 1 How. App. Cases, 548; 2 Barbour Ch., 101; McLean v. Fleming, 96 U. S., 245; Gorham v. White, 14 Wall., 511.
    A purchaser and other person in reading and inspecting a trade-mark or other representation must not be blind or careless, but must exercise his senses and a reasonable degree of care and diligence, and this- may be exacted even from the “unwary” for they have no right to be unwary.
    It is not enough to say, that the- public may possibly not sufficiently have understood the words of a trade-mark, or other representations. The question is, were the words intended and calculated to deceive, and would they deceive if read and examined intelligently, and with the exercise of ordinary and reasonable care and diligence.'
    In the present case the mere use of the words “Singer” “ Singer Sewing Machine ” was not a fraudulent representation, because if the plaintiff below had no property in them as a trade-mark, the defendant below had a right to use them in his trade-mark and in his representations in the sale of the “ Singer ” Sewing Machine in which he dealt.
    During the pendency of the patent. the name of the owner “ Singer ” used in the trade-mark, by legal construction related to and meant the 'machine and not the manufacturer, and that continued to be the name after the patent expired. Hall v. Barrows, 33 L. J. R. Ch., page 204; Berry v. Bradbury, 33 Id., page 465.
    An act which a party has a right to do cannot in a legal sense, be wrongful. Such an act is not and cannot be a fraudulent representation. Again the trade-mark, in order that it may become an instrument of fraud and pass to subsequent dealers, must be affixed to the article or thing itself. McAndrews v. Bassett, 33 L. J. R. Ch., 561; Candee v. Deere, 54 Ill., 439.
    It is not material that the plate or symbol of. the defendant’s trade-mark resembled in any degree that of the plaintiff in any particular of color, kind, shape or form, for these are elements in which no property can be acquired. Faber v. Faber, 49 Barb., 357; Moorman v. Hoge, 2 Sawy., 78.

      King, Thompson Maxwell, for defendant in error.
    When the public use the name “ Singer ” do they have in mind any particular kind of machine, or simply the Singer Company as manufacturer ? The point is well put by Lord Deas, in The Singer Manufacturing Company v. Kimball & Morton, 11 Court of Sessions, (3d Series), 274.
    When a patent has expired the protection has gone, but a maker’s name cannot be assumed by another without a deception and fraud. Amoskeag Mf'g. Co v. Spear, 2 Sand. S. C., 599.
    As to what class of persons may be deceived by the representations of plaintiff in error, see Singer Mfg. Co. v. Wilson, 3 App. Cas., 376.
    The plaintiffs in error had no right to represent that they were selling Singer machines. Singer Mfg. Co. v. Kimball & Morton, 11 Court of Sessions (3d Series), 270, 274; The French Kowe Case, Coddington, § 1209; Filley v. Fassett, 44 Mo., 173; Cox Am. Trade Mark Cases, 404, 530 ; Carroll v. Ertheiler, 9 Reporter, 737; 1 Fed. Rep., 688; Johnston v. Ewing, 7 App. Cas., 231; Braham v. Bustard, 1 Hem. & Mill., 447; Clement v. Maddick, 1 Gif., 98 ; S. C. 5 Jurist, N. S., 594; Coffeen v. Brunton, 4 McLean, 516 ; Newman v. Alvord, 49 Barb., 588; Kinshaw v. Bolton, 15 Irish Ch., 75; Coddington, § 698; Burke v. Cassin, 45 Cal., 468; Davis v. Kendall, 2 R. I., 566; Shrimpton v. Laight, 18 Beav., 164 ; Edelsten v. Edelsten, 1 De G. J. & S., 185; Franks v. Weaver, 10 Beav., 297; Bardon v. Sabaton, Brown’s Trade Mark, §§ 398, 399; Massam v. Thorley’s Cattle Food Co., 14 Ch. D., 748; 3 App. Cas., 389.
    The defendant in error was not only entitled to an injunction against plaintiff’s in error use of the name Singer, but also against his imitating the outline, form, general appearance and ornamentation of the New Family Singer Machine. Ludlow & Jenkins on Trade Marks, 49, and cases cited; Woollam v. Ratcliff, 1 Hem. & Mill., 259; Dolfus v. Lalle
      mand, (France) Coddington, § 1134; Lea v. Wolf, 13 Abbott Pr., N. S., 389 ; Cook v. Starkweather, Id., 392 ; Knott v. Morgan, 2 Keen, 213; Marsh v. Billings, 7 Cush., 322; Woodward v. Lazar, 21 Cal., 448; Sawyer v. Kellogg, 7 Fed. Rep., 720; Browne on Trade Marks, §§ 42, 44, 59.
   Dickman, J.

For many years the defendant in error, the Singer Manufacturing Company, a corporation under the laws of the state of New Jersey, has been extensively engaged in the business of making and vending sewing machines in this and in other countries. The machines made by the company have been called and known as “Singer” sewing machines — the term embracing several varieties, which differ among themselves more or less in principle of construction, mode of operation, and results produced. Among those varieties of machines, as known to the trade, are the “ Family Singer,” the “ Medium Singer,” the “ Oscillating Shuttle Singer,” and others of different designation. They all belong to the same denomination of Singer machines, and were in the- main protected by patents covering their distinctive features. The term Singer, eo nomine, has come to be suggestive not merely of the manufacturer, but of sewing machines of a certain mechanism, character or quality, distinct in construction and mode of operation from the “Home,” “Grover & Baker,” “Wheeler & Wilson,” or other machines known to the public. It would not be claimed that the name Singer is now associated with any machine for family use, or other work, that is constructed upon a different principle from that governing any of the various Singer machines, so called. ■

It is urged, however, that as the machines originally got their names because of the manufacturer, first, I. M. Singer & Co., and later the Singer Corporation, the defendant in error has acquired an exclusive property in the name — that the name has become a trade name to indicate machines of the company’s manufacture, and has been so recognized by the public. And it is further insisted, that there is no mechanical device, combination, or principle of construction common to the Singer machines, to which the name could refer, and thus become, as it were, generic in its character, and free to the use of all manufacturers and venders after the expiration of the Singer patents. But, granting that there may be several distinct species of the Singer machines, with no peculiar mechanism or principle of action common to them all, yet each species constitutes a distinctive type or class, with certain special characteristics of outward form and internal construction, and bearing the name Singer, to distinguish it from others of different make and properties. Singer Manuf’g Co. v. Loog, Lord Selborne, L. C., 8 Appeal Cases. H. L. (E.), 15.

Descriptive as the name Singer is of machines of a really distinctive character in their construction and principle of operation, when the patents protecting them expired, the right to use that name accompanied the right to make and sell the machines. It would be a poor return for the exclusive privilege which the public gives for a long period to the patentee, if after the expiration of his patent, he shall be allowed to virtually perpetuate his monopoly, in a measure, by preventing all others from using the name, which will describe and make known the invention that has become dedicated to the public.

