author: Bradbury, J.

text:
    Railway Co. v. Herrick.

      Negligence — Evidence—Competency of declarations of plaintiff— Competency of declarations of strangers to the record.

    1. Where,in an action against a railway company to recover damages for injuries received at one of its stations, by being struck by all incoming train, the plaintiff claimed to have been misled by information that the train which struck him was late, whereas in fact it was on time, or nearly so, and that, acting upon such information, he was crossing its track when it suddenly ran upon and struck him, it is competent, to rebut any inference of contributory negligence that might arise from the circumstances of the accident, to introduce to the jury declarations of strangers to the record, made in his presence, that the train was late.
    2. Where, in such case, it became material to establish that the plaintiff was at the station to take passage on one of its trains, a declaration, made by him as he left his house on his way to the station, that he was going to another station on the same railway, is competent evidence, to establish his character as a passenger.
    3. In such case the condition of the crossing at the time of the accident, whether thronged with people or otherwise, is a material circumstance, and evidence tending to prove its condition, in this respect, is competent.
    (Decided January 19, 1892.)
    Error to the Circuit Court of Huron county.
    The defendant in error, by an action brought in the Court of Common Pleas of Huron county, sought to recover of the plaintiff in error damages for injuries he had received by being struck by a passenger train of plaintiff in error, at Norwalk, Ohio. The action was tried in said court, and a verdict and judgment rendered for the Railway Company." This judgment was reversed by the circuit court, whereupon this proceeding was brought by the Railway Company to reverse the judgment of the circuit court and reinstate or affirm that of the court of common pleas.

      John M. Lemon, for plaintiff in error.

      S. A. Wildmcm and G. T. Stewart, for defendant in error.
   Bradbury, J.

The defendant in error, in his petition in the court of common pleas, averred, among other matters, that he had bought of the Railway Company a ticket entitling him to travel on its railroad from Norwalk to Collins, the station next east from Norwalk, and return; that on his way to the passenger train to take passage, it was necessary to cross a track of defendant on which a west bound passenger train was due; that the Railway Company had caused notice to be posted on its bulletin board there, that this latter train was fifteen minutes late, and that defendant in error, relying on said notice, was lawfully crossing said track when said latter train, hidden from his view by obstructions, came into the station on time, or nearly so, and at a reckless and negligent rate of speed, without signal, by bell, whistle or otherwise, whereby he was injured, without fault on his part, by being violently struck and run upon by said train.

The Railway Company by answer put in issue all these averments of the petition, except that the defendant in error was struck and injured by the train. It also answered that “the plaintiff was well acquainted with the movements of trains and the tracks and premise? where he was injured, and, on said December 8, 1881, without necessity or excuse therefor, went upon defendant’s railroad track, and, by his own negligence and want of ordinary care, directly contributed to his injury;” which last defense was denied by the reply.

The issues thus made up between the parties required the plaintiff in the court of common pleas, to prove that he was at the station in the character of a passenger; it was also material for him to show that he was misled and his vigilance lulled by the statement on the bulletin board of the railway company that the train was late. He complained in the circuit court, among other things, that the court of common pleas had, on the trial in the latter court, excluded from the jury certain evidence that was admissible to establish his contention in these particulars, and that incompetent evidence had been admitted by that court over his objection. The circuit court stated upon its journal that the grounds of its action in reversing the judgment of the court of common pleas was the rulings of the latter court in ’ admitting and rejecting evidence, and that in other respects it found no error in the proceedings, of that court. This entry on the journal of the circuit court excludes any inference that the judgment was reversed because the verdict was against the weight of the evidence, and therefore the judgment of the circuit court may be reviewed by this court.

The bill of exceptions does not purport to contain all the evidence, nor even any considerable part of it, but is limited to that which was offered and rejected or immediately connected with and explanatory of it, and that which plaintiff below contends was improperly admitted.

The item of evidence first excluded from the jury as shown by the bill of exceptions, was in the deposition of Vinton F. Sheldon, who testified to a declaration of the porter at the hotel, of which it appears the plaintiff below was proprietor. The witness was asked if he was present, and if so, what he saw of it, etc. He answered: “I was there. It was in the morning of the 8th of December; I was waiting to take a train to Wakeman.' Mr; Herrick sent a porter over to see about the train, as I was stopping at Herrick’s hotel and wished to take the train. The porter reported the train fifteen minutes late.” The last sentence, “The porter reported the train fifteen minutes late,” was, on motion of the Railway Company, excluded from the jury, to which ruling the plaintiff below excepted.

This evidence, we think, was competent and should have been admitted; it was not offered in proof of the fact that the train was fifteen minutes late, or even late at all. The plaintiff below did not contend that the train was late; it was not his theory of the accident; on the contrary he insisted that it came in on time, or nearly so. That, in his view, was the imme&ate cause of his injury; he acted on the supposition that the train was late, and crossed the railroad track to enter as a passenger a car of another train of the same company going in another direction, because he believed it to be late. The state of his belief in this respect becomes important upon the question of his own contributory negligence; his vigilance had been disarmed, as he contended, by information that he had no cause to suspect was false. This it was material that he should establish, and whatever evidence tended to that end was competent. The report of his own messenger, whether true or false, certainly tended to show that he believed the train to be late. Acting upon such information one might well attempt to cross a railway track without being chargeable with negligence, whereas if he had acted heedlessly without inquiry, the act would be properly characterized as negligent, or even reckless. Nor was this evidence less competent because he had afterward seen the notice upon the bulletin board himself. Error committed in the rejection of competent evidence is not cured because there was other and even stronger evidence to establish the same fact introduced to and considered by the jury.

On the trial in the court of common pleas the defendant in error read in evidence to the jury the deposition of George E. Miller who was a clerk at the Herrick House, a hotel of which the defendant in error was proprietor. In response to a question put to him this witness answered: “In the morning Mr. Herrick was injured he started out and said he was going to Collins. I asked him if he had his ticket, as he had one in the money drawer, and I looked to see if he had it.” Upon the motion of the Railway Company the words “said he was going to Collins” were ruled out, to which ruling defendant in error excepted.

The defendant in error had averred in his petition:

“That he had bought and procured of the defendant a ticket as a passenger on its trains to and from Collins, the station on said railroad next east of said Norwalk, and at the time of the occurrences hereinafter stated, was crossing said track nearest to said platform, for the purpose of taking passage on said eastward-bound train for said Collins.”

The Railway Company had not only denied this, but had also averred as a separate ground of defense that the defendant in error, “ without necessity or excuse therefor, went upon defendant’s railroad track, and by bis own negligence and want of ordinary care, directly contributed to said injury.”

It therefore became material for defendant in error to show that he was injured while on his way to the train that ran to Collins, for the purpose of getting on as a passenger to be carried to that place. Was his declaration that he “was going to Collins,” competent evidence of that fact? That depends whether the declaration was contemporaneous with, and explanatory of," the act of departure. One departing from home may have in view any conceivable place, or any conceivable purpose, as. his destination or object. The act of departure is thus in itself of the most ambiguous character; it does not afford the slightest cue to the object of the journey; it is natural and usual — according to the common experience of mankind — that the party should say something respecting his departure, of an explanatory character. Declarations thus made are a part of the act itself. Starkie in his treatise upon Evidence lays down the rulé as follows: “In the first place, an entry or declaration accompanying an act seems, on principles already announced, to be admissible evidence in all cases where a question arises as to the nature or quality of that act * * * such evidence is also admissible on the same principle to show the intention with which an -act is done, where the intention is material. Thus, on questions of bankruptcy, declarations made by a .trader, contemporary with, of during the act of, absenting himself from his place of residence or business, are constantly admitted in proof of the real nature and quality of the act. Indeed, wherever an entry or declaration reflects light upon or qualifies an act which is relevant to the matter in issue, and is evidence in itself, it becomes admissible as part of the res gestee, if it be contemporaneous with the act * 10 Ed. 466, 467. This doctrine has received the sanction of this court in a number of cases. “Where an act of a party is admissible in evidence, his declarations, at the time, explanatory of that act, are also admissible, as part of the res gestee.” Wetmore v. Mell, 1 Ohio St. 26. See also Insurance Company v. Tobin, 32 Ohio St. 78; Leggett v. State, 15 Ohio, 283; Moore v. State, 2 Ohio St. 500; Dickson v. State, 39 Ohio St. 73. This doctrine is discussed and maintained by the text writers-. Wharton on Evidence, 262, 1102; Greenleaf on Evidence, 108, as well as illustrated by almost innumerable adjudicated cases, only a small number of which need be referred to. Milne v. Leisler, 7 H. & N. 786; Blake v. Damon, 103 Mass. 199; Ahern v. Goodspeed, 72 N. Y. 108; Louden v. Blythe, 16 Penn. St. 532; Scott v. Shelo, 28 Grat. 891; Stevens v. McCloy, 36 Iowa, 659; Colquitt v. State, 34 Texas, 550.

