author: Okey, J".

text:
    Kane v. Stone Co.
    1. Work was performed in building a house, which, under the contract, was subject to the approval of an architect, who was in the employ of the owner of the property. Held:

    (1.) Such approval may be presumed from the presence of the architect at the time the work was done, and his failing to make objection.
    (2.) If such architect, acting in good faith, fails and refuses to approve the work in any form, the general rule is that the contractor cannot recover.
    (3.) Where the owner approves the work, such approval by the architect is dispensed with.
    2. A contractor for building a house, who has fairly endeavored to perform his contract, and has in fact substantially performed it, may, in an action on the contract, recover the agreed price for the work, less any damages the owner may have sustained by reason of the failure to strictly comply with the agreement.
    Error to the District Court of Cuyahoga county.

      TValdemar Otis, owner of a lot on Euclid avenue, Cleveland, desired to erect thereon a first-class business block, to be called Windsor block. He advertised for proposals, and Kane made a proposition to do the brick work at a specified price, and Scott made a proposition to furnish the stone and do the stone work for $5,800. Otis was satisfied with the prices, but desired to have all the masonry in one contract, and that with one person, and thereupon Kane, on March 1,1875, with the assent of Scott, contracted with Otis to furnish the stone and do the stone work for said sum of $5,800, and to do the brick work at the price proposed.
    The specifications for the stone work, signed by Kane, were as follows : “ All cut stone to be from the Independence and Amherst quarries, of a good clear quality. All belts, sill courses, window sills, imposts, pilasters, arches, window caps, bands, pilaster blocks, area copings, platforms and flagging, and all other parts colored light brown on the plans and elevations, shall'be of cut stone. The platforms and copings on the Sheriff and Euclid avenue to be I inches thick. All to be crandel dressed. All cut stone work above side-walk to be rubbed smooth with sand and water. After the work is all completed, clean off the entire work and point up all the joints ■with fine mortar. Anchor with iron anchors the posts to the walls and to each other as the architect shall direct. Perform all the necessary cutting for side-walk, and vault lights, sand for iron gratings (side-walk and vaults, lights and the area gratings are not included in this contract). The front and flank areas will be paved with brick. Check out the stone work wherever necessary to receive window frames on brick work. All the above work to be set in fine mortar and neatly painted. The contractor for all the above specified work shall, at his own cost and charges, furnish all the labor and materials of every description, and the best of their several kinds necessary for the erection and completion of the several parts in a good, workmanlike manner, in accordance with the true intent and meaning of the several drawings and specifications and to the satisfaction and acceptance of the architect.”

      At the same time Scott verbally agreed with Kane to furnish the stone and perform the work, according to the terms and conditions of the specifications, for $5,800, the sum he had proposed.
    At that time it was contemplated by all the parties— Otis, Kane and Scott — that buff stone would be used; but. James T. Wilson, superintendent of the Ohio Stone Co., induced Otis, with the assent of Kane and Scott, to substir tnte blue stone, the company furnishing to Otis the following guaranty:
    “ Cleveland, O., March 27, 1875.
    “W. Otis, Esq., City:
    “Whereas we have this day made a contract with Mr. Alexander Scott, to furnish him with the light blue Amherst stone for your building, to be erected on the corner of Sheriff and Euclid streets. We hereby guarantee to you, that said stone shall be equal in every particular in color and quality, and free from iron and all spots or discolorations, to the stone used in the Opera building on said Sheriff street, and all stone furnished by us to be subject to the inspection of W. Blythe, architect of said building.
    “ Ohio Stone Company, by J. T. Wilson, Supt.”
    Subsequently, the contract between the Ohio Stone Co. and Scott was, with the assent of Scott, assigned by that company to the Wilson & Hughes Stone Co., by which latter company the stones were furnished to Scott. The stone was substantially the same and in all respects equal to that owned by the Ohio Stone Co., and Otis, Kane and the architect, knowing by whom such material was furnished, made no objection. The stone work was done by Scott with the stone so furnished to him, and the agreed price, $5,800, was all paid to him in installments by Kane, as the work progressed, according to his contract, except the sum of $600, due October 1, 1875. Otis has been in the possession and use of the property since its completion. Aside from any question as to the quality of the stone and time and manner of doing the wrnrk, and acceptance by the architect, that amount ($600) was due on the stone work, October 1, 1875, from Otis to Kane, from Kane'to Scott, and from Scott to the Wilson & Hughes Stone Co. Scott assigned his claim to that company, and the company brought suit thereon against Kane for $600, with interest- from October 1, 1875, in the court of common pleas of Cuyahoga county, setting forth in the petition tire- contract and the assignment thereof, and alleging performance at the time and in the manner' agreed upon. Kane, who was required by Otis to resist the claim, in his answer, denied the allegations of the petition. On the trial in 1878, there was a verdict for $631.75, which was $55 less than the $600 with interest from October 1, 18751 Judgment was rendered on the verdict, which judgment was affirmed in the district court (2 Cleveland L. Rep. 290), and this petition in error was filed to obtain as well the reversal of the judgment of the common pleas as the reversal of the judgment of affirmance.
    A bill of exceptions was taken in the common pleas in which all the evidence is set forth. The plaintiff below was permitted, againshthe objection of the defendant below, to offer in rebuttal evidence as to the character of the materials and work. The bill also contains certain requests for instructions to the jury, the refusal to give such instructions, and certain parts of the charge. Blythe was the architect under whose immediate auspices the stone work was done.- Some of the stones placed in the building were not wholly free from iron, nor from spots or discoloration, and the work was not pointed up after its completion, but as it progressed. The evidence was in conflict whether in these particulars there had not been a substantial compliance with the contract on the part of Scott; it was' also in conflict whether he had not, in all other respects, literally complied with his contract; and it was also in conflict whether the architect had not, in effect, accepted and approved Scott’s -work and materials. ' No evidence was offered as to the value of the work or materials, but there was testimony as to the damages sustained by failure to strictly perform 'the agreement. The following letter from Otis to Scott was offered in evidence, and admitted without objection:

      “Waldemar Otis,
    Law and Real Estate Office, No. 6 Rouse Block,
    Cleveland, O., November 10, 1875.
    “ Mr. Alexander Scott,
    “ Dear Sir: — It seems proper for me to notify you that the reason that Mr. Kane cannot settle the balance nominally due' you, is that I make the claim that the guarantee given me by Mr. Wilson (as to the character, quality of stone, etc.) has not in important particulars been complied' with. Mr. Wilson’s company, by their secretary, gave me written notice that they have received an assignment- of your claim, and therefore I virtually owe them the amount, subject to whatever' damages may be due me for breach of guaranty.
    “ Very respectfully,
    “ W. Otis.”
    Having received this letter, Scott made no application to Blythe for a formal approval of the work. He regarded it as an approval, except as to the quality of the stone.
    With respect to the requests for instructions to the jury, the refusal of such requests, and the charge given; the following is all that appears in the record: “ The defendant, among other things, requested'the court to charge the jury : ‘Plaintiff having, in its pleadings, based its right to recover exclusively on contract, and on having carried out the contract, can only recover on proving to your satisfaction, that Scott did the work according to his contract, and .cannot in this action recover for work performed not according to contract.’ This charge the court refused to give, and defendant excepted.
    “ The defendant also asked the court to charge the jury: ‘ The parties having agreed that the work should be done to the satisfaction and acceptance of Blythe, the architect, then Blythe’s opinion, formed in good faith, is binding on the parties, and if in good faith Blythe was not satisfied with the work, and has not accepted it, and was of the opinion that the building was not completed, then plaintiff cannot recover for the $600 which it avers was only payable on completion of work.’ This charge the court failed and refused to give, and defendant excepted. But the court did charge as follows : ‘ In contracts where the materials are subject to the inspection and acceptance of any particular person, that inspection and acceptance is conclusive, unless there is some fraud or concealment practiced by the person furnishing the materials. If these stones were fairly and honestly exposed to the view of the architect, and he, after such inspection, permitted the stones to go in without objection, and there was no defect in the stone known to Scott, or which, by careful inspection, he could discover, and stones were accepted by the architect without objection, the architect could not wait until after the building is completed, and then- object to a particular stone, which had passed his inspection. But if Scott put in stone- which the architect had rejected, and thus deceived the architect, Scott would be liable, unless Kane knew that such stone had been used after being rejected. If Kane knew it or connived at it, then there is no liability of Scott to Kane on account of it, although Kane might be liable to Otis. If imperfect stone went into that building, with the assent or without objection on the par-of Kane, Kane knowing at the time that they were defective, no claim for damage can be sustained by Kane on account of defects in the stone, of which Kane had knowledge, even though he may be liable in damages to Mr. Otis on account thereof. ’ To all of which defendant excepted.
    “ The court, among other things, after chaiging the jury that defendant had withdrawn his claim for an affirmative judgment, that they must first find that plaintiff was a corporation, that' Scott had assigned his rights to plaintiff, and what was the contract between Scott and Kane, charged the jury, that they piust, to enable plaintiff to recover, find that Scott substantially complied with the contract.. £ Plaintiff must show that Scott substantially complied with the terms of the contract, and without he substantially completed the contract, plaintiff cannot recover. But this is not a technical rule. It don’t apply to immaterial points, but to the substantial requirements of the contract. If the work was substantially completed, then the plaintiff is entitled to recover so much as the materials and work were worth, after deducting all damages which' Kane sustained by reason of defects in the materials or work, and for which Kane would be liable to Otis. If Scott didn’t finish up the work, didn’t complete it, abandoned it before finishing it in a material part, then plaintiff cannot recover. If he did do all the work, but in an improper manner, then plaintiff can recover the reasonable value of such work, less any damage caused by the improper manner of doing it.’
    “To each and every part of this charge defendant separately excepted, and especially separately to so much thereof as charged the jury that under the pleadings in the case, plaintiff could recover, upon a substantial compliance with the contract, what the work done was reasonably worth, less any damage; and also excepted to so much as charged, that under the pleadings and contract plaintiff could recover without performing all the work required by the contract; and to so much as charged, that if Scott did all the work required by the contract, but in an improper mannex1, plaintiff could recover the reasonable value of the work done, less any damage caused by the way of doing the woi’k.
    “ The court further charged the jui’y, ‘ that if the work was pointed as the work progressed, although defectively and not after the work was all done, and although Blythe was not satisfied with the wox-k, and never accepted the building, plaintiff could recover the reasonable value of the work done, less any damage done therebj7.’
    “ To each and evei’y part of which the defendant separately excepted.”

