author: Crew, J.

text:
    The Brotherhood Accident Co. v. Notter.

      Originals of depositions and documents — Need not be attached as exhibits — To bill of exceptions — Except where inspection necessary — When copies accompanying bill — Error for circuit court to strike from files — Court procedure — Error— Evidence.

    1. Except where something is to he determined by an inspection of them, or unless the same cannot be exhibited by copy so as to fairly present to the reviewing court the question sought to be submitted, the originals of depositions and documents given in evidence on the trial of a cause, need not be attached as exhibits, to a bill of exceptions taken in such cause, but may be incorporated therein by copy.
    2. In a case where no such necessity exists for the production of the originals, if a bill of exceptions signed and allowed by the trial judge and duly filed in the circuit court, has embodied in it as a part of it, copies of depositions and documents given in evidence on the trial, it is error for the circuit court to strike such bill of exceptions from the files, or to disregard and refuse to consider said evidence, merely because the originals of such depositions and documents are not attached thereto and presented therewith.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Gallia county.
    Daniel H. Notter, the defendant in error, brought an action in the court of common pleas of Gallia county, Ohio, against the plaintiff in error, The-Brotherhood Accident Co., on a certificate or policy ©f accident insurance issued by said company to ©ne,. Llewellyn C. Notter. By the terms of said certificate or policy the amount thereof, to-wit: $1,250.00, in case of the death of said Llewellyn C. Notter “from external, violent, and accidental means,” was to be paid to defendant in error, Daniel H. Notter, who was the father of the insured and the beneficiary named in said policy. The policy contained a clause by which it was provided that: “No claim shall be valid under this certificate * * * when the death or injury may have happened in consequence * * * of voluntary exposure to unnecessary danger, hazard or perilous adventure, or when the death or injury may have happened while certificate holder was engaged in, or in consequence of, any unlawful act.” In said action the Accident Company by way of answer to the petition and claim of said Daniel H. Notter, for its defense pleaded, “that the deceased Llewellyn C. Notter came to his death in consequence of voluntary exposure to unnecessary danger, and while he was engaged in, and in consequence of, an unlawful act.” On the trial of the cause in the court of common pleas the Accident Company to maintain its defense read in evidence the depositions of D. W. Brittain, Jr., Clifford J. Porter, Charles Allen Smith and Edward C. Ireland, tending to prove that the deceased Llewellyn C. Notter came to his death in consequence of his voluntary exposure to unnecessary danger in “climbing or jumping upon or clinging to a moving freight train in the state of Illinois.” The defendant further to maintain its defense offered in evidence and read to the jury a duly certified copy of a statute of the state of Illinois, by which statute it Avas made a penal offense “for any person * * * to climb or jump upon, or cling to * * * any locomotive engine or car * _ * * in motion upon any part of the track of any railroad, unless, etc.” In the court of common pleas there Avas a verdict and judgment in favor of the plaintiff, Daniel H. Notter. The Accident Company, after verdict against it, filed its motion for a new trial, which was overruled. A bill of exceptions was thereupon taken,'which together with its petition in error was filed by the Accident Company in the circuit court of Gallia county. In making up said bill of exceptions the depositions of' D. W. Brittain, Jr., Clifford J. Porter, Charles Allen Smith and Edward C. Ireland, and the certified copy of the Illinois statute, instead of being attached to the bill of exceptions, were copied into it. In the circuit court the defendant in error, Daniel H. Notter,. filed his written motion asking that court:
    “First — To disregard and hold for naught all that • part of said bill of exceptions which purports to be the testimony of D. W. Brittain, Jr., Clifford J. Porter, Charles Allen Smith and EdAvard C. Ireland, for the reason that the testimony of all of said witnesses was given by the depositions on file with the clerk of the court of common pleas, and that said original depositions are not embodied in the bill, nor attached thereto, nor in any Avay made part of the record, and no reason shown for their omission, and no consent of defendants in error, and no order of the court in the matter.
    “Second — Defendant in error further moves the court to disregard and hold for naught all that portion or part of said bill of exceptions which purports to be a copy of a certificate of the secretary of state of the state of Illinois, for the reason that the original certificate was used in the trial of the cause below, and is not attached to, nor embodied in said bill of exceptions, nor in any way made part of the record, or of said bill, and no reason shown for its omission, and no consent or order of court, or other reason for the substitution of a copy.”
    These motions were sustained by the circuit court, and that court having left nothing in the bill of exceptions to consider, affirmed the judgment of the court of common pleas. To reverse this judgment of affirmance and the judgment of the circuit court in sustaining said motions, The Brotherhood Accident Co., the plaintiff in error, prosecutes this proceeding.

      Mr. Charles Baird; Mr. Alvin C. Voris and Mr. Edwin F. Voris, for plaintiff in error, cited and commented upon the following authorities:

      Railway Co. v. Kernochan, 55 Ohio St., 306; Trustees v. Welchley, 19 Ills., 64; Hatch v. Potter, 2 Gilman, 725; Keith v. Optical Co., 2 S. W. Rep., 777; Chicago v. South Park, 48 N. E. Rep., 680; Huff v. Gilbert, 4 Blackf., 19; Welsh v. Folsom, 58 Me., 230; Tuskaloosa Co. v. Logan, 50 Ala., 503; Parson v. Woodward, 73 Ala., 348; Nye v. Watt, Wright, 437; Busby v. Finn, 1 Ohio St., 409; Hicks v. Person, 19 Ohio, 426; Murdock v. McNeily, 1 Circ. Dec., 9; 1 C. C. R., 16; Crawford v. Spencer, 92 Mo., 498; 1 Am. St. Rep., 745; Myers v. Myers, 11 S. W. Rep., 617; Pitkin v. Shacklett, 17 S. W. Rep., 641; Tipton v. Renner, 16 S. W. Rep., 668; Moore v. Penn, 10 So. Rep., 343; Stern v. Foltz, 54 S. W. Rep., 451; O'Haire v. Burns, 56 Pac. Rep., 1116; Austin Mfg. Co. v. Clendenning, 52 N. E. Rep., 708; Meissner v. Hockersperger, 49 N. E. Rep., 568; 3 Enc. Pl. & Pr., 430; Irwin v. Smith, 72 Ind., 482; Mills v. Sim

      monds, 10 Ind., 464; Binkley v. Forkner, 3 L. R. A., 33; Taylor v. Spears, 8 Ark., 429; Stewart v. Rankin, 30 Ind., 161; Pennsylvania Co. v. Sears, 36 N. E. Rep., 353; 34 N. E. Rep., 15.

      Mr. Allen L. Roadarmour and Mr. Robert M. Switzer, for defendant in error, cited and commented upon the following authorities:

      Ide v. Churchhill, 14 Ohio St., 372; Johnson v. Johnson, 10 Circ. Dec., 411; 19 C. C. R., 610; Terry v. State, 12 Circ. Dec., 274; 22 C. C. R., 16; Hicks v. Person, 19 Ohio, 446; Railway Co. v. Probst, 30 Ohio St., 104; Armleder v. Leiberman, 33 Ohio St., 77; Reid v. Sycks, 27 Ohio St., 285; Hohly v. Sheely, 11 Circ. Dec., 680; 21 C. C. R., 484.
   Crew, J.

By the record in this case but two questions are presented for determination: 1. Did the circuit court err in sustaining the motions of defendant in error? 2. Did said court err in refusing to consider the bill of exceptions of the plaintiff in error?

It affirmatively appears from the record in this case that the circuit court sustained said motions and refused to consider said hill of exceptions on the sole ground, and for the reason only, that the original depositions and certified copy of the Illinois statute, which were offered and admitted in evidence on the trial of this cause in the court of common pleas, were not themselves attached as exhibits to said bill of exceptions, but were incorporated therein by copy only. In making up the bill of exceptions the original depositions offered and read at the trial instead of being attached to said bill as exhibits, were copied into it; and the copy of the Illinois statute and certificate of the secretary of state, which were given in evidence on the trial in the common pleas were not themselves attached to said bill of exceptions, but copies thereof sufficiently and appropriately identified were attached thereto as exhibits and by proper reference were made part of said bill.

The bill so prepared was duly allowed and signed by the trial judge and ordered tó be made a part of the record, the entry of allowance being as follows': “On this ninth day of February, A. D., .1901, said defendant presented to the court its certain bill of exceptions, duly allowed and signed, and filed the same with the pleadings, and requested that the same 'be made a part of the records, - but. not spread upon ■the journal; and thereupon the court finds that said bill of exceptions was submitted, by the party excepting, to said plaintiff’s attorneys, the opposite counsel, as and within the time required by law; that thereafter said bill of exceptions was submitted to the Honorable David Warren Jones, the trial judge, for his signature, as and within the time prescribed by law; and that said bill of exceptions is true, and that the same has been allowed and signed by the trial judge in all respects as prescribed by law. Said bill of exceptions is therefore now allowed and signed and is hereby made a part of the records, but not to be spread upon the journal.”

There is no claim in this case that the documentary evidence brought into this bill of exceptions by means of copy, is not a true and correct transcript and copy of the depositions and documents given in evidence at the trial; but the sole contention of counsel for defendant in error is, that the bill of exceptions must contain the originals of the depositions and documents’ , given in evidence, and that the substitution of copies is not permissible and will not suffice.

