author: Spear, J.

text:
    James v. Allen County.

      Master and servant — Remedy of servant for wrongful discharge.

    Where an employe, engaged under a contract for a specified time, the wages being payable in installments, is wrongfully discharged before the expiration of the period of hire, and all wages actually earned at the time of the discharge have been paid, an action will not lie to recover the future installments, as though actually earned, but the remedy is by ■ action for damages arising from the breach of the contract, and one recovery upon such claim is a bar to a future action.
    Error to the District Court of Allen county.

      Isaiah Pillars and Prophet § Eastman, for plaintiff in error.
    A servant who has been wrongfully discharged from service before the expiration of the term for which he was hired, has an election of remedies. He may regard the contract as broken and sue immediately for its breach. He may treat it as rescinded, and sue on a quantum meruit for the services he has performed under it. Or he may treat it as still subsisting, and sue at the expiration of the term for the sum agreed to be paid for the whole term. Decamp v. Hewitt, 43 Am. Dec. 204.
    The first recovery was not a bar. Huntington v. Ogden

      burgh & L. C. R. Co., 7 Am. L. Reg. (N. S.) 143; Strauss v. Meertief, 64 Ala. 299; s. c. 38 Am. Rep. 8; Davis v. Ayers, 9 Ala. 292; Ramey v. Holcombe, 21 Ala. 567; Fowler v. Armour, 24 Ala. 194; Hartley v. Harman, 11 Ad. and E. 798; Heim v. Wolf, 1 E. D. Smith, 70; Hamlin v. Race, 78 Ill. 422; 8 South. L. Rev. 432.
    If the wages are payable in installments, the servant may sue for and recover each installment as it becomes due. Davis v. Preston, 6 Ala. 83; Armfield v. Nash, 31 Miss. 361; Fowler v. Armour, supra; Thompson v. Wood, 1 Hilton, 96.
    The law will not presume the servant could have obtained like employment at the same wages in the same vicinity. Such defense must be plead, if not in bar, at least in mitigation. See Congregation v. Peres, 2 Cold. (Tenn.) 620; Chamberlin v. Morgan, 68 Pa. St. 168; King v. Steiren, 44 Pa. St. 99; Sherman v. Champlain Trans. Co., 31 Vt. 162; Castigan v. M. & H, R. Co., 2 Denio, 616; Howard v. Daly, 61 N. Y. 371; 6 M. G. & S. 174; Collins v. Woodruff, 4 Eng. (Ark.) 464; Gillis v. Space, 63 Barb. 177.

      Mead & Townsend, for defendant in error.
    It was held, by Lord Ellenborough, in Gandell v. Pontigny, 4 Camp. 375, that a servant wrongfully dismissed before the expiration of the period for which he was hired, could, upon tender of his services, treat the contract as subsisting, and sue the master for his wages as and for a constructive service.
    But that case, after repeated discussion by the English courts, was overruled in Goodman v. Pocock, 15 Ad. & Ell. 576, and the doctrine of constructive service distinctly repudiated. To the same effect see Fewings v. Tisdal, 1 Exch. 295.
    Some of the earlier decisions of the nisi prius courts favored the doctrine as announced by Lord Ellenborough: Thompson v. Wood, 1 Hilt. 96; Huntington v. Ogdensburg & L. C. R. Co., 33 How. Pr. 416; Heim v. Wolf, 1 E. D. Smith, 73, but these cases were overruled in Howard v. Daly, 61 N. Y. 362.

      There could be no recovery by the plaintiff as and for a constructive service. After his dismissal he could not recover for services, for they were not rendered. IT.is remedy rested in an action for a breach of the contract. Chamberlain v. Morgan, 68 Pa. St. 169; Moody v. Leverich, 4 Daly, 401; Ricks v. Yates, 5 Ind. 115; Willoughby v. Thomas, 24 Gratt. (Va.) 522; Chamberlin v. McCalister, 6 Dana (Ky.) 352; Miller v. Goddard, 34 Me. 102; Sedgw. Dam. 418 n.; Wood’s Mayne Dam. 317-328; Abb. Trial Ev. 384; Wood’s Master and Servt. 246-7; Clossman v. Lacoste, 28 Eng. L. & Eq. 140.
    A contract for services for a given time, although the wages may be paid by the week or month, is a single and entire contract. Perry v. Dickerson, 85, N. Y. 345; Colburn v. Woodworth, 31 Barb. 381; Secor v. Sturgis, 16 N. Y. 548.
    The first suit and recovery had by the plaintiff must be held to have been for general damages for breach of the contract, whether so intended by him or not. 1 Southerland Dam. 175-184; Toles v. Hazen, 57 How. Pr. 516; Farrington v. Payne, 15 John. 432; Smith v. Jones, 15 John. 229; Miller v. Covert, 1 Wend. 487.
    The plaintiff is limited to one recovery. Ewing v. McNairy, 20 Ohio St. 322; Cov. & Cin. B. Co. v. Sargent, 27 Ohio St. 233; Swenson v. Cresop, 28 Ohio St. 668; Champion v. Griffith, 13 Ohio, 228; Hackworth v. Zollars, 30 Iowa, 433; Gray v. Dougherty, 25 Cal. 266; 9 Wis. 23; 3 Comst. 511; 5 Saudf. 135.
   Spear, J.

This action is brought to recover for wages claimed to be due from the defendant to the plaintiff upon a contract made December 13, 1881, whereby, in consideration that plaintiff would faithfully and diligently serve the defendant as superintendent of the stone and brick work in the construction of a court house, then in process of erection at Lima, until the stone and brick work should be completed, etc., the defendant agreed to employ plaintiff as such superintendent during the period aforesaid, and to pay him for his services at the end of each and every month the sum of one hundred dollars. The petition avers that the plaintiff entered upon the employment and dis■charged the duties thereof until April 6, 1882, when, although the stone and brick work was not completed and the plaintiff' was and has since been ready and willing to perform all the conditions of said agreement upon his part, the defendant refused to allow him so to do, and to pay him therefor, and discharged him therefrom without any reasonable cause, and has since hitherto refused to employ plaintiff for the remainder of said term. On the 18th day of August, 1882, plaintiff duly requested defendant to pay him his wages due him for his services upon and by reason of said contract for the period of two months from the 13th day of June, 1882, to the 13th day of August, 1882, which defendant refused to do, whereby plaintiff has lost the wages he otherwise would have obtained from said employment from said June 13, 1882, to August 13, 1882, to his damage m the sum of $200, for which, with interest from August 13, 1882, he asks judgment.

The answer of the defendant sets up in bar an alleged former recovery for the same cause of action, between the same parties, upon the same contract, at the October term, 1882, of the court of common pleas of Allen county, at which term a judgment upon the merits was rendered in favor of the plaintiff for $205.30. The petition of the plaintiff in the former case is set out aud is identical with the petition in the present case except as to time, the pleader averring in the first petition loss of wages from April 13, 1882, to June 13, 1882, and asking to recover for that.

To this answer a demurrer was interposed, which was overruled by the court of common pleas, and judgment entered for defendant, which judgment was affirmed by the district court. To reverse this judgment of affirmance the present action is prosecuted in this court.

The question presented is, whether, under such a contract as is here set out, the employee can, after being discharged, nothing being due him for wages actually earned, maintain an action for each installment as though earned, upon an allegation of readiness to perform the work; or, whether his action is simply one for damages for the employer’s breach of contract, and he is limited to one action and one recovery for such damages.

If he can have his option as to these remedies then the canse of action in the first petition was not the same as in the present one, and the former judgment would not be a bar; if he cannot, but is limited to the last named remedy, to wit: to damages for breach of the contract, then, if both are based upon the same breach, it would follow that they are identical, and that one recovery would necessarily exhaust the plaintiff’s remedy, and so the former recovery would be a bar. There is but one dismissal, but one breach, pleaded. The dismissal was one act. And, as to recovery of damages for that, plaintiff" could not split up his cause of action, recovering a part of his damages in one suit, and the remainder afterward. He must include all that belonged to that cause of action in his first petition, so that one suit and one recovery should settle the rights of the parties. It would be at his own risk and peril if he negligently or ignorantly omitted a part of what might properly have been embraced in the cause of action in his first suit. His mistake, if he made one, might be matter of regret, but that could not change the rule of law.

The contention in support of plaintiffs’ claim is, that neither action was brought to recover damages for breach of contract on the part of the board, but that the plaintiff, having his option, upon being discharged, either to regard the contract as broken by the conduct of the employer and sue immediately for damages for its breach, or treat the contract as subsisting for all purposes and maintain an action for each installment as it became due, chose the latter, and this he might do, because, having been discharged without fault on his part, his rights were not lessened, nor was he bound to treat the contract as at an end. Having this choice of remedies, it is insisted, one suit to recover upon installments past due at the commencement of the action, and judgment thereon would not bar a future recovery upon installments coming due thereafter. A contrary view, it is argued, would entail great injustice. Under it the employe would be compelled, unless he were ‘content with such meager damages as he could prove immediately after his discharge, or, at most, with less than his real loss, to wait until all were due before recovering any thing, and inasmuch as the object in contracting for pay by the month probably was that he might thus support himself and family, they would be loft to suffer while waiting for the last installment to become due, and he •would thus be driven, in any event, to unreasonable hardships and to a sacrifice of his rights, because of the wrongful act of the employer, a condition of affairs which the law would not j ustify.