      Mix, Noble cfe White, for plaintiff in error :
    The contract, admittedly, was not completed in four respects: the stone did not come from the quarx’y named in the contract ; the stone was not clear stone, but spotted and discoloxnd; the building was not pointed after “the work was all completed,” if evex1, and the work was not finished by the stipulated time.
    The petition alleged strict pex-formance of all the terms of the contx-act, and averx-ed that right to a judgxnent depended on this pex’formanee. The answer specifically alleged these breadles. The reply denied them. No application was ever made to amend the pleadings.
    We are not disposed to deny that if the pleadings had contained a quantum, meruit or quantum valebant count, plaintiff could have recovered upon a substantial completion of the work according to contract; that unimportant, accidental and unintentional deviations would not prevent recovery. We understand the rule is, if the contract is fully and exactly performed there recovery may be had either on a special count on the contract or on the common counts. If there are unimportant, accidental and unintentional deviations, recovery cannot be had on the contract, for it is not performed. Smith v. Brady, 17 N. Y. 186, 187; but may be had on a quantum meruit or quantum valebant count. Mehurin v. Stone, 37 Ohio St. 49, 56. When there are important and voluntary deviations, unwaived, there can be no recovery, either on the contract or on the common counts. No recovery can be had on a count on the contract alleging strict performance, where the contract has not been performed, without confounding all distinction between a special and a common count, or without doing violence to the language employed.
    The second request to charge (given in the statement of the case) was right. The distinction drawn in the charge given between work and materials was wrong. No good reason can be assigned for the distinction. If parties have a right to submit to an arbiter chosen by themselves, the question as to' whether materials accord with a contract, they have the same right to submit the questions whether work accords with the contract, or whether the work has been substantially completed, according to contract. The same principles which uphold the one covenant, uphold the other. We refer to a few of the many cases in which it will be seen that the distinction taken by the court finds no support in the authorities. McAuley v. Carter, 22 Ill. 53, 58; Wallace v. Curtis, 36 Ill. 156, 158 ; McAvoy v. Long, 13 Ill. 147; Coey v. Lehman, 79 Ill. 173, 176; Taylor v. Renn, 79 Ill. 181; Korff v. Lull, 70 Ill. 420, 422-3 ; Butler v. Tueker, 24 Wend 447, 449; Schenke v. Rowells, 7 Daly, 286, 289; s. c., 2 Abb. N. C. 42, 48, 49 ; Wyckoff v. Wyckoff, 44 N. Y. 143, 145 ; Baasen v. Bache, 7 Wisc. 516, 521; Hudson v. McCartney, 33 Wisc. 331; Palmer v. Clark, 106 Mass. 373, 389 ; Boston Water Co. v. Cray, 6 Met. 131, 168, et seq; McCanen v. McNulty, 7 Gray, 139, 141; Robinson v. Fiske, 25 Me. (12 Shipl.) 401; Merrill v. Gore, 29 Mc. (16 Shipl.) 346 ; O' Reilly v. Kuns, 52 Pa. St. 214, 217; Camden v. South Side R. R. Co., 14 Gratt. 302, 310, et seq.; Mercer v. Harris, 4 Neb. 77; Vanderwerker v. Vermont Central R. R. Co., 27 Vt. 130, 137 ; Worsley v. Wood, 6 T. R. 710; Clark v. Watson, 114 Eng. C. L. (18 C. B. N. S.) 277; Grafton v. Eastern Railway Co., 8 Exch. 699; s. c., 22 Eng. L. & E. 527; Glenn v. Leith, 22 Eng. L. & E. 489; Brown v. Overbury, 34 Eng. L. & E. 610; Ranger v. Great Western Railway Co., 5 H. of L. Cas. 72, 106, 107; Monongahela Nav. Co. v. Fenton, 4 W. & S. 205, 213; Faunce v. Burke, 16 Penn. St. (4 Harris) 469, 479-80; Fox v. Railroad, 3 Wall. Jr. 243; Zaleski v. Clark, 44 Conn. 218.

      Alex. C. Cuskey, for defendant in error :
    Tbe court of common pleas did not err in refusing to give the first request to charge by defendant below (given in the statement of the case). The request was in direct conflict with Goldsmith v. Hand, 26 Ohio St. 101.
    Did the court err in refusing to charge the second request made by defendant below ? Clearly not. The request made covers the completion of the entire building, and asks the court to say that if the architect was of the opinion that the building was not completed, then plaintiff could not recover for the cut stone work, no matter how perfectly that feurt of the building might have been completed. The request makes no allowance for had faith or unreasonable action on the part of the architect.
    The contract between plaintiff and defendant in error did not make the pay of defendant in error, subject to or dependent upon the architect’s opinion as to the completion of the building, but only his work (the cut stone work) was to be completed to the satisfaction of the architect, and whenever tlie building was finished (good, bead or indifferent), defendant in error was entitled to his pay, provided his world was completed to the satisfaction of the architect.
    We claim that the charge of the court, as to the supervision of the architect, is right. Any other rule than that laid down by the court, would work gross imposition and fraud.
   Okey, J".

We are unwilling to disturb the judgment on the ground that the verdict was not supported by sufficient proof. The rule upon the subject is correctly stated in McGatrick v. Wason, 4 Ohio St. 566. Nor do we find there was such abuse of discretion with respect to the order in which the proof was received, as requires a reversal. The only questions which call for consideration in this opinion, are with respect to the refusals to instruct the jury as requested and the instructions given.

The specifications required the materials to be furnished and the work done to the satisfaction and acceptance of the architect.” To this Scott orally assented, and lie assented in the same way to the guaranty, in which it is agreed that all the stone should “ be subject to the inspection of W, Blythe, architect of the building.” In the request for instructions in relation to such acceptance, we think the law was not stated too favorably for the defendant below; and if such acceptance had not been dispensed with, the charge should have been given. According to some authorities, the law is more favorable to him. Wliart. Cont. § 594; cf. Goldsmith v. Hand, 26 Ohio St. 101. But hero Blythe was in the employ of Otis; he was Otis’ agent; and consequently an acceptance by Otis, the owner of the building, would dispense with the necessity of any acceptance by Blythe. We hold that if it be true that Blythe did not accept and approve the work and materials, Otis dispensed with such action oil his part by his letter to Scott, in which he virtually accepted the work, reserving only his objection to the quality of the stone. Mehurin v. Stone, 37 Ohio St. 49, is not to be regarded as in conflict with the view we take of this case.

Formerly there could be no recovery on a contract like this, unless tbe agreement was strictly performed. But the rigid rule upon this subject has been relaxed, and now where the builder acts in good faith there may be such recovery, although there may not have been literal performance. Goldsmith v. Hand, supra; Mehurin v. Stone, supra. What is essential and indispensable to a recovery is substantial compliance with the agreement. This is not a suit on a quantum meruit, but an action on the contract. No evidence was offered as to the value of the work or materials, but evidence was offered as to damages that may have been sustained by the failure to strictly comply with the agreement. The action is properly prosecuted on the contract, and the measure of recovery is the sum stipulated in the agreement, less the damages sustained by a failure to strictly perform. Nolan v. Whitney, 88 N. Y. 648. As already stated, the evidence is in conflict with respect to the quality of the stone. Moreover, the stipulation that the stone should be “ free from iron and all spots and discoloration,” must be construed in view of the uses to which the ,material was to be appropriated. Perhaps no lot of stone of the kind referred to is so perfect as to be wholly free from iron and spots. The rule in contracts of this sort is stated in Cullen v. Bimm, 37 Ohio St. 236. Besides, the jury deducted $55 from the sum for which a verdict should have been rendered in case of strict performance, and we may fairly say that this was because of iron or spots in the stone. We are by no means clear that injustice has been done in the verdict rendered.

