text:
    Johnson v. Otterbein University.
    1. The creation, of a fund with which to pay an indebtedness of an educational institution is not a consideration in law for a written promise given by the maker to the institution with a view to contribute to that object.
    2. Where such promise contains a stipulation that the amount is to be applied exclusively to the payment of such indebtedness, and is accepted by the institution, Held: That the acceptance does not give rise to a case of mutual promises in the sense requisite to constitute a consideration in law.

      Error to the District Court of Wood County.
    Otterbein University is an educational institution at Westerville, Ohio, incorporated under a special act passed February 13, 1849, and supported by donations, bequests, &c. In February, 1869, Johnson signed and delivered to Spangler, an agent of the institution, an instrument of which the following is a copy:
    “1100. Westerville, Ohio, May 6,1869.
    “ Three years after date, I promise to pay to the trustees of Otterbein University of Ohio, or their agents, one hundred dollars, with interest, at the rate of no per cent., to be used exclusively to liquidate the present, that is, February (1869) indebtedness of said University. Should this donation ever be used for any other purpose than herein specified, the trustees of said University shall be held bound to refund said sum of money to the donor.
    John Johnson.”
    This and similar notes given by other parties in 1868 and 1869, were turned over to the institution by Spangler and accepted as a fund with which to liquidate the indebtedness. ■
    In December, 1876, the trustees brought suit in the common pleas of Wood county. The petition set forth a copy of the note and averred its delivery, maturity and nonpayment, and that the indebtedness of 1869, named in the note, was unpaid. The answer alleged that the note was without consideration, and this allegation was denied in the reply. This issue was tried in the common pleas, and judgment was entered against Johnson for the amount claimed. A motion for a new trial was overruled, and a bill of exceptions embodying all the testimony was taken. On error to the district court the judgment was affirmed. To reverse the judgment of affirmance is the object of the present proceeding.
    The only testimony introduced at the trial consisted of the depositions of Spangler and Bender, agents of the university, taken in August, 1878. It appears that the note was given for no other consideration than as expressed on its face; that the indebtedness of the university in February, 1869, was $38,250; that about $16,000 was paid thereon out of the proceeds of notes taken in 1868 and 1869; that $15,150 was paid thereon with money borrowed for the purpose, and for which the institution was still indebted, but when this loan was made, whether before or after the commencement of the suit, is not stated; and that $6,500 is still due on the original indebtedness of '1869.
    Section 6 of the charter provides that the trustees “ may procure funds for the endowment of professorships, the erection of buildings to be used for college purposes, the purchase of lands, mechanical instruments, etc., wherewith to connect the manual labor system with said university, the purchase of books, charts, chemical, philosophical and astronomical apparatus, and for whatever else may be necessary for the prosperity of the university, and shall faithfully apphr what they may receive by donation or otherwise to these purposes. Provided, that all donations, bequests, etc., shall be applied in accordance with the designs expressed by the donor.”

      L A. Shannon, for plaintiff in error.

      Brown Guernsey, for defendant in error.
    Contracts of the kind in controversy have been repeatedly held good, especially in cases in which obligations have been incurred upon the faith and credit of the promise. See Hooker v. Wittenberg College, 2 Cin. Sup. Ct. Rep., 360 ; Farmers’ College v. McMickin's Ex’r, 2 Disney, 495, 497, 498; O. W. F. College v. Love’s Ex'r, 16 Ohio St., 20; Commissioners, &c. v. Perry, 5 Id., 57 ; Colby’s Assignee v. Colby, Dennison University, et al., Cin. Law Bul., Vol. 3, No. 30 (Sept. 1878), 644, and C. L. J., Vol. 7, No. 10 (September 6, 1878), 193; Capelle v. Trinity M. E. Church, 11 Bankrupt R., 536; Amherst Academy v. Cowles, 6 Pickering, 427, 438; s. c., Am. Dec., 387; Williams College v. Danforth, 12 Pickering, 541; Collier v. Baptist Society, 8 B. Monroe, 61; Trustees v. Garvey, 5 Am. Rep., 51; 53 Ill., 401; Trustees First Presb. Church of Glen Falls v. Prim, 19 Barb., 203; Wilson v. Baptist Educational College, 10 Id., 309.

      C. N. Olds, also for defendant in error.
   Martin, J.

The writing sued on contains a distinct promise to pay one hundred dollars at a fixed time, a direction as to the application of the fund, and a provision that it shall be refunded in case of misapplication. The parties supposed that the writing provided for a donation to be made to the institution.- It is an elementary principle that an executory contract to give is without consideration, and that a promise to pay money as a gift may be revoked at any time before payment. “ The gift of the maker’s own note is the delivery of a promise only, and not of the thing promised, and the gift therefore fails.” Kent’s Com. 438 ; Hamor v. Moore, 8 Ohio St., 243; Ohio Wesleyan Female College v. Love’s Ex’r, 16 Id., 20. This doctrine is not disputed. But several claims are variously stated on behalf of the university which may be reduced to two heads. 1st, That there is a valid consideration: In this, that by acceptance the institution agreed to pay over the money, and thus there arose a case of mutual promises; and in this, that the promise and the liabilities incurred on the faith of it serve as considerations each for the other. 2d. That by force of the charter provisions, the promise is binding though it be without a consideration in law. It will be remembered that the closing paragraph of section 6 of the charter requires that donations shall be applied in accordance with the designs expressed by the donors. From this it would seem that the duty of paying as directed in the note is cast upon the institution by the superior force of the statute which operates as a command; and that its duty is Johnson’s right by statute, for which he stipulated, but which can only arise when the gift is executed.

But grant, that by acceptance of the note, the university impliedly agreed to comply with the direction, that is to apply the proceeds to the payment of its indebtedness. Is that a promise to do an act of advantage to Johnson, or of detriment to the institution in the sense requisite to constitute it a legal consideration? We think it is not. If the writing had been in form a promissory note, or a mere promise to make a donation without any qualification, a necessary implication of duty to apply its proceeds to proper corporate objects would arise upon acceptance. In the absence of special circumstances we fail to see how a duty to apply the fund to a particular corporate purpose, can better, serve as a consideration than a duty to apply it to corporate purposes not specified. The duty in either case is implied. The claim made involves the proposition that-a promise in writing to make a gift to an educational institution is valid on acceptance. This is denied in Ohio Wesleyan Female College v. Love's Ex'r, supra. It, however, finds some support in the authorities.

The liabilities incurred by the institution on the faith, as it is said, of the promise, are not alluded to in the pleadings. The only reference to them in the record is found in the deposition of Mr. Bender, which was taken in August, 1878, some 19 months after Johnson’s answer was filed. He testifies that $15,150 “ has been paid by borrowing money from other parties, which money is still owing by the institution.” He does not state when it was borowed. Non constat, but that it was borowed after the answer was filed when, if not before, the promise was revoked. In this state of the testimony we need not comment on the claims made by counsel as to the effect of these loans.

Do the terms of the charter render the promise binding and dispense with the necessity for a consideration in law ? The section quoted in the statement is relied on in argument. It authorizes the trustees to procure funds for specified purposes, and requires them to apply what they may receive by donation or otherwise to those purposes. It also requires that all donations, bequests, &c., be applied in-accordance with the designs expressed by the donors. It names no subject of gift; and of course all things that can pass by gift are included. Gratuitous promises are not named, and not being subjects of gift, are not included. They are left to the control of the law.

Counsel on both sides rely on the case of Ohio Wesleyan Female College v. Love's Ex'r, supra, which should be noticed far enough to be distinguished. In that case the plaintiff was an incorporated educational institution, and counted on an instrument which reads:

“ I, Robert Love, agree to give * * * two hundred and fifty dollars to the Ohio Wesleyan Female College, said sum to be paid out of my estate as provided in my will.” The will contained no provision for its payment. The petition stated that before suit and relying on the agreements of Love and others, the plaintiff made large disbursements and. incurred liabilities in the erection of buildings and purchase of apparatus, &c. A demurrer was sustained in the common pleas; and on error the cause was reserved in the district court. In the supreme court the judgment of the common pleas was reversed and the demurrer overruled. In the opinion, Judge Scott remarks on the conflict in the authorities, and intimates that in the absence of statutory enactments the weight of authority is to the effect that the facts stated in the petition do not show a consideration sufficient in law to support the promise. He then says: ■
“ The acts under which the present plaintiff was incorporated are, that of April 19th, 1852, ‘ to enable the trustees of colleges, academies, universities and other institutions for the purpose of promoting education to become bodies corporate,’ and the act to amend the same passed March 11, 1853 (S. & C. stats. 266, 269). These acts divide the institutions provided for into two classes: one class consisting of those institutions of which the property is owned by individuals in the shape of stock subscribed or taken, and the other embracing such as hold their property in trust, or derive it from donation, gift, devise or gratuitous subscription. The plaintiff belongs to the latter class, which is clearly authorized by necessary implication arising from various provisions of the statute to procure funds for carrying out the purposes of their several organizations by voluntary subscriptions. And that the statute refers not merely to subscriptions which have been in fact paid, appears, as we think, from the second section of the amendatory act, above referred to, which provides, among other things, for the appraisement at their true value in money of such subscriptions as may be exhibited to the appraisers. This subscription then was authorized by law.”