Where, as in this case, a reviewing court was asked to determine whether the trial court erred in overruling a motion for new trial on the alleged ground that the verdict was against the weight of the evidence, the rule is well settled and imperative, that it must expressly and affirmatively appear from the bill of exceptions itself, that such reviewing court has before it all the evidence that was before the trial court. In such case the judgment of the court being asked upon the sufficiency and weight of the evidence, it is essential that the whole of the evidence be embodied in the bill of exceptions or in some manner so made part of it$ as to leave no doubt that the reviewing court has before it all of the evidence that was before the trial court. But this rule does not require that such evidence shall in every instance be exhibited to the reviewing court, in the precise form in which it was presented to the trial court, and indeed f® so attempt to present it, would many time® be highly impracticable. For instance, if on the trial of a case a public record should be producedj and certain pages thereof offered in evidence, the original pages so offered could not be embodied in or attached to a bill of exceptions, except by copy, without mutilating or destroying said record. Yet if the contention of counsel for defendant in error be correct, in such case a bill of exceptions that contained only a copy of the pages so offered, although certified by the trial judge to be a correct copy, would! not be a true bill of exceptions, and could not be considered by the court to which it was presented because of the failure t® attach to, or embody therein, such original pages. Such contention we think does not rest in sound reason, nor is it in harmony with the prevailing practice in the several circuits of this state. It is true that in some cases, in the preparation of a bill of exceptions, it is not permissible to substitute for the original a copy of the document or paper offered in evidence, but the original itself must be presented. But this is necessary only where something is to be determined by or from an inspection of the original, or where the document or paper is in its nature such that it cannot be exhibited by copy so as to present the question sought to be raised. If the authenticity of a document, or the genuineness of a signature, be the matter in dispute, an inspection of such document or an examination of such signature may be and oftentimes is of the utmost importance, and in such case the original and not a copy must be put into the bill of exceptions, for in such case the appearance, form or peculiarities of the thing in dispute of themselves constitute and are a part of the evidence and must therefore be presented to the reviewing court, and a failure to so produce the original would in such case be a failure to produce or exhibit the whole of the evidence. But where, as in this case, there is nothing in the depositions or documents which requires an examination by inspection, the reason for the rule ceases and the rule itself becomes inoperative. Where the question is not as to the authenticity of a deposition or document but only as to its contents, the reviewing court may be as well advised of that fact by a bill of exceptions containing a true copy of such deposition or document as by the production of the originals, and a bill of exceptions into which such deposition or document is copied would be and is in all respects as good and sufficient for the purpose of exhibiting the evidence to a reviewing court, as would be a bill to which such original documents were attached as exhibits. The only infirmity alleged or claimed against the hill of exceptions in this case being the failure to attach thereto the original depositions and the certificate of the secretary of state of the state of Illinois, we think said bill is a valid and sufficient bill, and that the plaintiff in error was of right, entitled to have considered by the circuit court the whole ®f the evidence presented by said bill and was entitled to the judgment of said court upon the questions thereby presented, and that in sustaining the motions of defendant in error and in refusing to consider the depositions and documentary evidence above mentioned, said circuit court erred.

The judgment of the circuit court is therefore vacated and this cause is remanded to that court with instructions to overrule said motions and to consider said hill of exceptions.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The State of Ohio v. Carter.

      Council of municipal corporation — Passes ordinance to construct sewer — Assesses costs on abuttting lots — Cleric collecting assessments charged zoith same — Conversion of the fund is embezzlement — Section 6841, Rev. Stat.

    Where the council of a municipal corporation, regularly passes an ordinance for the construction or repair of sewers, which assesses the costs and expenses thereof on the lots and lands abutting on such sewers, and requires that the assessments shall be paid to the clerk of the corporation who shall pay the same into a fund to be thus created to meet the costs and expenses of construction or repair of the sewers, and the clerk collects all or a part of said assessments under the ordinance, he is legally “charged” with such funds within the •meaning of Section 6841, Revised Statutes; and if he fraudulently converts the same to his own use, he is guilty of embezzlement under the provisions of said section.
    (Decided February 3, 1903.)
    Exceptions to the decisions of the Court of Common Pleas of Hamilton county.
    Bennett Career, on the twenty-ninth day of March, A. D., 1902, was indicted by the grand jury of Hamilton county, for the crime of embezzlement, which as the indictment alleges, was committed on the twenty-ninth day of May, A. D., 1900. This indictment contains two counts, the first of which is framed under the provisions of section 6841; and the other alleges the offense under Section 6842, Revised Statutes. It is claimed by counsel for the exceptions, that at the trial in the lower court, the state, on motion of the accused, was compelled to elect on which of the two counts it would rely for conviction, but no such order appears in the record, and, therefore, an exception to it is not considered. But it seems to be agreed by counsel that the trial was, in fact, conducted on the first count of the indictment, under which evidence was introduced to show, that at the date of the alleged crime, Bennett Carter was the duly elected and qualified clerk of the village of Madisonville, a municipal corporation in Hamilton county, and that he had been such clerk during several preceding years.
    The following ordinance of said village was plead in haec verba as part of the first count, and it was also introduced in evidence to the jury, to-wit:
    “An Ordinance — No. 1310.
    “To assess a special tax on real estate bounding and abutting on streets and public ways in which sewers and drains are planned in Sewerage Division No. 1 of District No. 2, except such real estate as has been heretofore assessed the full amount estimated to complete said plans.
    “Section 1. Be it ordained by the council of the village of Madisonville, Ohio, that there be levied and assessed on each front foot of the several lots of land bounding and abutting upon all the streets and public ways in which the plans and specifications of Sewerage Division No. 1 of District No. 2, and Sewerage Division No. 2 of District No. 2, show that sewers and drains are to be constructed when the sewerage of such divisions is fully completed under such plans, except such real estate as has been heretofore assessed the full amount estimated to complete such plans, the sums hereinafter named for each and every year as specified in accordance with Section 2396, Revised Statutes of Ohio, to-wit: (Here follows a list of the several lots assessed and the amounts so assessed.)
    “Section 2. That the owners of the several lots and lands upon each front foot of which the sums aforesaid are assessed, shall pay the amount of money by them severally due in that behalf, to the clerk of the village on or before the thirtieth day following thé final passage of this ordinance, and in default of such payment, the clerk shall forthwith certify all unpaid assessments to the county auditor, to be by him placed on the tax duplicate and collected by law.
    “Section 3. That the said assessment and all portions thereof, shall be paid into the debt fund when collected, and shall be applied to the payment of the cost and expense of constructing said sewer, together with the bonds to be issued for same, and the interest thereon, and to no other purpose whatsoever.
    “Section 4. This ordinance shall take effect and be in force from and after the earliest period allowed by law.
    “Done at council chamber in Madisonville, Ohio, this fourth day of April, A. D., 1900.” (Seal and signatures attached.)
    The indictment charges that the accused clerk collectéd and received the sum of $335.87 of the moneys assessed under said ordinance and which belonged to said village and that he unlawfully and fraudulently embezzled and converted it to his own use.
    The evidence tended to prove, that under the provisions of the said ordinance, Carter collected and received from various lot owners, at least $154.34, for which he gave receipts, which he signed as clerk, and that he never accounted for this money in any manner.
    He offered no evidence in defense.
    The state excepted to the court giving two special charges, and also excepted generally to the charge given.

      The jury found the accused guilty and assessed the value of the property embezzled at $154.34. '
    He filed a motion for'new trial, and also a motion in arrest of judgment.
    The ground of the latter motion is, “that the facts stated in the indictment do not constitute an offense.” The court sustained this motion and arrested judgment, to which the state excepted.
    The case is in this court by its leave, on the exceptions to the several decisions of the trial court.

