author: Doyle, J. Cooley, J., Okey, J.

text:
    Tone v. Columbus.
    1. The principles of estoppel apply as well where proceedings of a corporation are questioned on the ground of the unconstitutionality of the stat-' ute under which they are had, as where they are attacked upon other grounds, unless such proceedings, or what is sought to be accomplished by them,' are per se illegal or malum prohibitum. Want of power in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.
    2. The act of March 30, 1875, under which the improvement of North High street was made, having been declared unconstitutional {State ex rel. v. Mitchell, 31 Ohio St. 592), su.ch of the property owners as petitioned ' for the privileges of the act, acted as officers of election or commissioners of the improvement, voted at the election for commissioners, or actively participated in causing the improvement to be made, are es-topped from asserting such unconstitutionality.
    3. A petitioner for the privileges of the statute will be estopped to deny the power under it of the city to grant his petition ; but the mere fact of the petitioning will not estop him from objecting that the subsequent proceedings of the city have been conducted in violation of the requirements of the statute.
    4. Such petitioner has the right to assume the performance of its duty by the city council, which was, before acting upon the petition by ordering the improvement, to ascertain whether a sufficient number had signed to confer jurisdiction.
    5. Active participation in causing the improvement to be made will estop the party engaged therein from denying the validity of the assessment; but to create an estoppel from silence merely, it must be shown that the owner had knowledge ; 1. That the improvement was being made; 2. That it was intended to assess the cost thereof, or some part of it, upon his property; 3. That the infirmity or defect in the proceedings existed which he is to be estopped from asserting ; and, 4. It must appear that some special benefit accrued to his property from such improvement which it is inequitable, under the circumstances, he should t enjoy without compensation. ' ,

      6. While such owner is presumed to know of the invalidity of the statute, a presumption of knowledge does not exist, as to one who is silent merely, with regard to the illegality of the proceedings of the council, or public officers, which he has the right to assume are regular, until he has knowledge to the contrary.
    7. Married women, with respect to their separate property and such an improvement, are subject to the same liability to be estopped by their conduct as if sole.
    Error. Reserved in the District Court of Franklin county.
    The plaintiffs filed in the court of common pleas of Frank- • lin county a petition, the material parts of which are as follows:

      “ The plaintiffs say that they are the duly appointed and qualified executrix and executor of the last will and testament of Minor P. Tone, deceased. The defendant, the city of Columbus, is a city of the second class, duly organized under the laws of Ohio; the defendant, P. W. Corzilius, is the county treasurer of said Franklin county, and, as such, ex officio city treasurer of the said city of Columbus.
    “ On the 21st day of June, 1875, the city council of the said city of Columbus passed, and thereafter caused to be published, a pretended ordinance of said city, whereof the following is a true copy:

      “ ‘ An ordinance to authorize the improvement of High street from the south side of Naghten street to the north corporation line.

      “ ‘ Whereas, the owners of two-thirds of the property abutting upon High sfreet, between the south side of Naghten street and the north corporation line, have petitioned the council to authorize the improvement of said street betwe.en the points above named, by grading, paving, and curbing the same,under the provisions and privileges of an act of the general assembly of the state of Ohio, passed March 30th, 1875, and entitled “ an act to provide for the improvement of streets and avenues in certain cities of the second class, and the cost of such improvements will not exceed $100,000 Therefore,
    “ ‘ Section 1. Be it ordained by the city council of the city of Columbus, that the part of High street which lies between the points above named be improved by grading, paving, and curbing the same, under the provisions and privileges of said act of the general assembly of the state of Ohio, passed March 30th, 1875; and the election of five commissioners to control and superintend, under the provisions of said act, such grading, paving, and curbing is hereby authorized.
    “‘Sec. 2. That S. W. Andrews, G. A. Erambes, and John Eisher, citizens of said city of Columbus, and owners of property abutting on said part of High street so directed to be improved, be and they are hereby appointed to fix the time and place of holding the election of said commissioners, and to act as officers of such election.
    “ ‘ Sec. 3. That the resolution for the improvement of High street and appointment of officers of election heretofore, on June 7th, 1875, passed by this council be, and the same is hereby, repealed.
    “ ‘ Sec. 4. This ordinance shall take effect immediately upon the expiration of ten days after the first publication of the same.
    “ ‘ John G. Mitchell,
    “ ‘ President of the City Council.
    “ ‘ Attest:
    “ ‘ Erank Wilson, Clerk.’’

    “Passed June 21st, 1875.
    “ That under said ordinance, on the-day of July, 1875, at and under an election held under authorization of said ordinance, John G. Mitchell, Frederick Michel, John R. Hughes, Henry M. Neil, and E. L. Hinman, were elected such commissioners, and afterwards organized as a board of commissioners under said act, and proceeded to determine the kind and description of pavement and improvement to be made and used on said street, and made and entered into contracts in the name of the city of Columbus for furnishing the materials for and grading and paving said part of High street, and caused the improvement of the street adopted by them to be made, and in doing so acted solely under the provisions of said act and the authority thereof. The cost and expenses of said improvement under the contracts so made therefor by said commissioners were to be paid according to the method of said act. The cost of said improvement, including the incidental expenses attending the same, was, as plaintiffs are advised and aver, about $229,000. The board of commissioners aforesaid have assessed said entire costs, and including the costs of intersections and crossings, in amount $--, upon the property fronting and abutting upon the improvement by the foot front, and upon the several lots and parcels of land so fronting and abutting, in proportion to their feet front; the amount so assessed for each front foot is $7.15.
    “ Plaintiff says that at the time of the passage of said ordinance one Minor P. Tone was the owner of the following described lands and tenements fronting on that part of High street so improved, 430 34-100 feet, to wit: situate in the county of Franklin, state of Ohio, and in the city of Columbus, bounded and described as follows, to wit:
    “ The said board of commissioners have delivered to the auditor of the said county a copy of the plat and schedule caused by them to be prepared of said street so improved, showing the separate lots and pieces of ground fronting on said improvement, and the names of the several owners thereof, and the amount assessed upon such lot or piece of ground, including the lands and tenements of said Minor P. Tone above described. The said auditor has placed said assessment upon the tax duplicate of the county to be collected, and said duplicate is not in the hands of the treasurer of the county for collection, who demands of the plaintiffs now to pay two-sevenths of the entire amount so as aforesaid assessed upon the property of said Minor P. Tone, with interest at the rate of 7 per cent., and refuses to receive the other taxes levied and charged upon said lands of Minor P. Tone, deceased, unless the plaintiffs will, at the same time, pay said two-seventh parts of said assessment, with interest, as aforesaid. The plaintiffs say that said assessment so made upon the lands of said Minor P. Tone is irregular, illegal, and absolutely void, for, among others, the following reasons : The assessment is greater in amount than-said city council were authorized to levy, or cause or permit to be levied, in any one year; and the amount required to be paid in each year was greater than said city council was authorized to require to be paid, or to permit to be required to be paid, in each of said years.
    “ Plaintiffs say that they are advised and believe, by the laws of this state, said lands of the said Minor P. Tone could not be charged by special assessment in any on¿ year beyond 25 per cent, of the value thereof as assessed for taxation upon the tax duplicate of the county, nor could more than 10 per cent, of said valuation be required to be paid in any one year towards the satisfaction of any such assessment.
    “ The plaintiffs say that said assessment so made as aforesaid upon said first and second tracts aforesaid exceeds 25 per cent, of the valuation of said lands and tenements as valued for taxation, and the amount required to be paid by said assessment each year exceeds 10 per cent.’ of such valuation.
    “ Plaintiff is advised, believes, and avers, that the owners of two-thirds of the feet front of the property fronting or abutting upon that part of High street which lies bétween the terminal points of said improvement did not petition the city council of said city of Columbus for the privileges of the said act of the general assembly of the state of Ohio, entitled ‘ An act to provide “ for the improvement of streets and aveniies in certain cities of the second class,” passed March 30th, 1875; and the plaintiff avers that the said city council, of said city, did not acquire jurisdiction to pass said ordinance of the date of June 21st, 1875, and that by reason thereof all proceedings thereafter, including said assessments, are absolutely void.’
    “ The plaintiffs further say they are advised, and believe, and aver, that said act, entitled ‘ an act to provide for the improvement of streets and avenues in certain cities of the second class,’ passed March 30th, 1875, conferred no authority upon said city council to order or permit thereunder said improvements to be made, or said commissioners to be elected, or to authorize said commissioners to make said improvement, or to contract for the same, or to make said assessment upon the said lands of the plaintiffs and others, for the reason, that said act, in its essential provisions, is contrary to the provisions of the constitution of this state, and therefore in all respects in the matters aforesaid absolutely void and of no effect whatever; and the plaintiffs are advised, believe and aver that the Supreme court of this state has, by its judgment rendered since the passage of said ordinance, in a proceeding pending in said court, wherein the said, city of Columbus was the relator and said commissioners were respondents,- held and declared that said act, in its essential provisions, was against the constitution of this state, and absolutely void and of no effect whatever as a legal enactment, and as such was without effect and force.”
    The petition contains many other allegations, which are not material to the questions considered by the court.
    And afterwards, by leave of the court, the plaintiff filed the following amendment to said petition :
    “ The plaintiff, for amendment to her petition, avers that at the time of the passage of the said ordinance mentioned in plaintiff’s petition the said city council had the means of knowing, and did know, that the owners of the requisite number of feet front abutting on" said improvement had not petitioned said city council therefor.