The decision in that case is placed on two propositions: first, that the college was by statute authorized to receive voluntary subscriptions, and second, that the subscription was accepted and liabilities incurred on the faith of it. As we have seen, neither of these grounds is available to the university in the present case.

It follows, from what has been said, that the judgments below are erroneous. We place the reversal on these legal propositions; that the creation of a fund with which to pay the previously incurred indebtedness of the institution was not a consideration in law for the promise; and that the acceptance of the writing containing the direction to apply the fund, does not, in a legal sense, give rise to a case of mutual promises.

Judgment reversed.


source: Caselaw Access Project

author: Nash, J.

license: Public Domain

text:
    Cameron v. Cappeller, Auditor et al.
    1. A statement for the taxation of personal property, moneys, credits, investments in bonds, stocks, joint stock companies or otherwise, which omits a judgment, in reference to which proceedings in error are pending in the supreme court, may be corrected by the county auditor under the power conferred by sections 2781 and 2782 Revised Statutes.
    2. In putting such judgment on the tax duplicate,the auditor should place it there at its true value at the time the owner should have listed it, and not at its nominal value.
    Error to the District Court of Hamilton County.

      Alfred Yaple, for plaintiff.

      Goss & Cohen, for defendant.
   Nash, J.

The most important question involved in this case is this. A judgment has been obtained in a court-of common pleas and it is involved by proceedings in error in the supreme court. Does section 2734 Rev. Stats., require the listing of such a judgment for taxation ? This section requires the listing of all credits due or owing from any person" or persons, body corporate or politic. By section 2730 Rev., Stats., the word “ credits ” is held “ to mean the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or service due or to become due to the person liable to pay taxes thereon * * * (estimating every such claim or demand at its true value in money), over and above the sum of legal Iona fide debts owing to such person.”

Surely when a legal claim is reduced to judgment although there is alleged error in so doing, it does not so lose its taxable character as to excuse its owner from returning it for taxation at its true value. When he does not do so the county auditor acting under the authority conferred by sections 2781 and 2782, Rev. Stats, may place it upon the tax duplicate. In the case of Bank v. Hines, 3 Ohio St., 1, it was held that choses in action must be listed for taxation. Every reason requiring this tó be done applies with equal force to such a judgment as the one we are now considering.

But such judgment should be listed at its true value at the time of listing. In the opinion in the case just referred to, 3 Ohio St., 25, it was correctly said: “In estimating the taxable valuation of credits, they are not to be taken at their nominal amount, but like the valuation of other property, every circumstance affecting, in any manner, their value should be taken into consideration. If the debtor be wholly insolvent, the credit is of no value, and therefore has no basis for taxation. If the debtor be in doubtful or failing circumstances, if the claim be disputed, contested, or involved in litigation, or if any defense by way of payment, or otherwise, either in whole or in part against the claim be known to exist, it should be considered and all proper allowances made in estimating its taxable valuation.”

The district court in the case now before us proceeded to render the judgment, which the court of common pleas, in its opinion, should have given and in doing this valued the interest of Cameron in the judgment at its nominal value in 1876, 1877 and 1878, only deducting therefrom the amount of his attorney’s fees. In these years there was a proceeding in error, pending and undecided, in the supreme court, to reverse the judgment. By it important, novel, and difficult questions of law were raised and it was uncertain whether the judgment would be affirmed. This situation certainly lessened the value of the judgment during its pendency. In fact the petition averred that these things wholly destroyed the value of Cameron’s interest in the judgment, and when the district court acted the averments of the petition had not been denied.

Therefore we think that there was error in the judgment of that court for which a judgment of reversal is entered herein.

Judgment reversed.


author: Martin, J.

text:
      Keys v. Follett.
    An attorney who receives a promissory note from the agent of the owner for collection, may, in good faith, deliver the proceeds of the collection to such agent, or pursuant to his direction. Accordingly: One Richey being agent merely of the owner, delivered a collectible note to Cox & Follett, attorneys, for collection, and subsequently gave to Keys & Co. an order, which reads :

      “ Cincinnati, August 13,1872.
    “John F. Follett, Esq.
    “ Please deliver to Samuel B. Keys & Co., or order, on demand, the proceeds of a note drawn by Gabriel Simon for $15,000, sécured by mortgage on property on northwest corner of Third and Race Streets, now in your hands for collection. R. W. Richey.”
    The attorneys accepted this order by writing the firm name across its face, under the word “accepted” ; and Keys <fe Co., relying on the acceptance, advanced moneys to Richey for his individual use. Held: .

    1. The acceptance is a contract, binding the acceptors to deliver as directed ; but is not a warranty that Richey was the owner of the note, or had the right to appropriate its proceeds to his own use, and does not estop the acceptors to show the truth in that regard.
    2. The rightful resumption by the owner of the possession and control of the note and discharge of the attorneys, before any proceeds were received by them, constitute a defense to an action against the attorneys on the contract for non-delivery.
    Error to the District Court of Hamilton County.
    In June, 1871, one Richey, as agent of Mrs. Davenport (who with her family was then sojourning in Europe), left for collection with Cox, Burnett & Follett, attorneys, of Cincinnati, a note made by one Simon, secured by his mortgage of certain real estate in that city. In July, 1871, judgment by confession was taken for $10,907.18, with order of sale, but it was agreed to suspend execution for three years, if, in the meantime, the interest was annually paid. In August, 1872, Lea, then a partner with plaintiff, in the name of Keys & Co., bankers in Cincinnati, presented to Follett the following order:
    “ Cincinnati, August 13, 1872.
    “ John F. Follett, Esq. ■
    “Please deliver to Samuel B. Keys & Co., or order, on demand, the proceeds of the note drawn by Gabriel Simon for $15,000, secured by mortgage on property on northwest corner of Third and Race Streets, now in your hands for collection.
    “R. W. Richey.”
    Follett wrote the name of Cox & Follett under the word “ accepted,” which Lea had previously written across the face of the order, and handed it back to Lea. Follett at the time was at his desk occupied with other business, and nothing was said by either. Cox & Follett were then partners and successors to Cox, Burnett & Follett. At the time of this transaction Follett knew that Richey, as Mrs. Davenport’s agent, had trouble in procuring sufficient funds for her needs in Europe, and had been borrowing moneys for that purpose from Keys & Co. Richey was then engaged in losing stock speculations with Keys & Co., and in pursuance of their requirement for indemnity, he gave them this order, and represented that he owned the note, and subsequently received large advances from Keys & Co. on the faith of it. In November, 1872, Richey failed, being at the time indebted to Keys & Co. in about the sum of $50,000. Follett knew nothing of the representations made by Richey as to the ownership of the note, nor of Richey’s stock speculations, nor of any transactions with them on private account. The mortgage was duly recorded. After Richey’s failure Mrs. Davenport took the collection of the claim from Cox & Follett, who never received any of its proceeds.
    The original action was .brought by Keys, as trustee of Keys & Co., on the acceptance as an implied warranty that Richey was the owner of the note. A trial in the common pleas on issues joined resulted in a verdict and judgment for defendants. The plaintiff requested intructions to the jury to the effect that the acceptance of itself was a warranty that Richey owned the note, or had the right to pledge it on his individual account. This the court refused to give, but instructed the jury, amongst other things, as follows:
    “But said acceptance alone, of itself, did not necessarily admit, or warrant, that Richey owned said note and mortgage-, or had the right to pledge, or otherwise appropriate, the proceeds for his individual transactions; and if he did not own it, nor had any interest therein, and had no authority, in fact, from the owner to use it for his individual purposes, the defendants in this action are not estopped, by reason of said acceptance alone, from showing such facts by way of defense. And if, in fact, said note and mortgage belonged to Mrs. Davenport, and said Richey had no interest therein, or control over it, excepting as her agent, and she had never authorized him to use it, or its proceeds, for his individual purposes, and if, before it was collected, and before the commencement of this suit, Mrs. Davenport asserted her ownership, and, as such owner, took the collection thereof from the defendants, and required the payment to be made to her, and no proceeds ever came into their hands, this is a defense to the action.”
    A proceeding in the district court for error in the charge given and in the refusal to charge, resulted in an affirmance.
    To reverse this judgment of affirmance the present proceeding is here.

      Matthews & Shoemaker, and Ramsey & Matthews, attorneys for plaintiff in error.

      Cox & Cochran, and Follett, Hyman & Kelley, attorneys for defendants in error.
   Martin, J.

The sole question here relates to the interpretation of the contract of acceptance. Does it contain an implied warranty that Richey was the owner of the note ? This question would properly have arisen on demurrer to either of the pleadings, and is here presented on the exceptions to the charges given and refused. It is conceded that when Richey, as agent of Mrs. Davenport, left the note with Follett for collection, he thereby became entitled to direct a delivery of the proceeds of the collection, or to receive them himself, subject to the superior righkof Mrs. Davenport to be exercised at any time before the proceeds are delivered by the attorney.

The order given by Richey is valid. It simply directs the attorney to deliver the proceeds of the collection to Keys & Co. No particular purpose is expressed. It carried with it implied notice that it was revocable by the true owner; and it did not appear to be irrevocable by Richey whether owner or not, as its terms do not import á sale or transfer, and more appropriately consist with the idea of a bailment to the bank for the true owner. Follett accepted the order in the name of the firm, subscribing its signature to the word “ accepted.” This was an act of mere convenience to Keys & Co., because their rights under the order were fixed by notice, and the written acceptance was merely superior evidence.