In Singer Manuf’g Co. v. Stanage, 6 Fed. Rep., 279, it was held, that when a patented article is known in the market by any specific designation, whether of the name of the patentee or otherwise, every person, at the expiration of the patent, has a right to manufacture and vend the same, under the designation thereof by which it was known to the public. The original patentee or his assignees acquire no right to the exclusive use of such designation as a trade name. Their rights are under the patent, and expire with it. The specific designation falls into the public domain.

In Singer Manuf'g Co. v. Riley et al., 11 Fed. Rep., 706, the question arose, whether that company had an exclusive property or trade name in the word Singer. The language of the court commends itself to the legal judgment. “ It is the consideration now due to the public, when the patents have expired, that it shall have the unobstructed benefit of these inventions, and there is not the least foundation in principle or reason, for allowing the patentees to continue to enjoy as much of the monopoly, as they can save by the claim to use exclusively the trade names, by which they identified and secured to themselves the reputation of their inventions. These go along with the invention, as a dedication to the public for purposes of description and identification.”

In Singer Manuf'g Co. v. Larson, 8 Biss. C. Ct., 151, it was held, that if a sewing machine has acquired a name which designates a mechanism or a peculiar construction, parts of which are protected by patents, other persons, after the expiration of the patents, have the right to construct the machine and call it by that name, because the name expresses only the kind and quality of the machine. Indeed, it is an elementary principle, that every one has the right to make and vend any wares not protected by patents; and it is now well settled, that a manufacturer of a patented article, after the patent has expired, has the right to represent that it was made according to the patent, and to use the name of the patentee for that purpose. Wilcox & Gibbs Sewing Machine Co. v. Gibbons Frame, 17 Fed. Rep., 623.

The original petition in this case alleges, that Brill, the defendant therein, in violation of the rights of the Singer Manufacturing Company, the plaintiff, was then and for some time past had been engaged in selling sewing machines not manufactured by the plaintiff, but having the form, shape, outline, ornamentation and appearance of machines of the plaintiff’s manufacture, which he was then selling as “ Singer Sewing Machines,” and “ English Singer Sewing Machines,” and under other colorable imitations of the trade-name Singer. It is further alleged, that the defendant was then advertising such machines by means of cuts and prints which are imitations of plaintiff’s cuts and prints, and which are representations of machines of the plaintiff’s manufacture; .and that the defendant in other ways was then giving out and representing that the sewing machines which, he was selling were manufactured by the plaintiff, whereas in truth they were not.

The trade-mark adopted by the Singer Company and placed at the base of the arm of the “New Family Machine,” which it manufactures, consists of an oval brass plate, containing in its center the letter S, and in the center of that a shuttle, needles crossed, and two transverse lines, representing thread. Circling over this, at the top, were the words “ Singer Manufacturing Co., N. Y.,” and below, the words “ Trade-Mark,” and a circular wreath representing flowers or plants. It is sought by blending the name Singer with the trade-mark, to perpetuate an exclusive property in the name after the life of the Singer patents. But, a patentee or his assignee, by incorporating into his trademark the distinctive name by which a patented machine has become known to the public during the existence of the patent, cannot, after the expiration of the patent, take away from the public the right of using such name. The trade-mark cannot be made a guise for extending the monopoly, or preventing the name from becoming with the patent the property of the public. Singer Manufacturing Co. v. Riley, supra.

The Singer Manufacturing Company had become the proprietor of, or interested in several patents for improvements upon the machines manufactured and sold by it; but, the patents had expired a long time prior to the alleged acts which are subjects of complaint. An injunction, however, coextensive with the prayer in the plaintiff’s petition was granted, and the defendant was perpetually enjoined, not only from using the name Singer, but from selling sewing machines having the external appearance, shape, or ornamentation of the machines of plaintiff’s manufacture; and also from using a trade-mark, which imitates the trademark used by plaintiff, in size, color, shape and general-' appearance.

While there may be a similitude in form and finish between the machines made by the defendant in error, and the “ English Sewing Machine ” sold by Brill, as the general agent of the Williams Manufacturing Company of Montreal, we think, there should not have been an injunction granted against that company’s introducing their machines to the public, in the habiliments which they saw fit to adopt. Where machines during the time they are protected by a patent, become known and identified in the trade by their shape, external appearance or ornamentation, the patentee, after the expiration of the patent, cannot prevent others from using the same modes of identification in machines of the same kind, manufactured and sold by them. It is not claimed that the shape, ornamentation or external appearance of the machines made by the Singer Manufacturing Company were protected by any patent for a design, nor could these insignia find protection under any of the Singer patents which had expired. Of the patents which the Singer Manufacturing Company owned or became interested in, and of the external appearance, shape or ornamentation of its machines, it may be said, as was said by the court in Fairbanks v. Jacobus, 14 Blatchf., 337, “ Their patents, while they existed, protected them in the essential structure of their invention, but the exterior form, painted color, and such non-essentials were not, and could not be, the subject of the.patents, and the patents did not, and could not, secure these to the plaintiff. Much less could these be secured as a trade-mark, for, a trade-mark is always something indicative of origin or ownership, by adoption and repute, and is something different from the article itself which the mark designates. An invention of structure a patent for the invention secures; a design is secured by a patent for that. Apart from these, any one may make anything in any form, and may copy with exactness that which another has produced, without inflicting any legal injury, unless he attributes to that which he has- made a false origin, by claiming it to be the manufacture of another person.” At common law, the form, ornamentation or external appearance of the machines, would be open to all as modes of designation or identification. In the case at bar, they are accompaniments which serve to identify machines of a certain kind and quality, without reference to the manufacturer; and when the patents covering the machines expired, they should not, any more than the name Singer, be made the means of continuing the monoply under the cover of a quasi trade-mark or symbol.

As to the complaint, that the agents of the Williams Manufacturing Company have been engaged in selling machines made by that company as and for machines manufactured by the Singer Manufacturing Company, it is the undoubted right of every man who is known to the public as the favorite manufacturer of any article, that another shall not make and vend the same article, and palm it off as the production of the first maker. As said by Lord Blackburn in Singer Manuf'g. Co. v. Loog, supra, “the original foundation of the whole law is this, that when one knowing that goods are not made by a particular trader, sells them as and for the goods of that trader, he does that which injures that trader.” If he sells wares of as good quality, he impairs the patronage of the trader under a false pretence; and if he sells wares of an inferior quality, he injures the good will and reputation of the trader’s business. But, upon a review of all the testimony, we have been unable to discover any deception practiced by means of any business card, advertisement, circular or other publication, by which the machines of the Williams Manufacturing Company have been put upon the market, as having been manufactured by the Singer Manufacturing Company. On one business card, Brill, the general agent, plainly publishes the “ English Singer Sewing Machine ” as manufactured in Montreal, Canada; and the factory of the “ Ger. man Singer Sewing Machine ” is, on another card, represented as located at Kaiserslautern, Germany; and Kaiser Brothers are held out as the manufacturers. No purchaser of ordinary intelligence would be likely to be deceived as to the manufacturer, or the place where manufactured. And the word Singer, though used in their cards, circulars and newspaper advertisements, nowhere appears upon the machines manufactured by the Williams Manufacturing Company.