      “ And said plaintiff further avers that more than a month after the ■ passage of said ordinance, and after the city civil engineer had reported to said city council that the requisite number of petitioners had not been obtained, the said city council and the officers of said city, by fraud and stealth, personally solicited and procured the names of additional property owners on said street, repi’esenting nearly 1000 feet front thereon, to sign said petition, for the sole purpose of making it appear that enough property owners had petitioned for said improvement, although said property owners, representing said 1000 feet front, could not, at that time, legally sign said petition, as said property owners, said city council, and the officers of said city, well knew.
    “ And said plaintiff further avers that nearly one year after • the passage of said ordinance, and after investigation by said city council, the city civil engineer again reported to said city council that the owners of the requisite number of feet front had not petitioned for said improvement, notwithstanding said fraudulent addition of names to said petition, and that thereupon said city council ordered that a number of feet front abutting on said improvement and belonging to said city of-Columbus should be counted as petitioning therefor, although in' fact neither said city of Columbus nor any of its officers had, up to that time, signed said petition, and have not yet signed the same, and although neither could said city of Columbus nor any one for it, at that time, have legally signed said petition, as said city council well knew.
    “And said plaintiff further says that prior to the making of an}' contracts for said improvement, or the. issuing of any bonds or the incurring of any liability whatever therefor, said city council was notified by remonstrances, signed by a large number of the property owners on the street, that the owners of the requisite number .of feet fronting thereon had not signed-said petition, and that of those who had signed the petition a large number had represented themselves as owning a larger number of feet front, to wit, about 3000 feet front, more than they actually owned, and that others who had signed said petition were not the owners of any property abutting on said street, and were not authorized to sign the same for any property owner thereon ; of all of which matters and things the said city council had full knowledge prior to the making of any contract, or the issuing of any bonds, or the incurring of any liability whatever, for said improvement.
    “ And plaintiffs say that in and about the making of said improvement the said Minor P. Tone, deceased, had a good right to rely and did rely upon the good faith and honesty of the said city, its officials, and the commissioners in charge of said improvement, and that the facts herein stated have come to their knowledge since the filing of their original petition herein.”
    The allegations thus made are common to the petitions and amended petitions in the different cases.
    The following are the distinctive features of each. Tone’s executors say:

      “ The plaintiffs say that they are informed that said Minor P. Tone signed a paper -which was represented to him to be a petition for the improvement of said street; that he signed the same at the request of the person holding the paper, and solely upon the representation that said improvement would not cost to exceed four dollars per foot front, and with the understanding that signing said petition should be of no force or effect, and that said city council should take no action thereon unless the owners of two-thirds of the feet front of the property fronting and abutting upon that part of said High street that lies between the terminal points of said improvements should petition said council for the privileges of the said act of the general assembly of the state of Ohio, passed March 30, 1875. The said plaintiffs aver that the' cost of said improvement was greatly in excess of four dollars per foot front, and the plaintiffs are advised and believe, as they have above averred, that the owners of two-tliirds of the feet front of the property fronting and abutting on that part of said High street that lies between the terminal points of said improvement did not petition said city council for the privileges of said act of the general assembly of the state of Ohio, passed March 30, 1875.
    “ Plaintiffs say that said Minor P. Tone did not institute any legal proceedings to enjoin the making of said improvement, or to restrain the commissioners from contracting the same, for the reason that he was a non-resident of Franklin county, Ohio, and said Minor P. Tone was ignorant of the fact that said commissioners were proceeding illegally, and that said improvement was going to cost more than could be legally assessed against said property of the said Minor P. Tone ; but the plaintiff is advised and believes that some of the property owners on said streét did commence a proceeding in the court against the said city of Columbus and said commissioners to restrain the making of said improvement, and that said improvement was made as aforesaid notwithstanding the pendency of said action.”
    The petition of Kate E. Adams contains this allegation:
    “ The plaintiff, Kate E. Adams, says that she is a married woman, and that the real estate hereinafter described is her separate property, and under her sole control.
    “ The plaintiff says that she did not petition said city council to pass said ordinance, but, .on the contrary, she refused to sign a petition therefor when solicited so to do, and she .did not in any manner countenance, encourage or- agree to said improvement being made, nor .did she vote at said election of said commissioners, nor .did she in any manner take part in said election.
    “ The plaintiff did not institute any legal proceedings to enjoin the making of said improvement, or to restrain the commissioners from contracting for the same, for the reason of her inability to give the requisite bond required in such and like cases ; but the plaintiff is advised and believes that some of the property owners on said street did commence a proceeding in the court against the said city of Columbus and said commissioners to restrain the making of said improvement and contracting for the same, and that said improvement was made as aforesaid notwithstanding the pendency of said action.”
    Nancy A. Evans, who alleges that she is a married woman and the owner of the real estate as her separate property, makes the following allegation:
    “ Plaintiff says she did not petition said city council to pass said ordinance, nor did she do, or cause to be done, anything that tended in any way to cause or permit said improvement to be made ; she says that she did not enjoin or institute any legal proceedings .to prevent said commissioners from carrying on said improvement; that she was wholly unable to have given the requisite bonds by law required in such proceedings.”
    Anna M. "Woodruff says that she signed the petition under the same circumstances and representations averred by Tone’s executors in their petition, and she assigns the same reason for not commencing proceedings to enjoin as those given by Mrs. Adams:
    Eli M. Down’s petition is silent as to whether lie signed the •petition for the improvement .or did any act to encourage its being made.
    George W. Carter alleges: “ He aid not petition said city council to pass said ordinance, but, on the contrary, did sign and assist in circulating a remonstrance against the-passing' of said ordinance, and that the said ordinance was passed against the remonstrance of plaintiff and very many others of the owners of the property fronting on said improvement. Plaintiff did not vote at said election of said commissioners, nor did he in any manner take part in said election, nor did he in any manner aid or countenance the making of said improvement, or the taking of an}' step therein by said authorities.”
    To each of the petitions and the amendments thereto the defendants filed a demurrer, upon the ground that the said petition did not state facts sufficient to constitute a cause of action. Upon-hearing, said demurrers were sustained, and judgments rendered for defendants. Tones’ executors, Downs and Evans, appealed to the district court, and Woodruff, Carter and Adams filed petitions in error in the district court to obtain reversals of the judgment of the common pleas. All of the cases were thereupon reserved by the district court for decision here.

      W. O. Henderson, for plaintiffs in error: *
    The act of March 30, 1875, which is under consideration in this case, has been declared unconstitutional. State, ex rel. &c. v. Mitchell, 31 Ohio St. 592. Being void, no authority was conferred by it upon the city council to do any act under it. Potter’s Dwarns on Construction of Statutes, 367; Cooley’s Const. Lim. 188. And even if those petitioning for the improvement were estopped from asserting the unconstitutionality of the act, yet they could avail themselves of the failure of the city council to correctly determine the jurisdictional facts* required by the statute precedent to the ordering the improvement. The city council -was required to exercise the same good faith in determining such jurisdictional facts that would have been required of it had the act been constitutional. Corry v. Gaynor, 22 Ohio St. 584; Burgett v. Norris, 25 Ohio St. 308; Seeley v. Pittsburgh, 82 Pa. St. 360. And see Motz v Detroit, 18 Mich. 495; 22 Mich. 104.
    The Mitchell case, ante, is not opposed to this view, because:

      1. Before the court in that case reached the conclusion announced in the second proposition of the syllabus of that case, the averment'that the owners of two-thirds of the abutting property had. not petitioned, &c., was eliminated from the case, because the court understood that averment to be founded on the erroneous assumption that the intersecting streets and alleys are to be considered as abutting property. So that the words “ the abutting lot owners ” in the proposition above quoted must be understood to mean the abutting lot owners to the number required by the act of March 30, 1815, viz., two-thirds. A single adverse fact, to wit: the unconstitutionality of that act, then remained; and in view of that single fact, that •proposition was announced.
    But now these petitions aver, and the demurrers by the defendants admit, not only the unconstitutionality of the act, but also the want of a jurisdictional fact which no curative provisions excuse. Therefore, before the court can adhere to the above-quoted proposition of the syllabus of the Mitchell case as decisive, adversely to the plaintiffs, of these cases in their present condition, it must construe the language of that pi’oposition to mean, that where any number of lot owners, even less than the owners of two-thirds of the abutting property, have caused a street to be improved under the act, all who have ■participated are estopped notwithstanding the unconstitutionality of the act.
    2. “All who have participated in causing the improvement to be made are estopped.” To whom does this language refer ? Who have participated ? What constitutes participation ?
    That was a proceeding against the commissioners in their «official capacity to compel an apportionment of the cost and expense of said improvement. The decision is binding upon the commissioners, and the intendment' of the decision is, that they cannot question the assessment because of its illegality so far as to prevent the apportionment of the cost and expense upon the abutting property. But it is not decisive of the rights of lot owners, and it does not prevent their contesting their liability. The court in that case expressly says: “ Hence, notwithstanding the unconstitutionality of the act, the rights of third parties have so intervened that it is the duty of the commissioners to complete the apportionment of the assessment in accordance with the terms of the act. The action of the commissioners in levying the assessment will not conclude the lot-owners from contesting their liability. If there are any who are not estopped by their conduct, they can make their defense when the assessment is sought to be enforced against them.” We respectfully submit, therefore, that the court seems, by its judgment as it stands in the second proposition of the syllabus in the Mitchell case, to have gone further than the nature of that action, the relief sought therein, and the rights of persons not parties to that action, legitimately authorized it to go. In that case, on page 610, White, J., says: “ Under these circumstances, we are of opinion that the defendants, and those who have participated with them in causing the improvement to be made, are estopped from denying the validity of the assessment.”
    It is conceded, of course, that that decision was properly made and binding upon “ the defendants,” who were the commissioners ; but to include “ those who have participated with them in causing the improvement to be made,” if indeed there be any such, is a mere obiter dictum. See 13 Ohio St. 395; 19 Ohio St. 369. Mere silence will not work an estoppel in the cases at bar. Dillon on Mu. Corp. (3d ed.) § 800 ; 11 Ohio St. 183; 14 Ohio St. 569; 73 N. Y. 238; 26 Ohio St. 316; Stephan v. Daniels, 27 Ohio St. 527; 36 Ohio St. 601; Coke Lit. 352 b; 37 Ala. 312; 19 Ohio St. 373; 11 Md. 186; 15 Md. 18; 47 Ala. 163; 45 Iowa, 87; Cooley on Taxation, 573; 56 N. Y. 257; 31 Iowa, 356; Bigelow on Estoppel, 437; 19 Ala. 481; 25 Conn. 260; 2 E. C. Green, 525 ; 82 Ala. 314; 7 Texas, 288; 30 Vt. 307; 62 Ind. 537.
    Estoppel facts cannot be presumed. And all the facts constituting the defense of estoppel must be clearly and plainly alleged. Crandall v. Gallup, 12 Conn. 365.