As every intendment favorable to the ruling of the court of common pleas should have been indulged by the circuit court, and should be by this court also, the question arises whether the record discloses v with sufficient certainty, that the declaration excluded was made by the defendent in error at the time he departed to take the train, rather than upon some other occasion when he may have left the hotel. The bill of exceptions is meager; it does not purport to set forth all the evidence or all the other proceedings had at the trial. •All that it discloses on this subject is as follow: “Plaintiff then read in evidence to the jury the deposition of George E. Miller, who testified that he was clerk of the plaintiff at his hotel, the Herrick House, when the said injury to the plaintiff occurred, and in reply to the question of what he then saw, the witness said: 'In the morning Mr. Herrick was injured he started out and said he was going to Collins. I asked him if he had his ticket, as he had one in the money drawer, and I looked to see if he had it.’ To which words ‘said he was going to Collins’ the defendant objected.” This witness stated, as disclosed in another part of the bill of exceptions, that the ticket was' gone when he looked to see if Herrick had it. So, take the entire bill of exceptions, it shows that the defendant in error had procured a ticket to Collins and had it in the money drawer of his hotel; that he had taken it out of the drawer and was leaving the hotel when he made the declaration respecting his destination. From those circumstances we think it fair to infer that he was at the time departing on his proposed journey; but whether he was or not, as there are other grounds upon which the judgment of reversal should be affirmed, it is quite proper, at this time, to declare the true rule respecting this evidence, as the death of the defendant in error in all probability makes this declaration the only evidence now attainable of the intent with which he left the hotel on the morning of the accident.

The defendant in error also read in evidence the deposition of W. O. Eoldger, who testified as follows:

“I was walking towards the west end of the depot, my back to the engine, to cross the track diagonally, when I heard the call, and turned my head, the engine was then right behind me,” being the same by which the plaintiff was then and there injured. And the plaintiff’s attorney then asked the witness in said deposition, “State whether or not you saw other persons who were in danger of being run over by it?” to which the witness answered, “there were people crossing till the engine was right there, and some one hallooed. I saw no one hit except the plaintiff;” to which question and answer the defendant objected, and the court sustained the objection and ruled out said question and ánswer from the deposition, and the same were not read in evidence to the jury, to which ruling .of the court the plaintiff then and there excepted.

The condition of the crossing at the time of the accident was material; was it thronged with people or otherwise ? The train might not have been chargeable with carelessness even though it came into the station at a high rate of speed, if the defendant in error alone, or with only a few others were there, while it might be careless, or even reckless, to dash in at the same rate, among a crowd of people who might jostle against and impede each other in their struggles to escape. The question was subject to the criticism that it called for an opinion of the witness, as to whether there were “other persons who were in danger of being run over by it,” but the answer was free from that objection ; it was limited to matter of fact. “ There were people crossing till the engine was right there, and some one hallooed. I «aw no one hit except the defendant.” This answer was competent evidence, and should have gone to the jury ; it not only tended to establish negligence in the running and management of the train, but also had some tendency to refute the charge of contributory negligence, by establishing the existence of conditions at the time likely to create panic and confusion, if, as claimed, the rapidly moving train came suddenly and unexpectedly upon the crowd of people at the crossing, thereby causing the choice of means of escape more difficult and perplexing.

The other testimony excluded from the jury is not of sufficient importance to require special notice; most, if not all of it, was immaterial, or came within the well settled rules of the books, that exclude hearsay evidence. If there was any that did not in its own nature fall within either of these two classes, the bill of exceptions is too meager to disclose its materiality, and its exclusion, therefore, was not' erroneous.

'The only remaining question relates to the admissibility of the ordinance of the village of Norwalk prescribing the maximum rate of speed at which trains may be run through the village. The Railway Company was not charged with running its train at this time at a greater rate of speed than the ordinance permitted; no issue of the kind was made up; there was not a word in any of the pleadings to indicate, even, that the village of Norwalk had ever adopted an ordinance on this subject. In what manner, therefore, the ordinance could enlighten the jury respecting the issues on trial before them is not shown by an examination of the pleadings alone. Surely the plaintiff in error could not justify dashing its train, regardless of consequences, if it did so, into a crowd of people crossing its track because its rate of speed at the time was within the limits prescribed by ordinance. If such use of the evidence can be supposed to have been attempted, we must presume that the court properly limited its operation in the charge given to the jury, or would have done so upon request of the other party if made at the proper time.

It was not error, however, to admit the ordinance in evidence if it was competent for any purpose. The pleadings, as before stated, do not mention it, and the bill of exceptions is very meager, yet, enough can be gathered from it to disclose that a controversy arose during the trial as to the rate of speed at which the train, before it reached the station, passed through the village of Norwalk, though nothing appears to show the distance it ran within the corporate limits; the plaintiff in the common pleas court contending that the train ran through the village at a rate exceeding fifteen miles an hour, the defendant on the contrary claiming that the rate of speed was less than that. In this connection it is at least conceivable, if not apparent, that it might have been material for the Railway Company to show that, in passing through the village, and before it approached the station near enough to enable its employes to see the condition of the crossing, the train did not move at an unlawful rate of speecj, which would render its management and control more difficult when the danger at the crossing was discovered. We can not say, therefore, that the court erred in admitting the ordinance in evidence.

Judgment affirmed.

DicicmaN and Spear, JJ., dissent from the judgment of affirmance.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    State ex rel. v. Brennan.

      County Offices — How created — How filled — Constitutional law.

    1. The act of March 14, 1890 (87 Ohio T- 439), which makes provision for the appointment by the clerk of the court of common pleas of a stationery storekeeper for Hamilton county, and devolves upon such storekeeper the duty to purchase and have charge of all blank books, stationery, printing and office appliances for the offices of that county, fixing an annual salary of $1,500, to be paid by the county treasurer from the general fund of the county, and requiring a bond in the sum of $5,000, for the faithful performance of his duties, is an attempt to constitute a county office and provide for the filling of the same, for a full term by appointment.
    2. The act is in conflict with sections 1 and 2 of article 10 of the constitution, which require that all county officers shall he elected, and is, therefore, void.
    (Decided January 19, 1892.)
    Quo Warranto.
    The petition charges, in substance, that the defendent is, and has been for the past year, unlawfully holding and exercising, and is claiming to hold and exercise, an alleged public office in the county of Hamilton, denominated “stationery storekeeper,” and drawing a salary of $ 1,500 per year; that the laws of Ohio do not provide any such alleged office, and all acts of defendent, as such alleged officer, are without warrant or authority of law. Wherefore judgment of ouster-is prayed.
    The answer denies that the defendant is unlawfully drawing the salary referred to, and avers that he was appointed such stationery storekeeper by John B. Peaslee, clerk of the court of common pleas of Hamilton county, as provided by law, and is faithfully performing the duties.
    Provision is made for such appointment by the act of March 14, 1890, as follows:
    “An Act providing for the appointment of a stationery storekeeper and assistant in the county of Hamilton.
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That there shall be appointed by the clerk of the court of common pleas, in all counties containing at the last federal census, a city of- the first grade of the first class, a stationery storekeeper, whose duty it shall be to purchase and have sole charge of all blank books, stationery, printing and office appliances, which may be neccessary or needful for the various offices of the county. The salary of said officer shall be fifteen hundred dollars (¡§1,500) per annum, and he shall have the power to appoint an assistant at a salary of eight hundred dollars ($800) per annum. The salaries of said officers shall be paid from the general fund of the county. Said stationery storekeeper and assistant shall hold office at the pleasure of the said clerk. The salaries of said storekeeper and assistant, ,and all purchases made by him, shall be paid for by the county treasurer, upon vouchers signed by said stationery storekeeper, and countersigned by the said clerk and approved by the board of control of said county, from the general fund of the county. The said stationery storekeeper shall give bond in the sum of five thousand dollars ($5,000) satisfactory to the said clerk for the faithful performance of his duties.
    “Sec 2. All acts or parts of acts in conflict with this act are hereby repealed.
    “Sec. 3. That this act shall take effect and be in force on and after its passage.”
    By demurrer to the answer the constitutionality of the above act is drawn in question.

      D. K. Watson, Attorney General, and Foraker, Black and Boswoi'th, for the plaintiff.
    The claim of the plaintiff is that this act is unconstitutional on two grounds.
    1. It is in conflict with sec. 26, art. 2, of the constitution.
    2. It is in conflict with sec. 2, art. 10, of the constitution.
    In other words it is a law of a general nature which, being limited in its application to counties containing at the last federal census a city of the first grade of the first class, cannot possibly have a uniform operation throughout the state; and it creates a county office, and provides for filling it, not by election, as the constitution requires, but by appointment.
    In support of the first proposition, we cite the case of State, ex rel, v. King J. Elliot, 23 W. L. B. 185.
    In support of the second proposition, we have not found any decision of the Supreme Court, but the language of the constitution, section 2, article 10, is so clear and explicit, that there can be no room for controversy. The act in question undertakes to create a county office and provides for the appointment of an officer to fill it, instead of for his election.

      The decision of the circuit court of Hamilton county, in the case of State, ex rel, v. Alter, et al., 5 C. C. Rep. 253, reported in Vol. 25, of the Weekly Raw Bulletin, is not directly in point, but there is no difference in principle in that case from this.

      Shay & Cogan and F. S. Spiegel, County Solicitor, for defendant.
    Brief of F. S. Spiegel.

    The act creating this office, Volume, 87, O. E., page 439, is entitled as follows: “An act providing for the appointment of a stationeiy storekeeper, and an assistant in the county of Hamilton.” The act provides for the appointment, by the clerk of the court of common pleas, in all counties containing at the last federal census, a city of the first grade of the first class, of the two officers above named, who shall hold their offices, at the pleasure of the clerk of the court of common pleas.
    As its title indicates, and its subject matter clearly demonstrates, the act is simply a local enactment, applicable only to Hamilton county, irrespective of the form in which it is clad.
    We cite in support of our proposition, State ex rel Attorney General v. Shearer, et al., 46 Ohio St. 275, and other cases therein cited.
    Brief of Shay & Cogan.