The right of Mrs. Davenport to rescind the direction and resume control of the claim is not disputed. Being an element of the contract to collect, it became a condition annexed by law to the order and its acceptance. By lawfully resuming custody of the claim Mrs. Davenport put it out of the power of the attorneys to collect it. No proceeds had been received and none could be. The bailment was ended, and the contingency on which they were to deliver did not and could not happen. In other words, the contract with Keys & Co., by its terms, was ended by the intervention of Mrs. Davenport, and there was no default by i'ollett. But the ground of action is not a default in delivery, but a breach of an alleged implied warranty of Richey’s ownership. This claim rests on the assumption that the order contains such a representation, and that the acceptance impliedly recognizes and repeats it. If an order to deliver be given by a client and owner it may be rescindable or not, as its terms or the facts may allow. If it is given, however, by the party who left it for collection and not by the owner, it is rescindable by the owner irrespective of its terms. But in either case an acceptance of the order is not an implied warranty of the collectibility of the claim, either as respects the solvency of the debtor or the title' of the client, because there are no words to that effect, and the act of acceptance is foreign to such purpose, being merely an act in conformity to his original employment. Hence, the most that can be claimed is that the acceptance recognized the right of the drawer to give the direction. And Richey’s right to do so is not disputed. Hence, there was no error m the charge, and the judgment must be affirmed.

It may be proper to add that the elaborate argument on estoppel in pais, and the authorities cited are not in point. Keys supposed Richey was absolute owner; Follett knowing that Richey had the right to direct generally, and seeing that he had done so, supposed it was done for the owner. The supposition in either case was erroneous. Keys, at his peril, relied on the extraneous fact of Richey’s misrepresentation; whilst Follett, unadvised of Richey’s falsehood, safely relied on the natural import of the act of acceptance.

The claim amounts to this, that Follett is answerable for Richey’s extrinsic fraud, of which he had no knowledge. We are not aware of any principle of law or morals that sanctions that position.

If Follett had known of the misrepresentation, his acceptance without any explanation would have been a fraud, and prima fade actionable, which would probably operate as an estoppel in a suit on the supposed warranty, unless countervailed by contributory negligence.

It is enough, however, to say that such questions are not only not presented in .the record, but are, as we have seen, excluded by its admissions.

Judgment affirmed.


text:
    Boltz v. Stolz.
    A widow’s unassigned right of dower, in lands of her husband, occupied and enjoyed by herself and their children, may be subjected by proceedings in equity to the payment of a judgment against her upon a debt created by her after her husband’s death.
    Error to the District Court of Cuyahoga County.

      Robinson & White, for plaintiff in error.
    This demurrer raises the single Question: Whether in Ohio the right of a widow to dower in the estate of her husband, before assignment thereof, can be subjected, to the payment of the debts of the doweress contracted during her widow-hood, in the absence of fraud, by the appointment of a receiver, and a compulsory assignment of the dower through him, on a simple creditor’s bill ?
    In Ohio dower is dependent upon the statute. It is purely the subject also of legislative control. 6 Ohio St., 550; Id., 547; 10 Id., 596.
    Whether contingent and inchoate in the wife, or consummate in the widow before assignment, it is always a personal right, subject to the choice and volition of the doweress. It is not property or estate until her choice and will have been exercised in its assignment and segregation from the estate of the husband. Before its assignment this right to have dower cannot be alienated. It cannot be divested by bargain and sale. In this respect it is above the will of the doweress, and yet it inheres as a personal right or privilege.
    The creation of the right is dependent upon two conditions at common law. 1st. Coverture. 2d. Seizin of the husband in reality at his death.
    So there are but two ways in which the right can be defeated at common law'. 1st. By voluntary release of the doweress. 2d. By death.
    It cannot be divested — nor is it in any sense subject — to the will of the husband.
    All these qualities of the dower right have been established and recognized by a long line of adjudications. Jackson v. Aspell, 20 Johnson, 413; 1 Washburn on Real Property, 284, and cases there cited; 17 Johnson Rep. 168 ; 1 Barb., 500; 5 Id., 538; 32 Ala., 404.
    The principle that before assignment dower rights are not the subject of alienation so that a purchaser can acquire an interest in law, is well settled in Ohio, and has never been questioned. Douglass v. McCoy, 5 Ohio Rep., 527; Miller, Admr., v. Woodman et al., 14 Id., 521.
    So the law, as the “ perfection of reason ” in the growth of the centuries, has come to put its safeguards with jealous care around this right of dower for the protection and support of the helpless; on the one hand making it entirely the creature of her choice and election, and on the other placing it beyond the reach of selfish rapacity by making it inalienable.
    The philosophy of these peculiar attributes of dower is easy to understand. It is designed to afford to a class peculiarly weak, helpless and unfortunate, support and maintenance. It is a provision to secure these when the defenses and aids of coverture are taken away. But once make this inalienable right property, subject to enforced divesture by first coercing the doweress to assign it, and then sacrifice it by forced sale, and you strike a blow at the very foundation on which this beneficent right is based.
    The exercise of such power is extreme, as well as anomalous.
    Unassigned dower cannot be divested nor transferred by the contract of the doweress with a stranger to the estate nor by the operation of the contract relation at all. The release operates only by way of estoppel. But your honors are asked to compel her to do what is impossible for her to do of her own volition.
    2d. The unassigned dower of a widow is not subject to levy and sale on execution at law, to satisfy her debts.
    This proposition is so well sustained by all the authorities that it will not be .disputed. Mason v. Allen, 5 Me., 215; 2 Scribner on Dower, 37; Jackson v. Aspell, 20 Johnson, 412; Gooch Ex'r v. Atkins, 14 Mass., 381; Nason v. Allen, 5 Me., 415.
    The point we seek here and now to make, is that the ground on which the courts proceed in concluding that the interest cannot be seized in attachment or levied on in execution, is that it is of such an uncertain character, resting wholly within the will and choice of the doweress as a personal right, as not to be in any sense property, subject to the force and scope of the judgment.
    There is no property in esse for assignment. The property, or estate, of dower, is a creation of the will of the doweress. Nor is such naked remote possibility of a right or property, not potentially in being the subject matter of any contract, assignment, or transfer which equity will effectuate. Needles v. Needles et al., 7 Ohio St., 432; 11 Windall, 110.
    The estate of dower is dependent upon its assignment. This act of assignment, is an essential element in the progress of creating property out of the right of property. Johnson v. Morse, 2 N. H., 48; Rapalje and Lawrence L. Dict., p. 88.
    This matter of its assignment recognizes the potency and effect of the will and choice of the doweress. The right of her election is recognized in all the states, as affecting the question of assignment, its exercise in most being limited in point of time. In the state of Ohio, her choice and election is fully recognized in the law regulating the assignment of dower. Its assignment is wholly regulated by statute.
    Dower in Ohio must be assigned in one of four ways. 1st. In writing by the heir or owner of the next estate of inheritance on the acceptance of the same by the widow. 2d. On the petition of the widow in the proper court making the proper parties. 3d. By the legal representative of the widow, dying before assignment but after suit brought by her which if pending in the same manner that the widow could have procured the same; and 4th. Incidentally in an action of partition.
    In the latter case her dower cannot be involuntarily assigned. She is a necessary party to the suit; and may waive or release her right to the owner of the next estate, if she so elects. See sections 5707, 5758, 5711, 5756 and 6770 Revised Statutes of Ohio.
    This element of choice, judgment and election in the doweress, is everywhere recognized by the Statutes of Ohio. As for illustration: 1st. On sale of the premises in which she is dowable, in a proper case, she may elect to be endowed out of the proceeds. Rev. Stats., § 5719.
    2d. Where, during coverture, a jointure is provided by the husband to be in lieu of dower, she may on the death of the husband, waive the jointure and elect to take dower. Rev. Stats., § 4189.
    3d. Where provision is made in the will of the husband to be in lieu of dower, she may elect within one year from the taking effect of the will to take her legal rights, including dower in the estate, or take according to will. Rev. Stats., § 5963 and amendments.
    These are some of the familiar provisions of the Statute on the subject illustrating the power of the doweress over the right and estate of dower.
    The court is here asked by decree in equity to coerce the doweress in the face of this remarkable state of the law in Ohio, guarding her choice and volition.
    4th. In the absence of a proper statutory provision equity will not assist a creditor to reach those assets of his debtor, which, under no circumstances, could have been subject to execution at law. Dundas v. Duteus, 1 Ves. Jr., 196; Nantes v. Carrock, 9 Id., 188; Francis v. Wigzell, 1 Maddock, 264; Rider v. Kidder, 10 Ves., 368; Groghan v. Cooke, 2 Ball and B., 230; Donovan v. Finn, Hopk. Ch., 59; Shaw v. Aveline, 5 Ind., 380; Stewart v. English, 6 Ind., 176; see also Freeman on Executions, § 425, and see 3 Ohio, 514; 11 Ohio, 156.
    It should be observed that the interests of the judgment debtor, sought to be subjected in equity, were that class of rights denominated generally choses in action; and it is the well settled doctrine deducible from these and other cases, that, generally, choses in action cannot be so subjected. The reason underlying this doctrine is that no lien is acquired on such interests by the judgment. Equity jurisdiction in all these cases is simply ancillary to the judgment and proceeding at law. It does not reach further than the judgment. By discovery it simply brings to light what already existed. The property, the assets, were in existence before. Equity cannot create property. •
    5th. There is no statutory provision in the State of Ohio authorizing proceedings in equity to subject a widow’s unassigned dower. The provision of the statute of Ohio providing for the discovery and subjection of equitable assets by the judgment creditor by action, is found in sec. 5464 of the Revised Statutes of Ohio. We have no other statutory provision conferring upon courts power to entertain and enforce proceedings in'aid of execution against “equitable assets” of the judgment debtor. It should be remembered that this statute was intended to authorize proceedings against “ equitable assets.” This statute fairly defines the classes of assets or property'which maybe so reached. There are but two general expressions used, under which somewhat diverse classes of interests could be gathered: 1. Equitable interests in real estate. 2. Any chose in action. These are the only two heads under which it would be possible to classify such a right or interest as unassigned dower.
    We have already seen that unassigned dower is not an “interest in real estate,” either legal or equitable: see cases already cited. Hence we may reasonably conclude that the dower right does not, and cannot, fall under that class of “ equitable interests in real estate ” mentioned in the statute. But to place the question beyond all cavil, we have but to refer to a familiar principle of interpretation. When special things are mentioned in a statute by way of example or illustration, as subject matter of its operation, and then an expression occurs covering a class of things, the class, however general, must be taken to be of the same nature as the special example.
    And this brings us to the consideration of the question whether this right falls within the scope of this statute as the “ chose in action ” mentioned as one of a class of equitable assets.
    It is true that in want of a better phrase to define the unassigned dower right of a widow, the courts and law writers have come to call it indiscriminately — “ a chose in action;” a “right in action;” a “thing in action;” etc., but it will be found on careful examination of all these cases, that the distinctive idea sought to be expressed is, that it is a right in action as distinguished from a thing in possession.