      Messrs. Hoffheimer, Morris & Sawyer, prosecuting attorneys, for plaintiff in error.
    The two counts in the indictment are substantially the same, as an inspection will disclose. The first count charges the defendant, as the clerk of said village, with the receipt of moneys by virtue of an ordinance, and the second count charges said clerk with the receipt of moneys by virtue of his being the village clerk.
    The court under these circumstances in compelling the state to elect erred. State v. Bailey, 50 Ohio St., 636; Whiting v. State, 48 Ohio St., 220; Cotell v. State, 5 Circ. Dec., 472; 12 C. C. R., 467; Myers v. State, 2 Circ. Dec., 712; 4 C. C. R., 570; State v. Franzreb, 11 Re., 775; 29 Bull., 129.
    Has the counsel of a village the power to designate clerk of a village to receive moneys assessed under an ordinance?
    We think they have. Section 1706, Revised Statutes, enumerates the officers of a village, and among them is that of clerk. Sections 1755-1764 in general prescribe the duties of the clerk of a village.
    Has the clerk of a village the inherent power to receive moneys of the village primarily, by virtue of his office, said moneys after he receives them to be turned over to the treasurer?
    In determining this question, we must see what the general duties of the clerk are as compared with the treasurer.
    The clerk shall make a detailed statement of the receipts and expenditures of the corporation. (Section 1756.)
    He shall report annually to the auditor of the state the expenses of the corporation for schools, police, streets, etc. (Section 1758.)
    He shall have charge of the records of the corporation. (Section 1762.)
    He shall, whenever presented with a receipt from a contractor in whose favor an assessment is confirmed, record the payment of the assessment on the margin of the record, so as to show that the lien was released. (Section 2285.)
    He shall certify any unpaid assessment or tax to the county auditor to be placed upon the tax-list by that official. (Section 2295.)
    The different enumeration of the sections clearly shows that the clerk of a village is the general bookkeeper thereof.
    The powers and duties of the treasurer of a village are defined by sections 1767 through 1770.
    From sections 1767, 1768 and 1769, it will be seen that the treasurer is contemplated to be the mere custodian or holder of the moneys of the village after they have been collected by some one else, and that he is not the active collector thereof. Therefore, as the village clerk must keep charge of all the records of the corporation, and make a detailed statement of receipts and expenditures hereinbefore referred to, it would necessarily follow that he would be the proper person to re■ceive moneys of the village primarily, and turn them over to the treasurer to hold and to be paid out according to law.
    Is the clerk of a village who has receipted for moneys of the village as such clerk, and who has embezzled said moneys, estopped from denying his right or power to receive moneys as clerk? In other words, can he take advantage of his own wrong?
    The record shows that Carter gave receipts as clerk ■of the village signed by him as clerk, and under the seal of the village. He is therefore estopped from setting up the fact that as clerk he had no right to receive any moneys. State v. Pohlmeyer, 59 Ohio St., 491; 2 Bishop New Crim. Law, section 364; State v. Spaulding, 24 Kan., 1; State v. O’Brien, 94 Tenn., 79.

      Mr. Charles E. Tenney and Mr. Norwood J. Utter, for defendant in error.
    The clerk of a village is not “charged with the collection, receipt, safekeeping,' transfer or disbursement of the public money belonging to any municipal ■corporation,” nor does it “come into his possession by virtue of his office or employment;” and any ordinance passed by the village council purporting to charge him with such duties, or to provide that he shall come into the possession of public money by virtue of his office or employment, is illegal and void. Therefore, if, as such clerk, he collects or comes into the possession of money belonging to the village, whether or not in pursuance to such an ordinance, and if he converts such money to his own use, he is not guilty of embezzlement under Sections 6841 or 6842, Eevised Statutes. State v. Newton, 26 Ohio St., 265; State v. Myers, 56 Ohio St., 340. These two eases leave nothing to be decided in the present case excepting the validity and effect of the ordinance set forth in the indictment.
    The contention of the defendant in error is that that ordinance conflicts with the statutes of this state, and is void; and that therefore the defendant was not charged by law with the collection, etc., of the public moneys.
    Section 1706, Revised Statutes, names and enumerates the statutory and necessary officers of a village,, one of whom is the clerk, and another the treasurer.
    Section 1710, Revised Statutes, authorizes the council to provide additional officers.
    The duties and powers of a clerk of a municipal corporation are defined and prescribed in the following sections: Sections 1755-1764, 2285, 2295, 3107-53, 2702 and 2690, Revised Statutes.
    He is nowhere empowered by the legislature to handle any of the funds of the corporation. ' His duties and authority are strictly confined to those of bookkeeper of the village and secretary of the council.
    Sections 1767 and 1768, Revised' Statutes: The duty of handling the money of the corporation is imposed on the municipal treasurer, a village officer specifically provided for by Section 1706, Revised Statutes, and therefore distinct from the village clerk.
    The council may attach such duties and powers as it chooses to offices of its own creation (Section 1712, Revised Statutes) ; but to the statutory office of clerk it may add only such duties as pertain to the office (Section 1762, Revised Statutes) ; and to the statutory office of auditor it may add only such duties as are not inconsistent with the constitution and laws of the state and not incompatible Avith the nature of the office (Section 1765, ReAdsed Statutes).

      The powers of council are strictly construed. Bloom v. Xenia, 32 Ohio St., 461.
    The sections previously cited as to clerk, auditor and treasurer, show that the collection of assessments does not pertain to the office of clerk or auditor and is incompatible therewith, and the imposition of such a duty would be inconsistent with the la;ws and constitution of the state. State v. Newton, 26 Ohio St., 265.
    The ordinance attempting to charge the clerk of Madisonville with the collection of sewer assessments is therefore void. Lillard v. Ampt, 7 Dec., 167; 4 N. P., 305.
    • Criminal statutes are strictly construed, and all doubts as to their interpretation are to be resolved in favor of the accused. “A statute defining a. crime or •offense cannot be extended by construction to persons •or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.” State v. Meyers, 56 Ohio St., 340; U. S. v. Wiltberger, 18 U. S. (5 Wheat.), 76.
    A village clerk who makes no false representations as to the facts, and who collects money in pursuance to an illegal ordinance, is not estopped to deny -the validity of the ordinance or to deny that he is amenable to any particular criminal statute under which he may have been indicted.
    The defendant is indicted for embezzling from the village. But the village itself had passed the invalid ordinance, whose terms the defendant was following in receiving the money. The village was familiar with all the facts, and is presumed to know the law. The defendant made no representations whatever of facts. The doctrine of estoppel does not apply to even an express statement as to a conclusion of law,
      and a fortiori it does not apply to an implied representation. Estoppel is applied only to representations of fact. The following citations are conclusive of this proposition:
    11 Am. & Eng. Ency. Law (2 ed.), 425; McKeen v. Naughton, 88 Cal., 467; Estis v. Jackson, 111 N. C., 145; Holcomb v. Boynton, 151 Ill., 294; Cameron v. Cameron, 95 Ala., 344; Brewster v. Striker, 2 N. Y., 19; Whitwell v. Winslow, 134 Mass., 343; Bigelow on Estoppel (5 ed.), 572.

      City of Cleveland v. Clement Bros. Construction Co., 67 Ohio St., 197, decided by this court December 2, 1902, shows that this court does not apply the doctrine of estoppel to representations of law, and is a very strong case on the subject.
    The defendant does not deny any of the facts pleaded; but he denies that the facts pleaded render him liable under Sections 6841 or 6842, Revised Statutes.
   Price, J.

The record in this case shows exceptions to the giving of two special charges to the jury, at the request of the accused, and also that the state excepted generally to the charge given.

We have examined these special .charges, as well as the general charge, and our voyage has not discovered substantial error in either the general or special charges. IS!or have counsel for the state pointed out. any error in these respects, and we are inclined to assume that but little, if any, confidence is reposed in such exceptions.

The only important question in the case, is: Did the trial court err in sustaining the motion in arrest of judgment?

To answer that question intelligently, reference must be bad to the indictment upon which the accused was tried, and the statute and ordinance under which the same was found and prosecuted.

The first count, and the only one we consider, alleges, after the formal part, “that Bennett Carter on the twenty-ninth day of May, in the year nineteen hundred, with force and arms, at the county of Hamilton aforesaid, being then and there a public officer, to-wit: being clerk of the village of Madisonville, a municipal corporation duly organized under the laws of Ohio, and situated in the county of Hamilton, and said Bennett Carter, being then and there charged with the collection, receipt, safe-keeping and transfer of public moneys, belonging to said municipal corporation under and by virtue of the following ordinance of said municipal corporation, to-wit: (Here follows a copy of the ordinance set out in the statement of this case), certain of said money, to-wit, the sum of three hundred and thirty-five dollars and eighty-seven cents, of the public moneys, belonging to said municipal corporation aforesaid, did unlawfully and fraudulently embezzle and convert to his, said Bennett Carter’s own use, which said moneys had then and there come into the possession and control of him said Bennett Carter, by virtue of his said Bennett Carter’s office as such clerk as aforesaid and in his discharge of the duties thereof as aforesaid, * * * contrary to the form of the statute,” etc.

It is asserted for the state that the foregoing indictment is authorized by Section 6841, Revised Statutes, which for the purposes of this case, may be abbreviated to read as follows:

“Whoever, being charged with the collection, receipt, safekeeping, transfer or disbursement of the public money * * * belonging to any municipal corporation, converts to his own nse * * * any portion of the public money, or other property, bonds, securities, assets, or effects of any kind, received, controlled, or held by him for safekeeping, or in trust for any specific purpose, transfer, or disbursement, or in any other way or manner, or for any other purpose, shall be deemed guilty of embezzlement,” etc.

It appears beyond question, that the moneys which came into the possession and custody and keeping of Carter, while he was village clerk, were moneys which he had collected and received under the provisions of the ordinance above set out, and not in the discharge of any purely statutory duty imposed upon him; and if the ordinance is valid and such as the statute authorized the village council to pass, then the duties imposed upon the clerk were legal duties, and he was legally “charged” with the collection, receipt, safekeeping, transfer or disbursement of the “public money” of the village which he collected and received from the lot and landowners in payment of their sewer assessments made under the ordinance.

The second section of this ordinance, if valid, required the lot and landowners, within a certain time, to pay their assessments to the clerk of the village, and if the payments should not be made within that period, the clerk should forthwith certify all unpaid assessments to the county auditor, to be by him placed on the tax duplicate and collected by law.