    The most that can be said of this enactment is that it is a case of additional power or duty annexed to existing offices and not the creation of a new office. Walker v. City, 21 Ohio St. 49; Cooley Const. Rim. 128, 129.
    The courts can enforce only those implied restrictions which, resting in theory only, the people have been satified to leave to the judgment, patriotism and sense of justice of their representatives. Co’oley on Const. Rim. 154; State v. McCann, 21 Ohio St. 198, 212; Adams v. FIowe, 14 Mass. 340; S. C. 7 Am. Dec. 216; State v. Smith, 44-Ohio St. 348; Mount v. Richey, 90 Ind. 29; Cooley Const. Rim., 204.

      Courts cannot nullify an act of legislation on the vague ground that they think it opposed to a general latent spirit supposed to pervade or underlie the constitution, but which neither its terms nor its implication clearly disclose. Walker v. City of Cincinnati, etc., 21 Ohio St. 14.
    An act of the general assembly that operates only upon all cities in the state of the first class, having at the last federal census less than one hundred thousand inhabitants, does not contravene sec. 26, art. 11, of the constitution, which requires all laws of a general nature to have uniform operation throughout the state. Walker v. Potter, et al., 18 Ohio St. 85.
    General subject is not per se nor by constitutional intendment, necessarily a law of a general nature. The subject may be general but the law and rule it prescribes may be special. Brooks v. Hyde, 37 Cal. 375; French v. Teskmaker, 24 Cal. 544; Peoples. C. & P. R. R. Co., 43 Cal. 435; Ryan v. Johnson, 5 Cal. 85; McGill v. State, 34 Ohio St. 245.
   Spear, J.

The act is assailed as in conflict with section 2 of article 10, of the constitution, and of section 26 of article 2, of the constitution.

Section 1 of article 10 is as follows: “The general assembly shall provide, by law, for the election of such county and township officers as may be necessary;” and section 2: “ County officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county in such manner, and for such term, not exceeding three years, as may be provided by law.”

An office, speaking in general terms, is the right and duty to exercise an employment. It is defined by the Century Dictionary as “ a post the possession of which imposes certain duties upon the possessor and confers authority for their performance;” by Cochran, in his Daw Rexicon, as “a position or appointment entailing certain rights and duties,” and by Bouvier as “a right to exercise a public function or employment, and to take the. fees and emoluments belonging to it.” In King v. Burnell, Carthew, 478, it is said: “The word officium principally implies a duty, and in the next place the charge of such duty, and ’tis a rule that where one man hath to do with another man’s affairs against his will, and without his leave, that is an office, and he who is in it is an officer.” In U. S. v. Hartwell, 6 Wall. 385, it is said: “An office is a public station or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties. A government office is different from a government contract. The latter, from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties. A clerk appointed by a head of a department, under authority of law, holds an office.” And in Bradford v. Justices, 33 Ga. 382; “Where an individual has been appointed or elected, in a manner prescribed by law, has a designation or title given him by law, and exercises functions concerning the public, assigned to him by law, he must be regarded as a public officer. Whether he has been commissioned in form can make no difference; the commission is but evidence of title to the office.”

In passing it may be remarked that emolument, though an ordinary incident, is not a necessary one, as has been held in divers cases in this state. Membership in a board of health is an office (Smith v. Lynch, 29 Ohio St. 261); so the presidency of a city council, though no pay is attached to either, (The State v. Anderson, 45 Ohio St. 196). On the other hand the deputy clerkship of the probate court is not an office. (Warwick v. The State, 25 Ohio St. 21).

It is not important to define with exactness all the characteristics of a public office, but it is safely within bounds to say that where, by virtue of law, a person is clothed, not as an incidental or transient authority, but for such time as denotes duration and continuance, with independent power to control the property of the public, or with public functions to be exercised in the supposed interest of the peopR the service to-be compensated by a stated yearly salary, and the occupant having a designation or title, the position so created is a public office. And where such duties are wholly performed within the limits of a county, and for the people of that county, the salary to be paid by the disbursing officer of the county, from the funds of the county, the offide is a county office, and, as' one who is lawfully invested with an office is an officer, the person lawfully filling such place is necessarily a county officer.

From these definitions and illustrations it is clear that the position created by the act in question is an office, and that the defendant, if selected in the manner prescribed by law, is an officer. Upon him is imposed the right to exercise an employment in the purchase and control of property of the public, not as a temporary, casual act, but as a continuous duty. He is to exercise public functions in the supposed interest of the people. These he exercises independently, for others, and without their leave. He is given by the act itself the title or designation of “stationary storekeeper,” and it is not without significance that he is also denominated an “officer.” He is to give bond for the faithful performance of his duties, and is entitled to the yearly salary affixed by the act. The office is an independent one. Its duties are not devolved upon the occupant by a superior, as ministerial duties may be devolved upon a deputy, but are imposed by the statute. True, the statute does not provide for an oath of offi.ce. But this is not important, for, if by other tests, he is an officer, then the constitution, section 7, oí article 15, prescribes the oath, and its injunctions surely cannot be less obligatory than if directed by statute.

It is equally clear that, if an officer at all, he is a county officer. The office of “stationary storekeeper” is created for the county of. Hamilton. The duties relate to the purchase and custody of the property of the county, and the salary is to be paid by the treasurer of the county from the general fund of the county.

We have, then, the case of an attempt to provide for the selection of a county officer by appointment; not temporarily, to fill a vacancy, but for as full a term as the act creates, which term is made indefinite and subject to the will of the clerk of the court of common pleas, who, by reasonable in-tendment, has power to remove and appoint a successor. This in the face of a constitution which, in one section gives power to the general assembly to provide only for the election of county officers, and in the next section, provides that they shall be elected, and for a term not to exceed three years, and no where, by implication even, gives any authority to fill such offices, save as to vacancies, in any manner other than by election.

A more obvious attempt to override the constitution can hardly be conceived of. Under our constitution county offices cannot for a full term be filled by appointment. There is not a shadow of authority for the kind of legislation of which this act is an example. The portion of the act which assumes to give authority to the clerk of the court of common pleas to appoint a storekeeper, is clearly and palpably in conflict with the sections of the constitution quoted, and, there being no provision for an election, the act as a whole is absolutely and wholly void.

Counsel for defendant urge that the act but imposes a new duty upon an existing office, i. e., imposes the appointing power upon the clerk of courts of Hamilton county, a duly elected officer. This begs the question, and ignores the ground on which the act is assailed. It is not that the clerk would not be competent to receive power to appoint to an appointive office, but that an office of this character cannot be thus filled.

As the case is disposed of upon the point already made, it is unnecessary to consider whether the act is also in conflict with section 26 of article 2, of the constitution, and we express no opinion upon that.

Demurrer sustained and judgment of ouster.


author: Williams, C. J.

text:
    Diem v. Koblitz.

      Sales — When on credit, duty of buyer to keep his credit good — Giving note or bill does not vary rule — Rights of seller on discovery of buyer’s insolvency — Stoppage in transitu. — Resale by vendor— When action for breach of contract of sale may be maintained— When not.

    1. Where goods are sold on credit, it is an implied condition of the contract, that the buyer shall keep his credit good; and the seller is not bound to deliver the goods if the buyer be insolvent. The fact that the buyer has given his note or bill for the price, payable at the expiration of the credit, does not vary the rule.
    2. If the insolvency of the buyer is discovered by the seller, while he yet has the goods, or while they are in transit, and he retakes them, he may elect to treat the agreement for credit as at an end, and resell the goods, unless the buyer pay or tender the price agreed on.
    3. A party to a contract of sale cannot sue for its breach, unless he is himself able to perform on his part; it is, therefore, a good defense to an action by the vendee for damages for the failure to deliver the property sold, that at the time fixed by the agreement for the delivery, he was insolvent, and on that account unable to perform his part of the contract.
    (Decided January 19, 1892.)
    Error to the Superior Court of Cincinnati.
    The original action was brought by Koblitz Brothers against Frederick J. Diem, in the Superior Court of Cincinnati. The pleadings upon which the action was tried in special term, are, omitting the captions, as follows:
    “PETITION.
    “The plaintiffs, Koblitz Brothers, say that they are^a co-partnership, unincorporated, formed for the purpose of and doing business in the state of Ohio; that the defendant, Frederick J. Diem, was, at the time hereinafter mentioned, and has ever since been doing business in Cincinnati, Ohio, under the firm style of F. J. Diem & Co.; that on or about, to-wit: August 15th, 1884, the defendant sold to the plaintiffs a large quantity of paper bags, in the quantities and at the respective prices set forth item by item in Exhibit “A,” hereunto attached and made part hereof; that said sale amounted to ten thousand, two hundred and eighty-two and 68-100 dollars, with a discount thereon of seventy per cent., leaving the balance of three thousand and eighty-four and 80-100 dollars; that said sale was made on the following terms of credit, to-wit: One-third of said balance payable thirty days from said sale; another third sixty days therefrom, and another third ninety days therefrom; that the plaintiffs, then, and ever since have been engaged in business in Cleveland, Ohio; and that said paper bags were bought by them for shipment to said city and for use in their said business there, and for that market, and that all of these facts and purposes were known to the defendant at the time of said sale, and of the acts herein alleged; that defendant set apart said goods, and caused a large quantity thereof to be delivered at the depot of the common carrier for transportation to Cleveland to the plaintiffs, and that on August 23, 1884, he, without plaintiffs’ consent, cancelled the sale and disposed of said goods wrongfully, and in a manner to plaintiffs unknown, but to and for his own use and benefit; that at the time of said cancellation plaintiffs had sold and contracted to sell a large quantity of said bags at an advance on the said principal sum of twenty-five per cent.; and plaintiffs further say that they were unable to replace said purchase, and were unable to obtain like goods to substitute those bought of the defendant, and that on the day of sale of said goods by the defendant to the plaintiffs, as well as on the day of said cancellation of sale, said goods were of such a character that they could not be replaced nor substituted by any other goods, and hence had no regular market price or value, and that defendant was well aware on the day of sale both of their peculiar character as aforesaid, and of their not possessing a regular market price or value, and plaintiffs further say that on the day when the defendant cancelled the sale as aforesaid, the said bags purchased by plaintiffs from defendant were worth the sum of five thousand, six hundred and fifty-five and 40-100 dollars.