Our conclusion is, that the learned judge who presided at the trial, was mistaken in some respects as to the law applicable to the case, but that, under the circumstances, his action was not so far prejudicial as to afford ground of reversal.

Judgment affirmed.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    McClelland v. Sorter.
    On the 27th of April, 1872, the plaintiff loaned to defendant the sum of $2,500 on an agreeement for interest at the rate of ten per centum per annum, payable annually, and, in pursuance of the agreement, took from defendant two promissory notes for $1,250 each, payable in one and two years, with stipulations therein for interest at the rate of eight per centum per annum, payable annually, secured by mortgage; and at the same time took from defendant two side notes for the additional two per cent, interest agreed upon, which side notes, amounting to $209, were paid. Held: on proceedings to enforce the mortgage, the plaintiff, under the statute of May 4, 1869, commonly called the eight per cent, interest statute, was entitled to a decree for $2,500 with interest at the rate of six per cent, per annum, less the $209 so paid, and no more.
    Error to the District Court of Lake county.
    The original action was brought by one Preston A. Metcalf against Zebulon A. Sorter, John McClelland and others to marshal liens, &c., on certain real estate of defendant Sorter.
    McClelland, by answer and cross-petition, set up a mortgage executed by Sorter to-himself, on the 29th of April, 1872, to secure the payment of the promissory notes of same date, for $1,250 each, payable in one and two years with interest at the rate of eight per cent, payable annually.
    Sorter alleged usury, which McClelland denied.
    The court of common pleas found and stated the facts and the law separately as follows: “ And now came the above named John McClelland and Zebulon P. Sorter, by their respective attorneys, and this cause came on to be heard upon the cross-petition of the said McClelland and the answer of said Sorter and reply of said McClelland and exhibits and testimony, and was argued by counsel. On consideration whereof the court do find as matters of fact that the two notes in the answer and cross petition of said John McClelland set forth, were given for money loaned to said Sorter by said McClelland on the 29th day of April, 1872. That the sum loaned to said Sorter was the full sum of $2,500. And that said loan was made upon the verbal agreement of said Sorter and said McClelland at the time of making said loan and as part of the agreement for said loan, that Sorter should pay and McClelland should receive interest on said loan at the rate of ten per cent, per annum, to be paid annually, and at the same time and as evidence of said agreement to pay ten per cent, interest on said loan ; the said two notes for $1,250, each payable in one and two years from date, were made and delivered to said McClelland by said Sorter, drawing interest at eight per cent, to be paid annually, and for the remaining two per cent, of said agreed rate of ten per cent, interest, the said Sorter at the same time and as part of the said transaction and loan, made his two side notes in writing for the amount of two per cent, on eacli^ of said notes from their date until they respectively matured, said side notes not bearing interest. And the court further finds that at the same time said Sorter made and delivered to said McClelland said mortgage specified in said cross petition to secure the payment of said two notes for $1,250 each and specifying the same rate of interest as contained in said notes. And the court further find that afterwards said Sorter paid said notes for extra interest of two per cent, and other extra and usurious interest upon said loan, in all to the amount of $209.00, which sum was paid on the 22d day of October, 1877.

      “ And thereupon the court find as matter of law from the foregoing facts found, that the said loan is a valid and legal loan of $2,500 upon the valid and legal rate of interest at 8 per cent., to be paid annually, and do hold and rule as matter of law that said John McClelland is entitled to recover said $2,500 and interest thereon at the rate of 8 per cent, per annum to be paid annually less the sum of $209 paid as aforesaid, and that the said rate of 8 por cent., from the foregoing facts, is not illegal or usurious. And the court further finds that there is due to said McClelland from the said Zebulon P. Sorter on the notes and mortgages in said cross petition specified, the sum of $3,536.66.”
    Judgment having been rendered in accordance with the above findings,. Sorter filed his petition in error in the district court, wherein the following judgment was rendered:
    “ This day this cause came on for hearing upon the petition in error, the transcript duly certified and the original papers and pleadings from the court of common pleas of Lake county, and was argued by counsel. On consideration whereof the court find that there is error therein, apparent upon the record, to the prejudice of the said plaintiff in error. It is therefore considered by the court that the decree of said court of common pleas be, and the same is hereby reversed and held for naught, and that the said plaintiff in error recover of said defendant in error his costs in this proceeding expended, taxed $7.66. And the court, further proceeding to render such decree as the said common pleas court ought to have rendered herein, find that said John McClelland is entitled to recover from t*he said Zebulon P. Sorter on the note and mortgage in his cross petition set forth, the sum of $2500, together with simple interest thereon at the rate of 6 per cent., from and after the 29th day of April, 1872, less the sum of $209 paid by the said Sorter to the said McClelland on the 22d day of October, a. d. 1877. And the court further find that there is due to said McClelland from the said Zebulon P. Sorter, on the notes and mortgage in his cross petition specified, the sum of $3,191.74.
    “ It is therefore considered by the court that the said John McClelland recover from said Zebulon P. Sorter the said sum of $3,191.74.”
    This proceeding is prosecuted in this court to reverse the judgment of the district court, and to affirm the judgment of the court of common pleas.

      /S. O. Griswold, for plaintiff,
    insisted that in Ohio there is not and never has been, since the original enactment of the statutes, which now appear in the Revised Statutes, sections 3188 and 3182, any penalty imposed for the taking of usury so called ; that the notes sued on evidenced a legal contract; and that the side notes were void, and as evidencing a void agreement, in no way entered into or became a part of the substance of the agreement as expressed in the two notes for $1,250 each. They were instruments complete in themselves. The agreement to pay ten per cent, interest was without legal force or validity, but at the same time the parties agreed in writing for the payment of money at a future time, and in that writing was a stipulation for the payment of interest at a legal rate. This stipulation is as valid as that for the payment of the money, and is unaffected by the void action of the parties.

      Horace Alvord and George W. Aloord, for defendant in error,
    claimed that there was but one contract, entire and indivisible. State v. Board of Education, 35 Ohio St. 519; Lee v. Peckham, 17 Wis. 394. That when a statute authorizes a higher rate of interest than a certain given rate allowed by the general law, an agreement, in any form, for interest in excess of such higher rate, will, as'between individuals, render the contract for interest void, and the lender may recover his debt and six per cent, interest, and no more. Claypool v. Sturges, 10 Ohio St. 440 ; Bunn v. Kinney, 15 Ohio St. 40 ; Samyn v. Phillips, 15 Ohio St. 218; West v. Meddock, 16 Ohio St. 417; Ohio ex rel. v. Board of Education, 35 Ohio St. 519; Swartwout v. Payne, 19 Johns. 294; 10 Am. Dec. 228; Gillmore v. Woolcock, 13 Wis. 659 ; Lee v. Peckham, 17 Wis. 394; Morton v. Rutherford, 18 Wis. 313; 2 Parsons on Cont. 390; Willard v. Beeder, 2 McCord, 369; Lear v. Yarnel, 3 A. K. Marsh. 419 ; Merrills v. Law, 9 Cow. 65; Macomber v. Dunham, 8 Wend. 550; Hammond v. Hopping, 13 Wend. 505; 7 Wait’s Actions and Defenses, 611, and authorities there cited; Nickerson v. Babcock, 23 Ill. 561; Monroe v. Foster, 49 Ga. 514.
   McIlvaine, J.

The statute of May 4, 1869 (sections 3179, 3180, 3181 and 3182 of Revised Statutes) provides that the parties to any bond, bill, promissory note or other instrument of writing for the forbearance or payment of money at a future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per centum per annum payable annually, and that judgments on such bond, bill, promissory note or other instrument of writing should bear the same rate of interest until paid; but, it further provides, that in all other cases where interest is allowed, “ the creditor or creditors shall be entitled to interest at the rate of six per centum per annum, and no more.” And the statute of February 18,1848 (section 3183 of Revised Statutes), makes all payments of interest in excess of the rate allowed by law to be payments on account of principal, except as to bona fide indorsers before -maturity.

Although neither principal nor lawful interest is forfeited in case of usurious contract under this legislation, it is clear that such contract, as to all interest in excess of the rate allowed by law, is void. It was decided in Goode v. Sutton, 29 Ohio St. 587, that in an action, where it appears on the face of the petition, that usurious interest has been stipulated for, .the court, on its own motion, where no defense is set up as to usury by answer or otherwise, may refuse to enter judgment for more than the balance found due after deducting the excess of interest paid over and above the legal rate, or if the usurious interest stipulated for has not been paid, to refuse to enter judgment for more than the amount found to be due by computing interest at the rate allowed by law.