That the doctrine contended for appeals strongly to the feelings, and is not without plausibility, would seem to be apparent from the statement, and that it has met with the favor of courts in several instances is apparent from an examination of the cases cited by counsel. Still, the question remains, does it rest upon solid foundation ? The first case in order of time is that of Gandell v. Pontigny, 4 Campbell, 375, decided at nisi prius at Sittings after Hilary term of the King’s Bench, in 1816, by Lord Ellenborough. Plaintiff was clerk for defendant at two hundred pounds per year payable quarterly. August 11th defendant discharged plaintiff and paid him for half quarter between 1st July and 15th August. Plaintiff denied the power to discharge and offered next day to continue work, which defendant declined. Lord Ellenborough’s decision is as follows: “If the plaintiff was discharged without sufficient cause, I think this action is maintainable. Having served a part of the quarter and being willing to serve the residue, in contemplation of law he may be considered to have served the whole. The defendant was therefore indebted to him for work and labor in the sum sought to be recovered. ”

John Win. Smith, in his note to Cutter v. Powell, 2 Smith’s L. C. part 1, says that a servant wrongfully dismissed has his election of three remedies. First, a special action for breach of contract, and this remedy he may pursue at once; second, he may wait until the termination of the period for which he was employed, and then, perhaps, sue for his whole wages in indebitatus assumpsit, relying on the doctrine of constructive service, and he cites Gandell v. Pontigny.

Two cases are cited from the supreme court of New York, where a similar doctrine is held. In Huntington v. O. & L. C. Railroad Company, reported in 7 Am. Law Register (N. S.), 143, decided by James, J., the holding is that “ where a person employed for a certain time, at a fixed salary, payable monthly, is wrongfully discharged before the end of the term, he may sue for each month’s salary as it becomes due; and the first judgment will not be a bar to another action for salary subsequently coming due.” In the case of Thompson v. Wood, 1 Hilton, 96, Ingraham, J., says: “ Where an agreement of this kind is broken, the person employed has his election, either to sue for his wages as they become due from time to time, orto bring one action for damages for the breach of the contract.” This holding that the employe may sue for wages as they become due from time to time was not necessary to a decision of the case, and was, apparently, based upon the holding of Lord Ellenborough, before quoted. Strauss v. Meertief, 64 Ala. 299, is to the same effect. Brickell, J., in deciding the case, says: “It is not matter of doubt, that when a contract is made for personal services, for a particular term, at stipulated wages, if the party employed is, without cause, discharged during the term . . . he is not compelled to accept the breach of his employer as a termination of the contract; he may elect to treat it as continuing, and, keeping himself in readiness to perform the contract as his part, may recover the wages due on the expiration of the term. And, if the wages are payable by installments, ho may sue for and recover each installment as it becomes due.” Other cases by the same court hold alike doctrine, and it seems to have been accepted by the courts of Mississippi, Missouri, Illinois, and Wisconsin.

The decisions in these cases appear to rest upon the doctrine of “ constructive service.” In several of them it is adopted in words; in others the principle is assumed without designating it by that title. If that is not their basis it is difficult to see that they have any. The theory of that doctrine seems to be that inasmuch as the employe holds himself ready to do the work, therefore he has done the work ; that readiness is, for all purposes, equivalent to performance. Eor the purpose of allowing a recovery in some amount his readiness to do and tender of performance may have the effect of performance to the extent of putting the employer in the wrong, but how can it be said, in truth, that he has done the work? that he has performed? The claim is based upon a fiction, an untruth. There is no acceptance of the services ; there is no delivery of them; the defendant has not had.the benefit of them; he has not had value received, and upon what principle is it that in law he is liable for the agreed price when he has not received the commodity which he agreed to buy, and the other party has not parted with the commodity which he agreed to sell ? The doctrine of “ constructive service,” as applied to a case of this character, is one beset with difficulties. It requires a plaintiff'to assume that to exist which in fact has no existence. He is demanding wages when he has rendered no service. The doctrine contradicts -the very term itself. How can he truthfully aver, as in indebitatus assumpsit, that the defendant is indebted to him for loork and labor donef Averring it, how could he prove it? But, aside from the matter of pleading and proof, in order to recover upon the strength of this doctrine, the employe must not only be willing to perform on his part, but must hold himself in readiness to perform. This implies that he will remain idle. Public policy, not to say public morals, forbids the encouragement of an idle class. Being subject to the universal rule that a person injured by the act of another is bound to use ordinary diligence to make the damage as light as may be, the discharged employe must use ordinary care to obtain employment. He may not be required to seek elsewhere, or to engage in a different industry. But he is bound to use ordinary effort to obtain similar employment in the same vicinity; at' least if such employment is offered he is bound to take advantage of it. It would be a direct encouragement to idleness to hold that he who may have, but refuses, similar service, is entitled to full compensation the same as though he performed full labor. This rule stands squarely across the path of “constructive service.” For if the workman is bound to accept employment of another employer how can he continue ready to resume work under his former employer? A learned writer, whose valued páper in support of the doctrine of “constructive service” is cited by counsel, uses this language: “ The doctrine of constructive service, however, does not permit an employe who has been wrongfully discharged to remain willfully idle during the period for which he had been engaged.” A most singular conception of the ground work of the doctrine, it seems to us. Being actually at work for B., how can he be constructively at work for A.? Being required to hold, himself in readiness to resume his work for A., how can he engage with B.? Engaging with B., how can he be ready to resume work with A.?

“ Constructive service,” as here sought to be applied, never had, as we think, support iu principle, and the support derived from authority is at least very considerably impaired. The case of Gandell v. Pontigny, after being followed in several cases in England, was overruled in Archard v. Hornor, 3 Car. & P. 349, which was approved in Smith v. Hayward, 7 Ad. & Ell. 544, and in the later case of Goodman v. Pocock, 15 Ad. & Ell. (N. S.) 576. To like effect will be found Beckham v. Drake, 2 H.L. 606, and Emmens v. Elderton, 4 H.L. 645. Mr. Smith’s second proposition in his notes to Cutter v. Powell is expressly disapproved in Goodman v. Pocock, Erle, J., observing: “As to the other option referred to bj' Mr. Smith, I think that the servant can not wait till the expiration of the period for which he was hired, and then sue for his whole wages on the ground of a constructive service after dismissal. I think the true measure of damages is the loss sustained at the time of the dismissal.” And in Clossman v. Lacoste, 28 E. L. & E. 140, a still later case, Lord Campbell says : “But if the contract is entirely broken, and the relation of employer and employed put an end to, I agree that the party suiug ought to allege in his declaration the whole” gravamen that he suffers by such breach of contract; and that he may receive therein all the damages that may inure to him in consequence.” So that, it may not be too much to say, that the doctrine of “ constructive service” has, in England, where it had its origin, been repudiated, and the law there established that a servant wrongfully discharged has no action for wages unless something is due for past services actually rendered, and as to any other claim on the contract it is for the breach of it, and for his damages resulting therefrom,being the ordinary action for-damages, and not the common-law action of indebitatus assumpsit. Nor are the eases in New York heretofore referred to now authority in that state ? For this see Moody v. Leverick, 4 Daly, 401, where the holding is to the effect that a servant wrongfully dismissed can not wait until the expiration of the period, and then sue for his whole wages on the ground of constructive service, his only remedy being an action for breach of contract of hiring. Also, Howard v. Daly, 61 N. Y. 362, where Gandell v. Pontigny, Thompson v. Wood, and the cases in Alabama, Mississippi, Missouri, and Wisconsin are distinctly disapproved, and the doctrine of “ constructive service ” declared to he “ so opposed to principle, so clearly hostile to the great mass of authorities, and so wholly irreconcilable to that great and beneficent rule of Jaw, that a person discharged from service must not remain idle, but must accept employment elsewhere if offered, that we can not accept it. . . . The doctrine of constructive service is not only at war with principle, but with the rules of political economy, as it encourages idleness, and gives compensation to men who fold their arms and decline service, equal to those who perform with willing hands their stipulated, amount of labor.” The cases of Chamberlin v. Morgan, 68 Penn. St. 168; Willoughby v. Thomas, 24 Gratt. (Va.) 522; Whitaker v. Sandifer, 1 Duval (Ky.) 261; Chamberlin v. McCalister, 6 Dana (Ky.) 352, and Miller v. Goddard, 34 Maine, 102, show that a like view is held by the courts in those states, while Wood’s Mayne on Damages, 317, 328, and Wood’s Master and Servant, 246-7, indicate that that author considers the great weight of authority to be in the same direction. On page 246 of the latter work Mr. Wood uses the following emphatic language : “ It (the doctrine of constructive service) was finally exploded, and the doctrine established that a person wrongfully discharged could not, by simply holding himself in readiness to perform his contract, be regarded as having in fact performed it, and thus be entitled to sue for and recover his wages for the entire term, but that he must be restricted in his recovery to the amount of his actual loss. The action in such cases is not for wages but for damages for breach of the contract. It can not with any propriety be claimed that an action for wages can be sustained when the servant has in fact rendered no service. Such adoctrinéis in defiance of the meaning of the term, and rests upon no solid foundation either in principle or policy.” See, also, an instructive paper by Mr. Thornton, of the Indianapolis bar, on this subject, in 8 Southern Law Review, 432; andfor a full discussion of the present case, see the able opinion of the judge who presided in the common pleas, reported in 9 Week. Law Bulletin, 186.