    They do not, in any case, undertake to claim that it possesses all the elements of a chose in action, nor that it possesses any of the essential characteristics of the class of property classed in law as choses in action.
    What is a “ chose in action ? ”
    Bouvier defines it to be, “A right to receive or recover a debt, or money, or damages for breach of contract, or for a tort connected with contract, but which cannot be enforced without action.” 1 Bouvier’s L. Diet., 265; supported by Comyn’s Dig. — Chitty Eq. Dig.
    If this be a correct legal definition of a “ chose in action,” it requires but a simple reading of it to show how foreign the personal right 'vested in the widow to have dower assigned her is to á “chose in action.” The element which inheres as an essential quality in a chose in action is this: that it is a right always growing out of a contract obligation. Blackstone, 2nd Boob, p. 397. In the light of this essential element of a chose in action, examine the peculiar language of this statute conferring jurisdiction in aid of execution, and we cannot doubt the meaning of the legislature. This is the language: “ Or in any money contract, claim, or chose in action, due or to become due to him.”
    This word “due” always, and everywhere when literally used, implies the obligation of a contract expressed or implied. It is such a chose in action as is due or to become due. It would be straining this statute far beyond the evident intention of the legislature to make this include the right to have dower assigned.

      Alex. Hadden, for defendant in error.
    The right or interest of a widow to or in the lands of which her husband died seized, under the statutes regulating dower, has been variously regarded by the courts of the different states. Perhaps the two states, the holdings of whose courts on this subject are most apart, are Connecticut and New York. In a line of decisions, running over almost a century in the former state, it has been held, that immediately upon the widow’s right of dower becoming consummate, i. e., immediately upon the death of the husband while seized of lands, there is created a freehold estate, and she becomes a tenant in common with the heirs, and that assignment of dower is nothing more than ascertaining what part of the realty she shall enjoy and apartirig it to her — in fact, nothing more than partition between tenants in common. Stedman v. Fortune, 5 Conn., 462.
    And in keeping with this doctrine, the court has gone so far as to hold that dower is such an estate without any assignment that the widow may convey it, and her assignee will hold as tenant in common with the heirs or other persons entitled to hold the estate. Wooster v. Hunt’s Lyman Iron Co., 88 Conn., 256.
    In New York, on the other hand, the courts, construing a statute similar in its general features to that of Connecticut, have held that the right of dower rests in action only, and cannot be aliened so as to enable the grantee to bring an action in his own name. Jackson v. Vanderheyden, 17 Johns., 167; Jackson v. Aspell, 20 Johns., 411. And that one who claims to be owner of the right of dower by purchase from the widow has no estate, and if the surrogate order dower to be admeasured on his application, the proceedings are unauthorized by the statute and void (see Jackson v. Aspell, supra); that before assignment the doweress has no estate in the land, .and she cannot convey or assign her interest. Ritchie v. Putnam, 13 Wend., 524; Scott v. Howard, 3 Barb., 319. That before assignment of dower, the right rests in action only, and the widow, though she may release, cannot convey or assign it. Green v. Putnam, 1 Barb., 500.
    It will be conceded that the courts of no two States have taken more clearly defined opposite views regarding this right. We believe we are safe in saying that Connecticut has gone to the extreme limit in one direction, and New York has done the same in the other.
    No court has ever undertaken to hold the right of dower before assignment to be a more immaterial thing than have those of New York.
    Now, if we can find holdings in these two States, as to the liability of the right or estate of dower before assignment to be subjected to the payment of the widow’s debts, they will throw considerable light on the question raised in this case and stated above.
    In Connecticut, see Greathead’s Appeal, 42 Conn., 874, decided in 1875.
    In New York, see Tompkins v. Fonda, 4 Paige, 448; Stewart v. McMartin, 5 Barb., 438; Payne v. Becker, 87 N. Y., 153.
    So that whether considered as a freehold estate in the land or a mere personal right, incident to the status of widow-hood under given circumstances, the courts of these two states can find no reason or argument founded upon or growing out of the nature of dower in support of the proposition that it cannot be subjected to the payment of the widow’s debts, and whatever its nature, they unite in holding that there is no rule of public policy which exempts such property from the payment of its owner’s debts.
    What is this property' right? Jacobs, in his dictionary', calls it a chose in action. See McArthur v. Franklin, 15 Ohio St., 486; 16 Id., 200; Unger v. Leiter, 32 Id., 210.
    All this while the right is inchoate. After becoming consummate and before assignment, it has been variously denominated by the authorities as “ a vested interest,” “ a right or interest in land,” “a legal interest in land,” “a substantial right, possessing in contemplation of law the attributes of property and to be estimated and valued as such; ” as “ a thing or chose in action; ” as “ a right paramount to all subsequent titles derived through the husband.” Jacob’s Law Dictionary; 16 Ohio St., 200; 27 Iowa, 148, 150; 12 Ind., 37, 38.; 4. Paige, 448; 1 Smede’s & M. Ch, 490.
    While it may be fairly conceded to be the general holding, and while it has been decided and well settled as law in most of the states, that a conveyance or transfer by the •widow of her unassigned dower interest to a stranger to the title, conveys to him no legal interest in the land, and, while it has been equally well settled in some of the states that such an unassigned interest is not such an estate as can be seized and sold on execution at law, yet these things do not necessarily imply that a fair sale of such an interest is inoperative or void in equity; nor does it necessarily follow that such dower interest, before the same is assigned to the widow, is one that cannot be reached by proper proceedings in a court of equity for the purpose of subjecting the same. Both of these things were certainly true of any other equitable right or chose in action, before the adoption of the code, and yet the transfer of such rights could always have been protected, or such rights subjected, by proceedings in equity.
    It is manifest, for instance, that transfers of unassigned dower interests, when the same are inoperative or not sufficient to carry any legal interest in the land, have frequently been protected and enforced in equity. 33 N. H., 524-529; 12 Ind., 37; 2 Story’s Rep., 630; 7 Wendell’s Eq., 152; 27 Iowa, 198; Davidson v. Whittlesey, 1 McArthur, 163.
    From these authorities it would seem to be settled beyond successful controversy, that the right to have dower is not a purely personal right, but that it is a vested property interest, transferable in equity to a stranger to the title, before the same is set off by metes and bounds. It is difficult to perceive why a person entitled to this kind" of property which may be exceedingly valuable shall be permitted to keep it away from her just creditors, or why an interest of this kind, like any other valuable right, cannot be subjected in equity.
    If this kind of an interest is an “ equitable interest,” “ a chose in action,” or “ a claim,” the statutes of Ohio distinctly and specifically authorize such a proceeding. Section 5464 Revised Statutes of Ohio.
   Nash, J.