It is said, however, that the trade-mark of' the Williams Manufacturing Company, is such an imitation of that adopted by the Singer Manufacturing Company, .as to be easily mistaken for it by purchasers. How far the similarity is likely to deceive, must be determined, not by the impression made upon a heedless and inobservant buyer, but upon one of at least ordinary intelligence and observation. To entitle a complainant to relief against a colorable imitation of a trade-mark, he must clearly show not only a property right in himself, but also that the resemblance between the original and the imitation is such as would mislead persons purchasing with ordinary caution. Robertson v. Berry, 50 Md., 591. We do not think that the trademark used by the Williams Manufacturing Company — being an oval metallic plate with a lion’s head in bold relief, surrounded by the words “ Williams M’f’g. Co., Montreal ” and “ Trade-Mark ” is of a character that would mislead purchasers of ordinary caution. In Singer Manuf'g. Co. v. Riley, supra, the court in passing upon an alleged violation of the trade-mark of the Singer Manufacturing Co. of New Jersey, held that the shuttle device, as a trade-mark, had not been violated by the device used on the Williams machine of Montreal — the alleged imitation not being calculated to .deceive a purchaser.

Whatever foundation there may be for an action in damages, we do not think, that an injunction was warranted against Brill, the plaintiff in error, by reason of the testimony of witnesses who had purchased machines from his agents, and who were called to prove the verbal representations of such agents, that the sewing machines sold by them were of the Singer Company’s manufacture. There is evidence, that those agents dealt not alone in the “ English Singer Sewing Machine,” but in the different varieties of sewing machines'known to the trade; but, whether they dealt in other machines or not, we find no evidence that the plaintiff in error authorized, any false representations, verbal or otherwise, to be made by his agents as to who were the manufacturers of the Williams machines.

The judgment of the superior court we think should be reversed. The injunction granted against the plaintiff in error should be dissolved, and the action of the Singer Manufacturing Company'dismissed.

Judgment accordingly.


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Martin et al. v. Roney et al.
    In an action by M. against the county commissioners to enjoin the assessment of the costs and expense of a road improvement, on the ground that the commissioners had not jurisdiction to order the improvement to be made, it was determined upon a trial on the merits that the commissioners had such jurisdiction.
    Afterwards the same parties brought an action against the commissioners to enjoin the same assessment for want of jurisdiction of the commissioners for a reason not stated in the former action.

      Seld: That the question of jurisdiction of the commissioners was conclusively settled between the parties by the judgment in the first action.
    Error to the District Court of Brown County.
    The plaintiffs in error brought their action in the common pleas in November, 1877, to enjoin the defendant in error, Roney, as auditor of Brown county, from entering on the tax duplicate of the county, an assessment made by the county commissioners to pay the cost and expense of the improvement of a road; and to enjoin the defendant Drake, as treasurer of the county, from collecting the assessment. The petition states numerous facts pertinent tó the case, and amongst others: “ That the petition presented to said county commissioners praying for the construction of said Ripley and Arnheim free turnpike road improvement, was never at any time signed by a majority of the land owners resident in said county of Brown, whose lands were afterwards on said 1st day of September, 1866, by the viewers and engineer returned as benefited, and for assessment to pay the expenses of the same; and that the order of the said county commissioners made on the 7th day of September, 1866, for the construction of said road improvement, was then and at all times utterly null and void.”
    To this petition the defendants answered amongst other things, that on the 7th day of February, 1871, plaintiffs brought an action against the then auditor and treasurer of the county, seeking to have the same assessments declared void and to enjoin the collection thereof, upon the same facts and for the same causes as those set forth in the present.action; and that the action commenced in 1871, resulted in a judgment for the defendants therein.
    The record of the action of 1871 is in evidence, from which it appears that the plaintiffs in their petition alleged: “That said county commissioners never had jurisdiction to order said improvement to be made.” This averment was denied by the answer and the final judgment in the action was for the defendants.
    Upon a trial in the district court on appeal, it was found that the defense above alleged was true, and judgment was thereupon given for the defendants, in this action.
    The petition in error here is to reverse this judgment.

      G. Bambach, for plaintiff in error.

      Moore <f- Sarding, for defendants in error.
   McCauley, J.

The question arising upon the record is, whether or not the judgment in the case of Burgett and others, the plaintiffs in error, against Parker, the county treasurer, was a bar to the action in the common pleas.

The petition and answer in that action put in issue the jurisdiction of the county commissioners to order the improvement to be made. The want of jurisdiction was alleged in the petition as a fact, and the defendants not asking to have the particulars stated from which a want of jurisdiction followed, merely denied the want of jurisdiction. This issue was determined in favor of the defendants.

The same parties now who were plaintiffs in that action again call in question tbe jurisdiction of the commissioners to order the improvement, by alleging specifically the facts that show a want of jurisdiction. That question having once been determined between the parties, can not be re-opened by the plaintiffs, upon a state of fact more specifically stated to make the same cause of action.

The question would be the same if the jurisdiction of the commissioners to order the improvement, had been put in issue in the first case upon a state of fact wholly different from the state of fact alleged in the second action — provided that the facts in the action were sufficient in law to authorize the relief demanded. It is not allowable to allege certain facts as a cause of action and after judgment on the merits, to allege a different state of facts to support a demand for the same relief.

If the facts of a case are inconsistent the plaintiff must elect which he will rely upon, and having done so a judgment thereon is final.

The effort now to set aside the order of the commissioners for want of jurisdiction is a repetition of the question made and determined in the action of 1871.

Judgment affirmed.


author: By the Court.

text:
    The C., S. & L. Association v. Kreitz.
    Error to the District Court of Cuyahoga County.

      Stone & Hessenmueller and F. C. Gallup, for plaintiff in error.

      E. D. Stark, for defendant in error.
   By the Court.

S. mortgaged six city lots to secure the payment of seven promissory notes payable successively at intervals of one year, with interest payable annually. K. purchased three of said lots and accepted a deed which required him to assume and pay, as part of his purchase money, one half of said mortgage debt. The holder of mortgage notes made K. a co-defendant with S. in a foreclosure suit, averring that K. had assumed and agreed to pay one half of the debt. A sale of the lots produced less than the unpaid debt. . K., by answer, denied that he had agreed to assume1 and pay any of said debt; admitted the acceptance of said deed; and by motion demanded atrial by jury. This the court denied. It found against him on the issue, and decreed that he should pay one half of the balance then due.

Held: 1. K. was properly made a defendant.

