source: Caselaw Access Project

author: By the Coürt:

license: Public Domain

text:
    Row et al. v. Row, by, etc.

      Imbecile — Action to recover property from — Must be by guardian, not next friend.

    An action to recover property belonging to an imbecile, must be brought by guardian, and not by a next friend.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Perry county.
    The petition in the common pleas averred that on May 19, 1891, Philip Allen, who is made a defendant, was duly appointed and qualified as guardian of said Ellen Row, that on the 18th day of January, 1890, said Jerome Row and Lucy Row his wife, obtained from said Ellen Row, aged 80 years, a large part of her property without consideration and in fraud of her rights; that on other days named, other property was fraudulently obtained; that she is an imbecile and was so at the time of such conveyances; that her said guardian upon written request refuses to begin an action to recover said property, and that therefore this action is brought in the name of said Ellen Row by Susannah Dorsey, who prosecutes the suit for Ellen Row, an imbecile, as the next friend and only child of the said Ellen Row. The common pleas sustained a demurrer to this petition,- for the reason that the plaintiff had no capacity to bring the action, and rendered judgment in favor of defendants. This judgment was reversed by the circuit court. A petition in error was thereupon filed in this court, seeking to reverse the judgment of the circuit court.

      Ferguson & Johnson and II. D. Cochran, for plaintiffs in error.

      Charles Iloy, for defendant in error.
   By the Coürt:

The action should have been commenced and prosecuted by the guardian of Ellen Row. Revised Statutes, section 4998. In case of the refusal of the guardian to bring the action, he should be removed and another guardian appointed. Upon motion and showing that a guardian is neglecting to bring an action to recover the property of his ward, the probate court should remove such guardian and appoint another who would bring the proper action. It cannot be tolerated that the rights and property of an imbecile should be controlled by a next friend, in opposition to the wishes of the guardian.

The guardian is responsible to the court for his conduct, but the next friend is responsible to nobody. The judgment of the court of common pleas was right, and the circuit court erred in reversing- it.

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


author: Minshall, C. J.

text:
    Pendery et al. v. Allen et al.

      Conveyance to defraud creditors — Suit to set aside conveyance — Judgment against defendant does not preclude his participation as creditor, if one — Application of provisions of section 6344, Revised Statutes.

    1. Where notice is given of the pendency and object of a suit to set aside a conveyance, claimed to have been made to defraud creditors, or, to declare an assignment, giving preferences, a trust for the benefit of all the creditors of the assignor, and judgment is rendered against the defendant, he is not precluded by such notice from participating as a creditor, if one, in the distribution of the fund, though other creditors came in and complied with the provisions of the statute, section 6344, Revised Statutes, giving to such creditors with the plaintiff a priority in its distribution. .
    2. The provisions of section 6344, Revised Statutes, as to giving notice of the pendency and object of a suit to set aside a conveyance, applies to a suit under the previous section to declare an assignment, giving preferences, a trust for the benefit of all creditors of the assignor.
    (Decided June 18, 1895.)
    Error to the Circuit Court of Hamilton county.

      Joseph W. O'Harreo and Oliver B. Jones, for plaintiffs in error.

      Mcorsh té Ritchie, Retóben Tyler, Wright té Wright, Harrison té Aston, Philip Roettinger and J. R. Von Beggern, for defendants in error.
   Minshall, C. J.

This case was recently in this court on error. It was there determined that the mortgage to Lowe Emerson made and delivered hy E. P. Allen, was in the nature of an assignment in contemplation of insolvency made to secure certain creditors of the mortgagor, and, therefore inured to the equal benefit of all his creditors within the meaning of section 6343, Revised Statutes; and the cause was remanded to court of common pleas to be administered in accordance with the statute regulating such assignments. Pendery v. Allen, 50 Ohio St., 121. On distribution, after the payment of costs, expenses and attorney’s' fee, the court ordered the fund in the hands of the trustee, Lowe Emerson, and of the sheriff of the county to be paid to all the creditors of Edward P. Allen, including Lowe Emerson, in proportion to the amount of their respective claims. This the plaintiff claims is error, on the ground that, at the commencement of the suit, he caused notice to be given of the object and pendency of it, as provided in section 6344, Revised Statutes, and that thereupon a priority should have been given to him and those who came in under the notice and complied with the provisions of that section, not only over the remaining creditors, but also over the defendant, Lowe Emerson, as a creditor of Allen. In other words, it is claimed-that on the commencement of such a suit, and the giving of the notice, the defendant is required to elect whether ,he will contest its prosecution or abandon the defense, and take with the other creditors in proportion to his claim as a creditor; and that if he elects to defend and the assignment is declared a trust within the meaning- of section 6343, he is postponed as a creditor until the plaintiff and the other creditors, who came in with him under the notice, are- satisfied.

We do not accept this as the proper construction of the statute. The provision of section 6343, that the creditors, who come in under the notice and comply with its provisions, “shall be first entitled with the plaintiff to the benefits of such transfer or assignment in proportion to the amounts of their respective claims,” relates to the creditors other than the defendant. The latter being in by summons, is not within the purview of the notice, and his rights are not affected thereby. He may defend against the suit, and if he fail, what he loses is the preference claimed under the transfer or assignment. The thing recovered in such action is, in contemplation of law, the excess of the property transferred or assigned, over and above the claim of the defendant as a general creditor of the assignor. Thus, in an action to set aside a conveyance, claimed to have been made to defraud creditors, the court found that the consideration was inadequate — being the liability of the grantees for the grantor as surety on the claims of certain creditors, the liability being some $4,000 less than the value of the land as found by the court — the grantees were required to account only for the excess. In other words, they were treated as creditors to the extent of their liability as sureties. Jamison v. McNally, 21 Ohio St., 295, 296. The court then did not err in its order directing that Emerson should be included as a creditor in the distribution of the fund.

But a notice was given at the commencement of the suit of its pendency and object. The notice was of the pendency of a suit to set aside the mortgage as made to hinder and delay creditors. Subsequently, by an amendment, the object was changed so as to ask that it be declared an assignment to prefer creditors under section 6343, Revised Statutes. ' It is quite certain, as we think, that the provisions of section 6344, as to giving notice apply as well to a proceeding under section 6343 as under the subsequent section. Such is the express language of the statute. But we are also of the opinion that a notice to set aside a conveyance on the ground that it was made to hinder and delay creditors, is not rendered ineffective by a subsequent amendment, asking to have a trust for creditors declared. The relief sought in either case is substantially the same. Therefore, as certain creditors of Allen did come in under the notice and give security as required by the statute, they, with the plaintiff, are entitled to priority in the distribution of the fund — after the payment of costs, expenses and attorney fees — over such other creditors as did not come in.

The decree xoill be modified in accordance ^oith the opinion.


author: Shauck, J.

text:
    Railroad Company v. Platt et al.

      Conveyance of land — Boundary line coincident with a stream — How established from description in conveyance.

    A conveyance of lands situated upon a navigable stream, the description being by courses and distances from a fixed monument and establishing a boundary line coincident with the line of navigation, conveys the grantor’s title as far as the central thread of the stream.
    ( Decided June 25, 1895.)
    Error to the Circuit Court of Lucas county.
    January 17, 1876, Platt et al. brought ejectment in the common pleas court of Lucas county to recover the subaqueous ground lying between the former and present dock lines along the Maumee river and in front of a part of lot 11 in the city of Toledo. Each party asserts title in fee to such ground, and their rights depend upon the following material facts as shown by the pleadings and the stipulations upon which, the cause was submitted in the common pleas:
    In 1852, Harriet O. Hall was the owner in fee of lot 11 which included the premises in controversy. August 9, 1852, the Lake Shore company (its predecessor) commenced proceedings in the probate court to appropriate lands for railroad purposes The appropriation by metes and bounds carried the line of the company’s property thus acquired to the former dock line which was approximately parallel with the shore line and where there was available, for purposes of navigation, a depth of water somewhat exceeding nine feet. The company at once took possession of the lands acquired for landing, dock and terminal purposes (for which purposes they had been acquired), and built its dock upon the line established.
    June 21, 1855, Mrs. Hall executed to the company a deed for the same property for the express purpose of assuring its title. The description in this deed also carried the line to the former dock line, and granted the premises described “with all privileges and appurtenances to the same belonging.”
    The company took possession and constructed the docks necessary for traffic in connection with boats navigating the river and lakes, upon the dock line, which was established by authority.
    September 10, 1869, Mrs. Hall conveyed to Platt et al. a number of tracts of land, including lot 11, but expressly “reserving that portion of tract 11 which lies northwesterly of the center of the river road, the same being now in possession of the railroad company, ’ ’ such reservation including the premises now in controversy.
    Thereafter the dock line was changed for the purpose of accommodating vessels of greater draught, and the railroad company docked out to the new line thus established, completing the reconstruction of its dock in July, 1873.
    April 13, 1874, Mrs. Hall, by quit claim, granted to Platt et al. all her interest in lot 11.

      In the court of common pleas, Platt et al. recovered, and that judgment was affirmed by the circuit court.