The plaintiff in error is a widow, having an unassigned right of dower in the real estate of which her husband died possessed. She withheld obtaining an assignment of such dower for the purpose of keeping such property from the reach of her creditors. The defendant in error recovered a judgment against her upon a debt contracted after her husbánd’s death. Execution was issued and returned unsatisfied. . She has no property which can be subjected to the payment of this judgment at law. These facts were made to appear to the court of common pleas in proceedings in an action brought by Clemens Stotz against Louise C. Boltz, and thereupon that court made the following order:

“ It is therefore ordered that Felix Nicola be and he is hereby appointed Receiver herein, with full power and authority to take possession of any right or interest which said defendant may have in said reai estate in petition herein described. And said defendant is hereby ordered to execute and deliver to said Receiver, upon his making a proper demand thereof, a conveyance of her dower estate in said premises, and upon her failure to thus convey as aforesaid, within ten days after the making of said demand, then this decree shall be and operate as such conveyance, and shall confer on said Receiver all rights and powers, and convey to him all interest and estate which said conveyance by said defendant would confer and convey. It is further ordered that said Receiver proceed to sue for the assignment of said defendant’s dower estate in said premises as soon as the same shall have passed or been conveyed to him as aforesaid, and if the same be assigned to him in gross in money, then he shall pay therefrom the costs herein, and the plaintiff’s said claim with interest as aforesaid, and the balance then remaining to said defendant. And in case said dower shall be assigned by metes and bounds,' then said Receiver shall take possession of said premises so assigned, and rent or sell the same as in his opinion shall be for the best interest of all parties concerned therein, and apply the proceeds or rents and profits, as the case may be, to the said claim and costs until the same be fully paid, and pay the balance to said defendant, and in case he should rent tlie same, after said claim and costs are paid, he shall re-convey to said defendant said premises. And of his proceedings hereof he shall make due report to the court. And it is further ordered that said Felix Nicola, before entering upon his' said duties as Receiver aforesaid, give bond to the parties to this action in the sum of #800, with sureties to be approved bjr the clerk of this court.”

This judgment was affirmed by the district court.

The courts below were right. Section 5464 Rev. Stats., provides in substance that when a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate as mortgagor, mortgagee or otherwise, or any interest he has in any claim or chose in action due or to become due, shall be subject to the payment of the judgment by action.

In McArthur v. Franklin, 15 Ohio St., 485, and again in McArthur v. Franklin, 16 Id., 193, dower inchoate is spoken of as a right or interest in the land. When this interest has become absolute by the death of the husband, although unassigued,'we think that it maybe reached by judgment creditors by a proceeding under section 5464. In support of this conclusion we cite Tompkins v. Fonda, 4 Paige, 448; Davison v. Whittlesey, 1 McArthur, 163; Payne v. Becker, 87 N. Y., 153. If the assignment of dower is once made it may be reached by the widow’s creditors by execution. There is no reason for relieving it from this burden when unassigned, that does not apply with equal force to assigned dower. To hold otherwise would be a temptation to the possessor of this interest in lands, and it is sometimes a very valuable interest, to continue in joint possession with the heirs, and to neglect to ask for a formal assignment for the purpose of depriving her creditors of the benefit of her right of dower for the satisfaction of their claims. In this ease it appears that Mrs. Boltz did not have her dower assigned for the purpose of keeping this property beyond the reach of her creditors.

Judgment affirmed.


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    Bank v. Flour Company.
    1. In determining whether an act of a trading corporation is ultra vires, regard is to be had to its effect and the real object in view.
    2. Accordingly, although such corporation may not with its own means pay or secure a private debt of its president to a third person; yet, where he is its creditor, it may rightly pay or secure such private debt, when the real object and effect is to pay or secure the indebtedness of the company to him in the same amount.
    3. The doctrine of estoppel applies to a trading corporation the same as to a natural person in all transactions within its corporate authority.
    Error to the District Court of Meigs County.
    The original action in the common pleas of Meigs County was in the nature of a creditor’s bill brought by the Pomeroy Flour Company against the Marine Dock Company and Joseph H. Rogers. Both companies were incorporated under the act of April 8, 1858, (1 S. & C., 301) providing for the incorporation and control of manufacturing companies and the act supplementary thereto (S. & S., Í84). The object of the suit was to subject certain real estate in that county to the payment of a judgment which the plaintiff had recovered against the Dock Company. The real estate had on the 19th day of June, 1876 been conveyed by the Dock Company to Rogers, by deed absolute in form, though in fact a mortgage; and the petition averred that it had been redeemed or nearly so. In November, 1878, the Merchants National Bank of Cincinnati, plaintiff in error, by consent entered its appearance and filed a cross petition in which it set forth the circumstances of the execution of the deed to Rogers averring that it was made to him in trust and as a security to the bank to indemnify it on account of the then present and future obligations and indorsements of Hudson, the president of the Dock Company; and that, holding a large amount of such paper and also obligations of the company, it had required security and declined renewals and further discounts unless it were given. That on July 5th 1876, the board of directors of the company formally approved the execution of the deed after reciting that the company was indebted to Hudson in the sum of $40,000. That relying on the security, the bank made renewals from time to time, but his aggregate indebtedness was gradually reduced to $11,850.80 when Hudson and the company failed. It claimed first lien and asked for sale of the premises.
    Rogers filed an answer, the same in substance as the bank’s cross petition.
    Afterwards judgment Avas entered finding that the deed was in trust for the bank and ordering a sale of the property and reserving all questions of priorities of lien.
    Upon the judgment a sale was made and confirmed to the bank for the sum of $8,100.
    Afteiuvards subsequent judgment lien holders Avere made parties. One of them, Grant, by answer denied the allegations of the cross petition and averred that the deed to Rogers was made Avithout legal authority and is void, and that the company had no power to make or authorize the deed for the purposes set out in the cross petition.
    At the May Term 1880, judgment Avas given setting aside the deed as illegal and void, and ordering distribution. All the distributees Avere subsequent in time to the bank. In the district court, on appeal, the bank filed an additional pleading in the nature of an amendment to the cross petition and of a reply to the ansAvers of Grant and Giles.
    It averred therein that at the date of the deed to Rogers it held sundry collaterals from Hudson and that relying on the security of the deed it surrendered them in good faith and thereafter had no other security. It also alleged that all the paper aauis taken on the representation that it was the regular paper of the company and in faith of its liability thereon. The bank took an appeal.
    The district court gave similar judgment against the bank.
    A motion for a neAV trial Avas overruled and a bill of exceptions embodying the testimony was taken.
    The object of this proceeding is to reverse the judgment of the district court.

      It appears that Hudson was president and financial manager of the dock company and of several other Ohio corporations then in active operation; all of whom habitually issued to him their notes in blank for negotiation. In the spring of 1876 Hudson was indebted to the bank in a large sum, as indorser of such paper including notes of the Dock Company for about §8,000; and was required to pay or furnish security.
    He deposited some collaterals; but further security was demanded for continued accommodation. He stated that the Dock Company owed him forty thousand dollars, and that he would give them a lien on its real estate. He tendered the Rogers deed and the bank required further assurance of his authority. ' Thereupon the following resolutions were passed at a special meeting of the directors and duly certified and delivered to the bank.
    “ Office Marine Dock Co.,
    “Middleport, 0., July 5th, 1876.
    “Special meeting Board of Directors. Present — R. R. Hudson, S. A. M. Moore and Samuel Morton^
    “ On motion of S. A. M. Moore resolved that:
    “Whereas, This Company did, on the 22d day of January, 1876, authorize R. R. Hudson, as its President, to sell any of the property of the Company, and apply the proceeds toward extinguishing the debts of the Company ; and “Whereas, The said Company is indebted to the said R. R. Hudson to the amount of about forty thousand dollars, be the same more or less; therefore, be it
    “.Resolved, That the Company now authorize the said R. R. Hudson, its President, to sell, convey and hypothecate all of its property, both real and personal, to secure indebtedness, by indorsements or otherwise, of-R. R. Hudson individually ;. and we hereby ratify and confirm the acts of R. R. Hudson, as President, to secure indebtedness of R. R. Hudson individually as above named, on the paper of this Company in its own name, and also the paper of the Pomeroy Salt Transportation Company, The Ohio River Transport Company and the Riverside Salt Company, when the Riverside Salt Company paper is used for the benefit of this Company; also
    “ Resolved, That we hereby recognize the direct conveyance to Joseph H. Rogers by R. R. Hudson, President, dated the 19th day of June, 1876, as our act and deed, for the purposes above named.
    “ On motion, adjourned. Jas. M. Evans,
    Secretary.”
    “ I certify the above to be a true copy of the minutes of the record of the meeting of the Board of 'Directors of the Marine Dock Company.
    Jas. M. Evans,
    [m. d. c. seal.] Secretary and Treasurer.”
    The bank accepted the indemnity and continued its discounts and advances until his failure in 1878, when his indebtedness to the bank amounted to about $12,000. In the meantime the indebtedness existing at the date of the deed was discharged and the prior collaterals surrendered.
    At the directors’ meeting of July 5, 1876, three only of the five directors were present. The two absent members were frequently away from home for long periods, and had no recollection of having been notified of the meeting. They were not personally notified. One of them Daniel DeWolf was present at a special meeting in March, 1878, and on his motion a resolution was passed providing a second lien under the trust deed to Rogers for Glenn & Son, creditors of the company.

      John W. Herron and Russell & Russell, for plaintiff in error.
    1. The conveyance to Rogers was duly executed and with the authority of the corporation. Railroad Co. v. Harter, 26 Ohio St., 426; Sheehan v. Davis, 17 Id., 581; Lovett v. Steam Saw Mill Association, 6 Paige Chy., 54; Angell & Ames on Corp., § 224; Edgerly v. Emerson, 8 Foster, 555, 559; Sargent v. Webster, 13 Met., 497; Savings Bank v. Davis, 8 Conn., 192; Lane v. Brainard, 30 Id., 577.

      The doctrine of estpppel applies. Whitney Arms Co. v. Barlow, 63 N. Y., —; 4 Blatch., 1; Bradley v. Bullard, 55 Ill., 413; 83 Penn., 166; Morawetz on Corp., §§ 30, 31, 62; Beardsley v. Foot, 14 Ohio St., 414; Miller v. Sullivan, 26 Id., 639; Rosenthal v. Mayburgh, 33 Id., 155; Bigelow on Estoppel, 419.