To sustain the doctrine of “ constructive service ” would be in effect to hold that the contract is one which could be enforced specifically, for if, after discharge, and after the employer had repudiated the contract on his part and laid himself liable to full damages for its breach, the employe could treat the contract as subsisting in such sort as to recover upon installments as wages earned, when in fact they were not earned, and recover as each came due, the result would be a specific pex’formanee of the contract, and that, too, by a multiplicity of suits. Surely no lawyer would seriously ask a court of equity to specifically euforce a contract which, in its nature, gives to the aggrieved party so plain and full a remedy at law in an action for damages.

As a result from the authorities, as well as upon principle, we are satisfied that in such a contract as the one in the case at bar, where the employe is wrongfully dismissed, but all wages actually earned up to that time are paid, the only action the employe has, whether he bring it at once or wait until the entire period of hire has expired, is one for damages for the breach'of the contract, and the measure of damages will be the loss or injury occasioned by that breach; and one recovery upon such claim, whether the damages be denominated loss of wages, or damages for breach, is a bar to a future recovery.

Judgment affirmed.


source: Caselaw Access Project

author: Owen, C. J.

license: Public Domain

text:
    Shank v. Dewitt.

      Will — Power of appointment — Abuse of power.

    1. Where a testator invests his widow with a life estate in his property, with power to dispose of the remainder to his heirs, an attempted appointment of it in such manner as to secure to herself a substantial pecuniary benefit from its disposition, not authorized by the testator, is an abuse of such power of appointment and is void..
    2 An innocent motive, or an honest misconstruction of the power conferred will not save the exercise of the power, if the true purpose of it is violated.
    3. A testator, possessed of real estate worth $G,600, and personal property sufficient to pay his debts, devised and bequeathed to his widow his real and personal estate for her life, directing her to sell so much of the latter as would pay his debts, and made the following direction: “And I do further authorize my wife, after my death, to dispose of all the above said property to my heirs as she thinks best.” The widow appointed to several of the heirs only five dollars each, to be paid by her grantees of parcels of the real estate. She deeded in fee-simple to one of the heirs, for the consideration of $1,000 paid to her, twenty-three acres of the land. She deeded to another of the heirs, in fee-simple, forty-three acres of the land (reserving (he use of it during her life), for the consideration of $100, the taxes, expenses of her last sickness, an attendant to be provided her during life, funeral expenses, and a tombstone at her grave. Heldi this was an attempt to make appointments of the fee of the land for her own benefit, not intended by the testator, was an abuse of the power conferred, and void.
    Error to the District Court of Holmes county.
    Ou the 1st clay of December, 1873, Barnard Dewitt, a resideut of Holmes county, died leaving a will by which he provided for the disposition of ¡all his property in the following language;
    “ Item 1st. I give and devise to my beloved wife the farm we now reside on, situate in'Knox township, Holmes county, Ohio, containing about one hundred and twenty acres, during her natural life-time, and all the stock, house-' hold goods, and chattels which may be thereon at the time of my decease, during her natural life as aforesaid, she, however, selling so much thereof as may be sufficient to pay my just debts. And do further authorize my wife, after my death, to dispose of all the above said property to my heirs as she thinks best.”
    '' He left surviving him his widow, Jane Dewitt, three sons, Charles, Henry, and Jackson, and one daughter, Margaret Gray; also grandchildren as follows; The five plaintiffs, Alonzo L. Dewitt, son of Milan Dewitt, deceased; Barnard, Boston, and Oliver Shank, sons of a deceased daughter; Elizabeth Shank, and George Zellers, son of the deceased daughter, Eliza Zellers; also Jennie, Dallas, Ida, and Galvin Zellers, children of Eliza Zellers, deceased.
    On the 15th of December, 1873, the will was admitted to probate and the widow made her election to take under the will. She never qualified as executrix or testamentary trustee, nor were any letters of administration ever granted i upon the estate.
    Besides the farm, the testator left personal property considerably more than sufficient to pay the debts. The farm was worth $6,600. The widow paid the debts out of the personal assets, and gave what remained of the personalty to Charles and Mrs. Gray.
    On the 16th of Eebruary, 1877, for the consideration of §1,000 to her paid, she executed to Henry a general warranty deed for some twenty-three acres of land left by the testator, and for the consideration of §1,000, and on the 25th day of July, 1878, Henry executed a deed for the samé twenty-three acres to the defendant, Jacob K. Lang, who has been in possession of the land ever since.
    On the 2d day of March, 1878, the widow executed deeds for the remainder of the land to Charles, Jackson and Mrs. Gray ; to Charles for forty-three acres, to Jackson for twenty, and Mrs. Gray for thirty acres. In her deed to Charles she reserved the use of the land during her life. Charles' was to pay her one hundred dollars, the taxes, the expense of her last sickness, and funeral expenses. He wag also to provide her with an attendant during her life, and to erect a tombstone on her grave.
    In her deed to Jackson, she reserved the use of the land during her life. The consideration stated was thirty dollars, to be paid by Jackson to the heirs of Milan Dewitt and Mrs. Zellers — or five dollars each — six months after the death of the widow.
    In her deed to Mrs. Gray, she reserved the use of the land during her life, with the privilege to Mrs. Gray to occupy and improve the land by paying the taxes and one-third of the products during the life of the widow. Mrs. Gray was also to pay the heirs of Mrs. Shank fifteen dollars —or five dollars each — six months after the death of the widow.
    On the 20th day of August, 1878, Jackson Dewitt executed a deed for the twenty acres described in the widow’s deed to Charles, and on the 25th day of March, 1878, Mrs. Gray also executed a deed for the thirty acres to Charles.
    On the 15th day of August, 1878, the widow, Charles, and his wife, executed a deed for the thirty acres to the defendant, Weaver, and on the 5th day of Eebruaiy, 1881, Charles executed another deed to Weaver for twenty-three acres out of the lauds described in his deeds from the widow and Jackson.
    Weaver has been in possession of the lands described in his deeds since the dates of their execution, and Charles has been in possession of the lands described in the several deeds to him, except the thirty and twenty-three acres described in his deeds to Weaver.
    The' widow died January ], 1879. The plaintiffs and the children of Mrs. Zellers have received nothing from the estate. On the 20th of January, 1882, the plaintiffs filed their amended petition, making all persons interested parties to the suit.
    The plaintiffs set forth all the above facts and pray that the several deeds described be set aside except as to the undivided interest of Henry in the twenty acres deeded to ‘Lang and the undivided interests of Charles and Mrs. Gray in the lands described in the deeds to Weaver; also for equitable partition; and further that Charles and Mrs. Gray be compelled to account and pay over to the plaintiffs their respective shares in the personal property and that Charles and the defendants, Weaver and Lang, be required to account for the rents and profits of the farm received since the death of the widow, and to pay over to the plaintiffs their shares of the same, and for general equitable relief.
    The children of Mrs. Zellers by their guardian filed their answer and cross-petition setting up their respective interests in the estate and join with the plaintiffs in their prayer for relief. .
    . To the petition as amended a general demurrer was filed by Charles and the defendants, Lang and Weaver. The demurrer was sustained aud the plaintiffs not desiring to amend or plead further, the petition was dismissed. An appeal was taken and the ease was again heard upon the demurrer of Charles and the defendants, Lang and Weaver. The demurrer was sustained and the petition again dismissed. For error in sustaining the demurrer and dismissing the petition, the plaintiffs now seek to reverse the judgment of the district court.

      W. J. Gilmore and Critchfield § Graham, for plaintiffs in error. ■

      Heed Hoagland and B. 8. Church, for defendants in error.
   Owen, C. J.

The contention of the plaintiffs is that the appointments made by the widow are void. Several grounds are assigned for this claim. Among them, that (1) the power conferred by the will was one of distribution or disposition only, and not of selection and distribution; (2) that if there was a distribution among all the objects of the power, -still the appointments to the plaintiffs were merely illusory and hence void; and (3) that the principal appointments made by the widow were for her own interest and benefit, and that while she may have acted upon an honest misconstruction of the power conferred upon her, its attempted execution was in legal effect an abuse, and in fraud, of the power actually conferred, and consequently void. An innocent motive will not save the exercise of a power if it violate the true purpose of the trust. William’s Appeal, 73 Pa. St. 249. We deem it unprofitable to consider more than the one ground upon which we rest our determination of the case. After giving to his wife a life estate in all his property and directing a sale of sufficient to pay his debts, the testator uses the following words: “And I do further authorize my wife after my death to dispose of all the above said property to my heirs as she thinks best.” It must be conceded that, subject to her own interest as a tenant for life, the widow was invested, at best, with but a power of appointment over the property which was the subject of disposition.

If in the attempted execution of the power conferred upon her she sought and obtained a substantial pecuniary benefit for herself, beyond, and not contemplated by, the manifest intention of the testator, the appointments fail as inoperative and void for want of power to make them.

“ A person, having a power of appointment for the benefit of others, shall not, by any contrivance, use it for his own benefit.” 1 Story’s Eq. Jur., § 255.