2. In taking an account, without a jury, to ascertain how much of the mortgage debt remained unpaid, and in allowing execution against K. for one half of said sum, the trial court did not err. So far as concerned one half of the mortgage debt, K. stood in the shoes of the mortgagor.

.Judgment affirmed.


text:
    Turnpike Company v. Kelley et. al.
    Error to the District Court of Hamilton County.

      S. T. Crawford and Gtoebel Sf Bettinger, for plaintiff in error.

      A. J. Jessup and T. A. Lane, for defendants in error.
   By the Court.

A company incorporated under Ohio laws, in 1857, constructed a turnpike1 from the city of Cincinnati to the village of Warsaw, and established a toll-gate at a point more than eighty rods distant from the city line. In December, 1869,'the city limits were legally extended, so as to include the toll-gate; but the company continued to collect tolls. In 1875, K. sued out an injunction, forbidding the further taking of toll at said gate, and gave a bond with sureties, conditioned as required by statute. The final judgment found “ the equity of the case to be with the defendant,” and dismissed the action. The company sued on the bond. The answer denied that the injunction prevented the collection of any lawful tolls.

Held: 1. Section 84, act of May 1, 1852 (S. & C., 295), made it unlawful “ to keep up ” the toll-gate, or collect tolls thereat, after the city line included it. Section 600 of the act of May 7, 1869 (66 Ohio L., 251) did .not repeal, or modify, said section 34.

2. Notwithstanding the judgment in the injunction suit, the company cannot recover, as damages, tolls that it could not lawfully have collected if the injunction had not been granted.

Judgment affirmed.


text:
    B. & O. & C. R. R. Co. v. Gibson.
    Error to the District Court of Seneca County.

      Henry Newbegin, for plaintiff in error.

      Lutes & Lutes, for defendant in error.
   By the Court.

On March 11, 1879, G., as surviving partner of G. & Co., sued a railroad company, averring that on February 5, 1874, the railroad companj'- was indebted to the firm for money paid to one F., for a right of way for said company at its request. On February 3, 1880, the petition was so amended as to charge that G. paid said money, and before suit assigned his claim to the firm. The answer denied all the facts stated in the amended petition, and also pleaded the sis years statute of limitations. At the trial the defense put in evidence showing that the money was paid in February, 1873. No evidence was offered tending to show that the firm paid the money, or that the claim had ever been transferred to the firm.. The verdict and judgment were for the plaintiff.

Meld: 1. Both petitions counted upon the same transaction, in favor of the same plaintiff; the amendment merely showed how the firm became entitled to the claim. Hence the computation of time under the statute ended with the filing of the original petition.

2. There being no evidence of a transfer to the firm, the defendant was entitled to the verdict. As, at the time of the trial, a suit by G. in his own right was barred by the statute, the error was prejudicial to the defendant, notwithstanding the judgment would estop G.

Judgment reversed, and new trial granted.


text:
    Jones v. Pouch.
    Error to the District Court of Clinton County.

      L. H. Baldwin and A. II. Jones, for plaintiffs in error.

      Stone §• Walker and A. M. Williams, for defendants in ■error.
   By the Court.

A verbal agreement to construct a ■section of a road within a year and twenty days from the ■date of the contract was made by competent parties. The ■work could be completed within the year, and the twenty ■daj^s was a precaution against contingencies.

Held: This was not an “agreement that is not to be performed within the space of one year from the making thereof;” andan action thereon is not prohibited by the statute of frauds (section 4199 Revised Statutes).

Judgment affirmed.


text:
    Fisher v. Schlosser.
    Error to the District Court of Lawrence County.

      John Hamilton, for plaintiff in error.

      O. F. Moore, John S. George, and Fvan F. Williams, for defendant in error.
   By the Court.

On the twenty-second of December, A. D. 1879, an action by L. S. v. J. F. for breach of promise of marriage was pending in Lawrence common pleas, which •fact was known to M. E. W. J. F. then owned property .worth about $25,000. On that day he and M. E. W. by written contract. agreed that they would intermarry, and that he, in consideration of her consent thereto, would transfer to her about $25,000 worth of his said property. He made the transfer and their marriage followed. L. S. after-wards recovered a judgment in her said action ; executions were levied upon said transferred property, and she, by civil action against J.'F. and his wife, asked the court to set aside the transfers and apply upon her judgment so much of the property as would pay it. The answers denied all intent to hinder, delay or defraud creditors, and set up the marriage contract as made bond fide. The trial court, upon the facts above stated, found for L. S., and made a* decree as prayed by her.

Held: The facts justified the finding. The marriage settlement was grossly disproportioned to the circumstances of J. F., and therefore fraudulent as against L. S.

Judgment affirmed.


text:
    Bailey v. Stoneman.

      EBROS, to the District Court, of Cuyahoga County.

      A. T. Brewer, for plaintiff in error.

      Alfred W. Lamison, for defendant in error.
   By the Court.

E. T. B. agreed to build a house for •W. B., and that about $1393 of the cost should be paid in a mortgage note secured by vacant lots, upon the completion of the building. E. T. B. fulfilled his contract, and W. B. indorsed and delivered to him the note. The indorsement contained only the indorser’s name. Demand was made and notice of non-payment duly given. In a suit upon the note by a subsequent indorsee, who knew the facts, the indorser, by answer, set out the contract and averred, first, that his indorsement was without any consideration, and second, that it was made for no purpose 'except to transfer title to the note.

Held: 1. The indorsement beihg in blank, parol evidence of what was said by the parties in and about the transfer was properly admitted. Dye v. Scott, 35 Ohio St., 194, followed.

2. The indorsement prima facie implied that the indorser assumed its usual obligations, and upon him rested the burden of proving a different understanding or agreement.

3. If the evidence justified a finding that the then understanding, or agreement, was that the indorser assumed the usual obligation, the fulfilment by E. T. B. of his contract to build, applied as a consideration to support the transfer of the note as made.