      Plants & Lasley, for defendant in error.
    1. The deed in question created no lien because its execution was ultra vires. 1 Ohio St., 41; 5 Id., 61; Green’s Brice’s Ultra Vires, pp. 29 and note, 62 and note, 77, 79, 81, 84, 221, 476, 489, 658, 715, 716, 717, 718 and 720; Franklin Bank v. Commercial Bank, American Law Record, vol 9, p. 447; 1 Daniel on Notes and Bills, 308 ; McCollough v. Moss, 5 Denio, 567; Bissell v. Michigan Southern R. R. Co., 22 N. Y., 258, and White's Bank v. Toledo Insurance Co., 12 Ohio State, 605.
    The law is well settled, and especially in Ohio, that a corporation must keep well within the limits of the statute and certificate of incorporation in all its transactions; for if it steps beyond these bounds, its acts and contracts are null and void.
    2. Corporations have no power to enter into contracts of suretyship. Green’s Brice’s Ultra Vires, 252; 13 N. Y., 315; 10 Bevan, 1; 34 Vt., 144; 11 Ind., 104; 26 Barb., 568.
    3. Persons dealing with a corporation must take notice of its power. Green’s Brice’s Ultra Vires, 272, 472, 717; Pearce v. R. R. Co., 21 Howard U. S., 443. No ratification of what is not authorized. Green’s Brice’s Ultra Vires, 550 ; 17 N. Y., 449; 38 Cal., 300 ; 35 Mich., 22.
    3. Hudson was a trustee and could not pledge trust property for his debts. 18 Ohio St., 182; 25 N. Y., 294; 2 Black. U. S., 715; Green’s Brice’s Ultra Vires, 477, 483, 484 and note 4. No estoppel. Bates on Pl., 851; 8 Neb., 140; 13 Id., 395; 6 Oregon, 231; 37 Iowa, 229; 13 Ohio, 430; 37 Ohio St., 344.
   Martin, J.

.We are to inquire as to the validity of the deed, to Rogers. It was given in trust to operate as a mortgage for the benefit of the bank, and if valid is the first lien. The proceeds of the judicial sale are insufficient to pay either the bank, or the subsequent judgment lien holders; and the controversy, therefore, is one of distribution between them.

The deed is in due form, and, although the grantor is a corporation, carries with it a presumption of authority for its execution. It is prima facie valid. Cincinnati, Hamilton and Dayton Railroad Co. v. Harter, 26 Ohio St., 426. The onus of overthrowing it rests on those who assail it. It was given to secure Hudson’s individual indebtedness, present and future, to the bank; and was accepted by the bank on the representation made in the resolutions of the company’s directors that the company was indebted to him in the sum of forty thousand dollars. The only conflict in the testimony relates to the truthfulness of this representation ; and this issue is in some respects important.

If the representation was false, and especially if the arrangement was a device to incur a mere suretyship for Hudson, the company was under a personal disability, and the act is open to inquiry to such parties as have the right to avail themselves of the disability; and as to them the bank should be able to show its good faith and vigilance in accepting and relying on the security. The claim made on behalf of the judgment lien holders is, that the company had no power to give the security, because it was simply an engagement of suretyship, and because it was given by the president without authority from the board of directors.

The authorities cited in support of this position apply the doctrine of ultra vires to an act: 1st. Where it is not within the scope of corporate power under any circumstances or for any purpose. 2d., Where the corporation is not authorized to do it without the consent of interested third persons; and 3d. Where, though authorized, it is not done in the form prescribed in the charter.

Of course the act under consideration is not of the second or third class. The claim then is that the giving of this seeurity was not within the powers of the company under any circumstances. The Dock Company was a manufacturing corporation, and its objects as stated in the certificate of organization were, “for the purpose of building and working dry docks, saw and planing mills, and other machinery; of building, repairing and running steamboats, barges and flat boats, of building houses or factories, and the manufacture and sale of all kinds of furnishing goods.”

Whilst it is true that the incurring of suretyships is not one of its objects, yet the comprehensive character Of its business contemplated the incurring of large obligations, and the employment of the usual facilities and means adopted by business men in like pursuits. And whilst it is also true as a general proposition that a corporation has no power to contract a mere suretyship for a third person, unless authorized so to do by its charter, yet in determining whether a given act is tainted with such infirmity, or is otherwise ultra vires, regard is to be had to its effect, and the real object in view. Now in this case, assuming that the company was indebted to Hudson as represented, the scheme adopted simply provided a security out of its means for that indebtedness of its own, which, at the same time, and because it was such security, served to secure a debt of its president to a third person. In securing Hudson’s indebtedness to the bank, the company secured its own indebtedness to him. The security given to the bank, although the prime object with it, was regarded as incidental by the company, as shown by the controlling prominence given in the resolutions to the fact of its indebtedness to Hudson. If the company had furnished this indemnity directly to Hudson, he could have placed it as collateral and have attained the same end. We think the objection is one of form merely, plausible but not sound. In the next place it is claimed that the deed was delivered without authority, and is for that reason void. This claim assumes that the assent of the board of directors is essential; and that if it is given at a special meeting all the directors should be present or have had notice. Three only of the five directors were present and concurred in the ratifying resolutions. The two who were absent were not personally notified ; but for what reason we are not informed. One of them, Daniel DeWolf, was present at a subsequent meeting of a quorum when the Rogers deed was ratified by a resolution providing that it should extend as a second lien for another creditor. In these transactions there were no suspicious circumstances. Hudson and the other directors supposed that the arrangement was fairly and effectually made. The responsible and active managers under the board are of necessity clothed with authority to perform usual and appropriate acts within the scope of the corporate business. It is the duty of the company to pay its debts; and it holds its means in trust for that purpose; and it may give its creditor a security for his debt. No reason is apparent to us why such acts may not be sanctioned by a quorum of the directory. But an inadvertent stipulation of record requires us to hold that the representation that Hudson was then a creditor of the company was a mistake. The testimony on the subject is conflicting. At any rate it was not the bank’s mistake. On the faith of the representation it accepted the deed and made large advances. It acted with unusual care and in good faijbh. The representation was material, and its truth or falsity was known to the company, or else it was grossly careless. Thus there is present every element of estoppel. And the doctrine applies to a trading corporation in all transactions within its corporate authority the same as to a natural person. We think this position is well supported by the authorities cited in argument. And it especially commends itself to our favor in view of the great numbers of such corporations — mere ordinary co-partnerships in fact —which, under recent legislation, have assumed a corporate form, apparently for no other reason than to obtain the statutory immunity of stockholders.

It is objected, however, that the estoppel is not available because it was not specially pleaded. The cross-petition of the bank, containing a recital of the facts, is met by a general denial and a plea of ultra vires. The alleged falsity of the representation is first brought out in the testimony ; and there had been no opportunity for a special reply of estoppel. The evidence on the points out of which the estoppel arises was competent on the issues joined; and the trial court having accordingly admitted it, was bound to accept the estoppel as a conclusion of law concerning it. Bigelow on Estoppel, 584.

These views require a reversal of the judgments below.

Judgment reversed.


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    Frank v. Ingalls.
    1. When the possession of a railroad passenger ticket, which entitles the holder to one first class passage between points named therein, has been fraudulently obtained from the company, a person purchasing such ticket from the holder thereof, although for value and without notice of equities, acquires no title thereto.
    2. An agent authorized to sell such tickets, and stamp and deliver the same upon receiving pay therefor, cannot bind his company by stamping and delivering such tickets, without the knowledge or consent of its proper officers, to a third person, to be sold by him, and to be paid for when sold.
    Error to the District Court of Hamilton Countjn
    At the time of the transaction out of which this controversy arose M. E. Ingalls was the duly appointed and acting receiver of the Indianapolis, Cincinnati and Lafayette Railroad Company. Stephen Eagan was his local ticket •agent in Cincinnati. He had sole charge and control of dbe sale of passenger tickets issued for Ingalls’ railroad, and sold at the local office in Cincinnati; but his authority was limited to sales for cash. Frank, the plaintiff in error, was a railroad ticket broker in Cincinnati, but did not know of the limitation put upon Eagan’s authority.
    Eagan and Frank had known and been acquainted with •one Fordyce for nearly one year and a half prior to this time. Fordyce had frequently purchased railroad tickets from Eagan to sell upon the street and to ticket brokers, and had received such tickets from him properly marked with the stamp of his office, but with the understanding that he would return the tickets or bring the money for them. This Fordyce did, except in the case now under consideration. During the period of their acquaintance Frank purchased from Fordyce tickets issued by Eagan to the value of some two thousand dollars, which had‘always been honored by the officers of the railroad. Mr. Ingalls never knew of, nor assented to, these transactions between Eagan and Fordyce.
    On the 14th of February, 1879, Fordyce went to the ticket office and stated to Eagan that he had a customer for four railroad passenger tickets to Pueblo, Colorado, at the same time, showing a postal card purporting to be signed by one Bishop, and in which he ordered from Fordyce four tickets to Pueblo. Four tickets, of the value of $45.50 each were delivered by Eagan to Fordyce, properly stamped and ready for use, upon condition that they should be returned in the evening if not sold, or the money therefor ($182) if sold. The tickets contained these words: “ This ticket entitles the holder to one first class passage to Pueblo, Colorado.”
    On the same day Fordyce sold these tickets to Frank for the sum of $160. Frank purchased the tickets in good faith, and without knowledge of the circumstances under which they were held by Fordyce. Fordyce disappeared without paying the money to Eagan or to any one representing the receiver. The next day Ingalls, the receiver, commenced an action against Frank, and replevied the tickets from him. The court of common pleas found the ownership of the tickets in Frank, and rendered judgment accordingly. The district court reversed this judgment.