In 2 Pomeroy’s Eq. Jur., § 920, it is said that equity will regard an appointment as fraudulent “ where the donee is restricted to a certain class of beneficiaries not including himself, and he intentionally makes an appointment for the purpose of his own benefit, and in such a manner as directly or indirectly to secure his own benefit.”

“It is a principle well established that a father, having a power of appointment, can not derive a benefit to himself from the execution of it.” Lord Chancellor Manners, in Palmer v. Wheeler, 2 Ball & Beatty, 29.

“A power can not be executed in favor of the donee of the power unless the instrument specially authorizes him to do so. The donee of a power can not execute it 'for any pecuniary gain, directly or indirectly, to himself.” 2 Perry on Trusts, § 511; 1 Ibid., § 254.

This principle finds strong support in the following cases: McQueen v. Farquhar, 11 Ves. 479; Aleyn v. Belchier, 1 Eden, 138; Agassiz v. Squire, 1 Jurist (N. S.) 50; Bostick v. Winton, 1 Sneed (Tenn.) 525; Cruse v. McKee, 2 Head (Tenn.) 1; Holt v. Hogan, 5 Jones Eq. (N. C.) 82.

In the case at bar the widow attempted to convey to Henry Dewitt in fee-simple, by warranty deed, twenty-three acres of the land left by the testator, for the consideration of $1,000. She also attempted to convey to Charles Dewitt in fee-simple, by warranty deed, forty-three acres of the land for the consideration of $100 to be paid to her, the taxes, expénses of her last sickness, an attendant during her life, funeral expenses, and a tombstone at her grave. She reserved the use of the land during her life.

The suggestion that the money and beuefits received by her represented the stipulated value of her life interest in the property disposed of is conclusively answered by the averments of the petition, which are that they were the considerations, respectively, of the conveyance of the tracts of lands disposed of. Besides, it will be observed that her life estate is expressly reserved in the deed to Charles.

That her own personal, pecuniary benefit was in the contemplation of the parties to the transactions, seems too clear for discussion. We may well suppose that those heirs of the testator who were practically excluded from all benefits of the power conferred would have substantially shared in the disposition of the property but for these appointments made for her own benefit.

It was clearly the intention of the testator that his widow should not share in the estate beyond the life interest which the will bestowed upon her; and in seeking to derive a substantial benefit for herself from the estate which was intended to be appointed to the heirs of the testator, she exceeded and abused the power conferred. Upon the principle already declared but one result can follow the conclusion reached. The appointments attempted to be made by the widow are void. The claim made in behalf of the defendants, Lang and Weaver, that they are innocent, bona fide purchasers without notice, is not sustained by the most liberal construction, in their behalf, of the averments of the petition. The plaintiffs are entitled to the relief demanded.

The district court erred in sustaining the demurrer to the petition. The judgment of that court is reversed. The demurrer is overruled. The cause will be remanded to the eireuit court for further proceedings.


author: By the Court.

text:
    City of Cincinnati v. Anchor White Lead Co. City of Cincinnati v. Wewell. City of Cincinnati v. Egleston.

      Assessment — Sewer— Use of sheeting without separate bid.

    Error to the Distrrict Court of Hamilton county.
    These were actions brought by the city of Cincinnati for the use of Erank Kirschner and A. Ashman, contractors, .upon assessments made for the construction of a sewer in that city.

      Wulsin $ Worthington, for plaintiff in error.

      James U. Perkins, for defendants in error.
   By the Court.

The only finding of the trial court is “ that by reason of the fact that the cost of the board sheeting was included in the amount assessed upon the property of the defendants, without any proposal or bid having been advertised or received for the said sheeting, said assessment upon the property of each of the defendants herein is invalid and void.”

There was no judicial determination by that court of any other question or upon any other fact. Upon all other questions this court is appealed to as a court of first resort, not as a reviewing court. Upon no other issue is there any judgment before us for review.

Erom what is termed an “ agreed statement of facts,” it appears that all sheeting used to support the sides of the trenches which should be left in by the direction of the engineer, should be paid for at the rate of not more than one dollar per lineal foot of sewer It was impossible to anticipate what amount of such sheeting it would be necessary to leave in. It is shown only that it was known to the officers and agents of the city that “ some such sheeting” would be necessary to be left in. Intelligent estimates and bids were impossible. It further appears that the sheeting which was left in “was necessary in the construction of said work.” No fraud is complained of. No complaint is made that the work of construction was not well done. The facts so agreed upon bring this question within the rule declared in Hastings v. Columbus, 42 Ohio St. 585.

It follows that there ,was error in adjudging the entire assessment to be void, for the reason that it included the cost of the board sheeting.

There is no agreed statement of the facts of the case. That which is incorporated in the bill of exceptions and termed such is in great part simply an argreement as to the evidence relative to certain facts, and from which, in connection with other evidence in the bill of exceptions, the substantive facts were to be found by tbe court. It is not found nor agreed, nor does it appear, that there was no jurisdiction to proceed with the improvement. Thejudg-’ ments of the courts below will therefore be reversed, and the cause remanded for further proceedings.


text:
    Duffy v. Meyers.

      Section 455 Revised Statutes — Reference—Issues of fact.

    1. Prior to the amendment of section 455 Revised Statutes, passed April 18, 1883 (80 Ohio L. 169), by virtue of which the district court was expressly required to find the facts upon the reservation of a cause to this court, only important and difficult questions of law were authorized to be reserved for disposition here, and such reservation was unauthorized until' the issues of fact were determined in the district court, or other court below.
    2. This cause was referred by the district court to a referee “ to hear and determine all the issues of fact in the cause.” Upon the coming in of his report, with the testimony, the plaintiffs moved for judgment thereon, while the defendants concurrently moved to set aside the report upon the alleged ground that it was against the weight of the evidence. Without passing upon these motions, the court reserved the cause for disposition here. Held, as such order of reservation would, if authorized, call upon this court first to dispose of these motions, and thereby weigh the evidence, and determine the issues of fact, it was without authority.
    Reserved in the District Court of Hamilton county.

      Healy ft Brannon, for plaintiffs.

      Burnet ft Burnet, E. A. Guthrie, and D. W. Huntington, for defendants.
   By the Court.

This cause was appealed from the court of common pleas to the district court, by which it was referred to a referee “ to hear and determine all the issues of fact in the canse/’ and report his findings and testimony.

Upon the coming in of his report, which, with the testimony, occupies several hundred pages of the printed record, the plaintiffs moved .the court for judgment thereon. At. the same time the defendants moved the court to set aside the report upon the alleged ground that it was against the weight of the evidence. Without passing upon either motion, the district court made the following order :

“ This day came the parties and submitted this cause to the court for decision, on consideration whereof, it appearing to the court that difficult and important questions arise and are involved in said cause, on motion of the plaintiffs thereto, none of the defendants objecting, it is ordered that said cause be and the same is hereby reserved to the supreme court for decision.” This order was entered prior to the amendment of section 455 Revised Statutes, passed April 18, 1883 (80 Ohio L. 169), expressly requiring the district court to find the facts, upon the reservation of a cause to this court.

The evident purpose of the order of reservation was to invoke the action of this court, as a preliminary question upon these motions so left undisposed of by the district court. This necessarily involved the determination of the question whether the evidence taken by the referee sustains his conclusions of fact.

The action of this court can not be thus invoked, upon issues of fact, as a court of first resort or trial court.'

Only important and difficult questions of law are authorized to be reserved for disposition here. Hubble v. Renick, 1 Ohio St. 171; Wilson v. Hamilton, 4 Ohio St. 722; Ogborn v. Taylor, 6 Ohio St. 199; unreported case of Richmond v. Richland Furnace Co., in this court, January term, 1883. Not until the issues of fact are settled below is this court empowered to entertain a case upon reservation. The cause will be remanded to the circuit court for further proceedings.


text:
    The State ex rel. Attorney-General v. Anderson.

      Constitutional law — Act of March, 26, 1886 — Local and special act

    The act of March 26, 1886, supplementary to section TT07 of the Revised Statutes (83 Ohio L. 43), is invalid, for the reason that the act is special and not general, inasmuch as the powers there conferred on cities having at the last federal census a population of 16,512, and no more, simply designates the city of Akron, and does not create a class, as Akron was the only city at that census having that population; and as the act confers corporate powers, it is in violation of section 1, article 13, of the constitution.

      J. A. Kohler, attorney-general, for plaintiff.

      D. A. Doyle and L. D. Waiters, contra.

    QUO WARRANTO.
   By the Court.

On the 26th of March, 1886, an act was passed by the ge'neral assembly creating the office of police judge in all cities of the second grade and third class having a population at the last federal census of 16,512, and no more, to be chosen by the electors of such cities. It was passed as supplementary to section 1707 Bevised Statutes, and is designated as section 17076. (88 Ohio L. 43).

Under the provisions of this act the respondent was elected to the office of police judge in the city of Akron at the last spring election, has qualified, entered upon, and is claiming the right to, and is exercising the powers so conferred on him by this act; and from which it is asked that he be ousted by the judgment of this court, on the grounds (1) that the act is a special one conferring corporate powers, and (2) that it provides for the establishment of a court— that of a police judge in the city of Akron — without the requisite concurrence of two-thirds of the members elected to each house of the general assembly, in contravention of article 13, section 1, and article 4, section 13, respectively, of the constitution of the state.