By the third section, the assessments, when collected should be paid into the debt fund, to be applied to the cost and expense of constructing the sewer.

In the method thus provided, Carter, the village clerk, came into possession of the funds he was charged to have embezzled, and the trial court held that the indictment stating such a case, failed to charge a crime.

If the village council had no authority to adopt this mode of payment and collection of the sewer assessment; no power, by ordinance to impose upon the ■clerk the duty of receiving and collecting the assessments, the decision of the lower court might be plausible.

So, the case depends upon the virtue and vitality of the ordinance, and in the consideration of it, we are ■not unmindful of the fact, that in Ohio, municipal' corporations have only such powers as are delegated to them by charter, or the statutes enacted for that purpose.

If the power to pass by-laws or ordinances is conferred by a law in general terms, without enumerating their subjects, the municipal council could pass any ordinance to govern and regulate its own local affairs, subject to the limitation, that it must not conflict with the constitution and laws of the state, or contravene public policy.

But, in Ohio, the powers of such corporations are enumerated, and the subjects of municipal legislation are declared in Section 1692, Revised Statutes, the substantive paragraph of which is:

“In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.”

And in sub-section 21, the council is empowered “to open, construct and keep in repair sewers, drains and ditches.”

We have in this-section general powers enumerated therein, one of which general powers is to open, construct and keep in repair sewers, etc., and also the-grant “that the council may provide by ordinance for' the exercise and enforcement of the same.”

Other provisions of the statute prescribe the mode of assessments for sewer construction and repairs, and the authority conferred upon the city or village is general but ample, to authorize the village of Madison-ville to adopt the mode of assessment contained in the ordinance before us. The validity of that portion of the ordinance is not in question in this case. It was upon a purely local subject, and within one of the enumerated powers of the council.

But does the power of the council end there? Or, can it “provide by ordinance for the exercise and enforcement of the same?” The above section says it may, and if the mode of the collection of the assessments is within the clause “for the exercise and enforcement of the same,” it was competent for the council to select and adopt the method prescribed fn sections 2 and 3 of the ordinance. The collection was but an incident in the exercise of the power expressly conferred, and to enforce the collection of such assessments, the council might pass the ordinance in question.

The clerk was an officer of the village and not of the state, and while his general duties are defined by statute, it is within the legitimate exercise of municipal authority to add other duties, which are not inconsistent with the statutory duties, and which relate solely to the local affairs of the corporation. And we regard the provision in question, that the lot owners should pay their assessments to the clerk, and that he should pay them into the debt fund to discharge the expense of the sewers, as an incident to the exercise of the power of assessment for sewer purposes which is-expressly granted: The legislature has not undertaken to prescribe the rules for every detail that is incident to construction of sewers and the enforcement of payment of the assessments, but has furnished the general outline, leaving to the municipal council the working out of the details. Prescribing the method of collection of the assessments, was one of the details and incident to the exercise of the general power.

This doctrine is well stated by Throop on Public Officers in section 542 under title of “officers’ implied and incidental powers,” as follows: “The rule respecting such powers is, that in addition to the powers expressly given by statute to an officer or a. board of officers, he or it has, by implication, such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as may be fairly implied from the statute granting the express powers, * * * .”

The author furnishes apt illustrations of the proposition, and cites several cases in its support.

In “Dillon’s Municipal Corporations,” in a note to-section 308, it is said: “Where the power to do certain acts or pass certain ordinances is conferred upon the council, but the particular mode of exercising the power is not prescribed, this may be done by ordinance, and any mode may be adopted which does not infringe the charter or general law of the land.”

There is some authority on the same point in The City of Cincinnati v. David Gwynne, 10 Ohio, 192, where the holding is stated to be that, “an ordinance of the city council requiring the mayor to enforce the collection of a special tax by suit, in the nature of an action of debt, does not violate the city charter, or the general law of the land.”

The then charter of that city conferred no civil jurisdiction upon the mayor, but did enumerate other jurisdiction and powers, and the spirit of the decision is, that where the mode of collection of the tax was not expressly provided by the charter, the council might by ordinance provide the manner of collection.

So far, we have discussed the question involved in the light of the express authority given municipal corporations by the principal and granting clause of Section 1692, Revised Statutes, and the powers necessarily incident to the exercise and enforcement of that authority.

We now pass to another section of the statute, to inquire what bearing it may have on the pending controversy.

Section 2693, Revised Statutes, provides, that,— “nothing in this chapter shall be construed to prevent any corporation that may elect to do so, from levying and collecting taxes, as authorized by this title, within the corporation; and when any corporation elects to levy and collect such taxes, the council shall provide by ordinance, for the appointment and control of the necessary officers to carry the same into effect; which officers shall have the power, and be under all the restrictions of county auditors, county treasurers, and township assessors so far as the same are applicable to them, except in the sale of delinquent lands.”

This seems to be a general provision in Chapter 1 of Title 12 of the municipal code. Chapter 1 of Title 12 is upon the subject of finance and taxation, fixing the rates of levies, etc. And Title 12 embraces the entire municipal code. So, that sewer taxes are authorized in this title, and the corporation may elect as to the manner of collection of such taxes as are within the corporation. The section (2693) authorizes the council to select and appoint- by ordinance the officer or officers to levy and collect such taxes. This section in its present form has been a part of the-municipal law since the adoption of the revised code-passed May 7, 1869, and w-hile its authority may not. often be exercised by municipal corporations in the particular manner permitted, yet it seems to clothe them wdth ample power to manage and control matters of purely local taxation.

In the case before us, the ordinance might well be defended under this section, if it lacked sanction of authority under any other provision of the statute.

The village clerk was selected as the officer to receive payments of the assessments, and this was done by ordinance, the regularity of the passage of which is not questioned in the record.

There is another and broader view to be taken of this case, and it stands on more than a statutory plane.. It rests upon our sense of w'hat is right, and that just; and proper regard for obligations wffiich an officer voluntarily assumes to the public.

Carter, the village clerk, availed himself of the provisions of the ordinance so far as to receive from the village taxpayers sums of money wdiich they were required to pay within a certain period to avoid certification of the same by him to the county auditor.. He did this under at least a colorable authority, and gave receipts as the clerk of the village. Is it any defense to his embezzlement of these funds for him to say the ordinance is invalid? By its provisions; he agreed and undertook to be the servant and agent of the village in collecting and disbursing these assessment funds. He discharged that part of his engagement which relates to the collection of the moneys, and after pocketing the same, he asserts that there is no valid law to punish him for embezzlement. Such a defense is brazen, if nothing more.

Some courts have denied such a defense on the doctrine of estoppel, which they are willing to apply to this class of crimes, as well as in civil actions. This seems to be the opinion of Bishop in his New Criminal Law, section 364, and of the courts in State v. Spaulding, 24 Kan., 1; and State v. O’Brien, 94 Tenn., 79.

We do not think that the doctrine need to be denominated estoppel to have its rightful place in such cases. If the ordinance was recognized by the clerk as sufficient authority for him to obtain control and possession of the public money, he acted upon it as a valid ordinance, the same as did the lot owners in paying to him their assessments. If it was sound enough to enable him to receive the money, it was sound enough to “charge” him with its safe-keeping and disbursement; and if so “charged,” and he converted the funds to his own use, he is guilty of embezzlement. “If he was officer enough to receive the money, he was officer énough to be punished for -embezzling it,” — as said fry the court in one of the above cases.

Wharton on Criminal Law, Vol. 2, section 1920, ¡states the rule thus: “While the reason of the thing requires that the money embezzled should have been received by the defendant within the orbit of his employment, yet where he succeeds in getting the money on the basis of such employment from third parties, and when there is a legal duty resting on him to pay over such money to his employers, then the embezzlement of such money is within the statute.”

The State v. Spaulding, 24 Kan., supra, and The State v. O'Brien, 94 Tenn., supra, are only some of the decided eases which support the proposition. Other cases are cited therein.

This court has not been silent on this subject.

In the State of Ohio v. Pohlmeyer, 59 Ohio St., 491, it is seen that the accused in that case, had been ■employed as the agent of The W. L. Douglas Shoe •Company, a corporation organized under the laws of Massachusetts. It was charged in the indictment that as such agent, Pohlmeyer received certain money in the course of his employment, which he embezzled. ■On the trial the accused called and proved by the Secretary of State, that The W. L. Douglas Shoe Co., had not complied with certain laws of Ohio by filing ■certificates as required before it could lawfully do business in Ohio. The business done by'•the agent was therefore illegally done. The court for this rearson directed a verdict of acquittal, instructing it that the accused could not be the agent of the company. On considering the exception to this decision of the trial court, this court said on page 495: “The sections clearly disclose the purpose of the general .assembly that foreign corporations shall be put on the same footing with domestic corporations with respect to fiscal burdens, to the business which they may carry on in the state and to service of judicial process within the state. They do not disclose a purpose * * * to make booty of the property of a corporation which does not comply with the provisions of the act * * * . And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for' another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions.” The application of the foregoing to this case is apparent.

We have no doubt that the trial court erred in sustaining the motion in arrest of judgment.'