And under the act of March 14, 1850, commonly called the ten per cent, interest law, which was similar to the act of May 4, 1869, above referred to, except that it authorized the parties to stipulate in the bond, bill, note or other instrument of writing for a rate of interest not exceeding ten per centum yearly, it has been held repeatedly, that where the rate of interest stipulated for in a written instrument exceeded ten per cent., or where the rate stipulated for was ten per cent, on the principal sum named therein, which sum embraced a part of the interest contracted for, the judgment thereon should not exceed the amount found to be due upon a computation of interest at the rate of six per cent, per annum. Bunn v. Kinney, 15 Ohio St. 40; Samyn v. Phillips, Id. 218; West v. Maddock, 16 Ohio St. 417. Thus, it is made to appear that the policy of this legislation is to prevent the enforcement of usurious contracts, to the extent of the usury contracted for, as if the statute had declared usurious contracts to be illegal or criminal.

. The contention of the plaintiff in error however, is, that the promissory notes involved in this controversy are strictly within the terms of the statute, to wit, for the payment of the sum of money actually loaned, with interest at the rate of eight per cent., payable annually. By this contention, it is conceded that the side notes for two per cent, additional interest were void, and that the amount paid thereon should be treated as payment upon the principal of the notes. This theory assumes that there were two contracts between the parties — one lawful, the other unlawful. The fact, as found by the court of common pleas, is, that there was but one contract between the parties, namely, the loan of $2,500, with interest at the rate of ten per cent, payable annually. If this contract had not been re.duced to writing, the loan, under the statute, would have been at the rate of six per cent, interest. If it had been reduced to writing in the form in which it was made, the rate of interest collectible would have been six per cent, and no more. These propositions are not denied. The question, then is, Can the effect of the last proposition be evaded by the mere device of writing so much of the contract as was authorized by law, upon one piece of paper1, and that part of the contract which shows a violation of the statute, upon another ? Surely not. Such device is a fraud upon the statute. The true meaning of the statute, is, that when parties stipulate for interest at a rate not exceeding eight per centum per annum payable annually, they may bind themselves by putting such stipulation in the bond, bill, note or other instrument of writing. The legislative intent was that a creditor who stipulates for more than eight per cent, interest, payable annually, should be remitted to simple interest at the rate of six per cent. And it matters not as to the form which the usurious transaction may be made to assume, whether it be plainly written on the face of the bond, or be added to the principal debt, or be paid in advance, or evidenced by a collateral agreement. In West v. Maddock, supra, the plaintiff loaned defendant $2,000, and on that consideration alone, took his note for $2,500 with interest at the rate of ten per cent. This note, on its face, was strictly within the letter of the statute then in force. The plaintiff was restricted to $2,000 and interest at the rate of six per cent., although the rate of interest stipulated for in the note was within the letter of the statute. Nor was the vice of that transaction in the stipulation to pay interest upon unearned interest merely. Undoubtedly the same judgment would have followed if the stipulation had been limited to the payment of interest upon $2,000 of the principal sum named,-namely, the actual amount of the loan. The stipulation for the payment of interest at the rate of ten per cent., was violated by reason of the fact that the real contract was for a rate of interest greater than ten per cent., and such is the exact statement of the legal question in this case. True, the contract here was evidenced by two written instruments instead of one, but these evidenced a single contract, whereby the lender of money exacted from the borrower a promise to pay, in satisfaction of the loan, a greater sum of money than the statute authorized — a usurious contract, in consequence of which the statute remits him to the rate of six per cent, on the sum actually loaned.

The case of Ohio ex rel. v. Perrysburgh, 35 Ohio St. 519, has been referred to and relied on by both parties. There is nothing in that case which conflicts with the foregoing decision. The question in that case was as to the validity of certain bonds issued by the defendant under the act of May 13, 1868. The question of interest involved in that case arose under that act, and was not controlled, in any manner, by the act of 1869, which has been considered in this case.

Judgment affirmed.


author: Johnson, J.

text:
    Valentine v. Hickle.

    A., B. and O. agreed to engage in the shipment and sale of cattle as either might from time to time purchase on his own account, and offer to the others at cost for the purpose of shipment and sale on joint account, but it was provided that when the party purchasing delivered a lot of cattle at the place of shipment, the other parties had the option to take an interest in the same or to decline; if they accepted the lot so offered it became partnership property, and was shipped and sold on joint account ; but if they did not it remained the property of the buyer and was shipped and sold on his account.
    H., to whom this arrangement was unknown, sold a lot of cattle to A. on his individual credit, to be paid for on his receiving return of sales ; but he failed to pay as agreed.

      Held: 1. That the lot of cattle did not become partnership property until it was delivered at the place of shipment, and was accepted to he shipped and sold on joint account.
    2. That at the time the cattle were sold and delivered to A. on his credit, B. and C. did not acquire an interest therein, independent of their consent, and they were not liable by operation of law for the debt thus contracted.
    3. The fact that they or either of them subsequently elected to take an interest in this lot of cattle under said agreement did not create a liability against them as partners on such purchase.
    Error to the District Court of Doss county. ’

      The action below was brought by John Hickle against Samuel Yalentine, Eli Neff and William Parcels, as partners, to recover the contract price of a lot of cattle alleged to have been sold and delivered to them about June 20, 1872.
    Parcels made no defense, but Yalentine and Neff deny each and every allegation of the petition. The trial resulted in a verdict and judgment for plaintiff, which was affirmed by the district court. Numerous questions are made by a motion for a new trial and in the bill of exceptions. Only so much of the case as raises the question whether this was a partnership liability, is here stated, as the judgment is reversed for error arising on this branch of the case.
    From the evidence it appears that Parcels, Neff, and Yalentine had each been engaged in the purchase, shipment and sale of cattle and hogs, on his own account, and that in the latter part of the year 1871 they entered into an arrangement which, as stated in the brief of defendant in error, was substantially as follows : “ In the latter part of September or first part of October, 1871, they agreed together that they would ship and sell cattle and hogs on joint account, and share expenses, profits and losses equally. The cattle and hogs for the business were to be furnished in this way. Either of the partners was to go out and buy stock on his own individual responsibility — £ on his own hook ’ — take them to the station at Stoutsville, and when the others saw them, they had the option to take an interest in them at cost price, or not, as they might then elect. Each had the right to take an interest in the stock purchased by the others if he wanted tó do so; but if stock was bought by one which the others did not want- to take an interest in, that lot was to be handled by the purchaser on his own account; but 'all the other stock purchased by either was to be shipped and sold on joint account, and the profits or losses to be shared in equal proportions by the partners. The business was carried on from about the first of October, 1871, till March, 1873, during which period, the firm shipped, on an average, four or five carloads of cattle per week.”
    There was evidence tending to show that Páreels, who was á well known dealer in cattle, and was of good financial standing, purchased this lot of cattle on his individual credit solely, intending, however, to permit Neff and Valentine to take an interest in them under this arrangement, if, on inspection, • when they reached Stoutsville, the place of shipment, they elected so to do; also tending to show that Hickle, when he sold and delivered these cattle to Parcels, trusted him alone, that he was to pay for them on receiving returns, and that, on receiving returns, he took the money to Hickle; but it was then agreed, on request of Parcels, that he might keep the money until fall, by paying interest thereon, and the money was thereupon loaned to Parcels, and afterwards he took the individual note of Parcels for the same; also tending to show that Parcels received the cattle, drove them to Stoutsville, put them in the stock-yard where all the stock was kept for shipment, and on inspection by Neff and Valentine, Valentine did not take an interest in them, but Neff did; and that they were shipped East and sold at a loss. The entire proceeds were returned to Parcels, who, as before stated, borrowed the same of Hickle. Whether either Neff or Valentine shared any part of the loss in the settlement of other partnership shipments is not clear, nor does it become material, in view of the charge of the court.
    There was also evidence tending to show that neither purchaser was bound to offer them to the other, but might sell them on his own account, and that the right to take an interest extended to such stock as was offered for shipment to the Eastern market.
    The point on which the case seemed to have turned was, whether this was a purchase on partnership account. On this point the court charged as follows:
    “You are to determine, therefore, from a consideration of the whole testimony, whether or not there was a partnership existing between these defendants, and if so, what was its nature and scope; and whether or not, by the terms of the partnership, if there were one, Parcels was authorized to buy, and did buy Hickle’s cattle on account of the firm; for if he were not authorized to buy on firm account, or, if so authorized, he did not, in fact, buy for the firm, the plaintiff cannot recover against the defendants in this action.