      W. J. Gilmore, also for plaintiffs in error.

      Alex. W. Krumm, City Solicitor, James E. Wright, and Harrison, Olds <& Marsh, for defendants:

      A party is estopped to deny his own acts and admissions which were expressly designed to influence the conduct of another, and did so influence it, when such denial will operate to the injury of the latter. Bank v. Wallaston, 3 Harr. 90; Welland Canal Co. v. Hathaway, 8 Wend. 483 : 1 Greenl Ev. §207; 2 Wharton Ev. § 1182; 31 Ohio St. 592; Motz v. Detroit, 18 Mich. 495 ; Corry v. Gaynor, 22 Ohio St. 584; Burlington v. Gilbert, 31 Iowa, 356 ; High on Injunctions, § 787; 2 Superior Ct. Rep. 453; 1 Ohio St. 591; 3 Ohio St. 36; 18 Wis. 191. That an abutting property owner, as we have before said, by an unmistakable assent to proceedings which are intended to charge his property with a proportionate part of the expense of a public improvement, or by acts of approval and encouragement manifested during the progress of the work, to those engaged in it, may waive a constitutional, as well as a statutory objection to such proceedings, is not now an open question. Lee v. Tillotson, 18 Wend. 337; Kellogg v. Ely, 15 Ohio St. 64; Corry v. Gaynor, 22 Ohio St. 594 ; Quinlan v. Myers, 29 Ohio St. 500; 37 Ohio St. 80 ; State v. Mitehell, 31 Ohio St. 592; 25 N. J. Eq. 259; 24 Id. 200; 21 Id. 283; 10 Cush. 252; 38 Conn. 422 ; 8 Cush. 363; Kerr on Inj. 210; 2 Best on Ev. § 543; 1 Greenl Ev. § 208; 2 Taylor Ev. § 839, 845; Broom Max. 7th ed., 263; 4 John. Ch. 568; Willard Eq. 71; 1 Green! Ev. §§ 27, 204. That silence may work an estoppel, see, also, Goodin v. Cincinnati, 18 Ohio St. 169; Niven v. Belknap, 2 Johns. 573; Chapman v. Chapman, 59 Penn. St. 214; Hope v. Lawrence, 50 Barb. 258. A person may by his silence waive all the right to an injunction. Jacox v. Clark, Walk. Ch. 249; Southard v. Morris, Saxt. 518; Payne v. Paddock, Walk. Ch. 487; 31 Ohio St. 511 ; Kerr on Inj. 42; Joyce on Inj. 35; 1 Allen, 166; 2 Bland, 99; 4 Gray, 502; 27 N. J. Eq. 294; 29 Id. 206 ; 27 Id. 1, 24; Bigelow on Estoppel, 508; 33 Iowa, 278 ; 9 C. E. Green, 200; 10 Id. 295; 57 Iowa, 675; 36 Ark. 687; 16 Beavan, 630.
    Undoubtedly, at law, a married woman is under an absolute incapacity to bind herself by any engagement. Her separate existence is not contemplated, but is merged by coverture in that of her husband. But in equity the case is wholly diffei-ent. Her separate existence, both as regards her liabilities and her rights, is acknowledged in equity to the extent of her separate property. In respect of such property she is regarded, in equity, as a feme sole, excepting in so far as she is not rendered incapable with reference thereto by statute, or by the instrument under which she acquires such separate estate. And whatever would work an estqppel against her if sole, will operate to prevent her from asserting a right in respect of her separate property. Jaques v. Methodist Church, 17 Johns. 547; Murray v. Barlee, 3 M. & K. 220 ; Vaughan v. Vanderstegen, 2 Drew. 379; Johnson v. Gallagher, 3 D. F. & J. 494; Hinckley v. Smith, 51 N. Y. 51. Married women, ifi having the powers and privileges CL femes sole conferred upon them, with respect to their property, must assume the responsibilities and duties which necessarily follow. Anderson v. Armstead, 69 Ill. 452; Bispham’s Eq. § 293; Bigelow on Estoppel, 445, 448.
   Doyle, J.

In State ex rel. v. Mitchell, 31 Ohio St. 592, it was decided by this court that the act of March 30, 1875, under which the improvement of North High street was made, was in conflict with sec. 1, art. 13, of the constitution, and therefore void.

That was a proceeding, in mandamus, to compel the commissioners of the improvement to make an assessment upon the abutting property for the cost of the improvement, the controversy between the commissioners and the city of Columbus being as to whether the intersecting streets and alleys were to be excluded from or charged with the assessment, in common with the abutting lots. The majority of the commissioners, resisting the claim of the city, presented the question whether the act was constitutional, insisting that if it was not, the court would not compel them to make the assessment upon any of the abutting property.

Having held the act to be unconstitutional, the court was called upon to consider whether its invalidity constituted an answer to the alternative writ, in other words, to the claim of the city., ,

It was held that it did not. The commissioners were selected by a vote of the property owners; they were the active agents in the construction of the improvement and incurring the large outlay for which the city issued its bonds; and they had full knowledge that the only provision made by the act of March 30, 1875, for the payment of such indebtedness, wras by an assessment upon the abutting property. So far as the commissioners were concerned, it is clear, and it was so decided, that they were estopped from raising the question under which they sought to justify their action.

This court, however, in that case extended the application of the doctrine of estoppel to others besides the commissioners, and beyond the finding that the commissioners could not on that ground refuse to make the assessment. It was held to apply to all who had participated in causing the improvement to be made, and to the extent that they were estopped from denying the validity of the assessment made to pay the cost thereof.

It is urged here that the court was not warranted in that case in deciding that any one would be estopped to deny the validity of the assessment, or including within the rule established any class of persons other than the commissioners themselves, and that all that is apparently considered or decided beyond that, found in the opinion of the court, is obiter dictum.

We think otherwise. The act under which the improvement was made provided that the commissioners should be selected from the owners of abutting property; and they were themselves, as such owners, liable for the payment of a part of the cost of the improvement. It also appeared in the case, that a petition was presented to the city council, by owners of abutting- property, asking for the privileges of the act in question, and that owners of abutting property had also voted for and elected such commissioners. ^

The court was called upon to say more than that the mere form of making an assessment should be gone through with, i. <?., that when made, it would be of some benefit to the relator; that, at least, under the facts then appearing to the court, some part of it would be collectable. If no such facts existed, or if the court was oi opinion that because of the unconstitutionality of the law no estoppel could arise, and hence no assessment, however made, could be collected, it would not have done so vain and useless a thing as to require the commissioners to do an act from which no benefit could ensue, and by the omission to do which no one could be harmed. Hence, while the decision of that case is not conclusive upon any individual property owner until he is brought within the rule established, it must be considered as settled by it that the commissioners, and all who participated with them in causing the improvement to be made, are estopped from setting up the invalidity of the statute as a ground for refusing to pay.

We are not inclined to review that question, or' to disturb that decision in that respect.

Who, then, are those who caused, or participated in causing, the improvement to be made? Clearly, the participation referred to is such acts by the property .owner as, under the provisions of the lav/ in question, he was authorized, or required to do, to wit, to petition the council for the privileges of the act, to vote for the commissioners to whom the making of the improvement was to be entrusted, or to hold the position of commissioner or officer of election under the provisions of the act. These acts, or any of them, by a property owner, will bring him within the rule announced in the Mitchell case so far as to estop him from asserting the invalidity of the statute. He may, no doubt, bo estopped in many other ways. A promise to pay the assessment, if the work was done, as in Corry v. Gaynor, 22 O. S. 584, would probably have that effect. We do not mean to say that an estoppel to assert the invalidity of the statute can be based only upon signing the petition or voting for commissioners, but to hold that such acts will be effective for that purpose. Tone, it is alleged, signed the petition. The circumstances set out in the petition, under which he signed it, are not such as will'relieve him from whatever responsibility attaches to the fact of petitioning.

II. Does-the signing of the petition alone estop the owner from alleging that' the subsequent action of the city council is illegal ?

In this connection, the report of the decision in State v. Mitchell, supra, needs explanation in one particular. The second proposition in the syllabus reads as follows: “Notwithstanding the unconstitutionality of the act, where the abutting lot-owners have caused a street to be improved under the act, and the bonds of the city to be negotiated to pay for the improvement, all who have participated in causing the improvement to be made are estopped from denying the validity of an assessment made in accordance with the act, to pay such bonds.”

It is asserted in the statement of facts in that case that two-thirds of the property owners had signed the petition, and White, C. J., in the opinion, assumes that to be true. No infirmity in the proceedings of the city council, or the commissioners, was shown to or considered by the court in that case. The assessment, therefore, about which the court was speaking, in tne report of that case, is one which would, were it not for the infirmity in the law, be perfectly valid. There was no other case before the court, or considered by it. There is nothing in that decision that warrants the inference, sought to be drawn from it, that jurisdictional defects, occurring after the act of the property owner, are waived by signing a petition for the improvement, without other acts of participation or encouragement. The petition in this case, fairly construed, contains an averment that two-thirds of the property owners had not petitioned, at the time of the passage of the ordinance by the city council. That allegation is admitted by the demurrer.