Judgment affirmed.


author: Dickman, .T.

text:
    City of Toledo v. Cone.
    1. The principle of respondeat superior applies to municipal corporations, where the acts of their servants or agents refer to powers and duties ministerial in their nature and character.
    ' 2. A city organized under the laws of Ohio, held the title to and the right' of possession of a public cemetery located within its limits, which was under the management, control, and regulation of a board of cemetery trustees, chosen by the electors of the corporation and removable for cause by the city council — as provided in Chapt.'XXVX, of an act, “ To provide for the organization and government of municipal corporations,” passed May V, 1869 (66 Ohio Laws, 149). An employee, while engaged in the cemetery in improving a vault owned by the city, was injured through the carelessness and want of skill of the superintendent of the cemetery and the negligence of the trustees. The employee worked under and obeyed the orders and directions of the superintendent, and both received their appointment from the board of trustees, subject to the approval of the council. Held: That the city was liable for the injuries resulting to the employee.
    Error to the Court of Common Pleas of Lucas County. Reserved in the District Court.
    The defendant in error, Frank Cone, brought an action in the court of common pleas of Lucas_ county, against the plaintiff in error, the City of Toledo, to recover damages for personal injuries by .him sustained. The petition, filed March 8,1879, reads as follows:
    “ Frank Cone, plaintiff, says that the city of Toledo, defendant herein, is a municipal corporation, and a city of the first class, organized under the laws of the state of Ohio, and situate in the county of Lucas, and state of Ohio, and that it has been so organized for more than two years last past.
    “That for more than two years last past said city has owned and held the title to, and the right of possession of, certain burial grounds within said city, which had before that time been set apart and dedicated, and have been and still are used as public burial grounds, and as a public cemetery, commonly known and called by tbe name of “Forest Cemetery,” and said cemetery was not owned or under the care of any religious or benevolent society or any incorporated company or association.
    “ That during all that time said cemetery has been in the possession and charge of a board of three trustees, for that purpose elected by the electors of said city at the annual election for corporation officers, in accordance with the statutes of the state of Ohio, in such case made and provided, and said trustees have at all times had possession and charge, and the entire management, control and regulation of said cemetery as officers of said corporation, under and subject to the ordinances of said city; and as such officers have directed and had charge of all the improvements and embellishments of said grounds. That as such officers of said city they had full power to and did employ a superintendent of said cemetery and workmen and laborers therein, and placed and kept said superintendent in full charge and control of said workmen and laborers, and directed and required said laborers and workmen to work under and obey the orders and directions of said superintendent.
    “ That before and at the time of the happening of the events hereinafter set forth, one Edward Radbone was under and by the employment and appointment of said trustees and with the approval of the city council of said city, acting as superintendent of said cemetery with all the powers and duties of such superintendent as hereinbefore set forth, and this plaintiff and one Christian Hilk, under like employment and approval, were at the same time at work in and about said cemetery and upon the improvements thereon as common laborers, under the direction and control of said Edward Radbone as such superintendent.
    “ That in or about the month of May, 1878, said trustees directed certain improvements to be made, in and about the city vault in said cemetery. That said city vault was then owned by said city and was used for public purposes and for use by private persons, the reward and hire for the use of the same being paid to the said trustees, and the money so received by them required to be accounted for the same as proceeds of cemetery lots sold under and in accordance ■with the ordinances of said city, and was in the possession of and under the entire charge, management and control of said trustees as a part of said cemetery, and was in fact, a part of said cemetery.
    “ That said trustee directed the kind and character of such improvements, and the manner in which the same were to be made and ordered, directed and instructed said Radbone as such superintendent to make the same, and in so doing to use and employ the labor and services of this plaintiff and said Wilk as laborers and workmen in doing the same under his, the said Radbone’s direction and superintendence.
    “ That thereupon said Radbone, as such superintendent, did order and direct this plaintiff and said Wilk to work upon said city vault, and upon the vaults and earth connected with and around, or near to the same, and directed them fully as to the work to be done by them, and the manner of doing the same.
    “ That this plaintiff was by his said employment there, and at all times while doing said work, wholly under the control and direction of said Radbone as such superintendent in all matters pertaining to said work, and did in all things and at all times fully follow and obey all the orders and directions of said superintendent, while so engaged in and about said work.
    “ That a part of the work to be done in making said improvement in accordance with the order and direction of said trustees, and in the manner directed by them and by said superintendent, consisted in moving a portion or all of a large embankment of earth that rested upon or against the top and walls of said vault, and also certain walls of stone which had before that time been constructed.
    “ That the extent to which ■ said earth embankment or stone walls should be removed, and the manner of removing the same, and all other matters connected with the doing of said work and making the improvement so directed by them were, by said trustees, placed in the charge and control of said superintendent, who on his part assumed and exercised such control and direction, and neither plaintiff nor his co-laborer said Wilk had any charge, control or discretion in reference to said work or the manner of doing the same.
    “ That on or about the 4th day of June, 1878, while said work was in progress, said superintendent, in the morning of the day, at or about the usual time of commencing work, was present at said work and directed said plaintiff and said Wilk in the work which they were to do during the day in removing said earth and stone wall; and they commenced work and continued to work in the manner in which he had so directed until, while so at work, a large portion of said embankment suddenly gave way, and the earth fell upon this plaintiff, burying him beneath the same.
    “ That said embankment so gave way and fell upon this plaintiff without any fault on the part of this plaintiff or said Wilk, his co-laborer, and without any notice to this plaintiff that it was about to or would fall, or that he would receive any injury while so engaged in said work, nor did he have any means of escape from injury when it did fall. That said Radbone assumed to be competent, and this plaintiff then supposed he was skilled in and competent to manage and conduct said work — that this plaintiff was ignorant of any danger to himself in doing the work in the manner in which he was directed to do and was doing it, and had before the falling of said embankment been told by said Radbone that there was no danger that said earth would fall, or that he would be injured in doing said work in the manner in which he was so directed to do, and was in fact doing it, all which plaintiff then believed to be true.
    “ But plaintiff says that said embankment fell upon the plaintiff and he received the injury caused thereby, wholly through the want of skill of said superintendent, and his carelessness and negligence in ordering and directing the manner of doing said work, and his carelessness and negligence and want of skill in not providing means of support to said embankment of earth and wall, or otherwise protecting or providing for the protection of plaintiff while doing said work, and through the negligence of said trustees in not providing a competent superintendent for said work, and in not providing and furnishing plans and directions for doing the same in such manner that it might be done with safety and security to the plaintiff and other workmen engaged in doing the same, all which was without any fault or neglect on the part of the plaintiff or his co-laborer.
    “ And plaintiff says that when said earth fell upon him in manner aforesaid it broke his left leg in two places between the thigh and the knee, and seriously and permanently injured his left knee and his back, and seriously bruised and injured his face, head, neck and other parts of his body so as to render him entirely helpless for a long time. That it was necessary to have Ms leg set by a surgeon, and to have himself removed to a hospital and have medical and surgical care and attendance for the period of twelve weeks thereafter. That he has since been for nine months wholly unable to perform manual labor, and has been compelled to have board, care and nursing during all that time. That he has by reason of such injuries been subjected to great expense, in the sum of one hundred and fifty dollars for medical and surgical services and attendance, and in the sum of one hundred and fifty dollars for board, care and nursing while suffering from such injuries, and has suffered great pain of body and anguish and suffering by reason thereof. That he is of the age of twenty-three years, and before receiving such injuries was, and had always been in good health, and was then fully able to perform manual labor and earn the wages of a laboring man, and that his services as such were worth the sum of thirty dollars per month; that by reason of said injuries he has wholly lost the wages which he would otherwise have earned for the period of nine months, and that he has also been thereby permanently injured, so that he will for a long time hereafter be unable to do manual labor or earn wages for his support.
    “ Plaintiff further says, that on or about the 14th day of October, 18T8, he filed with the clerk of said city his claim for damages herein set forth, but said city has not settled or adjusted his said claim, or made him any compensation whatever therefor, but has neglected and refused, and still neglects and refuses so to do.
    “ That he has sustained damages by reason of the premises in the sum of five thousand dollars, for which sum, and for costs of suit, he asks judgment against the defendant.”
    To this petition a general demurrer was filed which was sustained; but upon a rehearing the demurrer was overruled, and the defendant excepted. An answer .to the petition was then filed; the case was tried by jury, and a verdict was returned for the plaintiff. The defendant moved to set aside the verdict and grant a new trial, alleging that the verdict was not sustained by the evidence, and was contrary to law, which motion the court overruled; and to the action of the court the defendant excepted, and judgment was thereupon rendered for the plaintiff for the amount of the verdict. No bill of exceptions was taken embodying any of the evidence at the trial, and the record shows no exception to the charge of the court.
    The defendant filed a petition in error in the district court, and assigned as error the following, to wit:
    1. That the facts set forth in the original petition filed in this cause are not sufficient to constitute a cause of action against said city of Toledo.
    2. That the court erred in overruling the demurrer of the city of Toledo to the petition of said Cone.
    3. That the court erred in overruling the motion of said city of Toledo to set aside the verdict and for a new trial.
    4. That the court erred in entering judgment for said Cone, when it should have been entered for the city of Toledo.
    In the district court the case was reserved to this court for its decision.