      “ If you should find from the evidence, that at the time Parcels purchased the cattle, the defendants were associated for the purpose of buying and shipping stock on their joint account, the profits and losses of which were to be divided between them equally, such an association would constitute a general partnership between them in that business, and, as an incident thereto, each member of such partnership would have power to bind the others in any agreement touching any transaction or matter within the scope of such partnership business; and any transaction necessary to the prosecution of the business without which it could not be carried on would be a transaction within the scope of such partnership business.
    “ Any limitation upon the power of each member to thus bind the firm upon all matters within the scope of the partnership business, would only be binding between themselves and upon such third persons as had knowledge of the restricted powers of the members, but would not exonerate the firm from liability for a debt contracted within the scope of the partnership business where the persons with whom the contract was made had no knowledge, at the time, of such restriction upon the power of its members, especially where the firm should receive and make use of the property thus acquired in its partnership business.”
    At the request of the plaintiff, the court further charged that:
    “Should the jury find from the evidence that at the time said cattle were purchased of Hickle by Parcels, the defendants were associated together for the purpose of shipping and selling cattle on their joint account, the profits and losses of which were to be equally divided between them, such an association would constitute a general partnership between them in that business; and as an incident thereto each member of such partnership would have powder to bind the others in any agreement touching any transaction or matter within the scope of such partnership business. And any transaction necessary to the prosecution of the business, and without which it could not be carried on, would be a transaction within the scope of such partnership business. Any limitation upon the power of each member to thus bind the firm upon all matters within the scope of tbe partnership business would be binding among themselves and upon such third persons as had knowledge of the restricted powers of the members, but would not exonerate the firm from liability for a debt contracted within the scope of the partnership business by one of its members, where the person with whom the contract was made had no knowledge, at the time, of such restriction upon the powers of its members, especially where the firm should receive and make use of the property thus acquired in its partnership business.
    “ In such cage the firm would not be liable for contracts of purchase of cattle made by one member, unless such purchase was within the scope of such firm business, or otherwise authoi’ized by the firm.
    “ Should you find there was a partnership between the defendants only for the purpose of shipping and selling such cattle as either might buy on his own account, and the others take an interest in upon inspection or representation as to their quality, then the firm would not be liable upon the contracts of purchase by one, unless, before the sale was complete, they took an interest in the stock, or unless you find from the evidence that the one buying was authorized to make that particular purchase on joint account, and the authority to make such purchase may be shown to have been expressly given or may be implied from the circumstances of the case and their course of business.”
    The court at the same time refused to charge the several following requests made by defendants :
    1. “ That if the jury find that the defendants had any arrangement for shipping cattle from Stontsville, by which it was agreed that either of them might buy stock on his own responsibility, and upon its delivery for shipment at said place the others might take an interest in any stock so purchased and delivered, if upon examination of it they thought it suitable to ship or not purchased too high; or by which, if they purchased stock when all together, it was to be shipped on joint account; or if, after looking at or agreeing to take an interest in stock purchased by any one of them before delivered at said place, it was to be shipped on joint account, and the parties to share in the profits and losses, that such facts or agreements did not constitute them general partners, but only partners in each transaction.
    2. “The jury are to determine from the evidence in the case when the partnership commenced. Was it a general partnership extending to all purchases and sales made by either, or limited or special as to such purchases as required the assent and concurrence of each before the stock purchased by either became partnership property ? If it were a general partnership formed generally for the purpose of dealing in cattle, and each were authorized to act for the firm, then the act of one would be the act of all, for each acts as the agent of the other. Rut if the jury should find that it was limited in its scope and operation, and was to take effect at the time only of the election of each partner in every particular adventure or purchase— then the partnership could not be held until the property became the general property of all.
    3. “ It must be shown by the plaintiff that Parcels bought the cattle as a partner, and therefore as the agent of the firm, which gave them an immediate vested interest at the time of the purchase, so that they would have called upon him for the profits or charged him with the losses in any sale that he might have individually made to others.”

      Clark (& MeDougal, for plaintiffs in error :
    It is a principle, as applicable to partnerships as other contracts, that no person can be bound by an agreement but with his own consent, expressed by the means and in the mode he has authorized. A person cannot claim to bo a member of a partnership composed of a number of persons, unless all the persons composing said firm have agreed to accept him as such. 16 Ohio, 166. No man can be a partner of others without their assent. Id. 169. “ Where there is no joint purchase or. joint incurring of debt, but a purchase by one to whom alone credit is given, a subsequent joint interest in the property purchased, and in the business and profits depending upon it, carnes no liability for the original debt.” 1 Parsons on Cont. 172; 4 Tannton, 582; 3 Kent’s Com. 256 ; 2 Carr. & P. 325 ; 9 D. & Ryland, 19; Harvey v. Childs, 28 Ohio St. 319 ; Story on Partn. 6 ed. note 1, page 7, and cases cited; Id. 53, 59, 73, 75, 76, 77, 78, 80, 83, 98, and notes to each page; Smith v. Wright, 5 Sandf. 113; Patterson v. Blanchard,, 5 N. Y. 186; 1 Parsons on Oont. 172, 173; 3 Rent’s Com. 25, 27; 4 Term Rep. 720; 2 Taunton, 49.

      Vanmeter <& Throckmorton, and J. T. Holmes, for defendant in error:
    It will not be denied that this is a universally recognized rule of tha law of partnership, viz.: that each partner has power to bind his copartners upon all contracts within the scope of the partnership business. Harvey v. Childs, 28 Ohio St. 323.

      We claim this further rule to be self-evident — that all contracts or transactions are within the scope of the business, which are necessary to the prosecution of the business, and without which it cannot be can’ied on. The partners may, by their agreement, establish whatever business they please. But the business, when established, has its scope prescribed by the law, and the partners can no more extend or circumscribe the scope of the particular business, than they can repeal any of the laws of the land. The scope of the business is inherent in the business itself. Every business, of whatever hind or character, has its scope prescribed by the law, and this scope, although not a part of the business, is always surrounding it, and is as inseparable from it as the rings of Saturn are from that planet. Mathews on Partnership, 12, 13, §§ 30, 31.
    The defendants admit there was a partnership for the purpose of shipping and selling such cattle as either might buy and bring to the station, and the others, upon seeing them, should take an interest in. We maintain that this is a general trading business. It is, at least, a general partnership for shipping and selling cattle and hogs that were to be bought by the partners. The purchase of cattle was within the scope of the business, because the business could not have been carried on without it, and because it was provided for in the contract between them. And given the two facts, that there was a partnership existing at the time of the .purchase, and that the purchase of the Hickle cattle was within the scope of the business, it follows that defendants were bound for the performance of the contract, unless Hiclde had notice of the particular limitation upon the power to purchase at the time lie sold the cattle.
    But we maintain that another rule that is supported by high authority as well as by reason, justice, and sound public policy, is applicable here. The rule referred to prohibits a partner who contracts for a full share of advantages and profits to be derived from a partnership business from making a contract with his partners, whereby he shall be exempt from the liability to pay for such purchases as are made in furtherance of the business of his firm. Parsons on Partn. 102. See also Id. 102, side paging 98; Matthews on Partn. 12; Parsons on Partn. 119 (note), 120, 121, 122, 123; Everett v. Chapman, 6 Conn. 317.

       This case was decided while Hon. War. White was Chief Justice, and before Hon War. H. Upson came on the bench.

   Johnson, J.

The expressed intention of the parties was that each should buy on his own credit; that the cattle when purchased should be and remain the property of the purchaser,, unless upon delivery at the station for shipment and sale the others should on inspection elect to take an interest in them. If they so elected, the stock became joint property and was shipped and sold on joint account. In short, by the terms of this contract or arrangement, the partnership did not commence until the cattle reached the station and were accepted; until then, there was no community of interest, nor right to share in the profits. If the stock purchased by either and brought to the station was not accepted by the others, the property remained that of the purchaser. He alone was entitled to all the profits, and was liable for all the losses. As Parcels alone was trusted in this sale by TIickle, the question presented is, were Neff and Yalentine by operation of law liable for the debt thus incurred ?

The claim is that the arrangement between Neff, Yalentine and Parcels for the shipment and sale of cattle and hogs was such that the purchase by either was within the scope of the partnership business and on joint account; or at least it was a general partnership for shipping and selling such property, to be purchased by the several partners; and as the business of shipment and sale could not be carried on without each partner making the necessary purchases, the debts incurred by each for that purpose were within the scope of the partnership business. Briefly stated, the claim is that by operation of law there was a partnership liability for this debt, though made on the sole credit of Parcels. The sale was made to Parcels on his sole credit. Hickle had no knowledge of this arrangement between the parties, and trusted Parcels only, to whom he delivered the property. Under the partnership contract for the ' shipment and sale of cattle brought to this station, it remained his unless it was accepted and shipped on joint account. It was not joint property. Partnership rights and liabilities did not attach. As to this lot of cattle the partnership would not commence until Neff and Yalentine elected to adopt the purchase. Parcels was not bound to deliver them for shipment, but might sell elsewhere on his own account. Until accepted there was neither a community of interest in the property nor in the profits, nor any joint liability for losses.