The city of Akron is the only one in the state that, at the last federal census, had a population of 16,512 and no more.

The case is presented to the court upon a demurrer to the petition, presenting the facts above stated.

Whether the power of the general assembly to create a police court, and to provide for the election of a judge therefor, is limited by section 18, article 4, of the constitution, or is conferred without such limitation by section 6, article 13, ofthat instrument, it is not necessary to consider; for it is clear that the act in question is a special one conferring upon the city of Akron, and it alone, certain corporate powers, that is to say, the power through its electors to choose a police judge, and, through its mayor and council to appoint a prosecuting attorney and clerk of the court of such judge. It is admitted that Akron is the only city in the state that at the last federal census had a population of 16,512 and no more; and as the application of this statute is, by its terms, confined to such cities as at the last federal census had this exact population an’d no more, it as certainly designates the city of Akron, on which these powers are to be conferred, as if it had been described by name. The statute is not to apply to any cities that may at any time hereafter have the population named; it applies only to such as had this precise population at the last federal census; and thereby, instead of classifying the city of Akron, it is taken from the class to which it belongs, under the general statute classifying the cities of the state (sec.. 1548 Revised Statutes), and clothed with certain corporate powers not possessed by any city of its class.

Judgment of ouster.


author: Minshall, J.

text:
    The State ex rel. Pugh, Prosecuting Attorney v. Brewster, Auditor.

      Section 1298, Revised Statutes — Prosecuting attorney — Commissions on costs.

    Section 1298, Revised Statutes, entitling a prosecuting attorney to a commission of ten per cent on all costs collected in criminal causes, embraces the costs collected by him of the defendant, in performance of the duty required of him by section 1273, and does not include the costs received from the state and paid to the order of the clerk of the court of common pleas, under the provisions of sections 7336 and 7337 of the Revised Statutes.
    Mandamus.

      M A. Dougherty, Isaiah Pillars, M. F. Wilson, Bentley Matthews, I. N. Alexander and Willian H. Pugh, for relator.

      Rufus B. Smith and William II. Taft, for defendant.
   Minshall, J.

The relator, the prosecuting attorney of Hamilton county, claims that he is entitled to a commission, of ten per cent on all costs paid by the state on the warrant of the auditor of state to the order of the clerk of the court of common pleas, under the provisions of sections 7836 and 7337, Revised Statutes. This claim is based upon the language employed in section 1298, Revised Statutes, which reads as follows :

“ Sec. 1298. In addition to his salary, the prosecuting attorney is entitled to ten per cent on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, provided that such commission shall not in any case exceed one hundred dollars.”

Section 7336 provides that when the clerk makes the proper certificate as to the non-collection of the costs on execution, adjudged against a defendant upon his conviction and sentence to the penitentiary of the state, the warden shall allow so much of the cost-bill and charges for transportation as he finds correct, and certify such allowanee, which shall be paid by the state;” and the next section provides, that it is to be paid, upon the allowance of the auditor of state, to the order of the clerk.”

The auditor of the county, having refused to draw a warrant on the treasurer of the county in favor of the relator, for his commission upon costs so paid by the state in certain criminal cases, the same not having been collected of the defendants by execution or otherwise, asks that he may be compelled in this proceeding to do so by the peremptory order of this court.

The question arises upon the proper construction of the language, “ on all moneys collected . . . on costs in criminal causes,” used in section 1298. Does the language embrace costs paid by the state to the order of the clerk under the sections above referred to, or is it confined to such costs as the prosecuting attorney collects of defendants in criminal causes, in performance of the duty imposed on him by section 1273, Revised Statutes? We have no hesitation in saying that the above language does not embrace the former and is confined to the latter.

In .the enactment of a statute, we must suppose, that the legislative mind is directed to what has been enacted, and exists, as a part of the statutory law of the state on the same subject or related to it. Without this there would be neither system nor harmony in the statutes, and their construction would, in most cases, be a mere matter of arbitrary guessing.

Now, looking outside of section 1298 to other sections of the Revised Statutes, more or less related to it in subject-matter, we find that by section 7183 it is made the duty of the prosecuting attorney to prosecute and recover the penalty of all recognizances by him received; and, by section 1273, to prosecute on behalf of the state all complaints, and in eveiy case of conviction to “ forthwith cause execution to be issued for the fines and costs, or costs only, as the case may be, and faithfully urge the collection until it is effected; ” and “ forthwith pay over to the county treasurer all moneys belonging to the state or county which come into his possession for fines, forfeitures, costs, or otherwise.”

Now we think it is manifest that the mind of the legislature was directed to the provisions of these several sections when it enacted section 1298, and that the commission there allowed on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, has reference to such fines, forfeited recognizances, and costs in criminal causes as, by these sections, he is required to collect. That this is so with respect to fines and forfeited recognizances is beyond question, and this fact, of itself, supplies an argument that the same is true as to costs collected in criminal causes. It is hardly to be supposed that the allowance of a commission on moneys collected by a prosecuting attorney in the performance of a duty required of him by statute would be associated with the allowance of a percentage on moneys neither collected nor required to be collected by him; and it is fair to conclude that the costs collected, on which a commission is allowed him in section 1298, simply embraces costs collected by him of defendants in criminal causes under section 1273. The commission is allowed as a compensation in addition to his salary; compensation is a reward for services ; hence, the commissions here allowed should be referred to, and embrace collections made by the prosecuting attorney in the performance of his duty, and not to moneys received or collected by others, the receipt and collection of which is no part of his duties as an officer.

Again, it is a misuse of terms to say that the costs paid by the state to the order of the clerk, under sections 7336 and 7337, are costs collected of the state in criminal causes. They were not taxed against the state; on the contrary, they were taxed in favor of the state and against the defendant upon his conviction and sentence to the penitentiary. In Fitzpatrick v. Flagg, 5 Abb. Prac. Rep. 213, it was held, that a tax can not be regarded as “ collected ” until it is paid by those on whose property it has been levied. Costs so paid are, properly speaking, advancements made'by the state to be returned to it, should they afterward be collected from the defendant or his property. This is apparent from section 1327, Revised Statutes, where the costs so paid by the state are designated as costs “ which the state is by law required to advance in criminal causes.”

Again, the construction claimed by the relator would be inconsistent with sound policy. It would unwisely remove the motive prosecuting attorneys would otherwise have in collecting costs of defendants in criminal causes; unless we adopt the more absurd position, that they are to receive the commission on the money advanced by the state, and also on the costs, if afterward collected of the defendant. We can not ascribe such a want of wisdom to the legislature.

Prior to the revision of 1880 the statute on this subject, first adopted in 1865, and afterward repealed and re-enacted without any material change in 1873, expressly limited the costs on'which a percentage was allowed prosecuting attorneys to “costs collected of defendants in criminal causes.” (62 Ohio L. 133; 70 Ohio L. 67.)

It is claimed by counsel for the relator that the change made in 1880 is a substantial one, and, of itself, indicates that the construction claimed for the relator is the correct one. Much reliance is placed upon United States v. Bowen, 100 U. S. 508. But this case rather supports than militates against the construction we place upon the statute before us. It is there said that “ when there is a substantial doubt as to the meaning of the language used in the revision, the old law is a valuable source of information;” to which is added, “ when the meaning is plain, the courts can not look to the statutes which have been revised to see if congress erred in that revision, but may do so when necessary to construe doubtful lauguage used in expressing the meaning of congress.” To make the rule stated in that case applicable to this one, the construction claimed should be the plain meaning of the language employed in the revision; otherwise resort maybe had to the old law for the'purpose of removing a substantive doubt as to the meaning of the language employed in the revision. So that the rule stated in the above case does not materially differ from the rule adopted by the decisions in this state for the construction of revised statutes. Ash v. Ash, 9 Ohio St. 387, and Allen v. Russell, 39 Ohio St. 336.

But, as has been already shown, the meaning of the language employed in the Revised Statutes is plain and confines the commissions there allowed to prosecuting attorneys, on costs collected in criminal causes,to costs collected of the defendant in such causes. But if there were a substantive doubt as to this, a reference to the old law, which the decisions in such case permit, would at once remove it and show that the construction reached from a consideration of the language employed in the statute itself is the correct one.

The omission in the revision of the language “ collected of defendants,” found in the old statute, may easily be accounted for on the ground that it was not regarded as necessary to the clear expression of the legislative intent; and was, therefore, omitted for the purpose of brevity. Such an omission would have been entirely consistent with the purpose for which the commission to revise and consolidate the statutes was created; and, in all probability,is the reason that the omission was made.

Writ refused.

Owen, O. J., dissents.


author: Follett, J.

text:
    Meiss v. Gill.