Under section 21 of the act, the city, council had no right to authorize the improvement until such two-thirds of the owners had petitioned the council for the privileges of the act. We have no doubt that this requirement of the law may be waived by the owners, or that they may by their acts, and under circumstances by their inaction, estop themselves from alleging its failure; but we are equally satisfied that the mere signing a petition will not have that effect.

We are aware that authorities can be found which appear to hold otherwise. Those principally relied upon axe Motz v. Detroit, 18 Mich. 526; and City of Burlington v. Gilbert, 31 Iowa, 356.

The opinion in the former case was delivered by Cooley, J. The objection to the assessment was that the city had no power under its charter to make it; but several of the property owners signed a petition asking the city council to improve the street, and in compliance with such petition the improvement was ordered. By the court:

“Both the contractors and petitioners, all of whom are , residents of the city, knew that by the city charter, the city was not, and could not be made liable for the cost of the work, but that the contractor must rely upon the special assessment exclusively. There is no claim now, on the part of these petitioners, that the assessment is made on any different basis from that contemplated by them when the petition was signed. Under these circumstances they must be taken to have been willing and actively consenting parties to all the proceedings which led to the assessment and to have impliedly at least, consented that such an assessment should be made. Whether therefore the assessment be legally valid or not, there is not the least ground, on their part for claiming the interposition of a court of equity, by its extraordinary process of injunction, to stay the collection of the assessment. Their remedy, if any, is strictly legal.”

This decision is authority to support the proposition already asserted, that the petitioners waived the invalidity of the statute under which the assessment was made, but we do not understand that any defect in the proceedings of the council, after the petition was signed, was asserted in that case. Certainly nothing more is decided than that, under the circumstances of that case, equity will not afford relief by injunction against such an assessmment. •

In the case of Steckett v. The City of East Saginaw, 22 Mich. 104, decided a few years later by the same court, it was held :

“ Petitioners to a city council for a public improvement will be presumed to intend that the work shall be done under a city charter, and while they will be estopped in equity to deny the power to grant their petition, Motz v. Detroit, 18 Mich. 495; yet they will not be estopped to object that the proceedings upon their petition have been conducted in disregard of the law.”

Cooley, J.,

speaking for the court, says: The second ground of estoppel applies to all the complainants, and it consists in the fact that they were all residents of the city of East Saginaw, and presumptively cognizant of the proceedings being taken, and of the irregularities which existed, and yet made no complaint until the work was completed, though they knew that under the charter the contractor who did the work could only be paid from this assessment. This ground of estoppel appears to us to be rather far-reaching and somewhat dangerous. To hold that a man is bound at his peril to take notice of illegal action on the part of the public authorities, is carrying the doctrine of constructive notice very much further than the authorities will warrant. ¥e think, on the other hand, that the citizen has a right to assume that the law is being obeyed instead of violated, by the public authorities, and that, at least, in the absence of any evidence of previous knowledge on his part of their unlawful action, he is in time with his protest when they proceed to deprive him of his rights under such proceedings.”

In Burlington v. Gilbert, 31 Iowa, 356, it appeared that a petition was signed and presented to the council by Gilbert and 48 others asking for the improvement. The solicitor reported that the requisite number had not signed. It was referred back to the petitioners, who obtained additional names and again presented it to the council, Gilbert evidently being an active agent therein. The work was done and an assessment made. It appeared that the petition did not contain the requisite number of signers, and the court held Gilbert estopped. It appears to lay some stress upon the fact that Gilbert and his associates in the petition, acting together’, presented the petition, and treats it as a waiver of the requirement as to the number of petitioners, or as a representation that the requisite number had signed, thereby inducing the city to enter upon the improvement requested. "We do not understand the case to hold that the mere signing the petition, without the other circumstances, would have amounted to an estoppel, and it is not clear that under those circumstances the estoppel did not exist.

In Matter of Sharp, 56 N. Y. 257, the correctness of the latter decision was denied. A petition had been presented to said board signed by the. owners of property fronting on said street, but not a majority as required by the act of 1870. Held, that a signer of said petition was not estopped thereby from questioning the authority of the board and moving to set-aside the assessment; that he had a right to rely upon a performance of its duty by the board, which required it, before basing any action on the petition, to ascertain whether a sufficient number had signed to confer jurisdiction.”

We think this is, a correct statement of the law. Upon principle, there is no basis for the estoppel thus claimed. The owner signed a petition for the privileges of the act, for the improvement of the street. He did not thereby represent to the city that his name made the requisite two-thirds; nor waive the legal requirement that upon the presentation of the petition, the city, before basing any action upon it, would ascertain whether the legally required number had signed, and refuse to order the improvement if they had not.

We conclude, therefore, upon principle and authority, that the plaintiff in error is not estopped by the mere fact that he signed the petition, from asserting that the city did not obtain jurisdiction to order the improvement, because two-thirds of the owners had not petitioned.

We do not overlook, or in any way qualify, the rule that active participation or encouragement in causing an improvement to be made, will estop the owner engaging therein, from denying the validity of the proceedings and the assessment made in pursuance thereof. This rule is well established and is founded upon principles of justice. But the law, which requires a petition from the owners of two-thirds of the property to give the city council jurisdiction to order the improvement, will not impose upon a signer of such petition, who does nothing more, the burden of liability to pay an assessment, however illegal the action of the city based upon his petition may be.

III. It is insisted however, that, the plaintiffs in error, and other property owners now resisting the assessment, are es-topped by their silence, which it is claimed, amounts to acquiescence, or a waiver of the infirmities in the statute and in the proceedings under it.

The claim is that sufficient appears in the petitions to establish such estoppel, to wit, that the plaintiffs had knowledge that the work was contemplated, ordered and completed; that they had knowledge also that the city contemplated that the cost of the improvement should be assessed upon the abutting property; and during all the time from the initiatory steps until the completion of the assessment, they were silent. That they do not claim that they gave any notice to the city that they would resist the payment, or commenced any action to enjoin the city, or the commissioners, from proceeding with the improvement, or issuing the' bonds to pay for the same. Many authorities are cited in support of this position. Within the limits of this opinion it will be impossible to notice very many of them, or to attempt to distinguish or reconcile them.

We notice at the outset that many of these cases are reports of suits in equity, governed by equitable rules, among which an important one is, that diligence is required .of suitors for its favor; that where a person is guilty of unreasonable delay in asserting his rights, or where, with knowledge of his rights, ■he takes no steps to assert them until others have entered into engagements of a burdensome nature, equity will not relieve him by injunction but leave him to whatever remedy the law affords him. This rule of equity has been, quite uniformly, applied to suits to enjoin the levy and collection of assessments for public improvements. Such was the case in Motz v. Detroit, supra, and Kellogg v. Ely, 15 Ohio St. 61, and others hereafter noticed.

But under our statute of April 10,1856 (S. & G. 1151; R. S. §§ 5818-51), an enlarged or additional remedy is given to the tax-payer. While the action under it is still equitable in its nature, a remedy is afforded by it which formerly might be had only at law. The plaintiff is not required to make out a case, in cveiy element, which would be necessary without it, to entitle him to equitable relief. It is sufficient if he shows that the tax or assessment is illegal. Stephan v. Daniels, 27 Ohio St. 536 ; Steese v. Oviatt, 2d Ohio St. 253. If, in his petition under the statute he makes a case which shows the proceedings by which the assessment or tax was levied were illegal, — not merely irregular — and it is claimed he is estopped from asserting such illegality, the facts upon which that claim is based, which do not appear in. the petition, must be alleged by way of answer.

Under this statute unless the facts which amount to an estoppel are shown, the plaintiff is in time with his petition for injunction, when the tax is placed upon the duplicate or sought to be enforced against him. Pomeroy Rem. & Rem. Rights, § 712 and citations.

The petition in this action shows the assessment to be illegal for want of jurisdiction in the city council to order the improvement, because two-thirds of the property owners had not petitioned therefor. The averments upon which the estoppel is sought to be based are, that Tone was the owner of property on the street; that he signed a petition for the improvement; and that he did not institute any legal proceedings to enjoin the same, because he was a non-resident of Franklin county and ignorant that the commissioners were proceeding illegally.

There is an important element of estoppel by silence wanting here, viz., knowledge that the city council was acting illegally, or in other words knowledge of the facts upon which he now relies. The doctrine that a person remaining silent when he ought, in the exercise of good faith, to have spoken, will not be allowed to speak when, in the exercise of the same good faith, he ought to remain silent, cannot be extended to a person who is innocently ignorant of the fact upon which his right depends.

How could the property owner speak of the defect, which it is claimed he has waived by his silence, unless he had knowledge of the defect? To hold him responsible for his want of knowledge, facts must be shown*which, made it his duty to inform himself.