The better test of a partnership which authorizes one to bind the other partners is to apply the principles of agency. If Parcels had authority express or implied to buy on joint account, then when he made this purchase the cattle go instanti belonged to the firm, whether the others so elected or not. There was no such authority expressed, and none can be implied from the fact that the property was to remain individual property unless Neff and Yalentine should elect to take an interest.

This was a continuing arrangement, applicable, at the option of the parties, to all the cattle and hogs brought for shipment to the eastern market. It 'resulted in a series of partnership ventures. The agreement to purchase stock on individual credit, to be afterwards taken into a joint venture at the option of others than the purchaser, no more rendered the latter liable, than does the borrowing of money by one partner to pay up his share of the partnership capital render the partnership liable. In such a case, the partnership is not liable, even though the money is received and used in the partnership business. Norwalk Bank v. Sawyer, 38 Ohio St. 339; Peterson v. Roach, 32 Ohio St. 374; Bevan v. Lewis, 2 Eng. Ch. 377.

The same rule applies to property purchased on individual account, and afterwards turned over to the firm to be used in its business. Harvey v. Child, 28 Ohio St. 339; Saville v. Roberts, 4 Durn. & East, 720; McGar v. Drake, 5 Reporter, 347 (Tenn. Sup. Ct.); Walls v. Fife, 37 Pa. St. 394; Hoare v. Davis, Doug. 371.

Everett v. Chapman, 6 Conn. 347, and Gouldwaite v. Duckworth, 12 East, 420, are each distinguishable from the case at bar. In each case, there was a prior agreement that each should buy property on individual account, and the property so purchased was to become the joint property of'all for the purposes of the venture. It was held, that a purchase made in pursuance of this arrangement became, by operation of law, partnership property, and the firm was, therefore, liable, on the principle that holds dormant partners liable. The act of purchasing property under such an existing contract, which thereby became partnership property, was, as to third persons, the act of all the partners. On the other hand, where, as in the case of Saville v. Roberts or McGarr v. Drake, supra, the partnership w^as not to commence until after the purchase, there was no liability on joint account. The partnership interest did not vest until after the purchase and credit given. The charge of the court fails to note this distinction, and is misleading in its character, In substance, the jury were told that if sudr purchases were necessary in order to carry on the partnership business (a fact that could not be disputed), then this was within the scope of the authority which Parcels had to bind Neff and Yalentine, though there was not, at the time, and might never be, any joint interest in the property.

The court refused to charge the, propositions numbered 1, 2 and 3, which recognize the correct rule, and should have been given in view of the evidence which tended to raise the question.

Again, the charge' given at the request of the defendant in error, is to the effect, that if there was a partnership in the shipment and sale of such stock on joint account, then it is a general partnership for tha purchase, also, and therefore a purchase by each was within the scope of partnership business, though no joint interest attached at the completion of the purchase, and none might ever attach.

Judgment is reversed and cause remanded.


author: Upson, J.

text:
    Sowers v. Cyrenius.
    1. A residuary clause in a will in these words : “At the decease of my wife Esther I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin in Brie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman executors of this item of my last will and testament, and I request them to do the business without remuneration,” — creates a valid trust which will be enforced in a court of equity.
    2. Whether the legal title to the real estate devised, is in the trustees, or descended to the heir at law, it is subject to the trust.
    3. When one of the trustees named in the will died, and another removed to a place unknown, the probate court had power to fill such vacancies, although there was a surviving trustee capable of executing the trust. (S. & C. 1630, §§ 66, 67.)
    Error to the District Court of Lorain county.
    Samuel G. Cable, a resident of Lorain county, by his will gave to his wife all of his estate during her life, and appointed her sole executrix of the will. The will then provided as follows :
    “Item 8: At the decease of my wife Esther, I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son tif God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin in Erie county* Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman, executors of this item of my last will and testament and 1 request them to do the business without remuneration.”
    The testator died without issue, and the will was- admitted to probate in Lorain county. The testator’s widow afterwards married Samuel Sowers, the plaintiff in error, and died intestate, leaving said Sowers her heir-at-law. Silas Wood having died, and Samuel Steadman having removed from the state of Ohio to some place unknown, the probate court of Lorain county appointed in tlxeir places as trustees under the will, Stanley M. Parmley and James T. Robinson. Cyrenius, Parmley and Robinson duly qualified as trustees and filed a petition in the common pleas court of Lorain county against Sowers, asking for a construction of the w-ill and for authority to sell the real estate of which the testator died seized, and to carry out the trust created by the will.
    Sowers demurred .to the petition and hi» demurrer was overruled. He then answers denying the due appointment of Parmley and Robinson as trustees, and the legal power of Cyrenius, Parmley, and Robinson, to act as trustees, and averring that the provisions of the third item of the will are vague, uncertain, and void, and that no power or authority is by the terms of said item vested in the executors therein named to sell or dispose of the property. The court of common pleas held that the trust was valid and rendered judgment for the trustees in accordance with the prayer of the petition, which judgment was affirmed by the district court, on error.
    This proceeding is prosecuted to reverse the judgment of the district court.
    W. I. Johnson, for plaintiff in error :
    First. The probate court had no power to appoint Parmley and Robinson trustees, and they have no authority to act as such under this will. Wills Act, §§ 66, 67, S. & C. Stat. 1630. I think a fair construction • of these sections leads to the result that, when any of the trustees survive, he or they must execute the trust. But when none survive the court may, in a proper case, appoint.
    Second. The provisions of the will are vague, indefinite^ and uncertain. 1. It gives the estate to nobody. It appoints executors, requests them “ to do the business without remuneration,” and nothing more. They are not even requested to administer the estate. Their duties are left to the law under their appointment. The request of the testator is that they seek no remuneration. No authority to deal with or dispose of the estate, can be gathered from this request. 2. It purports to give the estate to an object of the most vague and indefinite character. Nothing can be more vague than “the preaching of the gospel.” The will prescribes a territory, but this adds nothing to its definiteness. The beneficiaries are the people of the territory, but the will prescribes no method of securing to them the proposed benefits. It does not even provide that the preaching shall be done by licensed or ordained clergymen. Preaching by the executors at their own doors, to the value of the estate, would fulfill all the conditions of the will. And if appealed to by the beneficiaries, how can the courts determine -whether there is or is not a compliance with the testator’s intentions, where none are expressed? What scheme does the will disclose to aid the court in rejecting one plan of operations and substituting another ?. Can the courts of this state “devise a scheme for the application of a vague charity ?” 3. It prescribes no method of dealing with the estate, whether the lands shall be retained or sold, whether the income only shall be used, or the entire estate be devoted to a single grand round of preaching. The intention of the testator respecting this most important matter nowhere appears. How can the courts direct or restrain the action of the executors ?
    Third. Are the chancery powers of the courts of this state broad enough to administer a charity as vague and indefinite as this ? It is believed this court will ground no jurisdiction, in cases of charitable uses, on the statutes or decisions in England prior to the enactment of 43 Elizabeth, which transcend the ordinary jurisdiction of a court of equity. It is not intended to enter upon the discussion of a subject that has enlisted the abilities of many of the most eminent jurists both in this country and in England. It is sufficient to show that anterior to the enactment of that statute, the jurisdiction of the English court of chancery over charities is obscure and controverted. See Baptist Association v. Hart's Exrs., 4 Wheat. 1; McGill v. Brown, Bright. (Pa.) 346; Burr v. Smith, 7 Vt. 241; Vidal v. Girard, 2 How. 127; 14 N. Y. 380; 9 How. 77; 22 Mo. 543, It is certain that this court has hitherto, in no case, sanctioned a resort to any other than its ordinary equity powers in dealing with charitable uses. Trustees v. Zanesville, 9 Ohio, 254; Zanesville, &c. Canal Co. v. Zanesville, 20 Ohio, 483; Mc-

      Intire's adm'rs. v. Zanesville, 17 Ohio St. 352; Urmey's Ex'rs. v. Wooden, 1 Ohio St. 160 ; Miller v. Teachout, 24 Ohio St. 425 ; Board of Education &c., v. Ladd, 26 Ohio St. 210; Tract Society v. Atwater, 30 Ohio St. 77; Perrin v. Carey, 24 How. 465.
    Fourth. When a devise is to a purpose or object merely, as a general rule, the American courts possess no power to enforce it, unless the testator has given the estate to some definite purpose or object, furnishing a complete and intelligible scheme for the ajiplication of the trust property; or has given the estate to trustees with ample discretionary ¡cowers in applying it.
    In addition to the cases above referred to, the following are cited: Whitman v. Lex, 17 S. & R. 88; Williams v. Williams, 8 N. Y. 525; Owens v. Missionary Society, 14 N. Y. 380; Beekman v. Bonsor, 23 N. Y. 298; Phelps' Ex'rs. v. Pond, Id. 69; Wheeler v. Smith, 9 How. 55 ; Attorney General v. Soule, 28 Mich. 153 ; Holland v. Peck, 2 Ired. Eq. 255 ; Ruth v. Overbrunner, 40 Wis. 238 ; Heiss' Ex'rs. v. Murphy, Id. 276; White v. Fiske, 22 Conn. 31; Le Page v. McNamara, 5 Iowa, 124; Galligo's Ex'rs. v. Attorney General, 3 Leigh, 450; Barker v. Wood, 9 Mass. 419; Trippe v. Frazier, 4 Harr. & J. 392; Wildman v. City of Baltimore, 8 Md. 551; Grimes' Ex'rs. v. Harmon, 35 Ind. 198; Deshiel v. Attorney General, 5 Harr. & J. 392; Fountain v. Ravenel, 17 How. 369; Perry on Trusts, 1 Ed. §§' 720, 722; Baptist Association v. Hart, 4 Wheat. 1.