      Alfred Yaple, for plaintiff in error:

      First. — A railroad passenger ticket which specifies that it entitles the holder to one first class passage from one place to another, is negotiable, and passes by mere delivery from the holder to a purchaser. 2 Daniels Neg. Inst., § 1469; Byles on Bills, 557; Benj. on Sales (1 Am. ed.), 13, 14.

      Second. — If any person, in good faith, and for a valuable consideration, purchases and receives such a ticket from any holder thereof, he takes it freed of all equities of the railroad company, or defects of title, or want of authority to dispo'se of it in the seller.

      Third. — By the railroad company’s authorities entrusting such ticket to the possession or custody of any one, they give him authority to sell and dispose of it to a bona fide purchaser for value, whatever special agreement may exist between them and such custodian, if the purchaser from him has no knowledge of such agreement, or want of authority to sell.

      Fourth. — The railroad company will be estopped to deny, in such cases, the authority of such custodian so to sell such ticket.

      Fifth. — The railroad company will be bound, in such cases, by the negligence or fraud upon it by such custodian. Where one of two innocent persons must suffer, the loss shall be borne by and fall upon him who put it in the power' of a third person to do the wrong.
    As to the other propositions see McNeil v. Bank, 46 N. Y., 329; Moore v. Metropolitan National Bank, 55 N. Y., 41; Van Duzer v. New York Exchange Bank, 21 N. Y., 531; Winter v. Belmont Mining Co., 53 Cal., 428, and cases there cited; Duchess Ins. Co. v. Hatchfield, 73 N. Y., 226, and cases cited in brief for appellants ; 2 Redfield on Railways, 604, etc., §§ 6 and 239.

      Hoadly, Johnson & Colston, for defendant in error :
    Is a railroad passenger ticket, of the kind in question, a negotiable instrument ? Certainly not. It is nothing more than a receipt or voucher for the money which has been paid.
    It is not a contract, but is simply a token to the officers having charge of the train, to recognize the bearer as entitled to be carried a certain distance.
    The contract , of carriage is made by the payment of the fare — the ticket is a mere voucher showing that the purchaser has paid his fare.
    By selling his ticket, the holder assigns his right to be carried — the purchaser buys, what? Not a negotiable instrument — not a contract of carriage, but simply the right or privilege of carriage. Quimby v. Vanderbilt, 17 N. Y., 306; Rawson v. R. Co., 48 N. Y., 217; 11 Ohio St., 462; 63 Me., 302; Henderson v. Stevenson, 2 Scotch and Div. App., 477, 479; Nevins v. The Bay State Steamboat Co., 4 Bosw., 225; Brown v. Eastern R. R. Co., 11 Cush., 97; Malone v. Boston &c. R. R. Co., 12 Gray, 388; Wilson v. Chesapeake and Ohio R. R. Co., 21 Gratt., 654; Johnson v. The Concord R. R. Co., 46 N. H., 219; Gordon v. The Manchester R. R. Co., 52 N. H., 599; Elmore v. Sands, 54 N. Y., 515; Lawson’s Contracts of Carriers, § 106; 22 Ohio St., 395; 36 Ohio St., 658; 37 Ohio St., 338; 2 Daniels Neg. Inst., § 1750 ; 7 Wall, 415 ; 37 Ohio St., 356 ; 35 Pa. St., 239.
   Nash, J.

The plaintiff in error seeks to have the judgment of the district court reversed on the theory that a railroad passenger ticket, like those described in the statement of facts, is negotiable and passes by delivery from the holder to a purchaser, and that any person purchasing and receiving such ticket from any holder thereof takes it freed of all equities of the railroad company, or defects of title, or want of authority in the seller to dispose of it.

The character of a railroad passenger ticket has been considered by the supreme court of this state. In the case of C. C. & C. R. R. Co. v. Bartram, 11 Ohio St., 457, it is spoken of as “ a convenient symbol to represent the fact that the bearer has paid to the company the agreed price for his conveyance upon the road to the place therein designated.” Again, in the case of Railroad Company v. Campbell, 36 Ohio St., 647, it is said that a railroad ticket “ is simply a voucher that the person in whose possession it is, has paid his fare.” Lawson, in his work on “ Contracts of Carriers,” § 106, p. 116, saj^s “ that a railroad or steamboat ticket is nothing more than a mere voucher that the party to whom it is given, and in whose possession it is, has paid his fare and is entitled to be carried a certain distance,” and supports his definition by the citation of numerous decisions.

It thus seems to be well established that a railroad ticket is a receipt or voucher. It has more the character of personal property than that of a negotiable instrument. When the possession of such a ticket has been obtained by fraud the company has parted with the possession of it, but not with the title to it, and the person purchasing from the holder, although for value and without notice of equities, takes no better title than the party had who fraudulently obtained possession of it. We do not perceive that the holder of such a ticket is in any better position than the bona jMe purchaser of goods from one in possession, for a valuable consideration, and without notice of any defect in his vendor’s title. Such a purchaser cannot be protected against the title of the true owner in a case where the vendor had fraudulently obtained his possession and without the knowledge or consent of the owner, although previous to such possession he had, by false and fraudulent representations, induced the owner to enter into a contract for the salé of the goods. Dean v. Yates, 22 Ohio St., 388; Hamet v. Letcher, 37 Ohio St., 356.

From the facts found by the court below it appears that the possession of the tickets in controversy were obtained from Ingalls, receiver of the railroad company, by the fraud of Fordyee, and we conclude that Frank, the purchaser from Fordyee, obtained no title thereto.

Eagan, the agent of the receiver, authorized to sell such tickets, and stamp and deliver the same upon receiving pay therefor, did not bind his principal when he stamped and delivered the tickets, without his knowledge or consent, to a third person, to be sold by him, and to be paid for when sold.

•Judgment affirmed.


author: By the Court.

text:
    Hart v. Devereux, Receiver.
    Error to the District Court of Trumbull County.

      George M. Little, for plaintiff in error.

      L. A. Russell, for defendant in error.
   By the Court.

Where a city council, by ordinance, has prohibited the running of railroad trains through its limits at a rate of speed greater than that named in the ordinance, a traveler upon a street, in such city, crossing the track of a railroad has a right to presume that the company will conform to such regulation. If he acts in accordance with such presumption in the absence of knowledge of the fact that the railroad company is exceeding such limit in running a train, it will not of itself be an act of negligence. Meek v. Penn Co., 38 Ohio St., 632.

The trial judge did not err in substantially directing the jury to take into consideration all the objects and things at the crossing of the railroad and street, and to consider what was' done by the deceased under all these circumstances, and in saying that if they found that his action was that of a person of ordinary prudence, that they must also find that he was not guilty of contributory negligence.

■Judgment of the district court reversed and that of the common pleas affirmed.


author: Dickman, J.

text:
    Lear v. Halstead.
    1. Under amended Section 8 of the act authorizing county commissioners to lay out and establish free turnpike roads (73 Ohio Laws, 98), the provision that, “ extra taxes when levied shall be on all real and personal property within one mile on each side of said free turnpike road,” does • not include land within one mile as measured from the end of the road, but only as measured from either side of the road and between the termini of the same.
    2. Where an unimproved county road runs upon either side of a proposed free turnpike road, within less than two miles thereof, although a township or county road may extend from such unimproved county road to the proposed turnpike road, extra taxes for the construction of such turnpike road, can only be levied upon such lands and personal property as lie within one half the distance of such county road.
    3. Where upon a division of territory under amended Section 8, the extra taxes levied within the bounds of a free turnpike road are insufficient to make a good and substantial road, the county commissioners will not have jurisdiction to order the road commissioners to extend the bounds of such free turnpike road to one mile on either side of the same, unless a majority of the resident land owners owning land within the bounds of the territory as proposed to be extended, shall have signed a petition therefor.
    4. Where no jurisdiction is thus acquired by the county commissioners to • order an extension of the bounds of the turnpike road, a resident owner of land that- lies within the bounds of the territory as proposed to be extended and that has been taxed for the purpose of constructing the road, will not be estopped from objecting that the tax was illegally assessed, if such owner did not participate in causing the improvement to be made, and had no knowledge until after the completion of the improvement that there had been no sufficient petition for extending the bounds of the road, and it does not appear that any special benefit accrued to the owner’s property from such improvement.
    Error to the District Court of Brown County.

      Moore & Harding, for plaintiffs in error.