      E. I). Potter, Jr., and George O. Greene,for plaintiff in error.
    The plaintiff! in error claims that by the original appropriation proceedings in the probate court of' Lucas county, Ohio, in August, 1852, and the subsequent deed made by Hall and wife to the railroad company in 1855, it, the railway company, became vested with the title in fee to the' bank of the river; also the land above the bank; also the shore of the river; and also the bottom of the river to the navigable waters-thereof.
    That by virtue of said deed from Hall and wife to the railway company in 1855, the plaintiff in error became vested with the fee of this land to the center of the stream, subject to the public right of way. That such was the manifest intention of the parties appropriating the land, as well as that of the owners in deeding the land in 1855, to the railroad. Morgan v. Mason, 20 Ohio, 410.
    We say in this case from the nature and position of the thing conveyed by Hall and wife to the railway company and the subsequent reservation in the deed made by Hall and wife to the defendants in error, clearly show intention on the part of Hall and wife that the fee of the property in question to the center of the Maumee river, should and did pass to the railway company.
    On the rule of law that one who owns land abutting’ and bounding- on the navigable rivers of this state owns to the center of the stream, we cite: Gavitt v. Chambers, 3 Ohio, 496; Walker v. Board of Public Works, 16 Ohio, 543; Lamb v. Ricketts, 11 Ohio, 316; Renner v. Platter, 6 Ohio, 510; Hopkins v. Kent, 9 Ohio, 14; Watson v. Peters, 26 Mich., 508; Luce v. Carley, 24 Wendell, 450; June v. Purcell, 36 Ohio St., 396; Day v. Railroad Co., 44 Ohio St., 406.
    The unlimited and uninterrupted right of access to all parts of the river in front of the property conveyed to the railway company is in law carried by the deed. There are no apt words in this deed to the railway company showing any intention on the part of those grantors to exclude the plaintiff in error from the use, occupation and enjoyment of the bed of the river, lying in front of the prenr ises conveyed. Norcross v. Griffith, 65 Wis., 599; Goodin v. Canal Co., 18 Ohio St., 169; 65 How. Prac. Rep., 211; Rippe v. Railroad Co., 23 Minn., 18; 1 Rorrer on Railroads, 402; Bridge Co. v. Paige, 83 N. Y., 178; Smith v. Rochester, 92 N. Y., 465; 3 Am. and Eng. Railroad Cases, 226; Kent v. Taylor (N. H.), 419; O'Donnell v. Kelsey, 10 N. Y., 412; Washburn E. & S., 105; 22 Am. and Eng. Railroad Cases, 90; Summer v. Leaton (N. J.), 19 Att., 884; Richardson v. Prentiss, 48 Mich., 88.
    The defendants in error having knowledge of and permitting the plaintiff in error to take actual possession of the property in dispute and improve it at a large expense and outlay, and the same being a part of its right of way and terminal property in Toledo, with main and side tracks thereon, and necessary in the daily use and operation of its road, should not be permitted to maintain an action of ejectment for the sathe, but their remedy if they have one, is by action at law to recover the value of the property taken. • Goodin v. Canal Co., 18 Ohio St., 169; Pryzbylowicz v. Missouri River Co., 17 Fed. Rep., 492; 3 McCrary, 586; Chicago v. Tayler, 22 A. & E. R. R. Cases, 123; Railroad v.
      Kamlah, 28 A. & E. R. R. Cases, 250; Lawrence v. R. T., 30 A. & E. R. R. Cases, 309; Railroad v. McBroom, 33 A. & E. R. R. Cases, 90; Railroad v. Nye, 113 Ind, 223; Rairoad v. Redick, 17 A. &. E. R. R. Cases, 107; Cincinnati v. Kemper, 2 W. L. B., 5.
    All the owners of lot 11 were also all the owners of lot 13, and they ought not to be permitted to reap the benefit of Platt’s act or deed and then turn around and seek to avoid the effect of it. That the retention or reaping’ the benefits of a transaction by the principals, constitutes an acquiescence as effectual as the most formal authorization in advance or the most formal ratification afterwards. A different result would be a reproach to our jurisprudence. People’s Bank v. National Bank, 101 U. S., 181; Bigelow on Estoppel, 423; 7 Wallace, 592; 69 Pa. St.. 426; Weeden v. Railroad, 14 Ohio, 563; Winponny v. French, 18 Ohio St., 469.

      Frank II. Ilv/rd, for defendants in error.
    Assuming that Hall owned lot 11, bounded on the west by the Maumee river, what is the exact boundary line which the call of a river for such a purpose in a conveyance fixed ? It is well settled that such a call carries the boundary to the centre of the river, where it is not a navigable stream, at common law. But this is only in those eases where the river eo nomine is made the boundary. It is based upon the presumption that such was the intention of the parties to the conveyance — the ground that the grantors, ordinarily, would not care to retain the bed of the river, having parted with the upland — with its riparian rights, and that the grantee would naturally desire all the rights which, would come to him as the owner of the soil oyer which the water flows. But this is a mere presumption, which may be rebutted by any circumstances showing a contrary intent. It therefore resolves itself in each case into a question of the interpretation of the conveyance, in order that the intention of the parties may ..be ascertained. Boston v. Richardson, 13, Allen, 134; Luce v. Carley, 24 Wendell, 453; Mott v Mott, 68 N. Y., 254; Bank v. Nichols, 64 N. Y., 70; Kingsland v. Chittenden, 6 Lansing, 20; Cove v. White, 20 Wis., 454; Walker v. Board of Public Works, 16 Ohio, 540.
    In the late case of June v. Purcell, 36 Ohio St., 397, the doctrine is stated as well settled in Ohio that a grantee taking' land bounded by a river takes usque adfilum.

    Where any one who is the owner of the soil under the water by virtue of his grant being extended to the centre of the channel, when it is bounded by the river, he can dispose of this land under the water just as any other land he owns. He may divide it into water lots and sell them. He may convey it separately from the upland or he may sell part of it with the upland, and retain the balance, or convey it to a third party. What he has done is a question of interpretation of the conveyance from which the intention is to be derived. Gould oaa Waters, 45; Bradford v. Cressy, 45 Me., 13; Hatch v. Dwight, 17 Mass., 298; Storer v. Freeman, 6 Mass., 440; Tuler v. Hammond, 11 Pick., 213; Child v. Starr, 4 Hill, 374; Bradish, Pres., 4 Hill, 382; 3 Kent’s Commentaries, 434; Den v. Wright et al., 1 Peters, C. C., 69; 26 Mich,, 617; Chicago v. Rumsey, 87 Ill., 351; Jackson v. Hathaway, 15 Johns., 453; Trustees v. Schroll, 120 Ill., 321; The Text in Tyler on Boundaries, 123; Hall on. Seashore, 155; Moses v. The Eagle & Phoenix Mfg. Co., 62 Georgia, 456; Rivas et al. v. Solary, 18 Fla., 124.
    A riparian owner in Ohio owns to the centre of the river to which his lands are adjacent. The submerged land to that centre he owns in fee, as he does the upland. He can convey the soil under water just as he can any other land he owns ; what he has conveyed in any given case is a question of interpretation of the conveyance. If he bounds the land by the river eo nomine the g-rantee takes to the thread; if he conveys by metes and bounds the title of the grantee is limited by the boundaries fixed. His grant cannot be construed to extend beyond the boundaries, any more than if the land conveyed was dry land. Having’ definitely determined the boundaries so that any man can ascertain them, there is no room for construction or legal intendment.
    Section 9 of the act of February 11, 1848, confers the power of appropriation which the railroad company had in this case. . Iron Railroad Co. v. Ironton, 19 Ohio St., 299; Walsh v. Barton, 24 Ohio St., 28; Platt v. Railroad Co., 47 Ohio St., 336; Gilbert on Tenures, 75; 1 Redfield on Railways, 240; Mott v. Mott, 68 N. Y., 254.
    We will consider the American authorities upon the subject of rights in waters, and, first, of the right to build wharves on soil owned by the state or public.
    (1) This is a franchise which the adjacent owner enjoys from the state, subject to the public right of navigation. East Haven v. Hemingway, 7 Con., 202 ; Cohen v. Anton Awl, 52 Cal., 398; Hamlin v. Fairport Mfg. Co., 141 Mass., 37; Parker v. Rogers, 9 Oregon, 189; Houck on Rivers, 187; Wharf Case, 3 Bland, 373; Grant v. Davenport, 18 Iowa, 340; Negle v. Ingersol, 7 Pa. St., 201.
    (2) The rule in Ohio: The question has never been determined in this state. Sloan v. Benmiller, 34 Ohio St., 512; Dutton v. Strong; 1 Black, 31; Austin v. Rutland Railroad Co., 45 Vt., 242.
    (3) Consider now the ground on which it is held that the adjacent owner may build wharves where he holds the title to the soil to the centre of the river. The doctrine seems to be well established that his right depends upon the ownership of the soil, which he may exercise by carrying out the wharves to the point of navigability, subject to the supervision of the state or municipality and without making obstruction to navigation. Houck on Rivers, 188; Wood on Nuisances, sec. 490; Attorney Gen. v. Lonsdale, 9 Eq., 389; 6 Wait’s Actions and Defenses, 367; Jeffersonville v. Railroad Co., 27 Ind., 100; 1 Dillon on Mun. Corp., (3d ed.) 1155; Nicoll v. Gardner, 13 Wend., 289; Hogan v. Campbell, 8 Porter, 34; Norfolk v. City, 27 Grattan, 435 ; Del. ds Hudson Co. v. Lawrence, 2 Hun., 186; Middleton v. Pritchard, 3 Scammon, 521; Chicago v. Laflin, 49 Ills., 176; Rice v. Huddiman, 10 Mich., 141; Ryan v. Brown, 18 Mich., 207; Walker v. Board of Public Works, 16 Ohio, 544: Hickok v. Hine, 23 Ohio St., 528.
    But there is no authority for asserting this as a principle in cases where the owner of the land takes to the thread of the river which bounds it. The only authorities referred to are four, in the state of Wisconsin. Deitrick v. Railroad Co. 42 Wis., 265; Delaplain v. Railroad Co. 42 Wis., 226, Stevens v. Reiley, 44 Wis., 305; S. C., 46 Wis., 231; Cohn v. The Wausea Boom Co., 47 Wis., 322.