In regard to proceedings by public officers, preliminary to levying a special assessment for the improvement of a public highway, it is only when the duty to speak is imperative, that mere silence on the part of a land owner will operate as an estoppel. Cooley Taxation, 573; Counterman v. Dublin Township, 38 Ohio St. 515. To sustain an estoppel because of omission to speak, there must be both .the opportunity and the duty to speak; the party maintaining silence must be in a situation to know that some one was relying thereon, and acting or about to act as he would not have done had he spoken and asserted his right. Vicle v. Judson, 82 N. Y. 32. We think the true rule is this: When the improvement is of a public street upon which the owner’s property abuts, before the duty to speak can be said to exist, which is so imperative that if he keeps silent then, he shall not afterwards be heard, it must be shown ;

First. That he knew the improvement was being made. Teegarden v. Davis, 36 Ohio St. 601; Stephan v. Daniels, 27 Ohio St. 544.
Second. That he had knowledge that the public authorities intended, and were making the improvement upon the faith, that the cost thereof was to be paid by the abutting property owners, and that an assessment for that purpose was contemplated. Hagar v. City of Burlington, 42 Iowa, 661. Because cities may improve the public streets out of the general fund and without a special assessment.
Third. That he knew of the infirmity or defect in the proceedings, under which the improvement was being made, which would render such assessment invalid and which he is to be estopped from asserting.
“At least, in .the absence of any evidence of previous knowledge on his part of their unlawful action, he is in time with his protest, when they proceed to deprive him of his rights under such proceedings.” Cooley, J., 22 Mich. 104; Davenport Central Railway Co. v. Davenport Gas Light Co., 43 Iowa, 301.
Fourth. Some special benefit must have accrued to the owner's property, distinct from the benefits enjoyed by the citizens generally. Stephan v. Daniels, 27 Ohio St. 544; 30 Indiana, 194.

In Hagar v. City of Burlington, 42 Iowa, 661, the action was to restrain the collection of an assessment upon an abutting lot for improving the street. By the court, — “Appellant claims that plaintiff is equitably estopped from denying the validity of the assessment; that she' could not stand by in silence and see the city expend public money upon her property, by the improvement of the street, without objection or protest, and still be heard to object to the validity of the proceedings.

“ The plaintiff procured the injunction on the 23d of October, 1873. The abstract does not show when the work was commenced nor when the plaintiff became advised that the city intended to assess the cost of the improvement upon her property. If she knew the work was progressing she may have supposed the city intended to pay for it out of the general fund.” Facts are not disclosed which amount to an estoppel.” See also 22 Mich. 204, supra.

We have already seen that a petitioner for the improvement has the right to rely upon the city council proceeding legally and regularly upon his petition. Certainly one who is not a petitioner has the same right. There can be no waiver of this defect, and no estoppel which will prevent him from asserting it after the work is completed, if he is ignorant of it before the work is completed, unless, indeed, circumstances exist which make it his duty to inform himself, or show his ignorance to be culpable.

Just how this knowledge is to be shown it is not easy to say. That it may be shown by circumstances, in this, as in any other case where knowledge is an essential element, is no doubt true. Infirmities in the public statute he may be presumed to know, but not in the proceedings of the council or municipal officers whose acts, as we have seen, he has the right to presume are regular. Undoubtedly, those petitioning in this case for the privileges of the act, or voting for the commissioners, or acting as commissioners, or taking any active part under the statute in causing the improvement to be made, may be presumed to know that the improvement is being made, and that its cost is to be assessed under the provisions of the statute upon abutting property. This presumption, in even these respects, cannot extend to those who have taken no such part, but are charged with silence only. When the above named requirements are found, and it is shown that the property owner has been benefited by the improvement, at least to the extent that he has been thus benefited, he will be estopped from denying his liability to pay. It then became his duty to act upon his rights, before the city, for his benefit, expended its money in making the improvement, upon the faith that he would pay his just share thereof. Had he spoken then, all that he now asserts as illegality would have been corrected or the expenditure stopped; or if not, then it was no„t at his peril that the expenditure was made.

It was as much his duty under these circumstances to make known his objections and assert his rights, as if he saw another person making improvements and expending money for his benefit, under the erroneous impression that he was liable and expected to pay for the same. If with knowledge of the facts he failed to speak but allowed the improvement and expenditure to be made, he would not be permitted to enjoy the benefits conferred and refuse to pay for them. He would be estopped to deny his liability to pay the fair value of what he received. There is no material difference, under these circumstances, whether the improvement is directly on the land of the owner, or upon the highway upon which such land abuts; nor that the expenditure was made by the city and not by an individual. The presumption that the city was acting in good faith, the owner’s knowledge that they were acting without authority, that the improvement was for his benefit, that it was made upon the faith that he would pay for it, demanded of him in fairness that he make known his rights and intentions then, or afterwards keep his peace. , In either case to the extent that benefit has accrued to him, equity will inquire him to make compensation.

Whether the assessment itself, is to be considered a fair apportionment of the benefits conferred, even prima facie, as against an owner estopped by his silence,• or whether the limitation upon the power of assessment to twenty-five per centum of the value of the property, found in the municipal code, is applicable to this case, are questions which are not now material for us to consider. It is safe to assume, however, that no application of an equitable rule will be made, that will operate inequitably. It is not so much in cases of this kind that the estoppel, which arises from silence, gives validity to an invalid proceeding or contract, as that the party estopped will not be permitted to repudiate it, except upon equitable terms. Am. Dock Inp. Co. v. School Trustees, 35 N. J. Eq. 181. The inequity exists in claiming that the benefits, which accrued to him thereby, shall be enjoyed, without compensation. The maxim ex aequo et bonoj should govern.

The cases most relied upon by defendant do not, it seems to us establish a different doctrine. In Leibstein v. Mayor of Newark, 21 N. J. Eq. 200, the defect complained of was not in the legislation leading to the improvement, but in the defective manner in which the work was done. The doing of the work occupied a year, the character of it was such as admitted of constant inspection and was apparent to the property owners, who, with knowledge of the facts, and without objection on account of them, permitted the city to pay the contractor in full. It was held that their duty to take some action at least to apprise the city of the defects before the payment, was imperative, and a court of equity would not hear their objection, first made after the contractor’s were paid in full. Dusenbury v. Mayor of Newark, 25 N. J. Eq. 295, was of the same character and was decided on the authority of the former case. Railway v. Railway, 21 N. J. Eq. 283, was not an assessment case. It is but an application of the rule well established in equity, that if one man stands by and encourages another to lay out money in improvements, under an erroneous opinion of title, or under the obvious expectation that no obstacle will afterwards be interposed in the way of its enjoyment, the court will not permit any subsequent interference with it, by him who promoted or encouraged those acts of which he now either complains or seeks to' obtain the advantage. In City of New Haven v. Fair Haven and Westville R. R. Co., 38 Conn. 422, the court finds: The defendant must have known that the improvement would largely benefit it in the matter of repairs, that the proceeding was under the statute, and consequently at the expense of the parties benefited. There was no reason to suppose that the city Avas doing the Avork of defendant at its own expense, or the expense of other parties. The presumption therefore is, in the absence of any finding to the contrary, not only that defendant consented to the making of the improvement by the city, but that there was’ an implied understanding that the defendant was to bear its fair proportion of the expense. We think the defendant is estopped.”

The infirmity in the assessment in that ease was that the city under its charter had no power to make it. The presumption which it is said existed, that defendants consented to the making of the improvement, and impliedly agreed to pay for it, arose from the knowledge of the defendant that it was being made, for his benefit, upon the expectation that he would pay for it, and that he Avas actually benefited thereby. Whether the benefits received by the defendant equalled the amount assessed was presented, but the court held the question was not before it, as under their statute that was to be made only by an appeal to their superior court from-the assessing board.

Kellogg v. Ely, 15 Ohio St. 64, so often cited as a case of estoppel by silence, and confidently relied upon here, is nota case of estoppel in the true sense at all. Under the very strong circumstances of that case, the court held that it Avould not restrain the collection of the tax by injunction, but would leave the plaintiff to such remedy as he may have at law. It is not placed upon the ground of estoppel, nor is there any intimation ’that any was applicable to the ease. 56 N. Y. 260. But if there was, the facts of that ease, if the ÓAvner had knowledge of the defects, make a very strong case of estoppel, and the report of the case does not show that he had not such knowledge, but the inference is very strong that he had. In Quinlan v. Myers, 29 Ohio St. 500, the fact affirmatively appears, and is found by the court, that Myers had knowledge of all the facts. That he knew that the commissioners were proceeding without the consent of a majority of the land owners to be assessed, before the improvement was commenced, appears to be established by his reply to the third defense. The rule established by that case is this: “In equity wherever the rights of other parties have intervened, by reason of a man’s conduct or acquiescence in a state of things about which he had an election, and his conduct or acquiescence, or even laches, was based on a knowledge of the facts, he will be deemed to have made an effectual election ; and he will not be permitted to disturb the state of things, whatever may have been his rights at first.”

IY. The further claim is urged with great earnestness by counsel for plaintiff in error, that a complete answer to all that has been said is, that the principles thus announced do not apply to a case, where there is an entire want of power to do the corporate act. That while estoppel may exist where there is a defective execution of a power granted, neither silence nor assent will supply a total want of power.

That “ the principles of estoppel apply where the proceedings are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as where they are sought to be impeached upon other grounds,” is not an open question. It was settled in State v. Mitchell, supra, and in many other cases. See Counterman v. Dublin Twp., 38 Ohio St. 515; Daniels v. Tearney, 102 U. S. 415, and cases there cited; 96 U. S. 341.

I am not quite able to see why, if inaction or silence, with knowledge, works an estoppel where a permanent improvement of a public street is made, notwithstanding the tribunal had not jurisdiction to order it, by reason of the non-existence of a condition-precedent fact, it does not work an estoppel, although the tribunal had not jurisdiction to order the improvement by reason of the unconstitutionality of the statute under which such order was made, unless indeed the act is per se illegal or malum prohibitum. In either case there was a want of power in the tribunal db initio.

"Where the infirmity of the act of the corporation is that it was ultra vires, but not prohibited by the charter or public law, an estoppel may arise, either from acts or inaction, which will prevent the corporation, a stockholder or an individual dealing with it, from asserting such infirmity. When, however, it is a question not between the corporation and individuals, but the public at large is interested, as in the case of an act fer se wrong, or prohibited, no act can give it validity. See Hitchcock v. City of Galveston, 96 U. S. 341, and cases there cited; Kent v. Quicksilver Mining Co., 78 N. Y. 184.