      Pennewéll de Lmnson, and Geo. P. Metcalf, for defendants in error:
    In all essentials, the trust created by this will is definite and certain, and such as the courts of this state, by the chancery powers which they possess, can control and enforce.
    First. The testator devotes his estate to be used for the preaching of the gospel of Christ as taught by the denomination or “ people ” called “ Disciples of Christ.” This is the general purpose of the trust.
    Second. The beneficiaries of the trust are the people residing in Lorain county and in Birmingham and Berlin in Erie county, Ohio.
    Third. In these localities the preaching of the gospel is to be well and faithfully done.
    Fourth. John Cyrenius, Silas Wood and Samuel Steadman are appointed by the testator to execute the trust.
    Fifth. John Cyrenius, Silas Wood and Samuel Steadman are requested to do the business as “ executors of this third item of my last will and testament” without remuneration. The general purposes and objects are here clearly stated by the testator. It is a trust for a public charity. Jackson v. Phillips, 14 Allen, 556 ; Perry on Trusts, § 687; 17 How. 384; 11 Allen, 456 ; 9 Ohio, 287. For the rule in construing trusts of this hind adopted by this court, see 20 Ohio, 488; Miller v. Teachout, 24 Ohio St. 532. As to the objection that the will gives the estate to nobody, we say that courts have by construction implied an estate in trustees although no estate was given them in the words: but in all such cases the trustees were required to do something that required a legal estate of some kind in them. 1 Perry on Trusts, § 313, and notes 2 and 3 ; Hill on Trustees, 354-357; 1 Ohio St. 479, 497. But should it be held that the legal estate is not devised to the “executors of the third item,” we say this fact in noway affects or impairs the trust; that it is equally good as if the legal estate by appropriate words had been vested in the trustees or executors. Miller v. Teachout, 24 Ohio St. 533; Ambler, 571; 1 Bro. Ch. 81; 2 Delaware Ch. 456; 2 Story’s Eq. 1059 ; Cooke on Lift. 290 b. We say next that the general charity in the case before the court is not more vague and uncertain than were those which have been upheld and enforced by our own and other courts in this country many times. McIntyre v. Zanesville, 9 Ohio, 203; Urmey v. Wooden, 1 Ohio St. 160; 30 Ohio St. 77; Lockwood v. Wood, 2 Conn. 287; Brewster v. McCall, 15 Conn. 274; White v. Task, 22 Conn. 31; Treat's Appeal, 30 Conn. 113 ; Hewson v. Starke, 46 Ga. 88; State v. Griffith, 2 Del. Ch. 392; Heme v. Allen, 42 Ill. 425; Sweeney v. Sampson, 5 Ind. 465; McCod v. Ochiltrec, 8 Blackf. 15 ; Richmond v. State, 5 Ind. 334; Ex parte
      Lindly, 32 Ind. 367; Craig v. Secumb, 54 Ind. 420; De Bruler v. Ferguson, 54 Ind. 549 ; 55 Ind. 297; Moore v. Moore, 4 Dana, 354; Chambers v. Baptist Society, 1 B. Mon. 219 ; Shopleigh v. Pittsburgh, 1 Greenl. 271; Kimbell v. Unversalist Society, 34 Maine, 424 ; Tappan v. Dubois, 45 Maine, 288; Drew v. Wakefield, 54 Maine, 297; 57 Maine, 526; Attorney General v. Garrison, 101 Mass. 227; Robert v. Emerson, 105 Mass. 433; Gooch v. Association, 109 Mass. 558; Fellows v. Minn, 119 Mass. 541; Webb v. Neal, 5 Allen, 575; Odell v. Odell, 10 Allen 1; Saltonstall v. Sanders, 11 Allen, 446 ; Attorney General v. Old South Church, 13 Allen, 474; Brown v. Kelsy, 2 Cushing, 243; North Adams v. Fitch, 8 Gray, 421; Washburn v. Sewal, 9 Metc. 280; Young v. Emery, 16 Rich. 107; Wade v. American Colonization Society, 7 Sin. & M. 695; Chambers v. St. Louis, 29 Mo. 543; Union Baptist Society v. Candia, 2 N. H. 20; Baptist Society v. Welton, 2 N. H. 508 ; Second Cong. Society v. First Society, 14 N. H. 315; Brown v. Concord, 33 N. H. 296; Dublin Case, 38 N. H. 459; Methodist Trustees v. Peasely, 15 N. H. 317; Mason v. M. E. Church, 12 C. E. Green, 47; Baldwin v. Baldwin, 3 Halst. Ch. 211; Mason v. M. E. Ch., 12 C. E. Green, 47; Williams v. Williams, 8 N. Y. 525; Matter of New York Schools, 31 N. Y. 574; Christie v. Gage, 2 T. & C. Sup. Ct. 344; State v. Gerard, 2 Ind. Eq. 210; Cresson's Appeal, 30 Pa. 437; Philadelphia v. Girard, 45 Pa. St. 9 ; Mayer v. Society for Visitation, 2 Brews. 385 ; Blennom's Estate, Bright, 338; Polts v. Philadelphia, 8 Phila. 326; Heddleston's Estate, 8 Phila. 602; Whitma v. Lex, 17 Serg. & R. 88 ; Grandom's Estate, 6 Watts & Serg. 547; Derby v. Derdy, 4 R. I. 414; Hamburgh v. Hamburgh, 12 Heisk. 635; McAllister v. McAllister, 46 Vt. 272; Clement v. Clyde, 50 Vt. 716.
   Upson, J.

The decisions in the courts of this country and of England, in cases involving the power of courts of equity to enforce charitable trusts, and the validity of such trusts, are numerous and somewhat conflicting. But they have been fully considered in several cases heretofore decided by this court, and need not now be reviewed. It is only necessary to state the conclusions at which we have arrived.

Gifts for charitable purposes have always been favored, and trusts created for such purposes are carried into effect by courts of equity upon general principles of equity jurisdiction.

In the case of Urmey’s executor v. Wooden and others (1 O. S. 160) it was decided that the courts of chancery in this state, independently of the statute of charitable uses, 13 Elizabeth, have jurisdiction to enforce such trusts, and the existence of that jurisdiction has not since then been questioned.

Among the charitable trusts which have been most liberally construed and most uniformly sustained have been those created for the promotion of religion and education. It is clear from the language used by the testator in the third item of his will, that he intended his property to be used, after the death of his wife, for the promotion of religion by the preaching of the gospel of Christ as taught by the denomination known as the Disciples of Christ. The object thus stated is claimed to be vague, indefinite, and uncertain, but the authorities decisively show that this claim can not be sustained. We need only refer to the decisions of this court in the cases of Urmey's Executors v. Wooden, supra; and Miller v. Teachout, 21 Ohio St. 525. In the former case the residue of the estate was devised to “the poor and needy, fatherless, &c. of Jefferson and Madison townships,” of Montgomery county.' In the latter case, the residue of the estate, after the death of the testator's wife, was to be appropriated and used “ for the advancement and benefit of the Christian religion. ” In neither of those cases was the object of the trust defined with greater certainty than in this.

It is no objection to the validity of the trust that the individuals to be benefited by it are not designated in the will, for this indefiniteness is a necessary characteristic of charitable trusts. It is only required that discretionary power to use the property for the purposes intended by the testator should be given to trustees appointed by him, or by the court. In this instance that power has been plainly given by the testator to the persons named as executors of the third item of the will. Although the language of the will might have been more definite, the intention is clear and the trust valid.

It is next insisted that the estate was not devised, or intended to be devised, to the trustees. It is true that the estate is not devised in express terms, but the weight of authority is m favor of the proposition that courts wfill by construction imply an estate in trustees, although none is given them in words, in cases where they are required to do something which can not be done without a legal estate, and that the estate thus implied will be an estate sufficient for the purposes of the trust. In this case, the purposes of the trust obviously require an estate in fee, and that estate would under that rule be implied by construction in the trustees. It is unnecessary however to decide whether an estate in fee was taken by the trustees, or not, for even if the legal estate descended to the plaintiff in error, it descended subject to the trust, which could still be enforced against it. This was decided in the ease of Trustees of McIntyre Poor School v. Zanesville Canal and Manufacturing Co. (9 Ohio, 203), and also in the case of Williams v. First Presbyterian Society of Cincinnati (1 Ohio St. 478).