      We remark of the ease (I), the question was not involved of the ground upon which the right to erect wharves rests; (2), it was not a ease where the owner of the adjacent lands held to the thread of the river; (3), if presented, the question as to an undisputed riparian right, viz.: the right to enjoy the flow of the river, which, it is not disputed in this case, is in the plaintiff in error; (4), the point urged in the argument was that there was a difference between these natural rights, in a bank bounded upon tidal waters where the owner took to high water mark, and in a bank on a river above the tide where the proprietor owned the soil to the thread of the river. The ease simply holds that owners of the bank on tidal waters are not deprived of riparian rights, because they do not own the soil beyond the margin of the shore.
    Our conclusions are supported by the recent case of Lembeck v. Nye, 47 Ohio St., 336, where the exact question presented here arose. It is true that the case grew out of a dispute between parties who owned land bounding upon a non-navigable inland lake, and those who claim to own the bed of the lake. But the supreme court applied to the conveyances, bounded by such lake, the same rule which 'had been applied to navigable and non-navigable streams by the supreme court of the state, viz., that where one of the calls is a bounded land upon such stream, it carried the ownership of such land to the middle of the stream. So far, therefore, as the rig’ht of one owning- lands bounded by the Maumee river is concerned, it is the same as that of one owning land bounded by Chippewa Lake. People ex rel. v. Jones, 112 N. Y., 603.
    It is objected that an action of ejectment will not lie against the defendant, because it is a railroad company which has entered upon the land in controversy, for a public purpose, and it would be inequitable to permit a recovery of the land when defendant has spent large sums of money upon it with the consent and acquiescence of the plaintiff. The Ohio eases which hold this doctrine all relate to the right of way. Hornback v. Railroad Co., 20 Ohio St., 82; Railroad Co. v. Lewton, 20 Ohio St., 401; Gordin v. Railroad Co., 18 Ohio St., 169.
    Under these circumstances it cannot be maintained that the defendants in error have estopped themselves from insisting upon their right to recover their land. This case is very similar to Railroad Co. v. Robbins, 35 Ohio St., 538.
   Shauck, J.

. At the dates of the appropriation by the company and the subsequent grant of June 21, 1855, Mrs. Hall, the grantor, and the railway company, the grantee, were alone interested in what is now the subject of controversy. In the practical interpretation of its rights, acquired by the appropriation and the grant, the company took actual possession not only of the bank of the stream but of so much of the river as might be necessary to reach the established dock line at a depth of water of nine feet.

By the deed of September 10, 1869, Platt et al. acquired no title to the premises in controversy, for they were expressly excepted from the operation of the deed. Not only so, but by the terms of the reservation or exception, the grantees were notified that the grantor had, by a former conveyance, granted to the company the premises now in controversy. ■

The exception was not of “so much of -tract 11 as the railroad company now occupies,” but it was of “that portion of tract 11 which lies northwesterly of the river road, the same being now in possession of the railroad company.” This was express notice to the grantees that the company was in possession not only of the bank of the stream but all that portion of tract eleven which lay between the bank and the central thread of the stream.

On April 13, 1874, when the defendants in error received from Mrs. Ha'll the quit-claim under which they now assert title,'they found that the company had extended its docks over the.disputed premises to the newly established dock line. This had been done in the assertion' of the rights acquired by virtue of the appropriation and the deed of June 21, 1855, and with the acquiescence of Mrs. Hall to whom these parties now look as the common source of title.

The defendants in error took nothing by the quit-claim, because, not only the terms of their former deed, but the actual possession of the company, affected them with notice of the rights now asserted by the company, which rights their grantor could not then contest, since she had acquiesced in the company’s possession continuously from the date of the appropriation.

But from a consideration of the rules which prevail in the construction of grants of this character, we think the premises in controversy passed to-the company by the terms of the deed of 1855. It is true of that 'deed, as well as of the previous-proceedings to appropriate, that the Maumee river was not named as the boundary of the lands appropriated or conveyed. But by the strictest construction that could be placed upon the deed it conveyed not only the land upon the bank of the stream, but all that lay between the water’s edge and the original dock line projected where a depth of nine feet of water was available for the purposes of navigation. The terms oh the grant do not admit of any broader claim on behalf of the grantor than that she did not expressly convey to the central thread of the stream. If title to the subaqueous lands, lying between the former and present dock lines, remained 'in her, it was by virtue of a presumption operating in her favor, notwithstanding the location of the lands expressly granted, .the obvious -purposes of the grant and the limited and incidental use of which alone the lands in controversy are susceptible.

The lands were acquired by the company for landing, dock and terminal purposes. That these purposes were within the contemplation of all the parties is indicated by the location of the lands upon a navigable stream and the express grant of that portion of the stream which was necessary to make the grant available for that purpose.

The ground in controversy is insusceptible of absolute and unqualified dominion, being incidental to the shore and subject to the public right to navigate the stream. Because of the permanent character of the riparian and public rights involved, the case is broadly distinguishable from those of grants bounded on streets and highways which may be abandoned and their sites thus restored to a condition in which they may be subject to absolute and unqualified dominion. For the same reason the case is distinguishable from those of grants of lands bounded by swamps, ponds and lakes that are not navigable and are subject to drainage. The use of the stream for the purpose of navigation was not only within the contemplation of the parties to the deed from Mrs. Hall to the company)", but it was the principal and most obvious element of the value of the lands expressly granted.

These considerations would seem to justify the presumption that a g’rant of this character is to the central thread of the stream unless apt terms are employed to limit it.

And such appears to be the settled view of the courts of the country. Well considered cases in which this doctrine is held are Gavit v. Chambers, 3 Ohio, 496; Walker v. Board of Public Works, 16 Ohio, 543; June v. Purcell, 36 Ohio St., 396; Watson v. Peters, 26 Mich., 508; Luce v. Carley, 24 Wend., 451; Norcross v. Griffiths et al., 65 Wis., 599; Yates v. Milwaukee, 10 Wall, 497; County of St. Clair v. Lovingston, 23 Wall, 46.

To the application of this doctrine it is quite immaterial whether the .stream be named as a boundary of the lands granted or there be a description by courses and distances from a fixed monument whereby a line is established coincident with the stream. The doctrine regards the substance of the grant and not its form. Watson v. Peters, County of St. Clair v. Lovingston.

It is true that the common law regarded only those streams as navigable which are subject to the ebb and flow of the tides; and, in this view, the difference between riparian and littoral titles becomes unimportant, since they alike terminate at the water’s edge, the title to the residue of the alveus being in the public. While this view has been taken in some of the American cases, it cannot be regarded as the view generally received. Nor could it avail the defendants in error. The manifest result of these cases is that riparian and aivean rights are inseparable, whatever may be the nature or extent of those rights. Al vean rights appertain to the riparian title and do not depend upon title to the subaqueous land.'. That such rights are incapable of severance from the riparian title to which they are incident was distinctly held in Lake Superior Land Co. v. Emerson, 38 Minn., 406. The conclusion reached in that case was adversely criticised by the same court in Hanford v. St Paul & Duluth R. R. Co., 43 Minn., 104, where it was considered that the rights may be severed if they are of such a nature that they may be enjoyed separately from the adjacent land to which they were originally appurtenant. It was accordingly held that submerged lands lying between the high land upon the shore and the line of navigation might be severed from' such high land; and that conclusion would result from the consideration that such submerged lands, being susceptible of reclamation without interference with public rights, might become the subject of the riparian title to which access to and use of the navigable waters would attach as an incident. But it was not there held that one may own thatwhich he cannot enjoy.

Since a plaintiff in ejectment must recover, if at all, by virtue of his own title, the contention of the defendants in error would not be aided by the conclusion that the lands in controversy are incapable of private ownership.

Confining ourselves to the requirements of the ease, we conclude that the lands in controversy passed to the plaintiff in error by the deed from Mrs, Hall because they were not by clear and apt terms excepted from its operation, and for the additional reason that, it being an express grant of her lands to the line of navigation, with all the privileges and appurtenances to th e same belonging, the right asserted by the grantee is necessary to satisfy the express terms of the deed. Gould on Waters, section 179; Wood on Nuisances, section 491; Morgan et al. v. Mason, 20 Ohio, 402.

The views expressed in Lembech v. Nye, 47 Ohio St., 336, were not intended to have, and cannot have, any application to a case of this character. The lands there in controversy lay under water that was not navigable. By the clear terms of the syllabus the case was limited to lands thus situated; and in the principal opinion prominence is given to the consideration that the lake there in controversy was susceptible of private ownership, and the views here expressed were recognized as controlling in cases of navigable streams.

1 It is not necessary to consider the evidence offered by the plaintiff in error, in support of its plea of estoppel, as the right for which it contends is fully established by the stipulations.

Judgments of the Circuit Court and Court of Common Pleas reversed, and judgment for plaintiff in error.


author: Spear, J.

text:
    Railway Company et al. v. Williams.

      Landowner selling right of way to railroad company — Indefinite description of land — Grantor estopped to deny right of way as constructed, when.

    An owner of land who sells to a railroad company a right of way for its road by a written contract in which the description of the land is indefinite, and after the road is constructed, accepts, with full knowledge of the facts and without objection, the compensation agreed to be paid, and acquiesces for a period of six years in the occupancy by the company of the right of way on which the road is so constructed, is estopped to deny that such location is the location originally agreed upon and to demand additional compensation.
    (Decided June 25, 1895.)

      Error to the Circuit Court of Perry county.
    On July 10, 1889, the defendant in error filed a petition against the plaintiffs in error in the probate court of Perry county, under section 6448, Revised Statutes, to compel the appropriation of a strip of land described as being seventy feet in width and about one-half mile in length, extending through the farm of the petitioner, and such proceedings were had thereafter that a verdict and judgment thereon were rendered in favor of the petitioner. On error the judgment was affirmed by the common pleas and circuit courts, and to reverse those judgments this proceeding is brought.