We do not have the question of liability of the sure' ties on the bond of the clerk, for moneys collected under an ordinance passed either before, or after the execution of the bond, and in what has been said in this opinion, we do not pass on such probable or possible question.

Exceptions sustained.

Burket, C. J., Spear, Davis, Shauck and Crew,, JJ., concur.


author: Pbice, J.

text:
    The State of Ohio v. Tuttle.

      Carnal knowledge of female under sixteen — Error to charge ñeras accomplice — Error for court to warn jury as to testimony of abandoned women — Error to classify witnesses — Rules of evidence — Rape.
    1. On the trial of a male person of the age of eighteen years' or upwards, on an indictment for carnally knowing and abusing a female person under the age of sixteen years, with heiconsent, it is error for the court to charge the jury, that, “A female person under sixteen years of age, who knowing it is wrong, consents to an act of sexual intercourse with herself by a man above the age of eighteen years, is an accomplice, and her testimony should be received with caution and very closely scrutinized before the jury acts upon it.” It is also error for the court to say in that connection, and as-a part of the above charge, that “the jury is warned that it is exceedingly unsafe to convict in any case upon the evice of an accomplice unless the same is corroborated by other evidence which is reliable.”
    2. It is likewise error in such case for the court to charge the jury that, “The experience of courts warns them to scan. with caution, and view with suspicion, the testimony of abandoned women; and if any such have testified in this cause, it is your duty to apply the above warning.”
    3. It was further error in such case, for the court to charge that, “The conduct of abandoned women is often incomprehensible when tested by the standard applied to the generality of ' mankind; and if any such have testified in this case, you should be cautious in relying upon her evidence.”

      4. It is not the province of the court, to classify witnesses, and give to the jury what the experience of the courts may be in respect to such a class, but their credibility should be left to the jury, under all the competent facts and circumstances, of the case before it.
    (Decided February 3, 1903.)
    Exceptions to the decisions of the Court of Common Pleas of Hamilton county.
    On the twentieth day of April, A. D., 1901, Oliver W. Tuttle was indicted by the grand jury of Hamilton county, under Section 6816,- Revised Statutes of Ohio, for carnally knowing and abusing Mabel O’Neal, a female person, under the age of sixteen years, with her consent.
    Later in the term of the court, he was placed on trial, and Mabel O’Neal, and a companion, Bertha Hackett, likewise under the age of sixteen, both colored, were the principal witnesses for the state. The defendant was a white man about fifty years of age.
    The exceptions filed in this court by the prosecuting attorney, are the following: The court erred:
    1. In refusing to admit testimony on behalf of the state.
    2. In the admission of testimony offered on behalf of the defendant.
    3. In the giving of certain special charges offered for the defendant.
    The special charges requested and given before •argument, and which are most complained of by the state, are:'
    “Charge 1. A female person under sixteen years of age, who knowing it is wrong, consents to an act of sexual intercourse with herself* by a man above the age of eighteen years is an accomplice, and her testimony should be received with caution and very •closely scrutinized before the jury acts upon it.
    “Charge 2. The jury is warned that it is exceedingly unsafe to convict in any case upon the evidence of an accomplice unless the same is corroborated by other evidence which is reliable.
    “Charge 3. The experience of courts warns them to scan with caution and view with suspicion the testimony of abandoned women or the like; and if any such have testified in this cause, it is your duty to apply the above warning.
    “Charge 4. The conduct of abandoned women is often incomprehensible when tested by the standard applied to the generality of mankind; and if any such have testified in this case, you should be cautious in relying upon her evidence.”
    After hearing the evidence and arguments of counsel the jury retired to their room, and soon thereafter returned into court, a verdict of not guilty.
    The state has obtained leave to file a bill of exceptions in this court for its judgment on the several decisions excepted to.

      Messrs. Hoffheimer, Morris & Sawyer, for plaintiff, cited and commented upon the following authorities:

      Hamilton v. People, 29 Mich., 173; Johnson v. State, 17 Ohio St., 593; Loughlin v. State, 105 N. Y., 159; 18 Ohio St., 99; McCombs v. State, 8 Ohio St., 643; McFarland v. State, 24 Ohio St., 329; Hornbeck
      v. State, 35 Ohio St., 277; Dunn v. State, 45 Ohio St., 249; 29 Am. & Eng. Ency. Law, 805; Shelby v. Clagett, 46 Ohio St., 549; Goins v. State, 46 Ohio St., 457; 1 Am. & Eng. Ency. Law (1 ed.), 63; Mascolo v. Montesanto, 61 Conn., 50; People v. Glover, 71 Mich., 304; People v. Johnson, 106 Cal., 289; People v. Abbot, 19 Wend., 192; O’Blennis v. State, 12 Mo. 311; 47 N. J. L., 279; Lawson v. State, 17 Tex. App., 302; People v. Benc, 130 Cal., 159; State v. Eberline, 47 Kan., 155.

      Mr. Thomas H. Darby, for defendant, cited and commented upon the following authorities:

      Dunn v. State, 45 Ohio St., 249; Webb v. State, 29 Ohio St., 351; Coble v. State, 31 Ohio St., 100; Clinton v. State, 33 Ohio St., 27; Hanoff v. State, 37 Ohio St., 178; Stephens Dig. Ev., section 129; State v. McCoy, 52 Ohio St., 157; Smith v. State, 12 Ohio St., 466; O’Meara v. State, 17 Ohio St., 515; May’s Crim. Law (2 ed.), 52; State v. Jones, 83 N. C., 605; section 6832, Revised Statutes; Hartshorn v. State, 29 Ohio St., 635; Searles v. State, 3 Circ. Dec., 478; 6 C. C. R., 331; Bailus v. State, 8 Circ. Dec., 526; 16 C. C. R., 239; State v. Miller, 7 Ohio, 461; Deggs v. State, 7 Tex., App., 359; State v. Blunt, 59 Ia., 468; State v. Rowland, 72 Ia., 327; Albritton v. State, 94 Ala., 76; Chappel v. State, 7 Cold. (Tenn.), 92.
   Pbice, J.

We have searched the record in vain for -some of the rulings of the court upon the introduction of testimony. Counsel for the state have cited us to pages 17 and 20 of the record for objections to certain questions, and the rulings of the court thereon, but it appears that the evidence now complained of, was permitted by the state without objection, and hence thd'eourt made no ruling on the subject. This statement covers the entire assignment as to errors, of the trial court in ruling upon the admissibility of testimony, save in one instance, and it relates to an inquiry which we regard as unimportant in the case, and therefore do not further consider it.

Before the arguments of counsel began the accused requested the two special charges contained in the-statement of this case, and they were given, and no doubt they contributed largely to the verdict of acquittal. If they correctly state the law of the case-then on trial, the general assembly performed an idle ceremony when it amended the statute against the crime of rape, so as to embrace the carnal knowledge and abuse of a female under the age of sixteen, with her consent. , In the judgment of the legislature, the increasing number of assaults upon the person and chastity of not only adult women, but also of youthful girls and those of tender years, demanded an amendment of Section 6816 of Revised Statutes, enlarging its scope, and fixing an age of consent, first,, perhaps at fourteen years, and later as it stands now, at sixteen years.

The substance of the added provision is, that one, who being eighteen years of age carnally knows and abuses a female person under the age of sixteen years, with her consent, is guilty of rape.

With the amendment, the entire section reads: “Whoever has carnal knowledge of a female person, forcibly and against her will, or being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.”

The legislature concluded to come to the rescue of youthful females from the brutal assaults upon their virtue, and to make it rape for the assailant to have-«carnal knowledge of one, who is either too young to forcibly resist, or whose ignorance of the wiles and blandishments of evil men may make her an easy subject to their corrupt suggestions and persuasions. The provision was-enacted for the protection of this ■ class of our people, from the lust and beguilement of •designing men of maturer years and greater experience.

But if the doctrine of the charge is to prevail, and the subject of the rape is to be considered an accomplice, because the carnal knowledge was with her consent, then is the law against the crime thwarted, and •conviction for its violation rendered in most cases impracticable. /

There is neither precedent or other authority for the position of the trial court. The very language of the section defining rape negatives any such construction of it. It surely was not intended that the lecherous male person should be held guilty of rape if he carnally knows or abuses a female person under sixteen years of age, with her consent, and at the same time, that she be treated as an accomplice, and her testimony smirched and discredited because she has been the victim of deception, falsehood, persuasion or other means of seduction.

The counsel who argue against the exception to these charges, cites the State v. McCoy, 52 Ohio St., 157, in support of the trial court.

There is no reason for being misled by that case, for it was decided on very different principles. The purpose of the statute in that case, is not so much to protect the woman, to whom drugs or medicines are administered to procure miscarriage, or for the same purpose, upon whom instruments are used, as it is to prevent destruction of unborn life, and, if the woman aids, and abets, in tbe use of the means to procure her miscarriage, it was held in that case (State v. McCoy) her evidence might be weighed as that of an accomplice.

We think the error of the trial court is so gross and. flagrant, that it needs no further discussion. Otherwise such accomplice might not only be discredited as a witness, but also prosecuted and punished for the complicity in the crime. The rapist in this case has been acquitted, and the climax of folly will be reached, when the accomplice is convicted.