      “Plaintiffs further say that they have been at all times and are now- ready to do and perform everything to be done by them in the carrying- out of the sale, but that defendant, although often requested so to do, has refused to ship and complete the shipment of said goods to said plaintiffs at Cleveland, Ohio, and that by reason of the facts set forth herein the plaintiffs have suffered a loss of twenty-five hundred and seventy and 60-100 dollars, which defendant refuses to pay. Wherefore plaintiffs pray judgment against defendant in the sum of twenty-five hundred and seventy and 60-100 dollars, with interest from August 18, 1884, and costs.”
    “ANSWER.
    “The defendant for answer to plaintiffs’ petition says, he. admits he is doing business in the said city of Cincinnati, under the firm name of E. J. Diem & Co. He admits that on or about August 15, 1884, he made an agreement to sell plaintiffs a quantity of paper bags.
    “He says that the terms of said sale were that plaintiffs were to deliver to him their negotiable paper for the purchase price payable in equal installments to the order of the defendant in thirty, sixty, and ninety days from date.
    “He says that he sent a part of said goods, in amount about two car loads, called for by said agreement of sale, to the depot of The Cleveland, Columbus, Cincinnati & Indianapolis R. R. Co., at Cincinnati, Ohio, when he was informed and so charges that plaintiffs’ commercial paper had gone to protest in said city of Cincinnati, and they were insolvent; that he thereupon disposed of said goods to the firm of Han-chett & Bros., in Chicago, at seventy per cent, discount on the list price, delivered at Chicago; that said goods were damaged by smoke and fire, and consisted of square bags. And that after he had disposed, at the price aforesaid, in the manner aforesaid, of the quantity of goods covered by the agreement of sale with plaintiffs, he still had a large quantity of similar goods left in store for sale.
    “Defendant denies each and every allegation contained in said petition, and not herein admitted to be true.
    “Wherefore he prays to be hence dismissed with his costs.”

      “ REPRY.
    “Plaintiffs deny that their commercial paper had gone to protest, and that they were insolvent as charged in the answer. They say that they have no knowledge of defendants being informed of their commercial paper going to protest and of their being insolvent — of defendants’ disposition of said goods to Hanchétt & Bros. — of defendants having similar goods in stock for sale after such disposition, and they therefore deny each and every allegation in the answer respecting the same; they say that they were at all times ready and willing to accept and had accepted defendants’ drafts on them for said purchase when he conducted himself as charged in the petition.”
    The cause was tried to a jury, and a verdict obtained b3r the plaintiffs, upon which judgment was subsequently rendered. On the trial, the court excluded evidence offered by the defendant, to prove that at the time of the purchase of the goods described in the petition, the plaintiffs were insolvent, and their commercial paper had gone to protest; and ruled, that there was no “question of insolvency in the case;” that the action was “simply an action for the nonperformance of a contract;” that the answer admitted “the non-performance,” and that there was “nothing left but the measure of damages.”
    The court accordingly instructed the jury as follows:
    “In this case the making of the contract to sell, and the fact that the goods were not delivered, but were sold to another party before the time when any of the drafts became due, is admitted, and that in my judgment constitutes a breach of the contract, so that the only questions that remain for the consideration of the jury are those which relate to the damages, if there were any, to Koblitz Brothers, by reason of the failure to deliver the goods.”
    And the following instruction requested by the defendant was refused:
    “If the jury find that plaintiffs at the date of said contract were insolvent, or had committed an overt act of insolvency by stopping the' payment of their commercial paper, and defendant having been informed of said insolvency, and by reason thereof stopped the transit of said goods, and took possession of the same, then they will find for defendant unless they find that plaintiffs tendered performance of said contract after said stoppage in transit existed.”
    Exceptions were taken by the defendant to the foregoing rulings of the court, the instructions to the jury, and the refusal to instruct as requested, which were embodied in a bill of exceptions duly allowed and made part of the record.
    A motion of the defendant for a new trial was overruled, and he prosecuted error to the general term, where the judgment of the special term was affirmed, and to obtain the reversal of the judgements below he prosecutes error to this court.

      Thos. McDougall, for plaintiff in error.
    1. The court below erred in excluding from the case the issue of insolvency of defendant in error, and the right of plaintiff in error to exercise the right of stoppage in transitu of the goods. This action of the court was based upon what we claim to be an erroneous view of what the law is in such a case.
    The sale was one on credit, thirty, sixty, and ninety days, acceptances to be given for the price. It was conceded by the court below that plaintiff in error had the right to stop the goods in transit upon being advised of the failure of the defendant in error to meet its commercial paper at maturity; but the court held that, conceding that the defendant in error was notified, and that the right of stoppage in transitu existed, nevertheless plaintiff in error, having sold the goods before the maturity of the first acceptance, had waived his right of stoppage in transitu, had violated his contract, and the only question was one of damage. We claim this is not the law. The Florence Mining Co. v. Brown, 124 U. S. 385.
    Why should the vendor be compelled to retain possession of the goods for the benefit of the insolvent vendee, until the time within which payment was to be made had elapsed? It is the wrong of the vendee that compels the vendor to seize the goods in transit. It is undoubtedly true that where the vendor seeks to recover damages against the vendee for failure to perform the contract he must retain possession of the goods and tender them to the vendee. But this is not the case before the court. Here the vendor is not asserting any claim to damages, but the insolvent vendee, whose insolvency compelled the vendor to take possession of the goods, and otherwise dispose of them for his own protection, is seeking to recover damages for the failure of the vendor to perform his contract, when the vendee failed to perform his contract, made no tender at the time the respective payments matured, and no demand for the delivery of the goods.
    The sale of the goods by the vendor cannot be held to be a waiver of the lien which he has under the doctrine of stoppage in transitu. If the vendee, being insolvent, desires possession of the goods, then he ought to pay cash for the same, otherwise the vendor should have the right to sell the property to protect himself. To hold that the vendor must await the expiration of the time of credit, even where the vendee continues insolvent, and is known to be insolvent during the entire time, and to run the risk of depreciation in market value, destruction by fire, etc., is to establish a rule of law for which we can find no authority, and which would be destructive of business. Jordan v. James, 5 Ohio, 88 and 89; Callahan v. Babcock, 21 Ohio St. 281; Benjamin on Sales, secs. 837, and note k; 867, 868, note d; Benedict v. Schaettle, 12 Ohio St. 616.
    The argument of counsel for defendant in error, in the court below, was based on the claim that the exercise of the right of stoppage in transitu by the vendor did not and could not rescind the sale, but left the sale in full force and effect, and only invested the vendor with possession until his lein for the price was satisfied. There are no authorities deciding this matter, directly, in Ohio. And while the law elsewhere is somewhat unsettled, the tendency of the modern decisions seems to be to hold the sale as rescinded. The case we have cited, from the Uuited States Supreme Court takes this view, and the case of Babcock v. Bonnell, 80 N. Y. 244, contains a full'review of the authorities.
    We submit that this is the law on the subject, and certainly is the rule which should be applied in the case at bar. Koblitz Brothers, having' brought their suit for damages, and the plaintiff in error having pleaded to that suit, the insolvency and the stoppage in transitu, the issue should have been tried whether in fact it was a case of insolvency,. and the right of stoppage in transitu was properly exercised.
    Assuming that the sale stands unrescinded, and that possession is given, and the vendor simply has a lien to secure the purchase price, what should be the conduct of the parties ? Must the vendor hold the goods until the time of credit expires, however long that may be? Or has he not the right to tender them to the vendee and demand the price for them and in case the vendee refuses to pay cash, has not the vendor the right to treat the sale as rescinded, and dispose of the goods as he sees fit? We claim this to be the proper rule, and cite the court again to the case of Florence Mining Co. v. Brown, supra.

    2. The court below erred in its charge to the jury on the subject of damages. The testimony showed clearly that no damage was in fact suffered by defendant in error. The same goods could have been obtained at a less price, and were in fact offered to defendant in error at a less price than it had agreed to pay. There was no evidence to contradict the sale of the goods by the plaintiff in error to the Chicago party, which he had agreed to sell to the defendant in error.
    The testimony that the goods thus sold at the time of the alleged breach of the contract were worth no more in the market than the price obtained, which was less than the price defendant in error had agreed to pay, is not contradicted or impeached in the slightest degree, and fixed the market price of the goods agreed to be sold, and showed that no damages were in fact suffered by the defendant in error, and the verdict, if defendant is entitled to a verdict at all, should have been for nominal damages only. Dere v. Lewis, 51 Ill., 254, is exactly in point with the case at bar on tbe question as to the amount of damages defendant in error was entitled to recover, even if it was entitled to recover at all.