      Estoppel — Pleading—Evidence.
    When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel, and testimony may be given to show the truth.
    Error to the District Court of Pickaway county.
    July 9,1881, Eistel Meiss brought suit in the court of common pleas of Pickaway county against William Gill and I. Y. Cushing on a promissory note, of which the following is a copy, with the indorsements and credits thereon:
    “ $300.00. Cincinnati, January 21,1876.
    Eour years after date I promise to pay to the order of Lucy Gill, three hundred dollars, with interest at six per cent per annum.
    Yalue received (with interest at ten per cent per annum after maturity). Michael Ihle.”
    The following indorsements are found upon the note:
    “Pay to order of I. Y. Cushing.
    Lucy Gill. William Gill.”
    “Pay to the order of Eistel Meiss.
    I. Y. Cushing.”
    “Credit, April 10, 1880, balance of purchase-money of real estate sold in case of Wistel Meiss v. Michael Ihle, in Clermont common pleas, $148.49.”
    There are no other credits or payments on the note.
    In his petition Meiss averred that at the time of executing the note William Gill, I. Y. Cushing, and Lucy Gill signed the note respectively on the back thereof; that all of said names were so placed on the note at the time of its execution, for the purpose of giving further security without in any way prescribing the limits of the liability, and before the note was delivered, and that the defendants are liable on the noté as joint and several makers.
    The plaintiff further states that at the time of making and executing the note Lucy Gill, William Gill, and I. Y. Cushing placed their names on the back of the note as joint and several makers, with the words, “ pay to the order of I. Y. Cushing” and “pay to the order of Eistel Meiss;” and that the note was made payable to the plaintiff as the original payee. And that Lucy Gill, at the time of the execution of the note, was the wife of William Gill.
    Summons was served upon William Gill, but Cushing was not found.
    No demand of payment had been made and no notice of non-payment had been given, and Gill was not then liable as indorser of the note.
    In his answer Gill denied that at the time of executing the note either he or Cushing or Lucy Gill signed the note on the back thereof, and he denied that he signed the note as maker or placed his name on the back of the same before the note was delivered, and he denied that he was liable as a joint and several maker, and he denied that Meiss was the original payee of the note; and he averred that he, Gill, signed the note as indorser only.
    No reply was filed, and no claim of estoppel or'former judgment was pleaded. ’
    On the trial a jury was waived and the cause was submitted to the court, and Meiss offered in evidence the note, “ subject to exceptions and objections for incompetency and irrelevancy,” and he read the record of a suit in the court of common pleas of Clermont county, Ohio. This was a record of a suit by Meiss against Michael Ihle, Lucy Gill, "William Gill, and J. Y. Cushing, to foreclose a mortgage executed by Ihle to Cushing to secure the payment of this note and three other like notes.
    In the case presented by the record Meiss averred in the petition that Lucy Gill, William Gill, and Cushing signed the notes as makers, and that they were liable on the notes as joint makers. At the time of filing the petition this note and two other notes were not due. That petition demanded a personal judgment against .Gill and wife and Cushing for the note due, and asked for sale of mortgaged premises. No answer was filed, and a personal judgment was formally rendered against the defendants on the notes first due (another note having become due), but not on this note.
    The mortgaged premises were sold, and the proceeds paid the costs and the judgment rendered, and $148.49 on this note, April 10, 1880. Meiss also gave in evidence a deposition of himself and another.
    On the trial, against the objection of Meiss, William Gill testified in his own behalf, and stated what he claimed to be the facts as to tbe execution of the notes and the subsequent indorsement of the same, and testified that he did not sign the note as maker, but signed the same as indorser only.
    Meiss claimed the record to be conclusive evidence, and he excepted to the testimony of William Gill, “ on the ground that the same was not competent to contradict the record offered in evidence by the plaintiff.” The court-overruled the objection and admitted the testimony. The court found in favor of Gill, and rendered judgment for his costs. A motion for a new trial was overruled, and a bill of exceptions was filed. On proceedings in error the district court affirmed the judgment of the court of common pleas, and plaintiff in error now seeks a reversal of those judgments.

      Page, Abernethy & Folsom, for plaintiff in error.
    The proceedings in the court of common pleas of Clermont county estop William Gill from denying that he executed the note as maker. Beloit v. Morgan, 7 Wall. 619; Gardner v. Buckbee, 3 Cow. 120; Bouchaud v. Dias, 3 Denio, 238; Doty v. Brown, 4 N. Y. 71; Babcock v. Camp, 12 Ohio St. 11; Ferrer’s Case, 6 Coke, 8; French v. Campbell, 2 W. Black. 163; Duchess of Kingston’s Case, 2 Sm. Lead. Cas. 799; Birckhead v. Brown, 5 Sandf. 135; Aurora v. West, 7 Wall. 82; Mayor v. Lord, 9 Wall. 409; Gould v. Evansville, etc., R. R. Co., 91 U. S. 533; Hites v. Irvine, 13 Ohio St. 284; Covington, etc., Bridge Co. v. Sargent, 27 Ohio St. 233; Petersine v. Thomas, 28 Ohio St. 596; Grant v. Ramsey, 7 Ohio St. 163; Freem. Judgments, section 253.
    The fact that the judgment was by default can make no difference. Freem. Judgments, sections 330, 331; Newton v. Hook, 48 N. Y. 676; Greenabaum v. Elliott, 60 Mo. 25.
    A judgment by default is a judgment by confession. In this country a judgment by consent or by confession constitutes res adjudicala. Chamberlain v. Preble, 11 Allen, 370; Brown v. Sprague, 5 Denio, 545; Fletcher v. Holmes, 25 Ind. 458; Bank v. Hopkins, 2 Dana, 395; Dunn v. Pipes, 20 La. Ann. 276: Neusbaum v. Keim, 24 N. Y. 325; Sheldon v. Stryker, 34 Barb. 116; Dean v. Thatcher, 32 N. J. Law, 476.
    P. C. Smith and Milt Morris, for defendant in error.
    An estoppel must be pleaded to be available. Fanning v. Insurance Co., 37 Ohio St. 344; Howard v. Mitchell, 14 Mass. 241, 243; Kemp v. Goodal, 1 Salk. 277; Jones v. Reynolds, 7 Car. & P. 335; Picquet v. McKay, 2 Blackf. 465; Outram v. Moorewood, 3 East, 346; Vooght v. Winch, 2 Barn. & Ald. 662; Aurora v. West, 7 Wall. 82; Isaacs v. Clark, 12 Vt. 692; Eastman v. Cooper, 15 Pick. 276; 2 Sm. Lead. Cas. 668.
    To estop an indorser, under the circumstances in this case, from asserting the fact that he is an indorser, and not a maker, it must appear that in the former case the point was at issue, material, and necessarily determined in the action. Railroad Co. v. Ralston, 41 Ohio St. 587.
    A former judgment is a bar, not to all claims that might have been litigated therein, but only to such claims or matters as might have been litigated under the pleadings and issues as made. Millard v. Missouri, K. & T. R. Co., 86 N. Y. 443; Bates v. Stanton, 1 Duer, 79; Burdick v. Post, 12 Barb. 168; Carter v. James, 13 M. & W. 137; Lewis’ App., 67 Pa. St. 153; Aspden v. Nixon, 4 How. 497; Eastman v. Cooper, 15 Pick. 276.
    A default judgment is not a bar. Cromwell v. County of Sac, 94 U. S. 351; Boileau v. Rutlin, 2 Exch. 665, 681; Hughes v. Alexander, 5 Duer, 493; Hewlett v. Tarte, 10 C. B. N. S. 813; Lumber Co. v. Buchtel, 101 U. S. 638; Davis v. Brown, 94 U. S. 423; McClelland, v. Bishop, 42 Ohio St. 113.
    The estoppel must operate mutually between the parties. Both must be bound or neither is estopped. One who is not bound by, can not take advantage of an estoppel. Lewis v. Castleman, 27 Tex. 421; Bolling v. Mayor, 3 Rand. (Va.) 563; Schuman v. Garratt, 16 Cal. 100; Lansing v. Montgomery, 2 John. 382; Longwell v. Bentley, 23 Pa. St. 99; McClelland v. Bishop, supra.

      Gill liad a right to rely on the information conveyed by the indorsement that nothing was claimed beyond the amount due on the first of the series of notes. Finckh v. Evers, 25 Ohio St. 82; Hamilton v. Miller, 31 Ohio St. 87.
   Follett, J.

It does not appear that either party objected to the form or substance of the pleadings. The only exceptions noted were to the reading of the record “as incompetent and irrelevant,” and to the admission of the testimony of Gill, and the objection to such admission was “ on the ground that the same was not competent to contradict the record offered in evidence by the plaintiff.” The record was not in issue, and no former adjudication of the same matter was set up as an estoppel. Meiss claimed a personal judgment for the unpaid amount of the promissory note in suit against Gill as a joint maker of the note. Gill answered, denying that he was a joint maker of the note, and averring “that he signed said note as indorser only.” To this averment Meiss could have replied as an estoppel any former adjudication between them of that fact.

This court has decided that question, and also has held: “If the plaintiff relies on a record of a former adjudication of the same matter set up in an answer, as an estoppel, he should plead such former judgment.” Fanning v. Insurance Co., 37 Ohio St. 344. And in that case the court held: “It (the record) is not admissible in evidence under a general or special denial of the new matter contained in the answer.” The record is not admissible in evidence as conclusive of the truth of the facts put in issue, nor as an estoppel.