In the latter case the rule is rule is thus stated by Folger, J., “ In the application of the doctrine of ultra vires, it has to be borne in mind that it has two phases; one where the public is concerned ; one where the question is between the corporate body and the stockholders in it, or' between it and its stock•holders and third parties dealing with it, and through it, with them. When the public is concerned to restrain a corporation within the limit of the power given to it by its charter, an assent by the stockholders to the use of the unauthorized power by the corporate body will be of nt> avail. When it is a question of the right of a stockholder to restrain the corporate body within its express or incidental powers, the stockholder may in many cases be denied, on the ground of his express assent or his intelligent, though tacit, consent to the corporate action. . . A corporation may do acts which affect the public to its harm, in as much as they are fer se illegal, or are mahom prohibitum. Then no assent can validate them. It ipay do acts not thus illegal, though there is a want of power to do them, which affect only the interests of the stockholders. They may be made good by the assent of the stockholders, so that strangers dealing in good faith with the corporation will be protected in a reliance upon those acts.” 22 N. Y. 269; 2 L. R. (Exch.) 390; 63 N. Y. 63; L. R. (7 Com. Pl) 43; Law R. (3 H. of L.) 249. . . .

And where third parties have dealt with the company relying in good faith upon corporate authority to do an act there is not needed that- there be an express assent thereto on the part of the stockholders to work an equitable estoppel. Their conduct may have been such, though negative in character, as to be taken for an acquiescence in the act; and when harm would come to such third parties if the act were held invalid, the stockholders are estopped from questioning it. We suppose acquiescence, or tacit assent, to mean the neglect to promptly and actively condemn the unauthorized act, and to seek judicial redress, after the knowledge of the committal of it, whereby innocent parties have been led to put themselves in a position from which they cannot be taken without loss. It is the doctrine of equitable estoppel which applies to members of associated or corporate bodies as well as to persons acting in a natural capacity.”

We presume the estoppel in such case would apply as well to third persons dealing with the corporation and receiving the benefit of the ultra vires act or contract as to the members of the corporation, and would arise from the same facts.

It may be suggested here that while there was a want of power to order this improvement under the act in question, and perhaps a total want of power to issue the bonds, there was ample power vested in the corporation to make the improvement, and assess the cost of it, under valid existing law; and whatever may be said about the rights of the holders of the bonds thus issued without authority, it does not necessarily follow that the question between the city and the property-holders or the contractors doing the work is the same. Hitchcock v. City of Galveston, supra.

Y. Several of the plaintiffs allege that they were married women, owning in their own right and as their separate property, the lots or lands abutting upon the street upon which the assessment is charged. The improvement in question, being for the benefit of such separate property and relating thereto, and the benefits accruing therefrom attaching to such separate property, the-rules heretofore announced apply to them, as fully as if they were femmes sole. As such owners they were vested with the full right to petition, to vote, and to act precisely as any other owner, and whatever would operate as an estoppel were they sole, will with respect to such separate property have the same effect. notwithstanding their coverture.

YI. "What effect the signing of a remonstrance against *the passage of the ordinance, and presenting it to the city council, as in Carter’s case, will have, will depend largely upon the subsequent conduct of the signers. While they are in the attitude of remonstrants, it certainly cannot be maintained that they are silently acquiescing.

The demurrers must be overruled; and those cases that were appealed from the common pleas, will be remanded to the district court, and those in which petitions in error were filed in the district court, will be remanded to the court o£ common pleas, for such further proceedings as are authorized by law.

Judgment accordingly.

Okey, J.

I concur in the judgments rendered in these cases, and generally in the views expressed by the majority as to the questions directly presented by the record; but I do not concur in the view that, in a case like this, there may be an estoppel by silence. That question is not presented now, but it may become important in’the further hearing of the causes, 'and hence it has been deemed proper to consider it. In my opinion, where a municipal corporation grades and paves, in an ordinary manner, one of the public streets to which it has a title in fee, and seeks to charge, under an unconstitutional law, the expense on the owners of lots abutting on the street, such owners who have never encouraged the corporation, its officers and agents, by act or word, in making such improvement, will not be estopped to en join an assessment for such improvement, under Rev. Stats. §§ 5848, 5851, although they have been materially benefited by the improvement, and knew, while the improvement was in progress, that two-thirds of such owners had not, as required by the act, petitioned for the improvement, and that the officers and agents intended to assess such owners for the same. To estop them they must in some other way than by mere silence and inaction, have encouraged such officers and agents to make the improvement. State v. Railway Co., 74 Mo. 163; State v. Railway Co., 31 Ark. 701; Matter of Van Buren, 17 Hun, 527, affirmed, 79 N. Y. 384; Starr v. Burlington, 45 Iowa, 87; Counterman v. Dublin Tp., 38 Ohio St. 515. Quinlan v. Myers, 29 Ohio St. 500, arose under a valid act, and I do not deem it necessary to consider -whether the case was properly decided. But I am further of opinion, that where lot owners have said things or done acts which were intended to and did encourage the officers and agents of the corporation in making the improvement under the statute, such statute is as to them valid, and should be enforced, and it is immaterial whether they actually knew that there was any defect in the law or the proceedings under it, or were, or were not, specially benefited by the improvement, beyond other owners of abutting lots.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Lane v. The State.
    An indictment which was claimed to be under Rev. Stats. § 7050, for illegal voting, alleged that the accused, on April 2, 1883, at the Township of U. in the County of F., did unlawfully, willfully and knowingly vote more than once, to wit, twice, at a certain corporation election then and there being holden and authorized to he holden by the laws of the state. Held, that the indictment is fatally defective in failing to designate the election at which the defendant voted, notwithstanding Rev. Stats. §§ 7215, 7325.
    Error to the Court of Common Pleas of Payette county.

      Barclay de Worthington, for plaintiff in error.

      D. A. Hollingsworth, attorney general, and F. G. Carpenter, for the state.
   Okey, J.

Lane was convicted, in 1883, in the Court of Common Pleas of Fayette county, and sentenced to the penitentiary, under Rev. Stats. § 7050, winch provides: “ "Whoever votes more than once at the same election shall be imprisoned in the penitentiary not more than five nor less than one year.” The indictment charges that Lane, on April 2, 1883, “ at the township of Union, in the county of Payette aforesaid, did unlawfully, willfully and knowingly vote more than once, to wit, twice, at a certain corporation election then and there being duly holden and authorized to be holden by the laws of the state of Ohio.” Lane on leave filed a petition in error in this court to reverse the conviction, and the question is whether the indictment is sufficient.

Counsel for the state endeavor to sustain the conviction under Rev. Stats. § 7215, which provides, among other things, that an indictment shall not be deemed invalid for any of certain enumerated defects; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” But the defects mentioned relate to matters of form, and the words quoted apply only to such matters as are egusdem generis with those comprehended in the preceding part of the section. Schultz v. Cambridge, 38 Ohio St. 659. ■ And see 5 Eng. Stats. (Rev. ed.) 332; 11 lb. 264, from which the above section was in part borrowed.

Counsel for the state also rely on Rev. Stats. § 7225, which provides: “ When an offense is committed in relation to an election, an indictment for such offense shall be deemed sufficient if it allege that such election was authorized by law, without stating the names of the officers holding the election, or the persons voted for, or the offices to be filled, at such election.” But we cannot see that by a fair construction of that section this indictment is aided. From the enumeration of averments that may be dispensed with, the implication arises that in other respects the ordinary rules of criminal pleading should be observed. The offense is one concerning “ an election,” and there must be an allegation that “ such election was authorized.” Evidently it was intended that the indictment should show what election was held. Even if the section could be thought to bear a different construction, the result would be the same. Felonies must be prosecuted by indictment (Const, art. 1, § 10; Dillingham v. State, 5 Ohio St. 280); and while the legislature has the power to prescribe forms and dispense with many formal allegations in indictments, there is a limit to such power, and it is clear that there is no authority in the legislature to enact or in the court to determine, that that shall be a sufficient indictment which fails to inform the accused of the offense with which he is charged. McLaughlin v. State, 45 Ind. 338; Longee v. State, Bensal v. State, 11 Ohio, 68, 72; Miller v. State, 3 Ohio St. 475; S. & C. 1435; Wolf v. State, Turpin v. State, 19 Ohio St. 248, 540 ; Williams v. State, 35 Ohio St. 175; Wharf;. Cr. Pl. & Pr. § 90 ; Bishop’s Or. Pro. § 104 et seq.

In any view the indictment is insufficient. Its words may refer to an election by a private corporation, which is provided for by statute (Rev. Stats. § 3246); but to vote more than once at such an election is not declared to be an offence. ■ The words may also refer to a township election, for townships are corporations (Rev. Stats. §1376), and each township was authorized (Rev. Stats. § 1442) to hold an election on April 2, 1883. Washington, which is in Union township, Fayette county, was also a corporation — a municipal' corporation — Rev. Stats. § 1552, and it was authorized by law (Rev. Stats. § 1723) to hold an election on April 2, 18S3. It was for voting twice at the latter election that Lane was convicted. But without-enumerating other elections to which this indictment may refer, it is sufficient to say that such an indictment is too loose and indefinite to support a conviction.

Judgment reversed.


author: Johnson, C. J. Okey, J.

text:
    Cochran v. Almack.
    A defendant is a competent witness to transactions with, a deceased agent of plaintiff, though not occurring in his presence, if within the scope of such agent’s authority.
    Error to the District Court of Coshocton county.
    Cochran sued Almack and another, as makers of a promissory note, to recover a balance due thereon of $234.32.
    Almack answered, admitting his liability, but set up a claim to an additional credit of $200, which he avers, was paid to one Wheeler Cochran, the plaintiff’s agent.