      JE. JP. Raymond, with whom were II. A. Chamberlain and Clarence Brown, for plaintiff in error.

      Upon the state of facts as disclosed by this defendant’s petition, we claim that he is not entitled to recover upon the principles of respondeat superior or upon any other recognized principle of law, for the following reasons, among others to wit:
    1. Our legislature has recognized the importance of hav ing public cemeteries and burial grounds, and has provided for the establishment thereof and the government of the same by a general law applicable alike to all the cities in Ohio.
    2. The duties required of the trustees of the cemetery are for .the benefit of the public, and not merely for the corporation as such.
    3. The city of Toledo has nothing to do with the tenure of office of the trustees of said cemetery, but the same was fixed by a general statute of the state.
    4. The trustees have under the law a jurisdiction of their own with distinct and specified duties to perform, and so long as they conform to the law are amenable only to the people who invest them with office.
    5. The trustees determine the terms of office of all the employees and agents and the amount of their compensation, Sec. 2522 — and make their own by-laws and regulations, Sect. 2524.
    6. There is no claim made in this case that any charge had ever been preferred against the trustees or the superintendent of said cemetery so as to subject them to a removal by the city council.
    7. In this case there is wanting the relation of master and servant, which relation brings with it the power to appoint, control and discharge at will.
    In view of the above and of the fact that the trustees are acting in obedience to a public statute and are not performing services purely local and ministerial and that they have discretionary powers vested in them under the statute, the plaintiff below ought not to recover in this action. Dillon on Mun. Corp., 3d ed., §§ 965, 974, 975, 976, 977; Wharton on Neg., § 191; Sherman & Redf. on Neg., §§ 120, 121, n. 2; Story on Agency, § 321, p. 400, n. 1; Wheeler v. City of Cincinnati, 19 Ohio St., 19; Western College v. City of Cleveland, 12 Id., 375 ; Diehm etc. v. Cincinnati, 25 Id., 305; Finch v. Board of Education, 30 Id., 37; Hill v. Boston, 122 Mass., 344; City of Richmond v. Long's Admr's, 17 Grattan, 375; Brown v. Inhabitants of Vinalhaven, 65 Me., 402; Brinkmeyer v. City of Evansville, 26 Ind., 187; Hafford v. New Bedford, 16 Gray, 297; Fisher v. City of Boston, 104 Mass., 87; Wightman v. Washington, 1 Black, 39-49; Brinkmeyer v. Evansville, 29 Ind., 187; Buttrick v. The City of Lowell, 1 Allen, 172; Pesterfield v. Vickers, 3 Coldwell (Tenn.), 205; McElroy v. Albany, 65 Ga., 387; Little v. Madison, 49 Wis., 605; Elliot v. Philadelphia, 75 Penn. St., 342; 20 Am. Rep., 709; Russell v. Mayor &c. of New York, 2 Denio, 461; Ogg v. City of Lansing, 14 Am. Rep., 499; Mitchell v. Rockland, 52 Me., 118; Mead v. New Haven, 40 Conn., 72; Elliott v. Philadelphia, 75 Penn. St., 342; Grant v. Erie, 69 Id., 420; Heller v. Sedalia, 58 Mo., 159; Jewett v. New Haven, 38 Conn., 368; Maximilian v. Mayor, 62 N. Y., 160; Dargan v. Mayor of Mobile, 31 Ala., 469; Stewart v. New Orleans, 9 La. Ann., 461; Story on Agency, § 319 a, 321; Story on Agency, §§ 308, 311, 320; Nowell v. Wright, 3 Allen, 166.

      Hamilton Ford, and. Pratt, Wilson Pratt, for defendant in error.
    The question in this case is, in the prosecution of the improvement to the cemetery in question, through its trustees, was the city of Toledo manifesting any of the attribute's of sovereignty, appearing or acting in its political character, or in the exercise of a governmental function, either legislative or judicial? If so, then, she is not liable. If not, then she is clearly and unmistakably liable.

      City of Dayton v. Pease, 4 Ohio St., 80; Goodloe v. Cincinnati, 4 Ohio, 500; Smith v. Cincinnati, 4 Ohio, 514; Rhodes v. Cleveland, 10 Id., 474; Crawford v. Delaware, 7 Ohio St., 459 ; Commissioners v. Mighels, Id., 109 ; McComb v. Akron, 15 Ohio, 475 ; Cincinnati v. Cameron, 33 Ohio St., 366; Commissioners v. Duckett, 20 Md., 469; City of Detroit v. Corey, 9 Mich., 165; The Mersey Docks v. Gibbs, 11 House of Lords Cas., 686; The Mersey Docks v. Price, Id.; Thayer v. Boston, 19 Pickering, 511; Anthony v. Adams, 1 Met., 285; Delmonico v. The Mayor, etc., 1 Sanford, 222; Scott v. The Mayor, etc., 37 Law and Eq., 495; Pittsburg City v. Grier, 22 Penn. St., 54; Sears v. The Turnpike, 7 Conn., 9; Riddle v. Locks and Canals, 7 Mass., 187; Henley v. Lyme, Regis., 5 Bing., 91; Mayor of Lyme in Error, Cowper, 87; Mayor, etc. of New York v. Furze, 3 Hill., 612; Bailey v. The Mayor, etc. of New York, Id., 531; Lloyd v. The Mayor, etc. of New York, 1 Seld., 374; Mears v. The Commissioners of Wellington, 9 Ired., 73 ; Cuerleff v. The Mayor of Albany, 2 Barber, Sup. Ct., 190; Rochester White Lead Co. v. Rochester, 3 Comstock, 463; Clark v. Washington, 12 Wheat., 40.
    The statute in force at the time this improvement was in progress is found in 66 Ohio Laws, 210, which gives the management and control of the cemetery to the trustees, subject to the ordinances of the city. The superintendent can only be appointed with the approval of the city council. The whole tenor and scope of the law shows that in all things the trustees and superintendent hold and exercise their powers in subordination to the city council to the extent even of the removal of the trustees themselves from office.
    It was within the corporate power of the city to provide a cemetery for the burial of the dead. It was within its power to improve and beautify this cemetery, to sell lots, build vaults, receive the proceeds of the sales of such lots and the rents of such vaults, appropriate them to the payment of the expenses of maintaining and improving such cemetery, and levy and collect taxes to pay for grounds and improvements.
    In the determination of the question, whether it would make suoh purchase or improvements, its officers acted in a legislative capacity. If it omitted to provide a cemetery, or having provided the ground, left it as an open barren field, the failure would not give a cause of action of which the courts could take cognizance.
    But when it has determined, by the proper officers, to provide the cemetery and make the improvements, then all the acts of the officers, agents or employees of the city, in carrying this determination into effect, are purely ministerial.