      Ferguson & Johnson and W. F. Guerin, for plaintiffs in error.
    We think our demurrer in this petition and amendments should have been sustained and action dismissed, and that the court erred in overruling it. This action was worse than erroneous; it was upholding a void proceeding. Spoors v. Coen, 44 Ohio St., 497; 33 Ohio St., 562; 24 Ohio St., 345; Cook v. Andrews, 36 Ohio St., 174.
    Where a petition is defective by the omission of material allegation, the case will be reversed notwithstanding there was no demurrer to the same, and judgment will be given against the party who committed the first error in substance. Trott v. Sarchett, 10 Ohio St., 242; Trimble v. Doty, 16 Ohio St., 119.
    We will next call the attention of the court to the overruling of our demurrer to Williams’ reply to our answer, as we have said, he did not deny the. grant of right of way by the writing pleaded. Did not deny that after the same was located and constructed on the right of way purchased, he received his pay for it, etc. These undisputed facts vested a complete title in the company. A person is not allowed to at once benefit by and repudiate an instrument. Hermon on Estoppels and Resjudicata, vol. 2, pages 1176, 1177 and 1178; Wash-burn on Easements, page 441, section 25; 13 Ohio St., 373; Mills on Eminent Domain, section 122.
    Under the statutes all the jury could do was to find the value of designated and described land pointed out to them. Revised Statutes, section 6427. The statutes, section 6448: When a land owner brings proceedings, requires his petition to give a pertinent description of the lands sought to be appropriated, and all the courts hold that a full and accurate description of the lands sought to be appropriated, is necessary in the petition, and to go to the jury as a fixed thing for them to find, and whether the proceedings are instituted by the land owner or the corporations. American and English Ency. vol. 6, page 610, note 11; Wood on Railways, vol. 2, page 892;. 54 Ind., 121; Railroad Co. v. Newson, 54 Ind., 121.
    It is beyond our comprehension how a jury, in this case, could know what property they were dealing with and for which they returned a verdict. We wish to further observe that our title must come through that description, and the means of knowing what property the jury were finding in regard to must also come by that description, and if that property cannot be ascertained from the description it is void as a conveyance, and also impossible for a jury to estimate ■value or damages, and consequently the verdict is contrary to law and evidence and void. Lewis on Eminent Domain, sections, 290, 350 and 511. This rule has been long settled in Ohio, and such a description has uniformly been held void. 10 Ohio, 43; 2 Ohio, 255; Wright’s Rep., 766. Actual damages only are to be paid on a relocation, that is in the excess of damage suffered in consequence of the new road over that of the old road; if this damage falls below that, no judgment could be given for damages. Mills on Eminent Domain, section 321. The damages for the .relocation of a road are the difference between the damages for the former location and the present one, taking into consid- , eration the fact that the old road is given up, of the former were greater than the latter, nothing can be given. Sedgwick on Measure of Damages, vol. 2, page 570.

      Butter v. Butter, for defendant in error.
    A deed of right of way, as then located through the lands of the grantor, will not justify the location and construction of the road subsequently in-a different place. Rorrer on Railroads, vol. 1, page 318; Railroad Company v. Railroad Company, 2 W. L. B., 187; Clark, Chr. 118.
    A company does not lose its right by non-user, under a grant by a deed. Milis on Eminent Domain, section 320.
    As to judicial sales under the statute of Ohio, sections 3419,3420, the rig-ht of way does not pass by a judicial sale when not paid for. Rorrer on Judicial Sales, section 534: 2 Rorrer on Railroads, page 924.
    Sale of a railroad does not divest the purchaser with unpaid for right of way because the land owner’s right is paramount. 2 Rorrer, 917; Jones on Railway Securities, section 655. Such new company has thus adopted the taking and is liable, and the old company is not a necessary party. Rorror on Railroads, 327, 328.

      The company using the land, wrongfully taken and not paid for by its predecessor, is liable, and the remedy is by appropriation. 1 C. C. Rep.,. 428. And when the company enters without locating it is trepass, and the party may have condemnation ; and the railway company is estopped to deny the land owner’s right to do so. Rorrer, 331, 342; Mills E. D., 114.
    No assent to use will estop the owner from claiming compensation in damages. Mills Eminent Domain, section 141. In this case the railroad company took by purchase in fee in the land covered by the old contract, which was in writing. 56 N. Y., 526; Mills Eminent Domain, section 110. A deed may convey title although not acknowledged. 3 Washburn, Real Property, 288. Land obtained by a written contract does not revert. Mills Eminent Domain, 110.
    But we insist that the question of the description of this land or the question taken by the railway company were neither of them proper to be heard or determined by the probate court on the preliminary examination; no jurisdiction was conferred upon the probate court so to do. Section 6420 ; 33 Ohio St., 429.
    Where a demurrer to a petition omitting a material fact, is erroneously overruled, but the defendant, by answer, supplies the fact omitted and the case is disposed of on issue joined upon the answer, the judgment will not be reversed for error in overruling the demurrer. Louderman v. Judy, 2 C. C. Rep., 351; 24 Ohio St., 345; 33 Ohio St., 555; 48 Ohio St., 177; 1 Bates, 170; Revised Statutes, section 5115; Pomeroy’s Rights and Remedies, section 575 ; Bliss, section 437; 19 W. L. B., 258; Williams v. Rockoman, 46 Ohio St., 416.

      In this case it may be claimed that the verdict is quite uncertain. 1 Sutherland on Damages, 816.
   Spear, J.

A number of errors are alleged, but the view taken by this court of the principal one makes it unnecessary to consider the others.

By its answer the railway company took issue with the averment of the petition that it was in occupancy of land ’ without right, and alleged in substance that it acquired its rights in the year 1887, by purchase at judicial sale from a corporation known as the Columbus and Eastern Railroad Company, which corporation, in the year 1883, constructed a railroad; that in the month of July, 1883, the said railroad company located and constructed its line of railroad.upon the lands of plaintiff described in the petition; that the same was done under and in pursuance of a written contract with plaintiff by the terms of which the plaintiff, for the consideration of $375.00, granted to said company said strip of land for said railroad; that after said railroad had been located and constructed on said strip as aforesaid, the company paid plaintiff for the said right of way, the said sum of $375.00, and thereby acquired title to said right of way. Á copy of the contract is set out in the answer.

By its reply, the petitioner denied that he ever sold the railroad company the right of way sought to be appropriated herein, and averred that said land was never purchased or paid for by the said company.

At the preliminary hearing- the probate court found that in the year 1883 the plaintiff sold to the railroad company a right of way for its railroad across his premises described in the petition by a written contract, and that on August 18, 1883, the company paid him the sum of $375.00 therefor, and that the defendant company purchased of the railroad company as alleged. The court further found that in the construction of its road the company deviated a part of the way a short distance from the line' described in the written contract, and that a part of the road is on the right of way described in the contract and part of the same, but the court is unable to find how ’much of the road is on the location described in the contract and how much is of?; and as to the portion not on the location described in the contract, the company does not hold the same by said written contract. A jury was thereupon ordered.

It will be noted that the reply does not take issue upon the allegation of the answer that the contract price, $375.00, was received by the plaintiff, as and for right of way, after the construction of the road; nor is there anything in the evidence, all of which is set out in the bill of exceptions, to negative this averment. Indeed, the plaintiff, in his testimony, says that he received that money, and has kept it, and does not attempt to deny that it was so received by him after the road was constructed. It is further to be noted that the company had no occasion to desire ownership of or interest in any land other than that upon which its road-bed was constructed, and that this fact was known to the plaintiff. The inference follows, therefore, that when the consideration was paid by the company and received by the plaintiff, the land concerning which the parties were dealing was perfectly understood by both of them, as being the strip of land on which the road had been constructed, and that the plaintiff took the money-with the full knowledge that the purchaser was paying it upon the under standing, that it was compensation for that precise land, and none other.

The question, therefore, is whether, in view of the circumstances, the plaintiff can now be heard to claim that the payment which he accepted and has kept, was in part for some other land, and to insist upon opening up the subject for the purpose of demanding further compensation? We think the question will be answerd by the application of well understood equitable principles.

The description given in the contract was indefinite. One of the recitals was that “ Whereas, the Columbus and Eastern Railroad Company may desire to locate its railroad through my lands and premises,” and the agreement following was to release to the company “a* strip of land sixty feet wide through my entire property on such route as said company has located it road. ’ ’ There was no attempt to describe the exact land. This indefiniteness of description, doubtless, was the principal difficulty which confronted the trial court in its efforts to ascertain what deviation had been made from the original line, and prevented that court from finding how much of the road is on the location described in the contract, and how much is off. The land actually occupied by the company in the construction of its road, and the action of the parties in regard thereto, therefore, became of prime importance in determining- what land the owner intended to part with and the company intended to buy.

If, at the time of constructing the road,'there was a deviation in some particulars, from the lines original^ made by the company’s engineer, it was optional with the plaintiff to affirm or disaffirm that change.

He might object to it and refuse to take the money, or be might assent to it and accept the compensation. But could he adopt the part which was for his own benefit and reject the rest? It is said in Hermann on Estoppel, p. 1166, and following: “One entitled to a benefit under an instrument, must, if he claims the benefit of the instrument, abandon every right the assertion whereof would defeat, even partially, any of the provisions of that instrument.” “If a voidable contract, or other transaction, is voluntarily acted on with a knowledge of all the facts, in the hope that it may turn out to the advantage of a party who mig'ht have avoided it, he cannot avoid it when after abiding that event, it has turned out to his disadvantage.” And upon page 1167: “Where a party whose land is taken by a railroad company under the right of eminent domain, .and in whose favor damages are assessed and deposited to his credit, who knows of irregularities in the proceeding, and receives the money without objection, and sees the company construct its road over his land, cannot thereafter maintain any proceedings on account of such irregularities, as by accepting’ the damages he waives all right to object to the proceeding’s. He cannot have the money and litigate with the company as to their right to occupy the land.” The author cites to the last proposition. Burns v. Railroad, 9 WIs., 450: Town v. Town, 29. Ill.., 137, and Kile v. Town of Yellowhead, 80 Ill., 208, which appear to sustain the text.