It is next insisted that the appointment of Parmley and Robinson, as trustees, was invalid. If this were true, the plaintiff in error would not be prejudiced thereby, for the trust .might still be executed by Cyrenius, the surviving trustee; but we are of opinion that under the provisions of the act relating to wills (S. & C. 1630, §§ 66, 67) the probate court was authorized, in a proper case, to appoint suitable persons to aid in executing the trust according to the will, although there might be a surviving trustee capable of executing it, and that this power was properly exercised in this case. There is nothing in the language of the will to indicate that the power given to the first trustees is a personal trust and confidence, that cannot be exercised by others, and there is nothing in the nature of the trust to prevent its execution, in accordance with the intention of the testator, as well by trustees appointed by the court as by those named in the will.

Judgment affirmed.


author: Okey, J.

text:
    Jackson v. The State.
    1. A count in an indictment in which the defendant is charged with robbery and with murder while in the commission of the robbery, and in which it is alleged that the blows which caused death were struck by the defendant with a piece of iron, a sledge and a shovel, is not bad for duplicity ; the state cannot be required to elect upon atrial on such count, and evidence of the robbery and the use of each of the implements in producing death is admissible.
    2. Where evidence of a confession is excluded because induced by promises made by an officer having custody of the prisoner, but the prisoner, on a subsequent day, voluntarily goes on the stand and is sworn and examined as a witness in his own behalf, under the statute (Rev. Stats. § 7386), on his examination before a magistrate on such charge, and he is cautioned by the magistrate, before testifying, that he need not say anything to criminate himself, and that what he may say may be used against him, a confession made in such testimony may be proved by the state on the subsequent trial of such person charged with the crime.
    3. On the trial of one charged with murder in the perpetration of a robbery, the state called a witness who gave material testimony tending to convict the accused, and the prosecuting attorney concealed from the witness, until after the trial, the fact that he was under indictment in the same court for harboring the accused, knowing that he had committed the crime : Held, that this was not misconduct for which a new trial should be granted.
    4. While the court may, it is not bound to receive a verdict which finds the defendant guilty on one count, without any finding as to the other counts ; and, as a general rule, where such verdict is tendered, the court should require the jury to deliberate further, so as to be able to respond to each count.
    Error to the Court of Common Pleas of Jackson county.

      Moore do Ailcwison and Jones do Downey, for plaintiff in error:
    1. Both counts of tlie indictment are bad for duplicity. 1 W'liart. Or. L. §§ 424, 1062; Leslie v. State, 18 Ohio St. 393; Jarvis v. State, 19 Ohio St. 585; Tabler v. State, 34 Ohio St. 127; 19 Ohio St. 134.
    2. Proof of the confessions was not admissible. 1 Green. Ev. § 425 ; People v. McMahon, 15 N. Y. 384.

      3. The state should have been required to elect on which charge the prisoner should be tried. Arch. Or. Pl. (10th ed.) 65 ; Leslie v. State, 18 Ohio St. 394. And the defect was not waived. Doyle v. State, 17 Ohio, 222; Hagar v. State, 35 Ohio St. 268; Williams v. State, 12 Ohio St. 622; Davis v. State, 19 Ohio St. 270.
    4. The court erred in not receiving the first and in receiving the last verdict. Guenther v. People, 24 N. Y. 100; Morehead v. State, 34 Ohio St. 212; Rev. Stats. § 7314.
    5. The conduct of the prosecuting attorney was such as to prevent a fair trial. Dobbins v. State, 14 Ohio St. 500 ; Weis v. State, 22 Ohio St. 291.

      G. K. Wash, Attorney General; E. C. Powell, Prosecuting Attorney, and J. M. Tripp, for the State,
    commented on the same cases, and cited as to the form of the indictment, Whart. Precedents (2 ed.) 145,149.
   Okey, J.

John W. Jackson, convicted in the court of common pleas of Jackson county, and sentenced to be executed, for the murder of Samuel L. Hull, committed September 30, 1882, filed a petition in error in this court, on leave, in which he set forth a number of alleged errors as grounds of reversal of such sentence. A case involving human life imperatively demands most careful consideration. That consideration this case has received, and I will state our conclusions and the reasons therefor with as much brevity as possible.

It is alleged, in the first count of the indictment, that the prisonei’, at a time and place stated, struck Hull on the head with a piece of iron, and also that he then and there struck him on the head with á sledge, and also that he then and there struck him on the head with a shovel, and it is alleged that this was done purposely and maliciously and of deliberate and premeditated malice, and that these blows caused Hull’s death. Evidence was offered tending to show that in killing Hull, the prisoner employed all these implements. Objection was made to the count in various forms, and to the reception of evidence under it, on the ground that it is bad for duplicity. But the objection was not well taken, and was properly overruled. People v. McDonald, 67 Mo. 13 ; People v. Casey, 72 N. Y. 393; Bemis’ Trial of Webster, 471; 1 Bishop’s Cr. Pro. § 432 et seq.

In the other count a robbery is charged, followed by a charge of homicide in the same form as in the first count, in the perpetration of such robbery. The same objection was made to this count as to the first count, and the prisoner also asked that the state be compelled to elect whether he should be prosecuted for the robbery or the homicide. The objection was properly overruled, and the motion properly denied. Ib.; Whart. Cr. PI. & Pr. § 293.

The state, during the trial, offered evidence of confessions made by the prisoner September 30, 1882, to the Free-mans, who were not officers or persons exercising authority over him, tending to show that he had committed the offense charged. The state then offered to prove a confession of the crime charged, made by the prisoner October 2, 1882, while in jail in Jackson county, upon such charge. The alleged confession was made to Owens, marshal of the village of Jackson, in the presence of the deputy sheriff. Owens testified that he told the prisoner that Hull was not much hurt; that all he wanted was for the prisoner to give back his money and leave the country ; and that if he would give back the money there would be no prosecution. The court excluded the proposed confession. The state then offered evidence to show that the prisoner was examined October 4, 1882, before the mayor of the village, on the charge of making the assault set forth in the indictment, Hull dying on the same evening. On that examination the prisoner voluntarily offered himself as a witness and testified. Before doing so, he was cautioned by the mayor and the prosecuting attorney that he need not criminate himself, and that what he said might be used against him, but he insisted on his right to testify. In his testimony, on that examination, he gave an extended account of the assault, with the implements named in the indictment, and the robbery. The prisoner objected to proof of his statements so made on the examination, on the ground that they were not voluntary, but the court overruled the objection, admitted the evidence, and the prisoner excepted. Whether the question thus presented is other than it would have been if the statements had not been made as a witness under the statute (Eev. Stats. § 7286; Hanoff v. The State, 37 Ohio St. 178), we need not determine; for we cannot say that the influence of the inducement offered by Owens had not been removed, and hence we hold that the confession was competent under the rule stated in Spears v. State, 2 Ohio St. 583, which has not been qualified by Rufer v. State, 25 Ohio St. 464.

The Freemans, who gave material evidence tending to convict the prisoner, were, unknown to them at - the time they testified, under indictment in the same court for harboring the prisoner, with knowledge that he had committed the alleged robbery; and it is charged that the prosecuting attorney concealed from the Freemans the knowledge of the fact that they had been indicted, and thereby deprived the prisoner of a fair trial. No doubt a prosecuting attorney may, by the suppression of evidence or similar acts, be guilty of such misconduct as to afford ground for a new trial. Wellar v. People, 30 Mich. 16. But the act charged in this case, if fully established, would afford no ground for disturbing the verdict. Moreover, the prisoner had been informed, before the trial, that such indictments had been found against the Freemans.

The jury having heard the evidence, ai-guments of counsel, • and charge, returned into court the following verdict: “guilty as charged in the first count of the indictment.” This verdict the court refused to receive and the prisoner excepted. The jury having further deliberated, by direction of the court, returned into court the following verdict: “We the jury, on the issue joined, find the defendant guilty as he stands charged in the indictment.” The prisoner objected to the verdict, but it was received, and he excepted. He did not object, however, on the ground sustained in Dick v. State, Parks v. State, 3 Ohio St. 89, 101; nor could he make such objection, for the statute has been changed (Eev. Stats. § 7316) ; but he objected solely on the ground that a verdict had been rendered. The objection is untenable. The prisoner might have been sentenced under the first verdict, for the count on which it was based was sufficient. Whart. Cr. PI. & Pr. § 740. Rut the proper course was to endeavor to obtain a verdict responding to both counts, and that course was pursued.

We find no error in the record.

Judgment affirmed.