    For any negligence of any such officers, agents or employees, in the performance of any such act, the city is as clearly liable as any other corporation or individual.
   Dickman, .T.

Whether the verdict is supported by the evidence, we are not called upon to determine, there being no portion of the evidence embodied in the record by bill of exceptions. Nor need we inquire whether there was error in the charge of the court to the jury, as no such error is assigned. In determining whether the verdict is contrary to law, the controlling question that arises is, whether a cause of action sufficient to sustain the judgment rendered is stated in the original petition. Whatever is alleged in the petition, which upon issue joined requires proof, will, after verdict for the plaintiff, be presumed to have been proved. 1 Chitty’s PL, 673. And the objection that the facts stated'in the petition, and thus presumed to have been proved, are not sufficient to constitute a cause of action, may be made at any time before final judgment in error, if proper notice of such objection appear on the record in the reviewing court, before the case is heard. Youngstown v. Moore, 30 Ohio St., 133. Such notice in the case before us, is apparent in the demurrer to the original petition, the exception taken to the overruling of the same, and the assignment in the district court as error in the record, that the court of commop pleas erred in overruling such demurrer.

In the light of the record before us, the fact that Cone, the defendant in error, was injured through the neglect and want of care and skill of the superintendent and trustees of the cemetery, is not brought in issue. Admitting the truth of the allegations in the original petition, the essential question is, whether the city of Toledo was liable to Cone, for the injuries he received while engaged in the cemetery in improving the vault which was the city’s property, and while working under and obeying the orders of the superintendent — the superintendent and Cone himself having been appointed, and the trustees having been elected, according to the provisions of sections 361 to 376 inclusive, of the act “ To provide for the organization and government of Municipal Corporations,” passed May 7, 1869 (66 Ohio L., 149).

The rule respondeat superior, though well recognized in fixing the liability of private corporations and natural persons, has been a source of much doubt and perplexity in its application to municipal corporations. It is however now well established, that corporations of the latter class, when acting in a certain character or capacity, are liable as superiors and employers, for injuries to third persons resulting from the negligence and unskillfulness of their agents or servants, while in the line of their employment, in the same manner and to the same extent as private corporations or private individuals. Under analogous conditions, there seems to be no foundation in reason or public policy, for exempting such public corporations any more than private individuals, from liability for injuries inflicted on others through the negligence of their agents.

The underlying principle of municipal government is, that the management of local affairs shall be intrusted to local authorities, while general affairs are left to the state legislature. Under the power given by the constitution to the general assembly, to provide for the organization of cities and incorporated villages, these corporations are made the depositaries of certain limited governmental powers, to be exercised on behalf of the state for the public welfare. They are agencies or instrumentalities to which the general assembly, vested with the legislative power of the state, delegates a portion of its governmental power, in ordek to meet those local wants of the people in cities and villages, for which state laws make only general provision, leaving a more particular provision to local councils. The manner and extent, to which legislative and governmental powers delegated to municipal corporations for the public good are to be exercised, must rest, in a large measure, in their judgment and discretion; but, acting as state instrumentalities, they cannot be held liable to individuals for a defect in the execution of such powers, unless a right of action is given by statute. Iudeed, in the distribution of the powers of government — as a part of the machinery of the state government — they enjoy, to a certain extent, an immunity from civil action in the performance of their legislative functions, like that of the sovereign state itself.

This principle is recognized in Wheeler v. The City of Cincinnati, 19 Ohio St., 19, which was an action to recover damages arising from the casual destruction of the plaintiff’s house by fire, through want of an efficient fire department. As an obligation rested upon the state, to aid by appropriate legislation, in the protection of the property of its citizens, it was held in that case, that the powers conferred upon the municipal corporations of the state to establish and organize fire companies, procure engines, etc., to preserve buildings and property within their limits from conflagration, are in their nature legislative and governmental, and that such corporations cannot be held liable to individuals for any defect in the exercise of those powers.

So also in Western College etc. v. The City of Cleveland, 12 Ohio St., 375, it was held, that the defendant was not liable for the failure of its police to preserve the peace and prevent loss by the violence of a mob. It being the duty of the state government to secure to the citizens of the state the peaceful enjoyment of their property and its protection from wrongful and violent acts, power is delegated through the organization of municipal corporations to aid in the accomplishment of that object. But, if municipalities to which such governmental authority might be given should fail to effectively exercise it, they are not to be held responsible to individuals for the consequences. As said by the court, “ it is not the policy of governments to indemnify individuals for losses sustained, either from the want of proper laws or from the inadequate enforcement of laws made to secure the property of individuals.”

But within the sphere of their duties, municipal corporations are to be regarded in another and very different aspect. While they act in a public character or capacity, and exercise public powers, they may and do act also in a private capacity, like private corporations, and as such are held to a like responsibility. Thus, if a municipal corporation acquires real or personal property, and in the discharge of what may be deemed ministerial duties in respect to the same, an individual receives injury through the negligence of its officers or servants, it should be held responsible to that individual. Though not liable for a defect of judgment or discretion, while acting as a. state instrumentality in the exercise of legislative functions,-yet, having like a private corporation or natural person become the owner or obtained the control of property, it should not be relieved from the operation of the general maxim, that one should so use his own as not to injure that which belongs to another. Thus, if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable to an action for the damages thereby occasioned. Emery v. Lowell, 104 Mass., 13. So if a city owns a wharf, and has the exclusive control of it, and receives wharfage or- profit for the use thereof, it will be held liable to a private action for an injury suffered by an individual by reason of a defect in the structure. Pittsburgh v. Grier, 22 Penn. St., 54. And the same rule applies in respect to a city’s failure to keep its streets in a safe condition for public use, where this is a duty resting upon it.