      Henry C. Oettinger, and Frank Seinsheimer, for defendant in error.
    I. The plaintiff in error claims that the court erred in excluding from the case the issue of insolvency of defendant in error and the right of plaintiff in error to exercise the right of stoppage in transitu of the goods.
    If the defendant in error was insolvent, there is no doubt that plaintiff in error had the right to stop the goods in transitu; but the question arises, did the plaintiff in error exercise that right? ' If he did, then evidence of insolvency would be proper.
    Stoppage in transitu is an extension of the vendor’s lien. It does not work a rescission of the contract, but merely gives the vendor the possession of the goods as security; the property and the title are still in the vendee. The plaintiff in error in the case at bar did not exercise this right, fie did not retake the goods and hold them as a lien-holder, but he retook them and sold them again, at once, and without notice to the'defendant in error, and without waiting for the first acceptance to mature, thus committing a breach of the contract. There was therefore no stoppage in transitu, and the question of insolvency has no bearing on the case.
    Stoppage in transitu does not rescind the contract but gives the vendor a lien. Hunn v. Bowne, 2 Caines (N. Y.) 38 and42; Jordans.James, 5 Ohio, 88; Benedicts. Schaettle, 12 Ohio St. 515 ; Rowley v. Bigelow, 12 Pick. 312 ; Grout v. Hill, 4 Gray, 366 ; Rogers v. Thomas, 20 Conn. 58 ; Atkins v. Colby, 20 N. H. 155; Newhall v. Vargas, 13 Me. 93; Mohr v. B. & A. R. R. Co., 106 Mass. 67; Cross v. O'Donnell, 44 N. Y. 665 ; Babcock v. Bonnell, 80 N. Y. 249 ; Rucker v. Donovan, 13 Kans. 251; Smith’s Leading Cases, 813, 814, 8th Ed.; Benjamin on Sales, seq. 867 et seq.; Bloxam v. Saunders, 4 B. & C. 948 ; Allyn v. Willis, 65 Tex. 65.

      Counsel for plaintiff in error has cited the cases of Babcock v. Bonnell, 80 N. Y. 244, as holding that the tendency of modern decisions show that the sale is rescinded. We claim that this case shows exactly the opposite and is almost identical with the case at bar, page 249. We cite the following cases bearing on credit contracts. Valpy v. Oakley, 16 Q. B. 941; Griffith v. Perry, 1 E. & E. 680 ; Benjamin on Sales, sec. 867; Gordon v. Harper, 7 Term Rep. 9; Bloxam v. Saunders, 4 B. & C. 941; Benjamin on Sales, 678.
    II. In fixing the measure of damages, the contract between the parties must not be lost sight of. The rule of damages in ordinary cases, that “ the vendee is entitled to go into the market and buy the same goods contracted for, and recover as damages any amount which he had to pay in excess of the contract price, and that if he could get the goods for less, he could recover no' damages,” proceeds upon the principle that the vendee has the right to be placed in the same position that he would have been in had the contract been carried out. Apply that principle to the case at bar, and it is clear that no purchase of the goods by the defendant in error for cash would have put him in the position he occupied in the original contract, which was a credit contract. If A sells B for cash and breaks the contract, B’s damages must be measured by the cash value of the goods in the market. If the vendee can buy the same goods for less, he loses nothing. If he must pay more, he loses the advance in price. Having made a cash contract, it is proper to estimate his damage, by a cash market. But where the vendee has bought goods on credit', how can his damage be measured by the value of the cash contract ?
    The vendee has the right to say to the vendor, “You have sold me goods on credit. I will go into the market and buy on credit. If I can buy on credit for less than you sold me, you owe me nothing. If I must pay more, you owe me the difference. If no one else will credit me and I cannot procure the goods at all, you are responsible to me for my actual loss, because you have made a credit contract with me.” So the question in the case at bar is not at what the defendant in error could have bought these goods for cash, and the fact that they could have bought them from plaintiff in error for cash at less than the credit or contract price, is entirely irrelevant.
    Upon the question of damages counsel for defendant in error desires to call the attention of the court to two cases, viz: Von Arsdale v. Rundel, 82 Ill. 68; Trigg, et al v. Clay, et al. Vol. 13 S. E. Rep. 434, which lay down a rule of law different from the case of Dere v. Lewis, 51 Ill. 254, cited and relied upon by counsel for plaintiff in error.
   Williams, C. J.

The contract of the parties, as shown by the pleadings, was one for the sale of goods on credit; the plaintiffs agreeing to give their commercial paper for the purchase price, payable at the times stipulated. As no time was specified in the contract for the delivery of the goods, the defendants’ obligation was to deliver them when the plaintiffs gave their commercial paper, as they agreed to do, or within a reasonable time. The petition avers that the plaintiffs were at all times ready to perform their part of the contract, and, that they requested performance by the defendant, which was by him refused. The answer denies these averments, and alleges, that the plaintiffs became, and were insolvent, and their commercial paper dishonored; and, upon this information coming to the defendant, after part of the goods had been delivered to the carrier for shipment, he stopped them in transit, resumed possession, and afterwards resold them with the other goods included in the contract, for the same price plaintiffs were to pay for them. The reply denies the insolvency of the plaintiffs, and avers that they accepted drafts drawn by defendant on them for the whole purchase price of the goods, payable in accordance with the contract.

The view which the court below took of the case, was, that the resale of the goods, as alleged in the answer, was a breach of the contract by the defendant, which gave the plaintiffs, notwithstanding their insolvency, an immediate right of action against him for damages. Hence, proof of the insolvency of the plaintiffs was excluded, as immaterial, and the case was submitted to the jury as involving no inquiry except the amount of the plaintiffs’ damages.

We do not understand it to be claimed, that the defendant, upon learning of the plaintiffs’ insolvency, might not lawfully retake the goods while they were yet in the custody of the carrier; nor, that he was bound to deliver any part of the goods so long as the insolvency of the plaintiffs continued. The claim is, Jhat the right of the vendor in such case, is simply to retain possession of the property until the purchase price is paid; and therefore, a resale by him before the expiration of the credit, puts it out of his power to deliver to the first vendee, and so, constitutes a breach of the contract with him, for which he may, though insolvent, maintain a special action for damages. Whether this claim is correct or not, is the principal question in the case.

The right of stoppage in transitu, is the right of the vendor to resume possession of the goods sold, while they are in transit to the vendee, who is insolvent, or in embarrassed circumstances. Actual insolvency of the vendee is not essential. It is sufficient if before the stoppage in transitu, he was either in fact insolvent, or had, by his conduct in business, afforded the ordinary apparent evidences of insolvency. Nor is the vendor’s right abridged, or in any way affected by the fact that he has received the vendee’s bills of exchange, or other negotiable securities for the whole price, even though they have been negotiated and are still outstanding. It seems to be well settled, that when the right of stoppage in transitu is properly exercised, the effect is to restore the vendor to precisely the same position as if the' goods had never left his possession. He has the same rights Avith respect to the property, and they may be enforced in the same way. His right to intercept the goods before they reach the hands of the vendee, and his right to withhold those still in his possession,’rest upon the same just principle that the insolvent vendee cannot require the vendor to deliver the goods or perform the contract when he himself is unable to pay for them, or perform the contract on his part. To require the goods to be delivered to such vendee Avould simply result in the application of the property of one man to the payment of another man’s debts. The right of the unpaid vendor, with respect to the goods, is sometimes called a lien; and, it is a lien, in the sense that the vendee, upon payment or tender of the price, but not otherwise, may recover them. But it is something more than a mere common law lien, which is only a naked right of possession. With the goods in his possession, the vendor has a special property in them, which is parcel of his original ownership. Whether the effect of the stoppage in transitu, or the retention of the goods by the vendor, on the discovery of the vendee’s insolvency, is to rescind the contract, or not, has been the subject of much discussion, and some authors say the question is not yet definitely settled. But the prevailing opinion now is, we believe, that the contract is not, necessarily rescinded, unless the parties by their conduct so treat it; that conclusion, being most favorable to the vendor, for whose protection the doctrine of stoppage in transitu was first established; for, if the exercise of the right operated to rescind the contract, the vendor would be deprived of the remedy, which it is now generally conceded he has in a proper case, upon a resale of the goods, to hold the vendee, or the assignee of his estate, for the loss sustained through his non-performance of the contract, or in consequence of a fall in the market price. And, as the stoppage does not rescind the contract of sale, it follows, that the ven-dee, or his assignee, may obtain the goods on payment of the price; or, if the vendee was able and ready to perform the contract on ids part, he may recover damages for the failure of the seller to deliver the property according to its terms. But can the vendee maintain such action if he is not able to perform? And does his insolvency at the time fixed for the delivery of the property, amount to such inability? Or, where the sale is upon credit, does a resale of the property by the vendor, before the expiration of the time of the credit, give the insolvent vendee, notwithstanding his inability to pay for the goods, a right of action against the vendor for the difference between the contract price and their market value, at the time of the resale ? As an authority sustaining the right of the vendee to maintain such an action against his vendor, Bloxam v. Sanders, 4 B. & C. 941, is cited, where Bailey, J. says: “If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession. Whether default in payment when the credit expires will destroy his right of possession, if he has not before that time obtained actual possession, and put him in the same situation as if there had been no bargain for credit, it is not now necessary to inquire, because this is a case of insolvency, and in case of insolvency the point seems to be perfectly clear. If the seller has dispatched the goods to the buyer, and insolvency occurs, he has a right in virtue of his original ownership to stop them in transitu. Why? Because the property is-vested in the buyer, so as to subject him to the risk of any accident; but he has not an indefeasible right to the possession,-' and his insolvency, without payment of the price, defeats that right. And if this be the case after he has dispatched the goods, and whilst they are in transitu, a fortiori, is it when he has never parted with the goods, and when no transitas has begun. The buyer, or those who stand in his place, may still • obtain the right of possession, if they will' pay or tender the price, or they may still act upon their right of property if anything unwarrantable is done to that right. If, for instance, the original vendor sells when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury; but they can maintain no action in which right of property and right of possession are both requisite, unless they have both those rights.” Still the question remains, when is the resale wrongful? And what is necessary on the part of the vendee, to enable him to maintain the action for the resale was not decided, nor does it appear to have been a question in that case. The action was trover, to the maintenance of which, the right of possession was essential.