This court said, in Lockwood v. Wildman, 13 Ohio, 450: “A former decree to be a bar, even when well pleaded, or set up by way of answer, must be such as shows that the rights of complainants, now set up, have been already conclusively determined.” And this court held, in Grant v. Ramsey, 7 Ohio St. 157: “Where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it can not be re-opened in a subsequent suit between the same parties. They are concluded by the former judgment.” But such trial and adjudication should be pleaded, if the same can be pleaded, to conclude the parties. • When a judgment is pleaded in bar, there must be determined whether or not the fact set up has been thus adjudicated between the parties. Lockwood v. Wildman supra, and Gilbert v. Thompson, 9 Cush. 348, and Davis v. Brown, 94 U. S. 423. And when a judgment is not pleaded, and could have been pleaded, “in evidence,” such a judg4 ment is not conclusive to estop a party from proving the truth of a fact in dispute. To this extent the rule laid down in the case of the Duchess of Kingston, 20 Howell’s State Trials, 355, has been modified.

In the year 1819, the Court of King’s Bench, in Vooght v. Winch, 2 Barn. & Ald. 662, held: “A verdict obtained by the defendant in a former action, and which, if pleaded •in bar, would be an estoppel, when given in evidence under the general issue, is not conclusive against the plaintiff, but only evidence to go to the jury.”

And Abbott, C. J., said, on page 668: “I am of opinion that the verdict and judgment obtained for the defendant in the former action wás not conclusive evidence against the plaintiff upon the plea of not guilty. . . . But the defendant has pleaded not guilty, and has thereby elected to submit his case to a jury, . . . and they are to give their verdict upon the whole evidence then submitted to them: . . . for the very first thing I learnt in the study of the law was that a judgment recovered must be pleaded.” The other judges, in separate opinions, concurred. See also Jones v. Reynolds, 7 Car. & P. 335.

In Howard v. Mitchell, 14 Mass. 241, the court held: “When the matter, to which the estoppel applies, is distinctly averred or denied by one party, and the other takes issue on the fact, instead of pleading the estoppel, he waives the estoppel, and' the jury are at liberty to find the truth.” See Eastman v. Cooper, 15 Pick. 276.

In Picquet v. McKay, 2 Blackf. 465, the supreme court of Indiana held: “ To render a former recovery an estoppel to a subsequent suit, embracing the same matter in controversy with the first, the judgment must be specially pleaded as an estoppel. If it be not so pleaded, and the defendant rely on the general issue, the former judgment is admissible in evidence, but it is not a conclusive bar to the action; the jury may still find for the plaintiff, if they think him entitled to recover.”

¥e need not consider the effect of a judgment on default, nor whether that record presented an adjudication of any matter that .would have been a bar to any defense 'set up by Gill if the judgment had been well pleaded.

Each case must be determined by its special facts explained by legal principles. See Davis v. Brown, 94 U. S. 428.

On the trial of this original case the issue between Meiss and Gill on the pleadings was, whether or not Gill signed that note as a maker. On that issue he was a competent witness to testify in his own behalf.

And as the court allowed the record of the former case to be read as testimony, it was not error to permit Gill to testify as to the execution of the notes and mortgage and how he came to sign his name on the back of this note.

The court did not err to the prejudice of the plaintiff in error.

Judgment affirmed.


author: Spear, J. Minsiiall, J.

text:
    Anderson v. Sharp.

      Mortgage — Foreclosure—Sale—Application of proceeds.

    K, executed and delivered to T. three notes, payable to T.’s order, due in one, two, and three years from date, and a mortgage to secure their payment. Before either note became due T. indorsed the notes, waiving demand and notice, and delivered both to A., with an assignment of the mortgage. The note maturing in one year not being paid when due was put in judgment against E. as maker and T. as indorser. E, being insolvent, T. paid the judgment. He then commenced suit to foreclose the mortgage, claiming the benefit of the mortgage security and a lien prior to the lien of A., who held the remaining two notes, which were then past due. A., by answer and cross-petition, alleged facts showing T.’s liability as indorser upon the two notes, that K. was insolvent, that the lands would prove insufficient to satisfy the whole mortgage debt, claiming priority of lien, praying foreclosure and full relief. Later, S., on his motion, became plaintiff and filed supplemental petition averring purchase from T., and assignment of all his rights and interest in the mortgage and as plaintiff in the suit, and claiming priority of lien. The land was sold. The sum realized was not sufficient to satisfy the whole indebtedness. Held, that A. was entitled to payment in full from the proceeds before application of the money to the claim of S.
    Error to the District Court of Eranklin county.

      F. W. Wood, for plaintiff in error.
    It may be conceded that when Thompson paid Anderson the amount of the judgment obtained on the first note he became thereby re-invested with an interest in the mortgage securing payment of the three notes; and that Sharp, by his purchase from Thompson, acquired all the interest held by Thompson in the mortgage security at the time he sold to Sharp. But the interest so purchased by Sharp is subject to all the equities in favor of Anderson that existed against Thompson. Bennet v. Williams, 5 Ohio, 461; Decamp v. Gaskill, 1 C. S. C. R. 337; Walker v. Dement, 42 Ill. 272; Rev. Stat., sec. 4993; 18 Ohio St. 546; 25 Ohio St. 652; Jones Mort., secs. 822, 1701; 9 Vt. 299; 30 La. Ann. 618; 6 Gray, 564; 9 Wend. 410; Hopk. Ch. (N. Y.) 569.
    It may further be conceded to be the well settled law in this state that where a mortgage has been given to secure several notes falling due at different times that the note first due is entitled to preference, and the fund arising on sale shall be applied to the satisfaction of the notes in the order in which they fall due. Bank of U. S. v. Covert, 13 Ohio, 240; Bushfield v. Meyer, 10 Ohio St. 334; Kyle v. Thompson, 11 Ohio St. 616; Schwartz v. Liest, 13 Ohio St. 419; Fithian v. Corwin, 17 Ohio St. 119; Beresford v. Ward, 1 Dis. 169.

      And tho same rule obtains where the notes have beeu transferred to several persons. Winters v. Franklin Bank, 33 Ohio St. 250.
    Thompson, by his indorsement, undertook, in effect, to nlake good any deficiency, and in case of insolvency of the maker and insufficiency of the mortgage security, to pay the same. To compel Anderson to bring a personal action on tho indorsement on tho note last due against Thompson would lead to circuity of action and is against the spirit and reason of the code. Thompson’s indorsement was simply an additional security, and Auderson had the right to pursue either or both securities until he obtained payment.
    The utmost that Thompson could claim was that he should be regarded as having an interest in the mortgage similar to that of a junior mortgagee. Fithian v. Corwin, supra.

    The following cases will be found to bear upon the question: Bank of England v. Tarleton, 23 Miss. 173; Saltzman v. Creditors, 2 Rob. (La.), 241; Donley v. Hays, 17 Serg. & Rawle, 400; Hancock’s App., 34 Pa. St. 155; Perry’s App., 22 Pa. St. 43; Cullum v. Erwin, 4 Ala. 452; Bryant v. Damon, 6 Gray, 564; Mechanics’ Bank v. Bank of Niagara, 9 Wend. 410; Van Rensselaer v. Stafford, Hopk. Ch. 569; Waterman v. Hunt, 2 R. I. 298; Gwathmey v. Ragland, 1 Rand. (Va.), 466; M’Vay v. Bloodgood, 9 Porter (Ala.), 547; Ewing v. Arthur, 1 Humph. (Tenn.), 537.

      James E. Wright and Walter B. Page, for defendant in error.
    The rule in this state is that promissory notes, secured by mortgage, falling due at different dates are, on sale of the mortgaged premises, to be paid in the order in which they become due. Winters v. Bank, 33 Ohio St. 250.
    “The several notes being equivalent to so many successive mortgages.” Jones Mort., sees. 1699,1700.
    Sharp, in purchasing the first note from Thompson, had a right to rely upon its priority.

      The objection that to force Anderson to his action against Thompson upon his indorsement of the last note would lead to circuity of action might be tenable if Thompson was the party seeking payment of the money to him.
    We do not think that a simple indorsement which was necessary to clothe Anderson with the legal title to these notes amounts to a warranty that the security was adequate' to meet these notes. It is a personal contract at large and not a pledge of any particular fund. If the indorsee is not fully paid he has his personal remedy against the indorser, and this, in the case at bar, has been asserted, for Thompson has been compelled to make the first note good by payment, and when he did pay it had a right to it; and he stood precisely, after payment of it, to Anderson, as if he had never parted with the note; and he had a right then to transfer and assign it to any one he pleased, if he could have had any such right in case he had never sold it to Anderson, but had kept the note himself. Donley v. Hays, 17 Serg. & Rawle, 400; Perry’s App., 22 Pa. St. 43; Massie v. Sharpe, 13 Iowa, 542; Ewing v. Arthur, 1 Humph. 537; Wood v. Trask, 7 Wis. 566.
    The effect of the indorsement was to carry all its accessories with it by implication of law, as the mortgage given to secure the payment, but it did nothing more, by the common law, and the assignment of a judgment -upon a note secured by mortgage has the like effecf. Bolen v. Crosby, 49 N. Y. 183; Funk v. McReynolds, 33 Ill. 182.
    And the same effect will be given to an assignment of only a part of such judgment. It will carry a proportionate interest in the mortgage, Pattison v. Hull, 9 Cow. 747.
   Spear, J.