Of course, before a municipal corporation is subjected to liability for the misfeasance or neglect of its agents or servants, it becomes material and sometimes' difficult to determine whether they are in fact the agents or servants of the corporation. It is said by an approved text writer that if the municipal corporation appoints or elects them, and can control them in the discharge of their duties, can continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation in its local or special interest, they may justly be regarded as its agents or servants, and the corporation will be held responsible for .their acts, within the scope of their employment. And in broad terms, to the same effect, it is laid down in Wood on Master and Servant, sec. 459, that if even an independent public officer, or one whose duties are defined or specified by law, is in any measure subject to the direction or control of a municipal corporation, and acts in obedience to its instructions, the relation of master and servant exists, and the rule of responde,at swj^rior-applies. The rule is predicated upon the right of the ' employer to discharge and control the servant. Blake v. Ferris, 5 N. Y., 48.

Applying these principles to the undisputed facts in this case, we think the cemetery trustees and the superintendent were placed in such relations to the city of Toledo, by the act of May, 1869, under which they were elected, as to make them, the agents of the city, and to render the corporation responsible to Cone for 'the injury he received. At the time he was injured the city owned, held the title to, and the right of possession of the cemetery. The cemetery was in the possession and charge of’ a board of three trustees of cemeteries, -who had the entire management, control and regulation of the same, and who had been elected for that purpose by the qualified electors of the city, at the annual election for corporation officers, in-accordance with the statute in such cases made and provided. All vacancies occurring in- the board were required by the statute to be filled by appointment of the city council, and the council was clothed with power to remove any trustee for inattention to his duties, want of proper judgment, skill or taste for the due discharge of the duties required of him, or for other good cause. The trustees were authorized to appoint, subject to the approval of the council, all necessary superintendents, employees and agents. Under a-superintendent thus appointed Cone was employed, and was required to obey his orders and directions. The trustees were required, when necessary, to institute suits in the name of the corporation for the protection of the cemetery, and to see that all ordinances of the city passed for that purpose were duly enforced, The by-laws and regulations made by the trustees were not to be inconsistent with the ordinances of the corporation; and they were to perform all such other duties, not specified in the statute and pertaining to their office, as the council of the corporation might by ordinance prescribe. While the trustees might appoint one of their number to sell burial lots, notice of such appointment, upon its being made, was to be communicated to the council. All moneys received and disbursed by them as trustees were to be reported quarterly to the council. They were also to report annually in writing to the council, the number of lots sold during the year preceding, with a detailed statement as to receipts, expenditures and investments during the same period, and such other matters as the council might require. And whenever in their judgment an enlargement of the cemetery grounds should become necessary, the trustees were to report the fact to the council for its action in the premises.

We think it is evident from these statutory provisions that the trustees of the cemetery in question were elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in subordination to and subject to removal by the council of the cor poration. • The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving ijfcs streets, sewers and wharves. It lay within the legislative capacity,' judgment and discretion of the city to provide a cemetery for the burial of the dead, and to build requisite vaults; but, having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and possessing property, real and personal. Having such power, there would seem to be no more valid reason for exempting them from liability for private injuries caused by the improper management of their property than for exempting private Corporations and natural persons under like circumstances. ; In Hill v. Boston, 122 Mass., 344, the court, in tracing the line of municipal liability, say, that as to common sewers built by municipal corporations under a power conferred: by law, the power of determining where the sewers shall be made involves the exercise of a quasi judicial discretion, and therefore no action lies for defect or want of sufficiency in the plan or system of drainage adopted within the authority so conferred; but, that the duty of constructing the sewers and keeping them in repair is merely ministerial, and therefore for neglect in the con struction or repair of any particular sewer, whereby private property is injured, an action may be maintained against the city. ■

It is true that the election and term of office of the trustees were fixed by a general statute of the state, but the law did not require the city of Toledo to own or maintain the cemetery in question. Having however voluntarily acquired the cemetery, and constructed the city vault as a part thereof, the city acquiesced in the provisions of the statute, and accepted.the trustees and the superintendent by them appointed as its lawful agents for the management and regulation of the property. In. Bailey v. The Mayor etc. of the City of New York, 3 Hill, 531, the action was for injuries occasioned to property by the negligent and unskillful erection of a dain on the Croton river for the purpose of supplying the city with water. The principal ground taken in defense was,, that the defendants were not chargeable for negligence or unskilfulness in the construction of the, dam, inasmuch as the water commissioners, under whose superintendence and control the work.was done, were not appointed by them, nor subject to their direction or control, but.were appointed by the governor of the state, with the advice and consent of the senate, and were answerable for their official conduct to the state alone, which could remove them at pleasure. But the court held that the commissioners, though appointed by the state, were the agents of the corporation, and that the latter was therefore liable; that it being provided by the charter granted to construct the work, that the agents for executing the work should be appointed by the state, an acceptance of the charter by the grantees would render the agents their own. This authority becomes of increased force when it is considered that the cemetery trustees were elected by the qualified electors of Toledo, and were answerable for their official conduct to the city council.

The cemetery and vault were a source of benefit -and advantage to the corporation, and involved the same responsibility for their unsafe and improper management which pecuniary and proprietary interests entail upon natural persons. By an amendment of section 371 of the act of May, 1869 (68 Ohio Laws, 130), the city had authority to charge for burial lots, sufficient not merely to keep in order and embellish the grounds, but also to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes. The city vault was used for public purposes, but it was also used by private persons for reward and hire, the money which they paid being accounted for by the trustees, as they accounted for the proceeds of cemetery lots by them sold for the city. The reimbursement of the corporation treasury and the emolument derived from the use of the vault, were for the special local benefit of the corporation, and the state at large had no interest therein. The doctrine seems to be well sustained that where a municipal corporation owns property, and for its own benefit derives pecuniary emolument or advantage therefrom in the same way *a private owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. Oliver v. Worcester, 102 Mass., 489, and eases cited. In Bailey v. The Mayor etc. of the City of New York, supra, the court, in speaking of the grant for the .erection of the water works, say, “ The state, in its sovereign character, has no interest in it. It owns no part of the work. The whole investment under the law, and revenue and profits to be derived therefrom, are a part of the private property of the city, as much so as the lands and houses belonging to it situate within its corporate limits.” This language is not inappropriate to the case at bar. It is suggestive of facts of a kindred nature, which contribute toward fixing upon the plaintiff in error, though a municipal corporation, the same liability which private corporations or natural persons would incur for the neglect of their agents or servants in the care and management of their property.

Upon the facts disclosed by the record, we are of opinion that there was a cause of action in favor of the plaintiff below, and that the judgment entered on the verdict for the plaintiff should not be reversed.

Judgment of the court of common pleas affirmed.