      The plaintiff denied this payment. On the trial of the issue thus made, Almack, upon whom the burden of proof rested, was offered as a witness in his own behalf, and was admitted over plaintiff’s objections, as a competent witness to prove such payment, although it was admitted that such alleged payment was made to said "Wheeler Cochran in the absence of plaintiff, and that the agent was dead.
    In his testimony, Almack narrated thé transaction and conversation with the agent showing that he had made the payment as alleged.
    The district court affirmed the judgment of the court below founded upon this evidence, and the error assigned is, that Almack was not a competent witness to prove what took place with an agent of the plaintiff, since deceased, and in the absence of the principal.

      Spangler dc Pomerene and Cf. H. Barger, for plaintiff in error.

      B. M. Toorhes and W. S. Crowell, for defendant in error.
   Johnson, C. J.

The competencyof Almack to testify to transactions and conversations with plaintiff’s deceased agent, depends on a construction of sections 5240, 5241 and 5242 of the Revised Statutes, and especially of the last clause of section 5242, which reads: “ and when a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.”

Section 5240 abrogates the common law rule, and makes all persons of sufficient capacity competent; this makes Almack, though a party, a competent witness for all purposes, the same as if he were not a party.

. Section 5241 relates to the competency of testimony, and excludes privileged communications as therein defined, and also prevents a person from becoming competent by assignment, sale or transfer, when if a party he would be incompetent.

Section 5242 is a limitation on the competency of a party . which is conferred by the general provision of section 5240» and makes such party incompetent, when the adverse party, is the guardian or trustee of a deaf and dumb or insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person. To this general exclusion, when the adverse party is acting in a fiduciary or representative character, there are eight specified exceptions, they each are exceptions to the general provisions of the section and have no application to cases where the parties are sui juris, but where the adverse party is acting in such fiduciary or representative character.

It is conceded by counsel for plaintiff, that Almack cannot be excluded from testifying under the expressed provisions of either of the three sections, but it is insisted that though not excluded by the strict letter ” of the statute he is, by the reason and spirit of the three sections named, and that by applying the principles of these sections ho was incompetent to testify to acts and transactions of a deceased agent of the plaintiff.

At common law, the acts of a deceased agent, and admissions made within the scope of his agency, could be proved against the principal by any competent witness. Section 5240 expressly makes Almack competent for that purpose.

Section 5242 applies only where the adverse party is acting in a fiduciary capacity or claims or defends as a representative of their grantee, &c., &c.

What is the scope of the clause .under consideration it would be difficult to say, in advance of cases as they may arise. It calls for the application of the principles of the three preceding sections, only when the case is not provided for by either of these sections. If the case is not within the letter, but is plainly within the reason and spirit of these sections, their principles shall be applied.

It follows, that if a case is provided for, by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its letter or terms.

A majority of the court are therefore of the opinion that this clause does not warrant a construction which would exclude a witness, when he is declared to be competent by the express terms of the statute, and that it can only be resorted to in cases not therein expressly provided for.

Apply these principles to the case at bar. By the express terms of section 5210, Almack was a competent witness, to prove transactions with the deceased agent of the plaintiff. By section 5212, he is rendered incompetent only when the adverse party is acting in a fiduciary or representative character, and by the exceptions he is made competent to a limited extent in certain specified cases. These exceptions all look to his admission as a witness, none of them to his exclusion. Although he is excluded in the cases named in the general exclusion provided for by the section, yet, if the facts occurred subsequent to the appointment of the guardian or trustee, or, in other eases, after the death of the grantor, heir, &c., or when an agent of a deceased party testifies, or in case of acts and admissions of a living party, relied on by the adverse party in these and some other cases, he is not excluded. So, also, where a party testifies, or give his deposition, and dies, the opposite party may testify as to the same matter. All these exceptions are intended to place the living party on an equality with the opposite party. The reason and spirit of these exceptions to the rule of exclusion is in favor of admitting, not excluding the living party, where the opposite party is claiming or defending in the right of a deceased person, and some act or admission of the living party is relied on against him, or, in analogous cases, an exception is made in favor of the living party as to such transaction or admission, so as to place him on an equality.

As was said in Bomberger v. Turner, 13 Ohio St. 263, “ it would be going too far, for us, on its assumed propriety, to add a disqualification not already specified.” This remark, as well as the reasons given for it, are of equal force, when it is sought to disqualify one not already excluded by the terms of the statute. That there may be eases where the rule here invoked might apply, is easy to suppose, as for instance, where a minor having an indirect interest, testifies in an action by his guardian to acts of defendant, not conversation or admissions, the defendant might thereby become a competent witness as to those acts, though the adverse party was a guardian.

Judgment affirmed.

Okey, J.

Robert H. Cochran brought suit on a note against Thomas Almack, who testified that he paid $200 on it to Wheeler Cochran, son and agent of the plaintiff, and that Wheeler Cochran died before the cause was called for trial. The plaintiff’s objection to the .testimony was overruled, and that is the error relied on for the reversal of the judgment.

Aside from the statute, the reason for excluding this testimony was no less strong than it would have been if Wheeler Cochran had, at the time of the alleged payment, and until his death, been the owner of the note. All the evils of permitting one to prove, by his own oath, his claim against a deceased person’s estate, applies to the case. True, Almack was a competent witness. All persons who have sufficient mental capacity to testify, are competent witnesses. Nobody is excluded as a witness under either section- 5241 or section 5242 of the Revised Statutes; but under those sections various limitations and restrictions are placed on testimony. These limitations and restrictions do not apply in terms to one situated as Almack was in this case, although his testimony as to such payment was within the reason and spirit of such limitations and restrictions, and hence his testimony in that regard should have been excluded under the following clause at the end of section 5242 : “ When a case is within the reason and spirit of the last three sections, though not within their strict letter, their principles shall be applied.” What witnesses may be admitted or excluded by force of this clause, as not being within the strict letter of section 5240, but within its spirit, it is unnecessary now to inquire. .

The principal limitations and restrictions on the testimony of witnesses were originally placed in sections 313 and 314 of the Code of 1853, incorporated into the Revised Statutes, §§ 5240-5242. ' Those sections had been repealed and re-enacted with changes very often before the revision was made. After a number of changes had been made, Peek, J., in speaking of section 313, said : “ The section has been revised, altered and modified several times by the legislature, and it would be going too far for ns, on its assumed propriety, to add a disqualification to those already specified.” Bomberger v. Turner, 13 Ohio St. 263. And that rule was rigidly enforced previous to the adoption of the Revised Statutes. Though a strict construction of a remedial statute, such construction was, under the circumstances, perfectly proper. Another illustration of its application is found in Myers v. Walker, 9 Ohio St. 558, in which it was held that under the code as originally adopted, the assign- or of a chose in action was a competent witness for the assignee, in an action by him against the administrator of the debtor to prove any fact in the case, whether occurring before or after the death of the debtor. The legislature, it will be seen, has changed the statute, so as to prevent such injustice.

Experience at length satisfied the legislature that, however full and explicit, however carefully prepared, such limitations and restrictions might be, injustice would sometime^ be done by adhering literally to the terms of the statute. The wit of man could not provide in that way for all cases concerning which provision should be made. Sometimes injustice would arise by excluding evidence which'should, injustice, be admitted, but more frequently by admitting evidence which should be excluded. The- result was the incorporation of the above quoted clause in the statute, which, construed as it should be, not strictly but liberally, fairly excluded the evidence of Almack as to the payment alleged to have been made to one who could neither meet him face to face nor answer him by deposition. I disagree entirely with the narrow construction placed on this remedial statute. Indeed, if Almack was competent, under such circumstances, to prove the payment by his own oath, I am at a loss to imagine, a case in which the provision should be applied.

In my opinion the clause quoted will occasion no serious inconvenience in practice. It is not likely to be applied by judges, either in admitting or excluding evidence, in such- manner as to do injustice; and where testimony is received or ex-eluded by force of it, I apprehend the ruling should not be reversed unless it olearly appears that injustice has been done However that may be, the clause is the declared will of the legislature, and we are not at liberty to disregard it.

In my opinion the judgments below should be reversed.


author: Doyle, J.

text:
    Betz v. Bryan.
    In 1865 Bryan and others being in actual possession under claim of title, conveyed Gallipolis Island to E. B. by deed, with covenants of warranty and seizin, and placed him in peaceable possession thereof. E. B. continued in such possession of the whole island until February, 1S74, when he conveyed the same to B. B. by deed with covenants of general warranty and seizin and placed her in full possession thereof. In 1873 0., in an action of ejectment against E. B. obtained a judgment for the recovery by metes and bounds of part of the island, but there yás no actual eviction of E. B. thereunder. In the summer of 1874 B. B. was evicted under such j udgment from the part of the island covered thereby.

      Held: The covenants of seizin in the deed from Bryan and others were real covenants, and passed by the conveyance to B. B., hence no action can be maintained thereon by E. B.
    Motion for leave to file a petition in error to tbe District Court of Gallia county.
    On April 25, 1865, John Bryan and others, defendants in error, conveyed to Ethernet Betz, the plaintiff in error, for the consideration of $1,200, all of Gallipolis Island in the Ohio River, by deed containing general covenants of seizin and wan-anty. Defendants, at the time of such conveyance, were in the actual possession of the whole of the premises conveyed, claiming title under a patent from the state of Yirginia, the original owner of the island, and put the plaintiff' into the peaceable possession thereof. Plaintiff in error continued to hold such possession of the entire premises until February 5, 1874, at which date he sold and conveyed said island to Belle Betz, with covenants of general warranty and seizin, for the consideration of $2,700. He delivered to said Belle Betz,, under such conveyance, the actual possession of the- entire island.
    In March, 1872, one Ingoby Clifford, who- elaimedi title under a separate patent from- the state of Yirginia, brought an action of ejectment in the circuit court of Mason county, West' Yirginia, where the island is- situated, against the plaintiff in error, to recover the island. On October- 14, 1873j Clifford! recovered in said action a judgment, by metes and bounds, for about 27 acres of said island, leaving about 10' acres thereof in plaintiff in error, unaffected by the judgment.. There was no actual eviction of the plaintiff in error or his grantee, under . such judgment until the summer of 1874, after- the- convey anee to Belle Betz and after she was- placed in the possession of the whole of the island under such conveyance-.
    While Belle Betz continued in the- possession of the whole of the island, with the knowledge and1 consent of the- plaintiff in error, she yielded the possession, of said 27 acres; to said Ingoby Clifford under the judgment aforesaid, without incurring the costs of an ouster by an officer- under process issued upon such judgment.
    The plaintiff in error thereupon commenced this action against his grantors, the defendants in error, upon the covenants of seizin contained in their deed to- him. Upon issue joined, the court of common pleas found the facts above recited, and as matter of law found that the covenants- upon which the action was brought passed by the conveyance and possession to-Belie Betz, and that plaintiff could not maintain an action thereon, and rendered judgment for defendants. The district court affirmed such judgment, and plaintiff in error now asks leave by motion to file a petition in error in this court to obtain a reversal of such judgments.