Concerning the tLird and fourth charges given, we need only say, that the trial court put in evidence the experience of trial courts, when considering the testimony given by abandoned women, and the jury was told “the experience of courts wmrns them to scan with caution and view with suspicion the testimony of abandoned women or the like; and,” that, “if any such have testified in this cause, it is your duty to apply tbe above warning.”

In the next paragraph the jury was told that, “The conduct of abandoned women is often incomprehensible when tested by the standard applied to the generality of mankind; and if any such have testified in this case, you should be cautious in relying upon her evidence.”

A case might arise wherein the facts might justify the above broad and sweeping comment upon a certain class of witnesses. But the facts certainly would be peculiar and the issue singular, where it could be justified.

In this case, were two colored girls about fourteen, years of age, as witnesses for the state. Their own evidence.shows that they had begun a vicious life quite early, and yet, they may not have reached the stage or degree in vice, that would class them among what the court called “abandoned women.” Moreover, it is not the proper function of the court to classify witnesses to a jury, and say that one class is to be viewed with caution and suspicion, because its vices are different in kind or degree from the vices of another class. Nor should the court say to the jury that the conduct of one class of witnesses “is often incomprehensible, when tested by the standard applied to the generality of mankind.”

In deciding questions of fact before them, courts may often use their own experience and observations, in weighing the testimony of witnesses having certain well-known traits and defects of character, but they may not impose that experience on a jury as its guide in determining the credibility of witnesses.

Both paragraphs smack too much of the court giving evidence in the nature of impeachment.

If evidence had been presented to the jury, tending to, or showing their depravity; if the facts exhibited them in that light, the jury might well be instructed to attach such weight and give such credit to their testimony as, in their judgment, it should have.

But here the court fixed something of a degree of disbelief to' govern the jury, and in so doing transcended its authority.

Exceptions sustained.

Burket, C. J., Spear, Davis, Shatjck and Crew, JJ., concur.


author: Shauok, J.

text:
    The Merchants' National Bank of Cincinnati v. Ryan et al.

      Promissory note — Not without consideration as to surety— Though consideration was previous contract — To which surety was not party — haw of contracts — Surety.
    A promissory note is not without consideration as to one who executes it as surety, although the consideration as between the principal and the payee is the doing of an act by the latter which a previous contract had bound him to do, if the surety was not a party to such previous contract and its performance was waived by the principal while it was yet executory.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Hamilton county.
    The bank brought suit against the obligors to recover the principal and interest upon a promissory note of which the following is a copy:
    “4,500.00 Guelph, Ont., February 23, 1897.
    “Four months after date I promise to pay to the order of The Merchants’ National Bank, Cincinnati, forty-five hundred dollars, at the Merchants’ National Bank, Cincinnati, with interest at six per cent, per annum. Value received.
    “No.- Due- “Wm. Bell."
    Said note is endorsed as follows: “J. Fred Woltz, Frank P. Higdon, John G. Brotherton, Michael Ryan.’’
    The plaintiff alleged that the defendants Woltz, Higdon, Brotherton and Ryan indorsed the note at the time of its execution and prior to its delivery to the plaintiff, and that at its maturity the notevwas duly protested for non-payment, legal notice thereof being given to the defendants whose names were indorsed upon the note. Ryan answered separately, the other defendants making default. The cause was tried upon the issues tendered by the third defense interposed by him, a demurrer to that defense having been overruled, and the plaintiff having thereupon replied thereto by denying certain of its allegations. The third defense is as follows:
    “Defendant, Michael Ryan, says that on or about the-day of June, 1896, plaintiff and the co-defendants, Woltz and Bell, entered into a written contract whereby it agreed to sell and transfer to said Woltz and Bell certain promissory notes made by the Elsmere Syndicate, aggregating $6,350, and said Woltz and Bell did agree to purchase and accept the same from the plaintiff, the sole consideration for said sale and transfer of said $6,350 notes to said Woltz and Bell being the execution and delivery by said Woltz and Bell to said bank of a promissory note of the said Woltz and his associate, the said Bell, in the sum of $4,500, payable four months after date with six per cent, interest, with right of renewal to not exceeding fifteen months, which promissory note the plaintiff, by said contract, agreed to accept as payment for said promissory notes; that said Woltz and Bell did, in compliance with said contract, cause to be delivered to said plaintiff, said $4,500 note made by them, and the said Woltz did authorize the defendant, Brotherton, to obtain from plaintiff in return therefor the syndicate notes aforesaid; that said Brotherton demanded the same from plaintiff, but plaintiff erroneously stated to said Brotherton that a written contract (meaning the written contract aforesaid) required other names on the said $4,500 note besides those of said Bell and Woltz, and said Brotherton, relying on said statement, and knowing, nothing to the contrary, or of said contract, took said $4,500 note from the bank, the names of said Woltz and Bell being then thereon, and applied to this defendant, Michael Ryan, to place his name upon the same, stating to him it was necessary in order to get some notes from the plaintiff, meaning the syndicate-notes aforesaid. Accordingly said Ryan, pursuant to-the request of said Brotherton, put his name on said note solely for the purpose aforesaid. The said note-was then returned by said Brotherton to the plaintiff and it delivered to him the syndicate notes aforesaid. Michael Ryan says he was then, and until after the execution and delivery of said note sued on, ignorant of the existence of said contract and of the above statement of the plaintiff; that he placed his name upon said note without any consideration therefor, and had no interest in said purchase of said syndicate notes, from plaintiff; that when said $4,500 note became due it was renewed for a period of four months by a like note only because the plaintiff was by said Bell and Woltz required under said contract to accept a renewal note; that when said last mentioned note, became due it was for the same reason again renewed for a like period by a note for the same amount, said last named note being the one now sued on; that said Michael Ryan placed his name on said renewal notes only because it was upon the said original note. He says that under the terms of said written contract between said Woltz and the plaintiff it was bound to transfer and deliver to said Wfftz the-said promissory notes of said Elsmere Syndicate upon receiving the promissory note for $4,500 of said Woltz and of said Bell, payable in four months with six per cent, interest, without any other names thereon, and without any other security for the payment of said promissory note than that of such personal liability of the said Woltz and said Beil, as plaintiff well knew, and that the note sued on in this case so far as concerns this defendant, Michael Ryan, is for the above reasons, void.”
    In the court of common pleas the verdict and judgment were for the defendant Ryan, and the judgment was affirmed by the circuit court. Among the numerous assignments of error it is alleged that the court of common pleas erred in overruling the demurrer to the third defense, and that the circuit court erred in affirming its judgment. Other assignments of error are omitted from the statement of the case for reasons given in the opinion.

      Messrs. Herron, Gatch & Herron and Mr. W. C. Herron, for plaintiff in error, cited and commented, upon the following authorities:

      Dalrymple, Admr., v. Wyker, Admr., 60 Ohio St., 108; Bigelow on Bills and Notes (2 ed.), 184; Randolph on Com. Paper, section 472; Ewan v. Brooks-Waterfield Co., 55 Ohio St., 596; Moies v. Bird, 11 Mass., 436; Steers v. Holmes, 79 Mich., 430; Pauly v. Murray, 110 Cal., 13; McNaught v. McClaughry, 42 N. Y., 22; Harrington v. Brown, 77 N. Y., 72; Robertson v. Rowell, 158 Mass., 94; Roxborough v. Messick, 6 Ohio St., 448; Pitts v. Foglesong, 37 Ohio St., 676; Lord v. Bank, 20 Pa. St., 384; Bank v. Penfield, 69 N. Y., 502; Bramhall v. Beckett, 31 Me., 205; Sherwin v. Brigham, 39 Ohio St., 137; Withers v. Ewing, 40 Ohio St., 400; Irwin v. University, 56 Ohio St., 20; Grasseli v. Lowden, 11 Ohio St., 349; Thurston v. Ludwig, 6 Ohio St., 1; Munroe v. Perkins, 9 Pick., 298; Rawson
      v. Taylor, 30 Ohio St., 400; Mehurin v. Stone, 37 Ohio St., 57; Abbott v. Doane, 163 Mass., 433; Hawes v. Land Co., 98 Ala., 461; Wilhelm v. Voss, 76 N. W. Rep., 308; Day v. Gardner, 42 N. J. E., 199; Reed v. Bank, 23 Col., 380.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. Dennis F. Cash, for defendants in error, cited and commented upon the following authorities:
    Bishop on Contracts, section 48; Chitty on Contracts, 60; Smith on Contracts (ed. 1869), star page 138; 6 Am. & Eng. Ency. of Law (2 ed.), 750; Jackson v. Jackson, 7 Ala., 791; Sherwin v. Brigham, 39 Ohio St., 137; Withers v. Ewing, 40 Ohio St., 400; Vanderbilt v. Schreyer, 91 N. Y., 392; Smith v. Bartholomew, 1 Metc., 276; King v. Railway Co., 61 Minn., 482; Ayres v. Railroad Co., 52 Ia., 478; McCarty v. Assn., 61 Ia., 287; Lingenfelder v. Brewing Co., 103 Mo., 578; Reynolds v. Nugent, 25 Ind., 328; Wimer v. Worth Tp., 104 Pa. St., 317; Monroe v. Perkins, 9 Pick., 305; Bryant v. Lord, 19 Minn., 396; Moore v. Locomotive Works, 14 Mich., 266; Goebel v. Linn, 47 Mich., 489; Rogers v. Rogers, 139 Mass., 440; Davenport v. First Cong. Society, 33 Wis., 387; Johnson’s Admr. v. Sellers’ Admr., 33 Ala., 265; Gordon v. Gordon, 56 N. H., 173; Arend v. Smith, 151 N. Y., 502; Robinson v. Jewett, 116 N. Y., 53; Carpenter v. Taylor, 164 N. Y., 176; Wallace v. Jewell, 21 Ohio St., 163; Thorner v. Field, 1 Bulst. (pt. 1), 120; Jones v. Waite, 7 Scott, 317; Wendover v. Baker, 121 Mo., 273; Andrews v. Campbell, 36 Ohio St., 369; Kulenkamp v. Groff, 71 Mich., 675; Leverone v. Hildreth, 80 Cal., 139; City of Cleveland v. Lenze, 27 Ohio St., 383; Stage v. Olds, 12 Ohio, 167; Bright v. Carpenter, 9 Ohio, 141; Leonard v. Sweetzer, 16 Ohio, 1; Gale v.
      Van Arman, 18 Ohio, 337; Seymour & Co. v. Mickey, 15 Ohio St., 515; Ewan v. The Brooks-Waterfield Co., 55 Ohio St., 606; Philpot v. Gruninger, 14 Wall., 577; Insurance Association v. Wickham, 141 U. S., 579; Kilpatrick v. Muirhead, 16 Pa. St., 126; Ellis v. Clark, 110 Mass., 389
   Shauok, J.