The original action was one to determine, as between defendant in error, Abram Sharp, and plaintiff in error, James II. Anderson, which had the prior lien on certain lands, and the right to first payment from proceeds of sale. The court of common pleas found in favor of Anderson and decreed distribution accordingly. On error the district court found in favor of Sharp and reversed the decree of the common pleas. To obtain a reversal of this judgment and decree the present proceeding in error is prosecuted. The facts are sufficiently indicated in the syllabus.

The court of common pleas was clearly right in finding in favor of Anderson, and ordering that he should be paid in full, and that only the balance .should be paid to Sharp. Sharp stood, to all intents and purposes, in the place of Thompson. Upon familiar principles he could have no highet rights in any respect than Thompson had. He could not, by substituting himself as plaintiff, deprive Anderson of any right he had against Thompson at the time of the substitution, nor was the power of the court to render any decree which might have been rendered against Thompson and necessary for the full protection of Anderson thereby in the least abridged or impaired. The suit was one which under the pleadings not only authorized the court to order a foreclosure of the mortgage, but as well to find that Thompson was- indebted to Anderson upon the two notes; and, if necessary in order to give full relief to Anderson, to render a judgment in his favor and against Thompson for any balance that might remain due after application of purchase-money upon Anderson’s decree. Indeed, Thompson had not been dismissed from the case, and as regards the rights of Anderson, upon the allegations of his cross-petition, if it were necessary to keep him in court, Thompson was still a party. True, as plaintiff he had been succeeded by Sharp. This relieved him of further responsibility as to costs of prosecution, but did not send him out of court. The court, therefore, upon any aspect, having before it the proper parties, and having jurisdiction of the subject-matter, could by one judgment and order dispose of all the claims arising upon the pleadings and do full and exact justice to all the parties.

It is contended that, inasmuch as Sharp’s claim grew out of payment of the first note by Thompson, Sharp was entitled to a decree finding his lien prior to that of Anderson, and to order of distribution accordingly. Suppose Sharp’s lien were found to be first, how would that help the him upon the record here presented ? It has already been found that for all purposes of the case Sharp was Thompson ; so that whatever might be accorded to Thompson might be accorded to Sharp, and whatever might be refused to Thompson might be refused to Sharp. If Sharp’s lien were found to be first an order to pay him in full from the proceeds would, pro tanto, reduce the amount going to Anderson. Then, Anderson being entitled to a finding and judgment against Thompson, why should Sharp have-money which the court having under its control had the power to award to Anderson in satisfaction of his claim against Thompson ? In other words, Sharp being Thompson, should the court, after making the order in favor of Sharp and finding the amount due Anderson from Thompson, and after rendering a judgment therefor in favor of Anderson and against Thompson, refuse to order the amount going to Sharp to be paid to Anderson, but pay it over to Sharp and remit Anderson to his collection by process of execution? Surely such a roundabout way would favor circuity of action rather than discourage it.

The effect of the judgment of the common pleas Avas to settle the entire litigation in one proceeding, and in so doing the court Avas, to use the language of this court in Morgan v Spangler, 20 Ohio St. 54, “ but carrying out the spirit and intention of the code of civil procedure, a leading object of which seems to be the avoidance of circuity and multiplicity of suits.”

Whether the position of Thompson upon paying off the judgment obtained upon the first note was that of a junior mortgagee as to the amount so paid, or whether he became subrogated to the rights of Anderson in such sort as to be in a position to claim a first lien on the mortgaged property, it is not proposed here to consider. The question is ably argued by the counsel in their respective briefs. But, inasmuch as the views of the members of the court are not in entire harmony upon the question, and inasmuch as in tlie opinion of the writer a determination of it is not necessary to a proper disposal of the case, and believing that, under the ciroumstauces, it is sufficient to discuss and determine only the phases of the case which are indispensable to a disposition of it, the writer refrains from entering upon such discussion.

The judgment of the district court is reversed, and that of the common pleas affirmed.

Minsiiall, J.

We fully concur in the opinion that the judgment of the district court should be reversed and that of the common pleas affirmed; and we as fully concur in the opinion that Sharp stands in the shoes of Thompson, to whose rights he has succeeded since the commencement of the suit by Thompson; for nothing can be better settled than that one who buys into a lawsuit must abide by the case of the one from whom he purchases.

We think, however, that the decision should be placed5 not upon the ground that there is any circuity of action to be avoided, but upon the ground that as against Anderson, Thompson has no right to any part of the fund arising from the sale of the mortgaged premises until the amount due Anderson upon the notes secured by the mortgage has been paid in full. Thompson for a full consideration sold the notes to Anderson, and to secure their payment not only indorsed them, but also transferred the mortgage to' Anderson. Hence, whatever his rights may be as against Kilbourne, the mortgagor, growing out of the fact that he was compelled to pay the j udgment rendered against both of them upon the first note, he can not, without violating the plainest principles of justice, be permitted to appropriate any part of the fund arising from the sale of the mortgaged premises until it has answered the purpose for which he transferred the mortgage to Anderson. To do so would be to permit him to impair the security he gave Anderson when the latter purchased the notes and paid his money therefor.

The decided weight of authority is iu support of this' view. “ When,” says Pomeroy, “ the mortgagee assigns one or more of the notes, and retains the remainder of the series, it is generally held that the assignee is entitled to a priority of lien as against the mortgagee, with respect to the note or notes so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature.” 3 Pom. Eq. Juris., § 1203. And in a note to this section he adds that: “ The mortgagee having transferred the note and received the consideration therefor, it would be inequitable for him to deprive the assignee of any part of its value, by insisting upon a priority or even- an equality of right in sharing the insufficient proceeds.”

And in 2 Jones on Mortgages it is said, sec. 1701: “Where a holder of a.mortgage assigns a part of it, although he warrants only the existence of the debt at the time of the transfer, it would he contrary to good faith to permit him, after receiving tbe money for this part of the claim, to come into competition with his assignee, if the property prove insufficient to pay'the claims of both.” Again the author adds : “ Unless the intention be plainly declared on the face of the assignment that the assignee is to share pro rata in the security with the assignor, the equitable construction of it is that it must in the first place be applied for the.payment of the part of the debt which was assigned.” He cites the following eases: Waterman v. Hunt, 2 R. I. 298; Salzman v. Creditors, 2 Rob. (La.), 241, and Barkdull v. Herwig, 30 La. Ann. 618, which will be found to fully support the text. Iu the latter case the judge, delivering the opinion, says: “ It is settled that a mortgagee, who transfers part of the mortgage debt to another, can not compete with his transferee for the proceeds of the mortgaged property, where the amount is not sufficient to satisfy both ;” and quotes approvingly what is said in Salzman v. Creditors, supra, that “it would be contrary to good faith, that the vendor of a claim, after reeeiving the price of it from the assignee, should by his own act prevent the latter from receiving the sum he has paid.”

As supporting what has been said, we cite also the following cases: McClintic v. Wise, 25 Gratt. 448; Cullum v. Ervin, 4 Ala. 452, approving the dissenting opinion of Gibson, C. J., in Donley v. Hays, 17 Serg. & Rawle, 400; Foley v. Rose, 123 Mass. 557; Forwood v. Dehoney, 5 Bush, 174.

There is no doubt but that the transfer of a mortgage, or of a note secured by it, is subject to the convention of the parties; they may stipulate that the mortgage shall inure as a security for a note or notes retained by the assignor, but in the absence of any agreement the presumption is that the assignee is to be first paid from the avails of the mortgaged property. Noyes v. White, 9. Kan. 640.

Such being the rule in cases where the mortgagee retained one or more of the notes, it must, a fortiori, be so where he not only transferred the mortgage, with all the notes secured by it, but also indorsed the latter. In such case, the fair construction of the. transaction is, that he parts with all his interest in the mortgage as a security for the notes, and personally guarantees their payment. No case presenting such a state of facts is to be found, where, as against his assignee, the mortgagee has been permitted to claim any interest in the mortgage until the amount due the assignee has been fully satisfied.

No doubt exists but that between the assignees of notes, maturing at different times and secured by the same mortgage, the holders, in the absence of any agreement to the contrary, are entitled to be paid in the order that the notes mature, and, in the case of a sale of the land, the proceeds are tobe marshaled accordingly. Bank v. Covert, 13 Ohio, 240; Winters v. Bank, 33 Ohio St. 250.

Again there is no doubt but that Thompson having paid the judgment upon which Kilbourn, the mortgagor, was primarily liable, has the right as against him to keep the mortgage on foot as indemnity for the amount so paid. The right is of equitable origin and is governed by principles of equity. Sheldon on Sub., ch. 1. It can not be asserted against or to the prejudice of the creditor. Crump v. McMurtry, 8 Mo. 413. Anderson has the right to the entire fund arising from the sale of the mortgaged property, if necessary to satisfy the notes held by him. The right of Sharp, in the place of Thompson, is to succeed to the place of Anderson, by paying him the amount.due. upon the mortgage debt. Langdon v. Keith, 9 Vt. 299. Until the mortgagee has, in •such cases, redeemed the mortgage from the assignment, he can not,for the purpose of obtaining indemnity against his principal, the mortgagor, be permitted, as against his assignee, to appropriate any part of the mortgage funds. He must, in such case, be content to follow and take what is left after the assignee has been satisfied; he may glean,but can not reap the field.

Owen, C. J., and Follett, J., concur, the former upon the grounds stated in both opinions, and the latter upon the grounds stated in the opinion of Minshall, J.