In Bannon v. Angier 2 Allen, 128, which was an action in tort for obstructing a right of way over land of the defendant, the court, by Bigelow, C. J., declares that: ‘ ‘Where a right of way, or other easement, is granted by deed without fixed and definite limits, the. practical location and use of such way or easement by the grantee under his deed, acquiesced in by the grantor at the time of the grant and for a long time subsequent thereto, operate as an assignment of the right, and are deemed to be that which was intended to be conveyed by the deed, and are the same, in legal effect, as if it had been fully described by the terms of the grant.” And the same learned- judge, speaking for the court in Jennison v. Walker, 11 Gray, 423, 'says: “Where an easement in land .is granted in general terms, without giving definite location and description to it, so that the part of the land over which the right is to be exercised cannot be definitely ascertained,-the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee.” See, also, Onthank v. Railroad, 71 N. Y., 194. Coming to our own state we find the following in Railroad Co. v. Prentice, 13 Ohio St., 373, opinion by Sutliff, J.: “It certainly is not an unreasonable presumption, after proof of the fact that a road or canal had been surveyed and staked out, that when worked and in operation as a public thoroughfare, without any objection to the locus in quo, it should, if afterward questioned, be presumed to have been opened where surveyed and located.” And in Warner v. Railroad Co. 39 Ohio St., 70, the holding is: “Where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described in the terms of the grant. ’ ’

The principles stated in. the above citations we believe to be applicable to the case at bar, and as conclusion we are of opinion that, by accepting the consideration money after the construction of the road, and acquiescence for six years in the occupancy and use by the company of the land on which its road was thus practically located, the plaintiff is estopped to now deny that such location is the true location, and demand additional compensatiou.

Upon the whole case, as shown by the record, the plaintiff was not entitled to recover.

The judgments below will, therrefore be reversed, and the action dismissed.


author: Burket, J. Spear, J., Minshall, C. J.,

text:
    Cincinnati v. Gas Light and Coke Co.

      Construction of contract — Practical construction — Mistake of law and fact — Voluntary payment.

    1. A contract binds a gas company to furnish to a city “such quantity of gas as may be required by the city council for public lamps at two-thirds of the lowest averaged price at which gas shall or may be furnished to private individuals in the cities of New Orleans, Baltimore, New York, Louisville, and Pittsburg; Held: That this means the lowest cash price in each city, averaged by adding together such lowest cash prices, and dividing the amount by five: two-thirds of the quotient will be the price to be paid by the city to the gas company, under the contract.
    2. The practical construction placed upon a contract, in the per-performance thereof, by the parties who made it, should, in case of doubt, have gréat weight in its construction by courts; but the construction placed upon such contract by the successors of those who made it, or by .public officers, is entitled to much less weight.

      3. A payment made by reason of a wrong construction of the terms of a contract, is not made under a mistake of fact, but under a mistake of law, and if voluntary cannot be recovered back.
    4. Apaymentmade “uponconditionthatitshallinnorespectaffect any claim by either party concerning any matter now in dispute in relation to the proper construction of the clause in the contract with regard to the charge for gas, ” is voluntary, and cannot be recovered back.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Hamilton county.
    The Cincinnati Gas Light and Coke Company brought its action in the court of common pleas of Hamilton county against the city of Cincinnati, to recover for gas furnished to the city for the months of May and June, 1890, amounting to over $23,000. The city in the answer avers that the bills for gas for said two months are incorrect and grossly excessive, and therefore payment is refused. By way of cross-petition the city alleges that bills previously rendered and paid within six years, were incorrect and excessive, and that by mistake' of fact the city paid monthly amounts largely in excess of what was due. For such excess, amounting to $364,300.00, the city prays judgment.
    The Gas Company denied the averments of the cross-petition of the city.
    A jury was waived and the case submitted to the court, on consideration whereof the court found in favor of the Gas Company for the full amount claimed, and against the city on its cross-petition.
    A motion was filed for a new trial, which was overruled and judgment rendered in favor of the Gas Company to which the city excepted. A bill of exceptions was taken containing all the evidence and petition in error filed in the circuit court. Cn hearing, the circuit court affirmed the judgment of the common pleas. Thereupon a petition in error was filed in this court by the city to reverse both judgments below.

      Frederick Ilertenstein and W. II Whittaker, for plaintiff in error.

      Paxton ds Warrington, E. A. Ferguson and Eittredge, da Wilby, for defendant in error.
   Burket, J.

This case was orally argued before the second division of the court, and there being a slight difference of opinion, the case was reserved to the full bench, and carefully considered upon the record and printed briefs. •

In the year 1841 the city of Cincinnati granted to James F. Conover and his associates a franchise to use the streets, lanes, commons and alleys of the city for the purpose of supplying-gas light. The ordinance by which this franchise was granted was, in the course of its passage, amended in several respects, and, as finally passed, the second section reads as follows :

“That, in consideration of the privileges hereby granted to the said Conover, his associates, their heirs, assigns, and successors, they, the said Conover, his associates, their heirs, assigns, or successors, shall furnish to the city on the several streets, lanes, commons and alleys, in which the leading or main pipes for supplying the citizens with' gaslight shall be laid and in use, such quantity of' gas as. may be required by the city council for public lamps at two-thirds of the lowest average price at which gas shall or may be furnished to private individuals in the cities of New Orleans, Baltimore, New York, Louisville and Pittsburg, the lamp posts, connecting' pipes, meters and lamps being furnished by and at the expense of the said city.”

■ The' controversy arises over the proper construction of so much of this section as compels the Gas Company to furnish to the .city “such quantity of gas as may be required by the city council for public lamps at two-thirds of the lowest average price at which gas shall or may be furnished to private individuals in the cities of New Orleans, Baltimore, New York, Louisville and Pittsburg.

In May and June, 1890, there were in New York seven different companies, four of which furnished gas to private individuals at $1.25, and three at $1.60. In Pittsburg there were five companies, two of which furnished gas at $1.00, one at $1.50, one at $1.30, and one at $1.20. In New Orleans there were two companies furnishing' gas at $1.85 and at $3.00. In Louisville there were two companies, each furnishing gas at $1.35, and- in Baltimore there was only one company, furnishing gas at $1.25.

The Cas Company insist that a proper construction of the contract is to add together the seven prices in New York and divide the amount by •seven, and that the quotient will be the New York price. Also, add togther the five prices in Pitts-burg, divide the amount by five, and the quotient will be the Pittsburg' price. Also add together the two prices at New Orleans, divide the amount by two, and the quotient will be the New Orleans price. Louisville has but one price, and Baltimore but one. Then add this New York price, this Pittsburg price, this New Orleans price, the Louisville price and Baltimore price together, and divide the amount by five, and the quotient will be the “lowest averaged price ” of the five cities.

The bills for May and June, 1890, were made out upon this basis, and the Gas Company insists that this is the correct construction of the contract.

The city did not receive and pay for gas under this contract until the year 1866, but from that date until May, 1890, the city received gas under this contract and paid the bills of the Gas Company, made out and averaged from time to time in the same manner as the bills in dispute. Prom 1841 to 1866 the Conover contract was kept alive, but gas was received and paid for under special contracts.

After the city began to receive gas under this Conover contract in 1866, there was some question made by the city authorities as to the manner of arriving at the lowest averag'ed price. Some of the companies allowed discounts for prompt payment, and the city claimed the benefit of such discounts in fixing the lowest averaged price. Robert Brown was officially connected with the Gas Company from 1866 to 1882, and he testified that the average was made during all that time without taking into consideration the discounts, and that the average price was ascertained in the manner now claimed by the Gas Company.

What he said about the matter is condensed by counsel for the Gas Company in their brief, and the same is here adopted as a fair epitome of the facts from 1866 to 1882, as follows :

“After stating then that it was part of his duty to collect the bills against the city, he said he was required to go to the city engineer, to the city clerk and the city auditor, before the latter would approve the bill, and then the money was paid by the city treasurer, and that at various times the bills were disputed upon different grounds. He said: ‘In this particular matter of discounts there were several times, * * * probably ten or a dozen times, * * * I think it probably arose in the very first bill. * * * Mr. Tatem * * * was the city auditor. He raised the question when the first bill was rendered, * * * the bill was then rendered for the quarter’s term, * * * he raised that question about the discount and also about the question of lowest average. ’ After so stating, he said this question of the lowest average was raised at other times, as officers changed, and our bills would be delayed in settlement until they could investigate that question. He also stated that the city officers were told what the prices were and these discounts. In some cases they inquired for themselves. That these inquiries were so made, both in the five cities and at the gas office, and inf ormation obtained from both sources.”

From 1882 to 1887, the situation remained about the same. From December, 1887, to May 1890, the bills for gas under the contract, were audited and paid by the city, and received by the Gas Company without prejudice to either party as to the proper construction of the contract, as shown by the following, written upon each bill :

“The above claim has been duly approved by the Board of Public Affairs, at the regular meeting of December 31, 1887, and its payment- by the comptroller authorized by them, upon condition that it shall in no respect affect any claim by either party concerning any matter now in dispute, in relation to the proper construction of the clause of the Conover contract with regard to the price of gas. ' (Signed),

“Thomas G. Smith, President.

“Attest: D. W. Brown, Qlerk.”