      A. N. Williams, for defendants in error.
   Dickman, J.

The original action was commenced in the court of common pleas of Brown county, by the defendants in error, James Halstead and others, against George W. Drake, treasurer, aud Enoch E. Roney, auditor of Brown county, and Joshua Lear and others, road commissioners, to enjoin the collection of taxes levied upon real estate and personal property of the defendants in error, for the purpose of constructing a free turnpike road. In the year 1877, a free turnpike road named the “Boyle’s Mill and Blanchester” free turnpike, was laid out and established in Brown county, under the provisions of the “ act to authorize the board of county commissioners to lay out and establish free turnpike roads,” as amended March 28th, 1876 (73 Ohio Laws, 96). The Blanchester turnpike terminates at the county line with which it forms an obtuse angle, and by drawing a line from this terminus of the pike at right angles with its last course, certain lands of the defendants in error lying westerly of the pike, will be left outside and beyond the right line and terminus. Upon the west side of the turnpike runs an improved count}1- road— designated on the county road records as the “T. D. Harris” road — more than one mile and less than two miles distant from the turnpike. A township road — located and laid out prior to the institution of proceedings for the construction of the turnpike — begins in the pike, about one fourth of a mile south-east from its terminus at the county line, and ends in the Harris or county road. Instead of dividing the territory between the turnpike and the county road, and levying extra taxes for the construction of the pike only upon lands and personal property within the one half distance, extra taxes were charged on lands and personal property of certain of the defendants in error situate outside and beyond the terminus of the turnpike, and on lands and personal property of certain other of the defendants in error, lying beyond the division line of territory between the turnpike and county road, and within one mile from the pike. There was no order to the road commissioners to extend the bounds of the turnpike to one mile on either side of the same, and no report from them that the extra taxes levied upon property within the bounds of the turnpike, were insufficient to make a good and substantial road,- and there was no petition for such extension of bounds signed, as required by statute, by a majority of resident land-owners owning land within the bounds of the territory as sought to be extended. The plaintiffs below prayed in their petition, that the county treasurer might be enjoined from collecting all taxes levied for the road improvement upon their personal property, upon their lands situate beyond the terminus of the ‘ turnpike, and upon other lands beyond half the distance from the turnpike to the Harris road. The petition was dismissed by the court of common pleas. On appeal by the plaintiffs, the district court granted a perpetual injunction against the county treasurer and auditor, and decreed that the personal property of certain of the plaintiffs and all lands of the plaintiffs situated beyond the terminus of the turnpike, and beyond half the distance from thé turnpike to the county road, should not be taxed for the improvement. The road commissioners, county treasurer and auditor, as plaintiffs in error, ask for a reversal of the judgment of the district court.

The questions which the record suggests for our consideration, involve the construction and application of Section 8 of the act for laying out and establishing free turnpike roads, as amended March 28,1876. That Section, so far as material to the case at bar, reads as follows: “Section 8 : That for the purpose of constructing free turnpike roads authorized by this act extra taxes, when levied as hereinbefore provided, shall be on all real and personal property within one mile on each side of said free turnpike road except, that when any road improvement, or free turnpike built and completed under any of the turnpike laws of this state, begins'or terminates in the proposed free turnpike, or when any of such roads or any toll, unimproved state or county road, being unconnected with the same, shall lie, be or run upon either side of said proposed road within less than two miles, then the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads; provided, that no division of territory, or division of taxation of lands or personal property shall be made with any other road improvement, free turnpike road, state or county road, except as herein provided for, nor with any township road. But if said road commissioners should report to said county comissioners that the extra taxes levied within the bounds of said road are insufficient to make a good and substantial road, then the county commissioners, if in their opinion the public interest requires it, may order said road commissioners to extend the bounds of said free turnpike road to one mile on either side of the same, when a majority of the resident land-owners owning land within the bounds of the territory proposed to be extended shall have signed said petition therefor.”

The provision in this section which requires that extra taxes shall be levied on real and personal propert}'- within one mile on each side of the turnpike road, does not, we think, embrace lands within one mile as measured from the end of the road, but only as measured from either side of the road and between the termini of the same. The lands therefore, situated beyond the terminus of the turnpike, and lying outside of the line drawn from the terminus at right angles with the last course of the road, were not subject to taxation. The legislative intent seems plain. If it had been designed to extend the tax limits, so as to include territory and personal property beyond the end of the turnpike, the legislature, it is presumed, would have made it manifest by appropriate language. It did not fail to do so in the act commonly known as the two mile road improvement law, which provided in amended Section 4 (71 Ohio Laws, 94), that no lands should be assessed which did not lie within two miles of the proposed improvement, and that such distance of two miles might “be computed in any direction from either side, end or terminus of said road.” The reasonableness of such a construction of the statute as will confine the assessment to real and personal property on each side of the turnpike under consideration, and between the termini of the same, becomes more apparent in view of the fact, that a county road, unconnected with the turnpike, runs, upon the westerly side thereof, within less than two miles. As the taxes in such case can only be levied upon such lands and personal property as lie within one half the distance of the county road, the evident design of the statute is to subject only such property as lies between the two roads. This would exempt from assessment lands and personal property which lie beyond the terminus of the turnpike and cannot therefore lie between it and the county road. As we construe the statute, the ends do not mean sides of the turnpike; and it would be a strained construction to hold, that the authority to levy extra taxes on all real and personal property within a given. distance oh each side of the turnpike, carries with it the power to tax such property within like distance beyond the end of the road.

It is urged, however, in behalf of the plaintiffs in error, that if the property beyond the terminus of the turnpike is not liable to taxation for its construction, still, the bounds of the turnpike extend to one mile on either side of the same and all real and personal property within that distance is taxable. It is contended, that as a township road runs from the Harris road to the turnpike, the last two roads — less than two miles apart — are not unconnected within the meaning of the statute, and that therefore there can be no division of interjacent territorj*', whereby extra taxes shall be leviable only upon .such property as lies within one half the distance of the Harris road. Neither a township nor a county road running between the Harris road and the turnpike would, in our view, constitute such a connection as is contemplated by the statute. Such a road might be said to connect with the turnpike or the Harris road, while the latter roads, as between themselves, would be unconnected in the sense of the statute. Such a road might be a medium of communication between the turnpike and the Harris road, but the connection referred to in Section 8, is rather such an one as would be formed by one road beginning or terminating in another. The language of the section “ when any road improvement or free turnpike road built and completed under any of the turnpike laws of this state, begins or terminates in the proposed free turnpike, or when any of such roads or any toll, unimproved state or county road being unconnected with the same shall lie, be or run, &c.,” would indicate a connection by direct and immediate junction and contact. The Harris road and the turnpike being unconnected within the meaning of the statute, only such real and personal property of the defendants in error should have been assessed for the purpose of constructing the turnpike as lay within one half the distance between the two roads; and property situated beyond the dividing line and nearer to the Harris road than to the proposed turnpike, should have been exempt from taxation. '

If the extra taxes levied within the bounds of the turnpike proved insufficient to make a good and substantial road, a method was prescribed by the statute for extending the bounds to one mile on either side of the turnpike, notwithstanding an unimproved county road might run upon one side of the turnpike within less than two miles, and unconnected with the same. But, the record does not disclose that there was any extension of the bounds of the turnpike in conformity with the requirements of the statute. There was no petition, as we have seen, for an extension, signed by a majority of the, resident land-owners owning lands within the bounds of the territory as proposed to be extended — lands situate beyond half the distance from the turnpike to the Harris road, and within one mile of the turnpike; and without such petition so signed, the county commissioners acquired no jurisdiction to order’ the road commissioners to extend the bounds of the turnpike for the purpose of taxation. In Burgett v. Norris, 25 Ohio St., 308, it was held, that under the act of April 5, 1866, authorizing county commissioners to construct roads, on petition of a majority of resident land-owners along and adjacent to the line of such roads, it was essential in order to give the commissioners jurisdiction, that it should have been made to appear, that the petition presented to them was “ signed by a majority of the land-owners resident within said county, whose lands will be assessed for the expense of the same.” And in Hayes v. Jones, 27 Ohio St., 218, it was also held, under a subsequent statute for the same purpose, that the jurisdiction of the board of county commissioners to make the final order for the road improvement, is special and conditioned upon the consent, at the time the final order is to be made, of a majority of the resident land-owners who are to be charged with the costs of the improvement. On the subject of assessments for local improvements, Judge Cooley, in his treatise on Taxation, p. 464, says, “ Everyone of the substantial requirements of the statute must be regarded as a condition precedent to the validity of any assessment. A common requirement is, that the improvement should be asked for or assented to by a majority or some other proportion of those who would be taxed. The want of a compliance with this requirement is fatal in any stage of the proceedings.”

But it is claimed, that though the county commissioners may not have acquired jurisdiction to order the bounds of the turnpike to be extended, and though lands beyond the dividing line of the territory between the turnpike and the Harris road may have been illegally assessed, the defendants in error are estopped from objecting to the illegality of the assessment, by reason of their silence and failure until after the turnpike was substantially completed, to object to the expenditure of money and labor by the contractors, in its construction. There is no satisfactory evidence that the defendants in error participated in causing the road improvement to be made. We do not find that knowledge was brought home tó them, before the completion of the improvement, that the bounds of the turnpike- had not been extended according to law; that a majority of the resident land-owners owning land within the bounds of the road, as sought to be extended, had not signed a petition for such extension. The record does not disclose adequate proof, that the real and personal property of the defendants in error beyond the dividing line of the intermediate territory, received special benefit from the road improvement so as to work the estoppel claimed. Applying the principles recognized in Tone v. Columbus, 39 Ohio St., 281, and other well considered cases, the defendants in error were not estopped, from calling in question the validity of the assessment upon their property for the purpose of the road improvement. Viewed in the light of the aforegoing considerations, the judgment of the district court must therefore be affirmed.

Judgment accordingly.