In Smith’s Reading Cases, vol. 1, pt. II, p. 1199, in the note to Lickbarrow v. Mason, 2 T. R. 63, it is said : “ Supposing the contract of sale not to be rescinded, it seems to follow, that the goods, while detained, remain at the risk of the vendee, and that the vendor can have no right to resell them, at all events until the period of credit is expired; after that period, indeed, the refusal of the vendee, or his representatives to receive the goods and pay the price, would probably be held to entitle the vendor to elect to rescind the contract.” The only authority cited in support of the note above quoted, is the case of Langford v. Tiler, Salk, 113, from an examination of which, it will be seen, that it does not meet the question. The full report of the case, which is very brief, is as follows:

“ The defendant, who was administratrix to her late husband, used to deal in tea in his.lifetime, and bought four tubs of the plaintiff at so much per tub, one of which she paid for and took away, leaving fifty pounds, in earnest for the other three; and Hoi/r, Chief Justice, ruled, 1st, That the husband was liable upon the wife’s contract, because they cohabited. 2nd, That notwithstanding the earnest, the money must be paid upon the fetching away the goods, because no other time for payment is appointed. 3d, that earnest only binds the bargain, and gives the party a right to demand; but then a demand without the payment of the money is void. 4th, That after earnest given, the vendor cannot sell the goods to another, without a default in the vendee; and therefore, if the vendee does not come and pay and take the goods, the vendor ought to go and request him; and then .if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person.” The sale, it appears, was not on credit, nor, was the purchaser insolvent; nor, does the case hold that the vendor would be liable in damages, for a resale of the goods without a request made of the ven-dee to receive and pay for them, if, at the time, he was not ready and able to pay the purchase price. On the contrary, the action was by the vendor against the vendee who was the administratrix of her husband’s estate, to charge the estate with her contract of purchase; and Eord Hoi/r was speaking’ of what was necessary to be done by the vendor to enable him to sue for the vendee’s breach in not making full payment. The holding, that to entitle the seller to sue, he must offer to perform and request performance by the purchaser, is in accordance with the now generally recognized rule on the subject.
The general rule is, that in contracts of bargain and sale, where there is no agreement for credit, the promise of the vendor to sell and deliver the property, and that of the purchaser to pay the contract price, are mutually dependent, and neither party is bound to perform, without contemporaneous performance by the other. Payment, or tender of the price, is the condition upon which the purchaser can require' delivery of the property; and delivery or tender by the seller, is just as essential on his part if he would sue for the price, or for damages for its non-payment. If both parties are unable to perform, neither can maintain an action against the other; and therefore, while it is necessary for the vendor, if he would sue, to offer performance on his part, he is in a position to defend, without doing so, if the vendee is is not able to perform. In Reader v. Knatchel, 5 T. R. 218, an application was made of the- rule, which is much in point. The plaintiff declared upon an agreement by the defendant, to deliver to him a quantity of Manchester cottons. The defense was, that after the making of the contract, the plaintiff had compounded with his creditors. Mr. Justice Butuee. directed the jury, “that if they believed the plaintiff was really in such a situation as to be unable to pay for the goods, that was a good defense in point of law to the action; and the jury accordingly found a verdict for the defendant.”

When the sale is upon credit, it is one of the implieff conditions of the contract that the vendee shall keep his credit good; h'is promise to pay at a future day, involving an engagement on his part that he will remain, and then be, able to pay; which engagement is broken when he becomes insolvent, and unable to pay, and hence, the right of the vendor to then stop performance of the contract on his part. Nor is the rule varied by the fact that the vendee has given his notes or bills, or other securities for the price, payable at the end of the time for which the credit is allowed. The vendor, in such case, incurs no liability by not delivering the property, unless the vendee pay, or tender the contract price. But in order to sue the vendee, he should offer to deliver according to the contract. Such is the scope of the rule laid down in Mining Co. v. Brown, 124 U. S. 385, where it is held: “The insolvency of the vendee in a contract for the sale and future delivery of personal property in installments, payment to be made in notes of the vendee as each installment is delivered, is sufficient to justify the vendor for refusing to continue the delivery, unless payment be made in cash; but it does not absolve him from offering to deliver the property in performance of the contract if he intends to hold the purchasing party to it: he cannot insist upon damages for non-performance hy the insolvent without showing performance on his own part, or an offer to perform, with ábility to make the offer good.”

The rule must work both ways. The rights and obligations of the vendor and vendee are correlative. If the insolvency of the vendee, is sufficient to justify the vendor in refusing to deliver the property, unless payment be made in cash, it follows, that the vendor incurs no liability by his refusal, and therefore, no right of action accrues to the ven-dee, unless payment be made by him. And if the vendor cannot insist upon damages for the vendee’s non-performance, without showing an offer on his part with the ability to perform, so, neither can the vendee, if he is without the ability to perform, recover from the vendor.,. The observations of GHOKSON, J., in Benedict, v. Schaettle, 12 Ohio St. 520-521, are in point, and are in harmony with this view of the subject. He says: “If the true principle of the right of stoppage in transitu, be found in that certainly just rule of mutual contract, by which either party may withhold performance, on the other becoming unable to perform, on his part; if the foundation of the rule be a just lafci on the goods for the price, until delivered, an equitable lien adopted for the purposes of substantial justice, then it is the ability to perform the contract — to pay the price — which is the material consideration. If there be a want of ability, it can make no difference in justice or good sense, whether it was produced by causes, or shown by acts, at a period before or after the contract of sale. Substantially, to the vendor who is about to complete delivery, and abandon or lose his proprietary lien, the question is, can the vendee perform the contract on on his part; has he, from insolvency, become unable to pay the price?” And in another part of the opinion he further says: “The rights of a fair vendee will be sufficiently protected by giving him an indemnity when the right of stoppage in transitu is exercised upon rumor or suspicion without any foundation in fact, and by depriving the vendor, in all cases, of any chance of speculating upon the goods, by requiring them to be delivered or accounted for to the vendee, or his assignee, on the payment or tender of the agreed price.”

But, it is contended, that while the vendor may refuse to deliver the property to the insolvent vendee, he is obliged to keep it for the vendee until the time of the credit expires; and, if he resell before that time, the vendee may have his action for damages.

When, by the contract, the property is to be delivered at a future day, and the vendor sells it to another before that time arrives, the vendee, being able to perform, may have an immediate action; for the vendor, by thus disabling himself from performing by delivery at the proper time, commits a breach of the contract, and the vendee need not wait until the time for the delivery arrives. But that rule has no application here. The obligation of the vendor, under a contract like that between the parties in this case, is to deliver the goods at the time stipulated in the agreement, which is at once, upon the receipt or tender of the purchaser’s commercial paper, or within a reasonable time; not at the time to which the credit is extended. The right of the vendee, is to receive the goods at the time the vendor contracts to deliver them, and he is not bound to receive them at any other time. The breach, therefore, on the part of the vendor, if there be one, consists in his failure to deliver the goods according to the contract, and occurs at that time, and not upon a resale subsequently made; and the vendee’s cause of action arises, if at all, upon the failure to deliver, and not on the resale. In the case now before us, the aver-ments of the defendants’ answer, which on the trial he was not permitted to prove, though he offered to do so, show that at the time the goods were to have been delivered, according to the contract of sale, the plaintiffs were insolvent, and their paper dishonored, so that, the condition upon which their right to the goods depended, had not been performed by them, and they were without the necessary ability to perform the same. Upon what just principle can the seller in such a case, be required to hold the goods until the expiration of the credit? It is true that, at that time, the vendee may again be solvent, and able to pay. There is no presumption, or assurance that he will. If any presumption arises, it is rather, that the insolvency will continue, which is more in accordance with the experience of the commercial world. But, as we have seen, it is part of the vendee’s engagement, that he will maintain his credit, which is broken by his insolvency. And it would be unjust, to require the vendor, to sustain the loss, resulting from the destruction or deterioration of the goods in the meantime, which, in many instances must ensue if the seller is compelled to keep the goods shut up, and take the risk of the future solvency of the buyer. The injustice of such a requirement is conceded where the goods are of a perishable nature; and the vendor, it is now settled, is not obliged to keep goods of that character until the termination of the credit. In the notes to Lickbarrow v. Mason, in Smith’s Leading Cases, vol. 1, pt. II, p. 1199, it is said, “But what, it will be said, if the goods be of so perishable a nature that the vendor cannot keep them until the time of credit has expired? In such a case it is submitted that courts of law having originally adopted this doctrine of stoppage in transitu from equity, would act on equitable principles by holding the vendor invested with an implied authority to make the necessary sale.” It is insisted, however, that the right of sale in such cases, constitutes an exception to the rule. In our opinion, the reasons upon which the exception rests, if it be such, should make the exception the general rule. The value of many kinds of merchandise, not perishable, depends largely upon their being in the market at the appropriate seasons, and to supply temporary demands; and if not available for those purposes, at the proper time, they become comparatively worthless, or so reduced in value as to entail great loss, which may be less only in degree, though greater in amount, than where the goods are perishable; and it is no more just or equitable, to subject the vendor to the loss in the one case, than in the other. The right of resale, ought not, we think, be made to depend upon the degree or extent of the loss that must ensue, if it should be denied. It rests upon a different principle, and grows out of the failure of the vendee to keep his engagement. Not that the contract is thereby rescinded, for that would defeat the vendor’s remedy for damages upon resale after due notice; but, that he may elect to treat the agreement for the credit as at an end, on account of the vendee’s default. We see no good reason for holding that the rights of the seller are any the less where the sale is upon credit, and the property is retained by him on account of the buyer’s insolvency, than they would be if the sale were for cash, and the vendee was unable to pay the price agreed upon. In either case the incapacity of the ven-dee to perform his part of the agreement, and insolvency is incapacity, warrants the vendor in withholding performance on his part.