Also, by the following receipt given for the warrant received in payment of each bill:

“Received of the comptroller his warrant foi $16,190.23, for gas consumed in public lamps during the month of December, 1887, which is accepted by the Cincinnati Gas-Light and Coke Company, upon condition that it shall in no respect affect any claim by either party concerning any matter now in dispute in relation to the proper construction of the clause in the Conover contract with regard to the charge for gas. (Signed),

“The Cincinnati Gas-Light & Coke Co.,

“Per D. G. A. Davenport.”

The Gas Company claims that this course of dealing, between the city and itself, furnishes a practical construction of the contract by which the city is now bound. The full claim of the Gas Company is, that its construction is the proper one, but that if it is not, then that the contract is ambiguous, and that the city is bound by the practical construction so furnished by the course of dealing in its performance of the contract.

It is conceded by counsel for the Gas Company, that if the contract is nokambiguous, that it must be enforced according to its terms, without regard to the construction heretofore placed upon it by the parties in the course of its performance.

In determining the rights of parties under a written contract, it is not the duty of a court to seek for, or create doubts and ambiguities, but rather to avoid them, and construe and enforce the contract according to its evident meaning, giving force to every word.

When this course is pursued in this case, it is clear that the “lowest averaged price” here means the lowest price in each city, averaged. This is the plain, .common import of the words used, and the only reasonable construction in which any force can be given to the word “lowest.”

There is no force in the contention of the Gas .Company that gas furnished to private individuals, means all the individuals in the particular city, and that therefore all must be taken into consideration in order to fix the price in such city. The consolidated company of New York furnishes gas to private individualsat $1.25. No other company furnishes it at a lower rate. This rate therefore fills the terms of the contract, no matter if there are other companies furnishing’ gas at the same, or a higher rate.

There is by far less difficulty in thus construing this contract, than there would be in arriving at a satisfactory conclusion as to the proper effect which should be given to the course of dealing which it is claimed gives a practical construction to the contract. By the epitome of facts above taken from the brief of defendant in error, it appears that at various times the bills were disputed upon different grounds, and in the receipts given by the Gas Company for the different, warrants received in payment of bills from December, 1887, to May, 1890, it is conceded that there is a dispute between the parties as to the proper construction of the Conover contract. The course of dealing relied upon to establish a practical construction, is therefore much more ambiguous than the contract itself, and can furnish no safe g’uide for a construction different from the words themselves.

There is some looseness of expression in some of the reported cases as to what course of dealing will supply a practical construction. The case of Robinson v. U. S., 13 Wall., 363, cited and relied upon in Central Trust Co. v. Wabash, St. L. & P. Ry., 34 Fed. Rep., 256, as a case of practical construction, is a case involving' the admission of evidence as to the existence of a custom in trade, and is not at all founded upon the doctrine of practical construction.

To have any value as a practical construction, the course of dealing- should be uniform, unquestioned, and fully concurred in by both parties. A right claimed by one party, and from time to time denied or disputed by the other, though- for the time being, conceded, cannot from such concessions, be regarded as established. And when, as in this case, each concession for over two years is coupled with an admission by both parties that the right claimed is in dispute, it is clear that such concessions cannot be used to establish the right.

It is not every captious doubt as to the meaning of a written instrument, that will warrant a court in concluding that the instrument is ambiguous, and therefore to disregard its words, and seek the intention of the parties in the course of business growing out of an attempted performance.

The most exact and skillfully drawn document, may, by able counsel, be so construed as to create what would seem to be reasonable doubts, when in fact it is perfectly clear to the parties, and, aside from thé strained construction of counsel, also to the court. In such cases it is the duty of courts to disregard the strained construction of counsel, and to enforce the instrument according to the the reasonable, plain and manifest intention of the parties. Business does not usually deal in fine drawn distinctions, but in plain, practical transactions.

The reason of the rule of practical construction has its origin in the presumption that the parties to the contract, at and after the making thereof, knew what they meant by the words used, and that their acts and conduct in the performance thereof, are consistent with their knowledge and understanding, and that therefore their acts and conduct show the sense in which the words were used and understood by them. In such cases acts sometimes speak louder than words. But the reason of the rule ceases, when the acts or conduct are not those of the parties who made the contract, and are not presumed to know in their own minds what was in fact meant by the words used. The acts and conduct of the parties following after the parties who made the contract, must in the nature of the case be only their own construction of the words used, and not an acting out of the understanding of the words by the parties who used them. The same is true of public officers. They may put their own construction upon the words used, but in so doing they are not acting out the mental understanding of the sense in which the words were used by those who made the contract or written instrument.

In such cases the acts and conduct of the parties in the perform anee of the contract, are only their construction of the meaning of the words used; and their construction of words used by others, should not override the construction to be placed thereon by the courts. So that while the practical construction of the contract by the parties ' who made it, is entitled to great weight, in case of doubt, the construction placed thereon by those who follow is of much less weight.

We think therefore, that in the case at bar, there is no such practical construction by the parties, as should change the import of the words used in the Conover contract, and that the meaning- of the words is sufficiently plain to permit the court to enforce the contract according to the evident import.

The t-lowest averaged price,” stipulated for in. the contract, entitles the city to the benefit of such discounts as are, or may be,-allowed to individuals by the company in each city furnishing gas at the lowest price. The terms being once settled and understood, the city becomes a cash paying customer, entitled to all discounts made for cash. The delay in payment since May, 1890, was caused by the unwarranted claim of the Gas Company, and not by the want of cash on part of the city with which to make payment. Hence, the city is entitled to the discounts since May 1, 1890.

It is evident that the question of candle power did not enter into the terms of the contract when made, and- has not become since injected therein. In New Orleans there are two companies, one furnishing gas to private individuals' at $3.70, and the other at $3.00 with 20 per cent, discount. The price certified to the Cincinnati Gas Company by the New Orleans company, was $1.85 instead of $3.70. This was done by reason of the increased candle power of the New Orleans company, but defendant in error, had no knowledge of this reduction in price, and the bills in dispute were made out with reference to the price of $1.85, as reported by the New Orleans company. The company which supplies g’as to the private individuals at New Orleans at $3.00 with 20 per cent, discount, making $2.40 net, is the one to be considered in making up the “lowest averaged price” in this case. At New York the lowest price is $1.25, at Baltimore $1.25, at Pittsburg $1.00, and at Louisville $1.35, with five per cent, discount, making $1,291 net. These prices constitute the basis for making up the bills for May and June 1890, and the same principle will prevail as to all bills for gas thereafter.

The claim, of the city on the cross-petition is not allowed, and the judgment of the courts below were correct as to that claim, notwithstanding the stipulation, that the warrant was signed “upon condition that it shall in no respect affect any claim by either party concerning any matter now in dispute in relation to the proper construction of the clause in the Conover contract with regard to the charge for gas,” the payment was voluntary and not compulsory.' The condition is that it shall not affect the claim of either party as to the proper construction of the contract; not that in case of a construction in favor of the city that the Gas Company will repay the money. The right sought to be saved by this condition, is the right as to the construction of the contract, and not as to the repayment of the money after the proper construction shall have been settled and determined. If there was any mistake as to the payment made, such mistake was a mistake of law and not of fact.

The payments were also voluntary, and there is therefore a double reason why there should be no recovery back.

The judgment of the circuit court is reversed, and proceeding to render such judgment as the circuit court should have rendered, the judgment of the common pleas court in favor of the Gas Light and Coke Company on its cause of action is reversed, and the judgment against the city of Cincinnati on its cross-petition is affirmed, and this cause is remanded to the court of common pleas for a new trial, upon the cause of action of defendant in error, against plaintiff in error.

Judgment reversed.

Spear, J.,

dissenting:

My interpretation of the contract is that the term “lowest” means the cash price with discount deducted. The “lowest averaged price” in any city would be reached by adding together the lowest cash price of all the companies in such city, and dividing’ the amount thus obtained by the number of companies. The lowest average price in all the cities would be ascertained by adding’ the several lowest prices in the five cities and dividing’ by five. Two-thirds of the sum so found would be the price for Cincinnati.

But there seems to be about as many interpretations as there have been minds applied to the problem. In such case it seems to me that the construction given by the dealings of the parties is as likely to be right as any. While not absolutely uniform, the general course of dealing has been in accordance with the judgment rendered by the trial court and affirmed by the circuit court.

I think those judgments should be affirmed.

Minshall, C. J.,

dissenting:

A diversity of opinion prevails as to the proper construction of the contract between the Gas Company and the city. In view of this apparent uncertainty as to what was meant by the terms used as to the price at which gas was to be furnished the city, the construction that has been placed on it by the parties during’ a long period of time, should be now adopted as the proper one. This is in accordance with the decided weight of authority in this court and elsewhere. To say that the language is plain and should be followed, is simply to say that different minds cannot draw different conclusions. The answer to this is that in this case they have, and the rule of construction by the acts of 'the parties, applies, or there is no room for its application in any case.


author: Williams, J.

text:
    Young v. Shallenberger et al.

      Bill of exceptions— When filed to be available — Act of March 22, 1892 {Ohio Laws 89. p. 124), amending sections 5298, 5301, and 5302, Rev. Stat. — Time when right of proceeding in error accrues— Section 6723, Rev. Stat. — Clerk authorized to enter judgment, when — Section 5326 Rev. Stat. — Overruling motion for new trial not a final order.