The questions raised upon the trial by exceptions to the rulings of the trial judge respecting the competency of evidence and the instructions which ■ should be given to the jury are not important in view of that presented by the demurrer to Ryan’s third defense. The evidence tended to establish the facts alleged in that defense, and throughout the trial and in overruling the motion for a new trial the court obviously adhered to the view of the law which it entertained when it overruled the demurrer.

A fact of first importance is impliedly admitted in the answer and affirmatively shown by the evidence: The bank never accepted the note signed by Woltz and Bell Avithout sureties, nor did it deliver the syndicate notes until it received the original note signed by the fire defendants, of which that counted on by the plaintiff is a renewal. Counsel for the plaintiff therefore insists that the sureties having signed the note before its acceptance by the payee and before the consideration Avas delivered by the payee to the principals, the principals and the sureties are, in accordance with familiar doctrine, bound by the same consideration. Counsel for the defendant admits the general rule thus stated, but denies its application to the facts alleged by Ryan, in view of the prior agreement of the bank to deliver .to Woltz and Bell the syndicate notes for a note signed by them. The argument is, that when the bank delivered the syndicate notes for that signed by the principals and the sureties, it did no more than the previous contract had bound it to do, and that as to the sureties the note counted upon was without consideration. That such was the obligation of the bank in view of the prior contract may be admitted, but does it follow that the undertaking of the sureties is without consideration? The proposition necessary to connect the premise and the conclusion is suppressed in the argument. It should be stated in order that it may be tested. It is, that although Woltz and Bell, whose right it was to insist that the bank should perform the obligation imposed upon it by the prior contract, waived such performance by complying with the demand of the bank for a note with sureties, the surety may annul the waiver and insist upon the prior obligation. To the contract so annulled by those who had executed it Ryan was neither party nor privy. As to him it neither imposed an obligation nor conferred a right. While it was yet executory those who alone were affected by its stipulations waived the obligations which it imposed and substituted for the arrangement which it contemplated the arrangement which was finally executed.

We need have no concern as to the authority of the agent of Woltz and Bell to consent to a rescission of the prior contract, for the principals have ratified what he did in that respect, even to the renewal of the note which was then executed. Nor need we be concerned about the motives which induced Woltz and Bell to waive performance of the prior contract. It is sufficient that they chose to comply with the demand of the bank for a note with sureties rather than to incur whatever trouble and expense might have been involved in insisting upon the performance by the bank of the prior contract. The prior contract is, therefore, without any significance whatever in the present controversy and it should pass wholly from view, leaving the rights of the parties to be determined by familiar principles with respect to which counsel do not entertain different' opinions.

Judgments of the circuit and common pleas courts reversed, and cause remanded to the court of common pleas for further proceedings.

Burket, C. J., Spear, Price and Davis, JJ., concur.


author: Davis, J.

text:
    Conklin, Trustee, v. Hancock.

      Breach of covenant and seizin — Measure of damages — Consideration with interest from date of conveyance — Recital of consideration not conclusive — 'Written agreement of vendor and vendee — Evidence as to consideration — Land of irregular value — Damages in proportion of entire value as part to whole land — Unless uniform price per acre or foot agreed upon — Sales—Damages—Action to recover — Consideration.
    1. In an action to recover damages for a breach of a covenant of seizin and of good right to convey, the measure of damages is the consideration, with interest from the time of the conveyance. Backus v. McCoy, 3 Ohio 222, approved and followed.
    2. The recital in the deed of the consideration paid is not conclusive. The deed is prima facie evidence of the consideration, and, although the actual consideration, if valuable, may be different in kind or amount from that recited in the deed or although the deed recites no consideration at all, it may be shown by evidence dehors the deed.
    3. A written agreement between the vendor and vendee for the sale, purchase and conveyance of land is not executed by, and merged in the deed, as to the stipulations of the vendee therein concerning the consideration to be paid for the property; and such written agreement is competent evidence to show the actual consideration. Brumbaugh v. Chapman, 45 Ohio St., 368, distinguished.
    4. Where the land conveyed is not all of the same quality or value, the general rule is that the measure of damages is such proportion of the entire consideration as the value of the land of which the grantor was not seized bears to the value of the whole premises, with interest; but where the land conveyed is all of the same quality or value, the measure of damages is such proportion of the entire consideration as the quantity of the land lost bears to the whole quantity conveyed, with interest.
    5. Whether the land described in the deed is or is not of the same quality or value, if the parties have agreed upon a fixed and uniform price per acre, or per front foot, or any other standard of quantity, the measure of damages is such price multiplied by the quantity of land as to which the covenant fails, with interest.
    (Decided February 3, 1903.)
    Error to the Circuit Court of Butler county.
    The plaintiff in error, as trustee of an express trust, sued the defendant in error to recover damages for breach of the covenants of seizin and title in a deed made September 22, 1890, by the defendant in error. The petition alleged the conveyance in consideration of one hundred and thirty-three thousand dollars, described by metes and bounds, expressed in the deed as “containing 272-53-100 acres.” From this there was excepted 6 53-100 acres, making the tract conveyed, 266 acres. The covenant was that the grantor “was the true and lawful owner of said premises and had full power to convey the same;” and the breach that at the time he made and delivered the deed the grantor “was not the true and lawful owner, and did not have full power to convey and was not in the actual possession, either in fact or in law” of two parts of the premises described in the deed, which parts the petition specifically described and averred to contain together, 3 24-100 acres. The petition averred that these two parts were occupied and used by the state of Ohio at the time of the conveyance adversely and under paramount title. The petition also averred that the deed was executed and delivered in compliance with and in accordance to the terms of an agreement between the grantor and the trustee, which terms are set out; that on May 1, 1890, Hancock, the defendant in error, agreed to sell and convey “the above described tract of 266 acres of land (the exact number o,f acres to be thereafter determined by the survey of a competent surveyor), for the sum of $500 per acre.” Such survey was had and the exact number of acres found to be 266, which multiplied by five hundred makes the consideration named in the deed. The petition avers that by reason of the addition of the said 3 24-100 acres of land to the survey as described, the consideration money paid for the premises was increased by the sum of $500 for each and every acre so added, to the damage of the plaintiff in the sum of $1,620, for which judgment was asked.
    The ansAver expressly admitted the conveyance, the covenants, the occupancy by the state of the 3 24-100 acres, and the making of the contract, and did not deny, either specially or generally, that the deed was made in compliance with and in accordance to the terms of the contract. The ansAver further denies that the tract of 3 24-100 acres known as “canal land” was to be paid for at the rate of $500 per acre, and avers that, in fact, the land Avas notpaid for at that rate, nor Avas the same sold by the defendant for the sum of $500 per acre. The answer further shows the condition of the whole tract of 266 acres, alleging that part of the property was well adapted for laying out and sale of town lots, and was very valuable, and worth more than $500 an acre, but averring that other parts of the tract were not so favorably located, consisting of bluffs and gulleys and that said tract of 3 24-100 acres was covered by the banks and waters of said canal as above stated; and that it was agreed by and between the defendant and the purchaser that the tract of 266 acres, as a whole, was fairly worth, in view of all the circumstances, the sum of $500 an acre, as the gross value of said land, but that the said grantees never agreed to pay, and, in fact, did not pay to this defendant, the sum of $500 an acre for the tract of 3 24-100 acres, and, in fact, did not pay anything wdiatsoever for that tract.
    The reply denied the existence of any other agreement or understanding than the written contract set up in the petition. At the trial the plaintiff offered the contract with certain modifications, and the deed, and rested. The only proof offered by the defendant was his own testimony to the effect that the value of the 3 24-100 acres occupied by the state “was almost, if not quite, nothing.” This was excluded. The defendant excepted. The common pleas court, a jury being waived, gave judgment for plaintiff for the amount claimed, with interest. The circuit court reversed this judgment for the following reason, as stated in the journal entry:
    “That the only evidence that the sale was by the acre of- the lands, the subject of said action in the court of common pleas, was the contract for such sale, mentioned in the petition in said action and set forth in said bill of exceptions; that said contract was merged in the deed of conveyance thereof, which deed recites the consideration as a gross sum, and said contract was therefore not competent evidence to show that such sale was by the acre, so that there urns no evidence to sustain the said judgment.”
    This petition is to reverse the judgment of the circuit court, and affirm the judgment of the court of ■common pleas.
    Mr. Judson Harmon, for plaintiff in error, cited and commented upon the following authorities:

      Backus v. McCoy, 3 Ohio, 222; King v. Kerr, 5 Ohio, 155; Clark v. Parr, 14 Ohio, 118; Lloyd v. Quimby, 5 Ohio St., 262; Flynn v. Coal Co., 72 Ia., 738; Haynie v. Am. Trust Investment Co., 39 S. W. (Tenn.), 860; Kempner v. Lumber Co., 20 Tex. Civ. App., 307; Hynes v. Packard, 92 Tex., 44; Devore v. Sunderland, 17 Ohio, 60; Stanbaugh v. Smith, 23 Ohio St., 588; Stock Co. v. Saas, 24 Ohio St., 542; Bickford v. Page, 2 Mass., 461; Griffin v. Reynolds, 17 How., 609; Nelson v. Matthews, 2 Hen. & Mun., 164; Nelson v. Carrington, 4 Munf., 332; Stow v. Bogeman, 29 Ala., 376; Blessing v. Beatty, 1 Rob. (Va.), 287; Blanchard v. Hoxie, 34 Me., 376; Johnson v. Nyce, 17 Ohio, 70; Ela v. Card, 2 N. H., 178; Brumbaugh v. Chapman, 45 Ohio St., 368; Guinotte v. Chouteau, 34 Mo., 154; Meeker v. Meeker, 16 Conn., 383; Gully v. Grubbs, 1 Marsh. (J. J.), 388; Harlow v. Thomas, 15 Pick., 70; Martin v. Endon, 24 Ga., 533; Morse v. Shattuck, 4 N. H., 229; Seed v. Hinton, 76 Ala., 298; Stringfellow v. Ivie, 73 Ala., 209; Drury v. Tremont Co., 13 Allen, 168; Bank v. Aull, 80 Mo., 199; Bourne v. Bourne, 92 Ky., 211; Fraley v. Bentley, 1 Dak., 25; Miller v. Fechthorn, 31 Pa. St., 252; Jackson v. Railway Co., 54 Mo. App, 636; Dobyns v. Rice, 22 Mo. App., 448; Frey v. Vanderhoof, 15 Wis., 397; McDill v. Gunn, 43 Ind., 315; Nickerson v. Saunders, 36 Me., 413.

      Messrs. Murphy & Williams and Messrs. Belden & Fitton, for defendant in error, cited and commented upon the following authorities:

      Brumbaugh v. Chapman, 45 Ohio St., 368; King v. Kerr, 5 Ohio, 155; Backus v. McCoy, 3 Ohio, 222; Faure v. Martin, 7 N. Y., 210; 8 Am. & Eng. Ency. Law (2 ed.), 184; Rawle on Covenants of Title (5 ed.), section 297; 4 Kent’s Com., 564, 567 (11 ed.), section 67; Morris v. Phelps, 5 Johns., 49; Cornell v. Jackson, 3 Cush., 506; Smith v. Strong, 14 Pick., 128; Hymes v. Esty, 133 N. Y., 347; Myers Fed. Dec., Vol. L, 1, 686; Semple v. Wharton, 32 N. W. Rep., 690; Merser v. Oestreich, 52 Wis., 696; Cincinnati v. Brachman, 35 Ohio St., 289; Whitbeck v. Cook, 15 Johns., 483; Cent. L. J., 428; Smith v. Hughes, 12 Cent. L. J., 17; Gest v. Kenner, 2 Handy, 87; Bricker v. Bricker, 11 Ohio St., 240; Devlin on Deeds, 899; Baker v. Harris, 9 Ad. & E., 532; Kempner v. Lumber Co., 20 Tex. Civ. App., 307; Griffin v. Reynolds, 17 How., 609.
   Davis, J.

In an action upon a breach of a covenant ' of seizin and of good right to convey, the measure of damages is the amount of the consideration, when it can be ascertained, and the interest. This is the rule in this state, as elsewhere; but the consideration expressed in the deed is not conclusive. The deed is only prima facie evidence of the consideration. Although the actual consideration may be different in kind or amount from that named in the deed, or although the deed may contain no expressed consideration, the consideration may be proved by evidence de hors the deed. This is the well settled rule in this country. Rawle on Covenants, sections 173, 174, 175; 2 Sutherland on Damages, section 595; 2 Devlin on Deeds, section 895. 'For this reason the circuit court erred in reversing the judgment of the court of common pleas upon the ground that the contract of sale alleged in the petition and set forth in the bill of exceptions was not competent evidence to show that such sale was for a fixed price per acre, instead of a gross sum as expressed in the deed. The judgment of the circuit court is defended on the authority of Brumbaugh v. Chapman, 45 Ohio St., 368. This application of the decision in that case apparently results from a misconception of the point decided, which point is that a stipulation for the sale and conveyance of land is executed by the delivery of a deed for the land by the vendor and an acceptance of it by the vendee as a performance of the stipulation. The contract, “so far as it embraced this particular stipulation,” was held to be “merged in the deed, and, to use the language of the books, became executed by it. And it was held “that the execution and delivery of the deed was intended by the one, and accepted by the other, as a performance of the stipulation of the agreement to convey whatever by its terms was to be conveyed.” The court, in the opinion by Minshall, J., carefully distinguishes Brumbaugh v. Chapman, supra, from Reid v. Sycks, 27 Ohio St., 285; Whitbeck v. Waine, 16 N. Y., 532; Vail v. McMillan, 17 Ohio St., 617; and Burckhardt v. Burckhardt, 36 Ohio St., 261, all of which cases involved the same principle as that in issue in this case, namely, that the deed is not conclusive as to the consideration paid or agreed to be paid by the purchser; and it was tersely said that “As a rule the deed does not execute any of the stipulations of the vendee as to the consideration to be paid for the property. Its office is to execute the agreement on the part of the vendor.” Thus the theory upon which the circuit court held that the contract should have been excluded from the evidence is shown to be untenable. The trial court, however, not only admitted the contract in evidence, but also held that it conclusively showed that the consideration for each and every acre of land was five hundred dollars, and that such is the measure of damages, without regard to the relative or actual value of the land. Is this the correct view? If so the judgment must stand, otherwise it should be reversed.

It is the contention on the part of the plaintiff in error that Avhere lands have been sold at a uniform price per acre, the measure of damages on a breach of the covenant of seizin as to a part only is the actual value of the land to which the title has failed, and not the price paid per acre. It must be admitted that where there has been a breach of the covenant as to a part of the land conveyed, the general rule, as recognized in this state and in most other jurisdictions, is that if the land is not all of the same quality, the measure of damages is such proportion of the consideration as the value of the land of which the grantor was not seized bears to the value of the whole premises. Backus v. McCoy, 3 Ohio, 222. On the other hand it must be conceded that where the land conveyed is all of the same quality the measure of damages is such proportion of the consideration as the quantity of the land lost bears to the whole quantity conveyed; for it must be obvious that when a deed conveys a stated quantity of land Avhich is uniform in quality or value, for a consideration expressed in gross amount, the actual loss upon a breach of the covenant of seisin as to a part would be a part of the consideration determinable by the proportion which the part of the iand to which the title failed bears to the whole quantity conveyed. In such case the covenantee recovers for the lost land exactly what he paid for it, with interest. But in the case which we now have under consideration there is no occasion for resort to these artificial rules for ascertaining the consideration paid for the part of the land as to which the covenant of seisin and of good right to convey was broken. The parties themselves have put it beyond dispute. When the contract of sale and purchase is read in connection with the deed we ascertain, beyond cavil, that the vendor conveyed two hundred and sixty-six acres of land, neither more nor less, for the price of five hundred dollars for each and every acre without exception, aggregating the gross amount of one hundred and thirty-three thousand dollars, as expressed in th* deed. Therefore, the consideration which was actually paid for the three and twenty-four hundredths acres deficient is conclusively shown to be sixteen hundred and twenty dollars, for which, with interest from the date of the conveyance, which was also th* time of the breach of the covenant, the plaintiff was entitled to judgment. This is in fact a recovery of the value of the land as estimated by the parties at the time of the purchase.

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

Buricet, C. J., Spear and Price, JJ,, concur.