      Samuel A. Nash, for plaintiff in error,
    claimed that the rendition of the judgment in ejectment operated as equivalent to an eviction of the plaintiff in error, and so the right of action became a personal one to the plaintiff in error thereafter, and did not pass to his grantor by a simple conveyance of the land.

      W. II. O. Fcker and TJ. B. Debated, for defendant in error,
    relied on 2 Johns. 4; 4 Id. 72; 14 Id. 92; 5 Id. 120; 3 Id. 471; 4 Wend. 550; 21 Wend. 119; 3 Ohio, 211; 17 Ohio, 52 ; Rawle on Covenants, 330, 331; 23 Mo. 179; 23 Ohio St. 588; 31 Ohio St. 577.
   Doyle, J.

By a uniform line of decisions it is established as the settled law of this state that a covenant of seizin in a deed is not broken, where the grantor is in actual possession of the lands under color of title when the deed is executed and the grantee enters under it, until such grantee is evicted. Backus v. McGoy, 3 Ohio, 211; Robinson v. Weil, 3 Ohio, 525; Foote v. Burnett, 10 Ohio, 317; Devore v. Sunderland, 17 Ohio, 52; Stambaugh v. Smith, 23 Ohio St. 584; Great Western Stock Co. v. Saas, 24 Ohio St. 549; Lane v. Fury, 31 Ohio St; 574.

Such covenant may be real or personal. If the grantor is in actual possession, claiming adversely or under color of title, at the time of the conveyance, the covenant is real and runs with the land ; and such a conveyance will carry with it* the previous real covenants in the grantor’s chain of title. If, however, the grantor is not in actual possession, and is without title, the covenant of seizin is instantly broken and is a personal right in the covenantee, upon which he may immediately have his action, and will not run with the land. 17 Ohio, 60.

The eviction of the grantee, under a paramount title,'gives the grantee a right of action upon such covenant which is personal and will not pass by a conveyance of the land made after such eviction. Therefore, until plaintiff in error was evicted, there was no breach of the covenants in his deed from defendants in error.

While these principles are admitted it is claimed that the judgment in the ejectment -action, amounted to an eviction, which gave plaintiff in error an immediate right of action upon such covenants, which did not and could not pass by his conveyance to Belle Betz.

Undoubtedly, upon the judgment of ouster being rendered plaintiff in error might have yielded to the paramount title established thereby, and, after purchasing it, maintained his action on the covenants of warranty, Lane v. Fury, 31 O. S. 571; or he might have submitted to actual ouster and had his action as well on the covenants of seizin. But he need not do either. He might still maintain and continue his possession, (the same possession received from his grantors) until actual eviction, and while thus maintaining it, and claiming adversely to the plaintiff in the ejectment, he would have no cause of action upon the covenants in his deed. Such actual possession, might, notwithstanding the judgment in ejeetment, ripen into a title. It was a sufficient seizin to base a conveyance upon, with covenants of seizin which would not be broken until eviction of the covenantee to whom such actual possession was delivered.

Plaintiff in error adopted this latter course. He continued in possession of the whole land, and instead of yielding to the title asserted in the action of ejectment, he conveyed the whole land, by deed with full covenants of seizin and warranty to Belle Betz, to whom the actual possession of the entire tract was delivered.

The covenants upon which he sues in this action, were real covenants and passed by his conveyance to his grantee. She is the real party in interest and the plaintiff in error cannot maintain this action.

Motion overruled. ■


author: Upson, J.

text:
    Morgan v. Boyer.
    1. The rule that the language of a promise is to be construed most strongly against the promisor, can not properly be applied to the construction of a guaranty.
    2. A guarantor, like a surety, is bound only by the express terms of his contract.
    S. The language used is to be understood in its plain and ordinary sense, as read in the light of the surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly confoims to the intention, of the parties.
    4. If the language is equally capable of each construction, the one will be adopted which construes it to be limited, and not the one which construes it to be continuing.
    5. A guaranty in the following words: — “Messrs. Morgan, Boot & Oo. The bearer, Mr. H. A. Bowlus, is visiting your city, buying a few goods in your line, and anything you may be able to sell him will be paid promptly as agreed on, which I herewith guarantee. H. A. Boyer,” — is not a continuing guaranty.
    Motion for leave to file a petition -in error to the District Court of Seneca county.

      John If. Lemmon, for tbe motion:
    The guaranty was a continuing one. Hotchkiss v. Barnes, 34 Conn. 27; Allen v. Piles, 3 Cush. 238; Bochue v. Murphy, 46 Mo. 57; Crist v. Burlingame, 67 Barb. 351; Ridge v. Judson, 24 N. Y. 64; Colbourne v. Dawson, 10 C. B. 765. As to construction of terms of guaranty, see 2 How. 426, 449, 450; 1 How. 169; 12 East, 227; 10 Ad. & El. 309; 62 Barb. 351.

      R. G. Pennington, contra :
    As to continuing guaranty, see 32 Ohio St. 177; 14 Barr 232; 15 Conn. 457; 16 S. & Rawle, 213; 24 Wend. 82; 8 Johns. 119 ; 3 Conn. 438 ; 3 Denio, 512. As to construction of guaranty, see 1 Ohio St. 260; 4 Hill, 200 ; 5 Hill, 630.
   Upson, J.

The defendant, H. A. Bowlus, a merchant of Melmore, in Seneca county, had at different times purchased small quantities of goods, upon .credit, of the plaintiffs, partners, under the name of Morgan, Root & Co., who were merchants of Cleveland; and in order to obtain from them further credit, he procured from the defendant, H. A. Boyer, of Tiffin, a written guaranty in the following words:

“ Tiffin, April 11, 1876.
“ Messrs. Morgan, Root & Co.:
i; Cents : The bearer, Mr. H. A. Bowlus, is visiting your city buying a few goods in your line, and anything you may be able to sell him will be paid promptly, as agreed on, which I herewith guarantee.
Yours respectfully,
H. A. Boyer.”

Bowlus delivered this guaranty to the plaintiffs about April 12, 1876, and then purchased of them, on the faith of the guaranty, goods to the amount of $797, for which he after-wards paid in full.

The plaintiffs continued to sell goods to Bowlus, from time to time, until about September 20, 1879, when the balance due from him was $301.12, for which the plaintiffs brought suit against Bowlus and Boyer.

The case was submitted to the court of common pleas, which rendered a judgment in favor of the defendant Boyer, and this judgment was, on error, affirmed by the district court.

The plaintiffs ask leave to file a petition in error to. reverse the judgment of the district court.

The principal question argued by counsel, and the only one. requiring our decision, is whether the guaranty given by the defendant Boyer, is a limited, or a continuing, guaranty.

The language of guaranties is often so indefinite that their construction in this respect is difficult, and the decisions .relating to such construction are very numerous and conflicting.

This conflict has in many cases arisen from the difference in the surrounding circumstances and the particular language of each guaranty, but in many cases it is due to the application by the several courts, of different rules to the construction of those contracts. The rules which we apply in this case are those which are in accordance with'previous, decisions of this court, and those which we deem to be most in accordance with well established principles of law.

The rule that the language of a promise is to be construed' most strongly against the promisor cannot properly be applied to the construction of a guaranty. A guarantor, like a surety, is bound only by the precise words of his contract. Other words cannot be added by construction or implication, but the meaning of the words actually used is to be ascertained in the same manner as the meaning of similar words used in other contracts. They are to be understood in their plain and ordinary sense, when read in the light of the surrounding circumstances and of the object intended to be accomplished. The rule that a guarantor is held only by the express words of his promise does not entitle him to demand an unfair and strained interpretation of those words, in order that he may be released from the obligation which he has assumed.

In applying these rules there has been much difference of opinion as to whether the language of a guaranty should be construed as creating a limited or a continuing guaranty, when it is fairly capable of either construction, but we are satisfied that the decided weight of authority is in favor of the rule stated by Judge Story, that in a doubtful case the presumption should be against the construction that the guaranty is continuing.

In the construction of the guaranty, in this case, the plaintiffs’ counsel attach much importance to the words, us.ed in the guaranty, “ is visiting,” as denoting continuance, and as contemplating continuing visits. Those words, however, are equivalent to the word visits, and may be understood to mean visits from time to time, or visits at this time. The latter seems to be the more natural interpretation of the words used, and the one probably intended by the guarantor, for it can hardly be supposed that he intended to give a guaranty neither limited in time nor amount.

Applying to the construction of this guaranty the rules which we have stated, with the aid of the surrounding circumstances, and the purpose for which it was given, we are led to the conclusion that the plaintiffs were not justified.in treatin'it as a continuing guaranty.

Motion overruled.