    1. A bill of exceptions, to be available, must be perfected and filed in accordance with the provisions of the statute in force at the time. Under the amendment of March 22,1892, of sections 5298, 5301 and 5302, of the Revised Statutes (89 Ohio L., 124), the exceptions must be reduced to writing within such time as may be fixed by the court, not exceeding fifty days “beyond the date of overruling the motion for a new trial,” or from the decision of the court when the motion for a new trial is not necessary; and the bill of exceptions must be filed within said period of fifty days, unless the time is extended as authorized by sec. 5302; but the time for filing the bill, when duly allowed and signed, cannot be restricted to less than that period.
    2. The right, or cause of a proceeding in error, accrues at the time of the rendition of the judgment, or making of the final order, and, under section 6723, of the Revised Statutes, such proceeding must be commenced within six months from that time; if commenced thereafter, the court acquires no jurisdiction of the case, and the petition should be dismissed

      3. When a general verdict is returned by the jury, the clerk is authorized by section 5326, of the Revised Statutes, to enter judgment upon it, unless “the court order the ease to be reserved for future argument or consideration;” and such judgment is regular and valid, though entered before the expiration of the statutory time for filing a motion for a new trial.
    4. The overruling of a motion for a new trial is not a final order to which error can be prosecuted.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Fairfield county.
    On the 29th day of April, 1892, the defendants in error, Theodore Shallenberger and Lorenzo Bechtel, obtained a general verdict for a specific sum of money, against the plaintiff in error, in an action brought in the court of common pleas of Fairfield county, and on the same day judgment was rendered on the verdict and entered of record. On the 2d day of May, 1892, the defendant in the action filed his motion for a new trial, which, on the 20th day of June following, was heard and overruled, and on motion of the defendant, forty days was “allowed for the signing and sealing of a bill of exceptions as provided by law, and the clerk ordered to keep the journal open forty days for that purpose. ” All these proceedings occurred at the April term of the court, which finally adjourned July 7, 1892. A bill of exceptions was allowed and signed on the 6th day of August, 1892, and filed on the 9th day of the same month. A petition in error was filed in the circuit court by Young, on the 19th day of November, 1892, upon which a summons was issued December 10, 1892, and served on one of the defendants in error on the 20th day of that month, and on the other defendant on the 27th day thereof. The circuit court, on motion of the defendants in error, struck the bill of exceptions from the flies, on the ground that it had not been filed within the time allowed by law, and dismissed the petition in error because it was not filed in time, and rendered judgment for costs against the plaintiff in error, who brings the case here.

      Brasee <& Brasee, and Q. M. Stric/der, for plaintiff in error.

      O. D. Martin, John Q. Reeves, M. A. Daugherty, and J. M. Shallenberger for defendants in error.
   Williams, J.

By the provisions of section 5298, 5301 and 5302, of the Revised Statutes, as they were in force on thé 6th day of February, 1890, when the action below was commenced, a party desiring a bill of exceptions was required to perfect and file the same within, thirty days after the close of the term at which the verdict was rendered, or the finding of the court made. By an amendment of those sections, which took effect on the 15th day of April, 1890, the time .within which bills of exceptions mig-ht be filed was enlarged to forty days from the end of the term, or, where a motion for a new trial was made but not decided at the term, the bill might be filed within forty days after the end of the term at which there was a decision of the motion. The sections were again amended on the 22d day of March, 1892, and, as so amended, were in force when the action below was tried, when the judgment was rendered, and when the motion for a new trial was overruled. As thus amended, section 5298, provides that: “The party objecting to the decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not more than fifty days beyond the date, of the overruling of the motion for a new trial, or from such decision by the court when a motion for a new trial is not necessary.” Section 5301, in its amended form, requires that ‘ ‘the parly excepting must reduce his exceptions to writing, and present the same to the trial judge or judges for allowance within fifty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not necessary.” And by section 5302, it is provided, that where the “exceptions are not allowed and signed during the progress of the trial, the party excepting shall submit the bill of exceptions to the opposite counsel for examination not less than ten days before the expiration of said fifty days;” and that the same shall be submitted to the trial judge or judges, “for his or their signature, not less than five days before the expiration of said fifty days;” when so presented, and found to be correct, or after it is corrected, “the trial judge or a majority of the judges composing the trial court must allow and sign” the bill, within the fifty days, and it must “be filed with the pleadings, * * * and an entry of the allowance and signing of the same must be entered upon the journal of the court within the time fixed for such allowance and signing.” It is contended by the plaintiff in error, that the taking- and filing of a bill of exceptions relates to the remedy in the action, and, therefore, the sections of the statute referred to, as last amended, are rendered inapplicable to this case by the operation of section 79 of the Revised Statutes, which provides that, when an amendment of a statute “relates to the remedy, it shall not affect pending actions, * *' * unless so expressed.” The sections as so amended contain no express provision making them applicable to pending actions.

Counsel have argued this point upon the mistaken assumption that, if their position should be maintained, the sections as amended April 15,1890, would govern in determining whether or not the bill of exceptions in this case was filed in proper time. If governed by that amendment, there could be no doubt that the bill was filed within the forty days allowed after the close of the term, and should not have been stricken from the files. But it is obvious that amendment can have no application to the case, for it was not passed until after the commencement of the action, and was repealed before its termination. As has already been noticed, the statute in force when the original action was commenced, required that a bill of exceptions should be filed within thirty days from the close of the term at which the verdict was rendered or the decision made by the court; and the record affirmatively shows that the bill was not filed within that time, the term having- ended on the 7th day of July, 1892, and the bill was not filed until the yth day of August following. The result, therefore, would be adverse to the plaintiff in error, if the position taken by his counsel were sustained.

We are satisfied, however, that the bill of exceptions does not pertain to the remedy in the original action, which is terminated by the final judgment, and is no longer a pending- action, while the only office of the bill is to bring properly upon the record questions raised on exceptions taken in the progress of that action, with such statement of the facts or evidence as may be necessary to show their pertinency and importance, in order to aid the party in the prosecution of another remedy, namely, a proceeding in error, which is in the nature of a new action, prosecuted by a distinct mode of procedure provided by statute. The bill is employed for no purpose, nor does it accomplish any result, except in the prosecution of error, and can have no effect whatever, either on the rights or remedies of the parties except in such proceeding; and it should, therefore, be perfected and filed in accordance with the provisions of the statute in force at the time. The ultimate inquiry on this branch of the case, then, is whether the-plaintiff in error, in perfecting and filing his bill of exceptions, complied with the statute as amended March 22, 1892. It is conceded the bill was filed within fifty days from the overruling of the motion for a new trial; but it is contended that was not sufficient, because the court, on the motion of the plaintiff in error, had fixed the period of forty days for the allowance and signing of his bill, and it was not filed within that time. The language of section 5298, “time may be given to reduce the exceptions to writing, but not more than fifty days, ’ ’ etc., imports that a less number of days may be fixed by the court, in its discretion, for that purpose; and the object of investing the court with that discretionary power becomes manifest from a consideration of section 5302, which requires that the bill of exceptions shall be submitted “to the opposite counsel for examination not less than ten days before the expiration of said fifty days,” and to the trial judge- or judges “not less than five days before the expiration of said, fifty days.” It is evident, we think, that the authority to fix a shorter period than fifty days for reducing the party’s exceptions to writing, was conferred on the court in order that the time prescribed, at least, might be allowed for the examination of the bill by the court and counsel before the expiration of the fifty days, and for the correction, signing- and filing of the same within that period. But reducing the exceptions to writing for the purpose mentioned, is not the same thing as filing the bill of exceptions after it has been duly allowed and signed ; and while the statute gives the court discretionary power in fixing the time for the performance of the former act, we have discovered no provision which authorizes the court to limit the time for the performance of the latter, to less than fifty days after the overruling of the motion for a new trial, or the decision of the court when a motion for a new trial j s unnecessary. It may be urged that, as the court, under section 5298, may allow the whole fifty days for reducing the exceptions to writing-, the time fixed for that purpose must be regarded as the limit within which the bill can be filed, otherwise there could be no opportunity, after the bill should be prepared, for the court or counsel to examine it. But that section applies to all exceptions, whether to be put in the form of a bill of exceptions or not, and when a bill is necessary-, the court should, in the exercise of its discretion, so fix the time for the preparation of the bill, that the court and counsel may have the requisite period for examination, before the expiration of the time allowed by the statute for the filing of- the same. Cases may arise in which it may be desirable to allow more than the ten days for the examination of the bill, and the court may, in such cases, shorten the time accordingly-- for reducing the exceptions to writing ;but in case the whole fifty days should be allowed for that purpose, the trial judg’e or judges may extend the time for the signing’ of the bill ‘ ‘ for a period not exceeding ten days beyond the expiration of fifty days;” but the time for filing the bill, when properly allowed and signed, cannot be restricted to less than that period. So that, when a bill of exceptions, which has been duly allowed and signed is filed within fifty daj^s after the overruling of the motion for a new trial or the decision of the court where such motion is unnecessary, and an entry thereof has been made on the journal of the court, the requirements of the statute as amended March 22, 1892, have been fully complied with, and the bill cannot property be stricken from the files without the consent of the party obtaining the same. No complaint is made in this case that the bill was not submitted in due time to opposite counsel, or to the trial judge, and the record fails to show any default in that regard. In the absence of such showing, compliance with the statute in that respect will be presumed from the allowance and signing of the bill. In view of the various provisions of the statute, the journal entry of the common pleas court, allowing forty days for “the signing and sealing of a bill of exceptions as provided by law,” must 'be treated as an allowance of the time named for reducing the exceptions to writing, in order that the bill might be perfected and filed within the fifty days allowed by the statute.

2. The other question in the ease is, whether the petition in error was filed in time? The right to file a petition in error, is a cause of proceeding, which arises at the time of the rendition of the judgment, or making of the final order, and the proceeding- must be commenced within the time limited by the statute then in force; otherwise, the court acquires no jurisdiction. O'Donnell v. Downing, 43 Ohio St., 62; Burke v. Taylor, 45 Ohio St., 444.