We are therefore of opinion the trial court erred in excluding the evidence of the plaintiffs’ insolvency, and in charging the jury as shown in the statement of the case; and also in refusing the instruction'requested by the defendant therein contained. Counsel have argued a question relating to the charge of the court on the measure of damages; but as no exception was taken to the charge on that subject it will not be further noticed. For the errors mentioned above,

Thefidgments below are reversed and the cause remanded for further proceedings.


author: By the Court.

text:
    Hyde v. Bank.

      Practice in Civil Cases.

    (Decided January 19, 1892.)
    Motion for stay of execution in cause No. 2,972, on tbe General Docket.

      E. Sowers, for tbe motion.

      Brewer & Palmer, contra.
   By the Court.

Where a judgment is rendered in tbe court of common pleas against a defendant for money only, and it is affirmed by the circuit court, tbe defendant, upon filing a petition in error in this court to reverse tbe judgment below, is entitled to a stay of execution, upon giving an undertaking in double the amount of the judgment, to the acceptance of the clerk of the circuit court, in accordance with Section 6718, Revised Statutes. In such case this court is not required, nor authorized, by the provisions of Section 6725, Revised Statutes, to fix the terms for the stay of the judgment of the circuit court.

Motion overruled.


author: DickmaN, J.

text:
    Cincinnati v. Hafer.

      Creditor's bill to subject interest in a claim for unliquidated damages — Dormancy of judgment during pendency of creditor's bill.

    1. Where a judgment debtor lias commenced an action against another, for unliquidated damages arising out of an injury to his real estate, and the judgment creditor of such debtor, thereafter, and while his judgment is alive, commences a suit under section 5464 of the Revised Statutes, in the nature of a creditor’s bill, against such debtor and the wrongdoer, to subject to the payment of his judgment, the debtor’s interest in the chose in action or claim for damages, the judgment creditor may acquire a lien in equity upon such interest of the debtor, from the commencement of his suit, where the demand of the judgment debtor for unliquidated damages is reduced to judgment during the pen-dency of the creditor’s bill.
    2. Such judgment creditor, by permitting his original judgment to become dormant, through failure to issue execution thereon during the pendency of his suit in the nature of a creditor’s bill, will not, thereby, lose the lien in equity, which he may have acquired by reason of his having commenced such suit.
    (Decided February 2, 1892.)
    Error to the Circuit Court of Hamilton county.
    The case is stated in the opinion.

      Horstman, Hadden, Galvin & Van Horne, for plaintiff in error.
    I. The judgment of Hafer against Mrs. Teetor became dormant in five years after May 31, 1880, and ceased to be a lien on the damage claim of Mrs. Teetor against the City, prior to the date of judgment in the damage case. 6 Ohio 156; Bates’ Pleadings, vol. 2, page 848; Tucker v. Shade, 25 Ohio St. 355; Lytle v. The Cincinnati Manufacturing Co., 4 Ohio 459; Minor v. Wallace, 10 Ohio 403; Revised Statutes, section 5367; Critchfield v. Porter, 3 Ohio 517-8.
    II. The judgment of May 31, 1880, in the case of Hafer v. Teetor, and whatever lien might have attached by reason of the creditor’s bill in this case, filed on November 20, 1880, was lost and destroyed by failure to restore the judgment in the prior case and failure to restore the lien in this case, within six months after the Court House fire of March 29, 1884, when all the records and pleadings in all the cases referred to were destroyed. Section 907b, Revised Statutes.
    III. The unliquidated damage claim of Sarah Teetor against the City was not such an “interest in any monejq contract, claim or chose in action, due or to become due, or in any judgment or order, or any money, goods or effects which he has in the possession of any person,” etc., as could be Subjected under section 5464, Revised Statutes. Wade on Attachments, section 447; 2 Handy, 274; Mdcksr. Wright. 1 Raw Bulletin, 109, 110; 1 Raw Bulletin, 335.

      Wilby &“ Wald, for defendant in error.
    I. We claim no lien here except that quasi lien which is' secured by what was known under the old practice as a creditor’s bill.
    The judgment of Hafer was not dormant when this suit was brought in 1880 — and if thereafter, while this suit has been pending, the judgment became dormant, Hafer lost none of his rights. His rights were fixed when the summons was served on the city in this case in 1880, and thereafter it was a lis pendens. Scudder v. Van Ambergh, 4 Edw. Ch. N. Y. 29; Dempsey v. Bush, 18 Ohio St. 376; Lawrence v. Belger, 31 Ohio St. 175.
    II. The fact that the petition in this case happened to be destroyed by the burning of the court house at Cincinnati, does not make section 907b, or any part of the act of which it is a part, applicable here. Hafer did not attempt to restore any record under the provisions of that act, nor has he sought the aid of any of its provisions. Rong before the passage of that act, it was the right of any party to a suit, on making a proper showing of the loss of any pleading, to substitute a copy of it. Such a showing was made by the defendant in error after his petition in this cause was lost, and a copy of his petition was substituted by the court.
    The restoration of the record of Hafer’s judgment in No. 54,740 was not necessary. His judgment was admitted by the answer of the city, filed May 12, 1887, and also by the amended answer, filed February 13, 1888.
    III. By section 5464 a judgment creditor can subject “anjr interest” of his judgment debtor “in any money, contract, claim or chose in action, due or to become due.” Counsel contend that an unliquidated claim for damages is not covered by this language. If such a claim is not a “claim” it surely is a “chose in action,” which includes not only a claim for a breach of contract, but also a claim arising in tort. Am. & Eng. Encjd. of Raw, vol. 3, page 235; Shars-wood’s Blackstone, book 2, page 376; 2 Wait’s Actions and Defenses, 250; The City of Newark v. Funk, 15 Ohio St. 462; Lord v. Harte, 118 Mass. 271; Boltz v! Stoltz, 41 Ohio St. 540; Tompkins v. Fonda, 4'Paige, 448; Hziston v. Seeley, 27 Iowa, 198.
   DickmaN, J.

This proceeding in error is instituted to reverse a judgment rendered by the Circuit Court of Hamilton county against the city of Cincinnati, on an appeal by the city from a judgment in the court of common pleas in favor of George Hafer, defendant in error, and by him recovered in a suit in the nature of a creditor’s bill. There was a finding of facts by the circuit court, from which, the following are shown to have existed :

On the 31st day of May, 1880, George Hafer, on cross-petition in the case of Charles S. Woodruff v. H. B. Teetor, et al, recovered a judgment by the consideration of the court of common pleas, against Sarah L. C. Teetor, wife of H. B. Teetor, for the sum of $301.01, with interest at eight per cent, per annum, from May 10, 1880, upon which judgment no execution was ever issued.

At the time of therecovery of this judgment, a suit — begun in the year 1879 — -was pending in the court of common pleas, in which Mrs. Teetor, as plaintiff, claimed damages from the city of Cincinnati, _ as compensation for a loss sustained by her in consequence of the drainage of sewage from the city infirmary upon her land.

On the 20th day of November, 1880, Mrs. Teetor, having no personal or real property subject to levy on execution sufficient to satisfy Hafer’s judgment, Hafer commenced this suit, in the nature of a creditor’s bill, in the court of common pleas, against Mrs. Teetor and the city of Cincinnati, in order to subject to the payment of his judgment, so much, as would be sufficient, out of the indebtedness of the city to her by reason of the loss by her .sustained from drainage upon her land, as above stated.

Soon after the commencement of this suit, a general demurrer fo the petition in Mrs. Teetor’s action against the city was sustained by the court, and leave was given to her to file an amended petition therein. It was not done within the time fixed by the court, and not until June, 1884, when, by leave of the court, an amended petition was filed, which set out the original cause of action, though in a different manner from the original petition’. Mrs. Teetor thereupon, to-wit, in June, 1884, assigned to A. S. Miller and Sarah Cilley her claim against the city, then in litigation.