Section 6723 of the Revised Statutes, which was in force when the judgment of the trial court was rendered, provides that: “No proceeding to reverse, vacate, or modify a judgment or final order shall be commenced unless within six months.after the rendition of the judgment or the making of the final order complained of, ’ ’ except, that persons under certain disabilities are allowed the same time after the disability is removed, for the commencement of the proceeding. It is conceded that more than six months elapsed aftqr the rendition of the judgment, before the petition in error to reverse it was filed in'the circuit court, but less than that period, after the overruling of the motion for a new trial; and on this branch of the case, it is urged by the plaintiff in error, (1) that the judgment was prematurely entered, and, for the purposes of the question here, shordd be treated as rendered at the time of the overruling of the motion for a new trial; or, '(2) that the overruling of the motion was the final disposition of the case, and constitutes a final order to which error will lie.

Section 5326, of the Revised Statutes, requires that: “When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration.” And the next section provides that: “When the verdict is special, or when there is a special finding ,on particular questions of fact, or when the case is reserved, the court shall order what judgment shall he entered.” These sections, it is apparent, afford ample authority for the clerk to enter judgment immediately upon the return of a general verdict, ' and indeed make it his duty to do so, unless otherwise ordered by the court in order that the case may he further heard or considered. If either party wishes to have the. entry of judgment delayed to await the result of a motion for a new trial, he should, when the verdict is returned, make his desire known to the court; and if he fails to obtain an order of the court directing such delay, a judgment entered upon the coming-in of the verdict would seem to be in all respects regular and valid. True, that does not interfere with the party’s right to file his motion for a new trial within the statutory time, and if it he sustained the judgment must of course be set aside; but if overruled, the judgment remains, from the date of its entry, the final judgment in the action, unless reversed, vacated, or modified in accordance with law.

Nor do we think the overruling of a motion for a new trial is a final order upon which error can be prosecuted. A final order to which error will lie, is defined by the code to be: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment.” Section 6707, Revised Statutes. It is clear .that the overruling- of the motion of plaintiff in error for a new trial was not an order made in a special proceeding, or upon, a summary application after judgment; it was made in a civil action, as contra-distinguished from a special proceeding, and, in the ordinary course of procedure in such actions. Nolis it an order in an action which both affects a substantial right and in effect determines the action and prevents judgment, within the meaning of the section of the code alluded to. The action ends with the judgment; and the motion, which is an application to the court to reconsider its judgment, and for a re-trial, is usually, though not always essential to the proper preservation and presentation of the errors preceding the judgment, when relied on to obtain a reversal of it. Error lies to the judgment, but not to the decision of the motion ; though that decision may be made a ground for the reversal of the judgment. It has long been settled in this state, that “an order of the court granting or overruling a motion to set aside the verdict of a jury and grant a new trial, is not a final judgment or order, for the reversal of which error can be prosecuted before the final disposition of the case.” Oonorcl v. Bimnels, '23 Ohio St., 601. Such a motion, it is held in that case, is addressed to the sound discretion of the court. If granted, it does not determine the action, but merely compels the parties to re-try their case before the same tribunal; and if overruled, it simply permits the determination of the action already reached to stand. It may be said that sustaining the motion has the effect of preventing- a judgment in favor of the successful party at the trial, and affects a substantial right of his by subjecting him to the costs and uncertainties of another trial, and it undoubtedly does temporarily prevent final judgment, but not eventually; and the costs and uncertainties of another trial is the result of some error which the

i court in the exercise of its discretion deems sufficient to warrant it. And so, if the motion be overruled, the unsuccessful party must incur the expense of a proceeding in error, if he is dissatisfied with the result; but neither the overruling or sustaining of the motion is, within the meaning of the code, such final order as- may, itself, be the foundation of a proceeding’ in error.

But, it is said, a party may be deprived of his remedy on error by the court declining or omitting to pass on the motion until the expiration of the time allowed, after the rendition of the judgment, for commencing the proceeding. It is not to be presumed that the court will disregard its duty, or fail to dispose of the motion at any time when requested by the party; and if he, by consent or inattention, permit the time to expire, he cannot complain of the consequences of his own act or omission. The right to prosecute error exists only when conferred by statute; and the remedy, to be effective, must be pursued in the time and mode provided. The statute has declared, in explicit terms, that “no proceeding’ to reverse a judgment fehall be commenced unless within six months after the rendition of the judgment, ’ ’ and the court is powerless to enlarge its terms, if it desired to do so. The time begins to run from the day of the rendition of the judgment. Robinson v. Orr, 16 Ohio St., 284; Bowen v. Bowen, 36 Ohio St., 312.

Judgment affirmed.

Burket and Shatjck, JJ., dissent.


text:
    Jackson et al v. Brick Association.

      Association for illegal purpose not a partnership — Cannot sue in its adopted name — Section SOU, Rev. Stat.

    In contemplation of law an association of persons formed for an illegal purpose, or one against public policy, is not a partnership. Hence, an association formed for such purpose cannot, under section 5011, Revised Statutes, sue in the name adopted for the transaction of its business.
    (Decided June 25, 1895.)
    Error to the Circuit Court of Summit county.

      Kohler & Musser, for plaintiffs in error.
    Oviatt, Allen <& Cobb, for defendant in error.
   Minshall, C. J.

The action below was broug-ht by the Akron Brick Association, claiming- to be a partnership doing- business under that name in the city of Akron, against Jackson and Lyman as defendants. The object of the suit was to recover on a contract, by which, as averred, Jackson and Lyman, agreed to pay the association for brick it was then furnishing- to Barnett & O’Near, subcontractors of the defendants. The defendants denied any liability upon the contract; and also denied that the plaintiff was a partnership doing-business under the name of the Akron Brick Association. They also, as a separate and specific defense, averred “that said Akron Brick Association, so called, is not in fact a lawful partnership, but that said alleged partnership is a combination of all, or nearly all, of the several brick manufacturers and dealers in and about the city of Akron, in which place, and in order to accomplish its purposes, said association has established and now maintains a central office or agency through which all purchases of brick must be made, and through which all sales of brick are made; that the object and purpose of forming and maintaining said association, and of said agency, was and is to control and enhance the price of brick, and in order to prevent and do away with a fair open competition among the several companies, firms and individuals entering into and comprising said association; that the said union or association is in restraint of trade and contrary to sound public policy.”

By a reply the averments of the answer were denied, and, in compliance with interrogations annexed to the answer, the plaintiff added a copy of the articles under which the association was formed and does business. From the view we take of the ease, it is unnecessary to consider any of the errors assigned, other than the one that relates to the right of the plaintiff to sue by the assumed name of the Akron Brick Association. The articles of association in connection with the evidence support the averments of the defense. On the trial of the case the court in its charge to the jury dispensed with any consideration of the question by the jury, saying-: “In our jurisprudence it is no defense to say that the contract was made with a bad man, or with persons engaged in prosecuting acts contrary to law, or the policy of the state, unless the contract grows immediately out of and in connection with an illegal or immoral act. A clear distinction exists in law, as well as ethics, between a contract entered into to do an unlawful or immoral act, or to promote a course of conduct contrary to the policy of the state, and a contract entered into for a legitimate purpose, though made with persons who commit unlawful and immoral acts or promote schemes contrary to good policy. ’ ’

We see no error in the court deciding the matter, nor in the law as stated by the learned judge; the error consists, as we think, in the application of it. The objection relates to the right of the persons composing the Akron Brick Association to sue by that name, instead of the names of those composing the association. If they have that right, it is derived from the provision of section 5011, Rev. Stat., which reads as follows: “A partnership formed for the purpose- of carrying on a trade or business in this state, or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, or by which it is known ; and in such case it shall not be necessary to allege or prove the names of the individual members thereof.” A partnership is an association with certain incidents recognized by law for the convenient transaction of legitimate trade and business; it cannot, therefore, be formed for an illegal purpose, or one contrary to public policy. Metcalf on Contracts, 116; 1 Bindley on Partnership, 91; Sampson v. Shaw, 101 Mass., 145. It therefore follows that if the Akron Brick Association was organized for a purpose contrary to public policy it has no right under the statute to sue by the name assumed in its business — it is not a partnership within the meaning of the statute. This does not deny to the persons comprising the association the right, in their individual names, to maintain an action for the price of brick sold and delivered to a third person, or the enforcement of any contract that in no way depends upon the illegal arrangement as between themselves. The law stated by the court in its charge properly applies to such a case, but does not to the question made here; which goes simply to the right of the persons comprising the association to sue in the name assumed by them, under the provisions of the section above quoted. It is a right derived from the making of a lawful contract of partnership, and can only be exercised where a lawful contract of partnership has been made and entered into.

The evidence in the case tended to, if it did not conclusively, show that the association was formed for the simple purpose of controlling the price of brick in the interest of the members. Such combinations are against public policy, as has been frequently held in this state. Salt Co. v. Guthrie, 35 Ohio St., 666; Emery v. Ohio Candle Co., 47 Id., 320; State v. Standard Oil Co., 49 Id., 137, 185. ■The. court refused to say to the jury that if they found such to have been the object of the association, a recovery could not be had in favor of the association by its assumed partnership name, and charged the jury as before stated. This, we think, is error, for which the judgment should be reversed.

Our Code does not provide for a plea in abatement. An association of persons suing under section 5011, Rev. Stat., must bring themselves within its provisions by averment; if they do not, the omission is a proper ground of demurrer. Ilaskins v. Alcott, 13 Ohio St., 210. So that when the objection does not appear on the face of the petition, it must be made by answer if the defendant would rely on it. That was done in this case. The plaintiff, then had an opportunity to dismiss its suit and bring it in the names of the proper parties, if it desired to do so. Instead of doing so it took issue upon the answer, so that it became a question of fact to be determined by the jury under proper directions from the court.

Judgment reversed, and cause remanded for further proceedings.