The city failed to answer the amended petition of Mrs. Teetor, and on the trial of the issue thus made, she recovered, in October, 1886, on her original cause of action, a judgment against the city for one thousand, one hundred and two dollars; and shortly after the recovery of such judgment, the city solicitor then in office paid the full amount thereof to her assignees, without any knowledge of the pendency of Hafer’s suit against the city — the records and the dockets showing the same, having been burned with the Hamilton county court house in March, 1884.

In Hafer’s suit against the city of Cincinnati, the cits’-, in December, 1880, filed an answer which was a general denial, but nothing further was done in the suit until after the burning of the court house — in which all the papers in the cause were destroyed — when, in March, 1887, the counsel for Hafer, hearing for the first time of the judgment against the city in favor of Mrs. Teetor, obtained leave and filed a copy of Hafer’s original petition; and the city filed an answer thereto, to which answer there was a reply, and the court of common pleas, in July, 1887, upon the pleadings and the evidence, gave judgment against the city.

On appeal by the city, the circuit court found that Hafer was entitled to a decree against the city for a balance due to him from Mrs. Teetor on his judgment against her, viz., for the sum of $449.15, with interest at eight per cent, per annum, and the costs in the action, and rendered judgment against the city accordingly.

The main question arising on the record is, whether Mrs. Teetor’s demand against the city for unliquidated damages, was of such a nature, that before it was reduced to judgment, Hafer, a judgment creditor, could, by a suit in the nature of a creditor’s bill against her and the city of Cincinnati, ácquire a lien in equity on her interest in such demand, and become entitled to payment of the same, in the event of succeeding in his suit.

It is contended, that the demand of Mrs. Teetor against the city was for damages unliquidated, growing out of a tort, and was not, therefore, until reduced to judgment, such an interest as might, under the statute, be subjected by the judgment creditor to the payment of his judgment. It is provided by section 5464 of the' Revised Statutes, that “when a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, * * * any interest he has in- * * * any money contract, claim, or chose in action, due or to become due to him, or in any judgment or order, or any money, goods, or effects which he has in the possession of any person, or body politic, or corporate, shall be subject to the payment of the judgment, by action.”

Mrs. Teetor’s demand for damages on account of injury to her land, did not, it is true, rest on a money contract, but it was nevertheless a chose in action. While by a chose in action is ordinarily understood a right of action for money arising under contract, the term is undoubtedly of much broader significance, and includes the right to recover pecuniary damages for a wrong inflicted either upon the person or property. It embraces demands arising out of a tort, as well as causes of action originating in the breach of a contract. As said by Judge Sharswood, in a note to a passage in 2 Black. Com. 396, “there is a very large class of choses in action, which arise ex delicto. My claim for compensation for any injury done to my person, reputation or property, is as truly a chose in action, as where it is grounded on a breach of covenant or contract.”

A thing in action, too, is to be regarded as a property right. One of the well recognized divisions of personal property is into property in possession, and property or choses in action. “A leading distinction, in respect to goods and chattels, is the distribution of them into things in possession and things in action. The latter are personal rights not reduced to possession, but recoverable by suit at law. * * Damages due for torts are included under this general head or title of things in action.” 2 Kent, 351.

By section 4975 of the Revised Statutes, it is provided that: “In addition to - the causes of action which survive at common law, cau'ses .of. action * * * for an injury to real or personal estate * * * shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.” And it was held in Grant v Ludlow, 8 Ohio St. 1, that, a chose in action which is transmissible to an executor or-s administrator, under our law, is assignable in equity. Mere personal torts die with the party and are not assignable, but where, the action is brought for damage to the estate, and not for injury to the person, personal feelings, or character, and the right of action survives to the personal representative, it nlay be assigned so as to pass an interest to the assignee. Jordan v. Gillen, 44 N. H. 424; Railway Company v. Goodbar, 88 Ind. 213; Butler v. Railroad Company, 22 Barb. 110; Purple v. Railroad Company, 4 Duer, 74; McKee v. Judd, 2 Kern. 622; Lazard v. Wheeler, 22 Cal. 139; North v. Turner, 9 Serg. & Raw. 244; Cass v. Railroad Company, 1 E. D. Smith, 522; Quin v. Moore, 15 N. Y. 435.

Choses in action arising out of a' tort or injury to property being transmissible as assets to the executor or administrator, and assignable by the ..owner, it may well be inquired, why the interest which the owner has in such rights of action, should not be subjected to-the payment of his debts -at -the suit of a judgment creditor; as well as his interest in any other chose in action. In Hudson v. Piets, 11 Pai. Ch. 183, Chancellor Walworth "said: “The right to an action for an injury to the property of the judgment debtor, before the filing of the complainant’s bill, whereby the property to which the creditor was entitled to resort for the payment of his .debt is destroyed,-or diminished in 'Value, appears :to be such a thing in action as may properly be reached, and applied 'to the payment of the complainant’s debt, under a- creditor’s bilí.” A debtor’s real and personal property,., including - pecuniary demands against others for injury thereto, whereby such property is diminished in value, justly constitutes a fund for the payment of his debts; and if the tangible property is taken by one creditor in satisfaction of his claim, another creditor may rightly acquire an equitable lien upon the debtor’s interest in the amount which should be paid by the wrongdoer, who has diminished the value, and thereby virtually taken away a portion of the tangible property; nor should the other creditor’s right to such recourse be delayed until the debtor, who has begun his action for unliquidated damages, has first reduced his demand to judgment.

It is urged, that if Mrs. Teetor had not brought an action against the city for damages, the defendant in error would have had no right to subject any portion of the indebtedness of the city to her, in payment of his judgment. In the present case, the facts render it unnecessary to consider, whether, if the judgment debtor had not brought suit against the city to enforce her rights, the judgment creditor might, by order of the court, through a receiver, have enforced the rights of the judgment debtor for his, the creditor’s benefit. The statute refers to “any interest in any money contract, claim, or chose in action, due or to become due.” When Hafer began the present suit, Mrs. Teetor’s cause of action existed, and she had already commenced her action against the city; and when her demand for damages was reduced to judgment in October, 1886, his creditor’s bill was still pending in the same court. When, therefore, judgment was rendered in his favor in July, 1887, the damages claimed by Mrs. Teetor from the city had been liquidated, and “become due,” thus indicating, that when Hafer filed his creditor’s bilí, her demand against the city was a chose in action that was “to become due,” or payable, or proper to be paid.

But, the statute not only subjects the judgment debtor’s interest in any chose in action, but also any interest he has in “ any claim due or to become due.” The term “ claim” is comprehensive, and would embrace a demand for money in varied forms, whether on contract, express or implied, or for damages growing out of injury to person or property. Damages have been defined as a sum of money adjudged to be paid by one person to another as compensation for a loss sustained by the latter in consequence of an injury committed by the former. Co. Eitt. 257a; Mayne Dam. 1. If the claim for unliquidated damages is converted into a judgment while the creditor’s bill is pending, it may be regarded as a claim, which, at the time of the filing of the creditor’s bill to subject it in equity, was a claim “to become due,” within the meaning of the statut.e; and the judgment debtor’s interest in the same might be reached by his judgment creditor.

It is contended in behalf of the plaintiff in error, that the judgment of the defendant in error against Mrs. Teetor, had become dormant before the year 1886, when the judgriient was rendered in her favor in her damage suit against the city; and that whatever lien might have attached by reason of the creditor’s bill in this case, was lost and destroyed by failure to restore the judgment in the prior suit of Hafer. During the same y&zx in which the defendant in error recovered his judgment against Mrs. Teetor, he began the present suit in the nature of a creditor’s bill. It then became a Us pendens, and his rights in this litigation did not thereafter depend upon whether his judgment would be suffered to become dormant or not. If he should neglect to keep alive the judgment by the issue of execution thereon, it would cease to be a lien on the debtor’s real estate, and until revived, no execution could be thereafter issued on the judgment. By failure, however, to issue execution, the judgment would none the less remain a debt of record, and until reversed or satisfied, would serve as a basis for a new action to subject the equities of the judgment debtor. The reason for commencing this suit, and the service of process on the city and on Mrs. Teetor, was, that she had no personal or real property subject to levy-on execution, sufficient to satisfy Hafer’s judgment. While a suit in the nature of a creditor’s bill was pending, it would have been a useless exaction to require him to issue execution from time to time, to accomplish the object for which his suit was being prosecuted.

As bearing upon this branch of the case at bar, is the decision in Dempsey v. Bush, 18 Ohio St. 376, where it is held, that in an action to subject mortgaged land to sale, and to ascertain and marshal the liens thereon, a judgment creditor, who was properly made a party while his judgment was alive, will not lose his right to share in the distribution of the money arising from the sale, by the fact that his judgment became dormant pending the action. Answers, in the nature of cross-petitions, had been filed by parties claiming the rights of judgment creditors, and the order of sale was made before the judgment became dormant, but the decree settling the liens was not pronounced until after the judgment had become dormant. White, J., in delivering the opinion of the court, said: “It would, perhaps, have been more regular to have settled the liens by decree before or at the time of ordering the sale. Had this been done, the fact that his judgment afterward became dormant would clearly have been no ground for denying the right of the creditor to share in the distribution. The fact that the rendering of the decree was deferred until after the sale, and to the time the money was brought into court for distribution, did not, in equity, alter the rights of the parties from what they would have been, had the decree been pronounced earlier in the progress of the case.” See also Lawrence v. Belger, 31 Ohio St. 175, in which the ruling in the last cited case is approved by the court.

Judgment of the circtdt court affirmed.