author: Birchard, C.

text:
    The Mansfield and Sandusky City Rail Road Company vs. John P. Veeder & Co.
    When, by the terms of the contract between a Rail Road Company and a contractor, the estimates of the Engineer are to be binding upon the parties, a Court of Chancery has power to correct the mistakes of the Engineer.
    In construing the contract, the Court will use the terms employed by the parties according to their popular signification, if to apply them according to technical or scientific rules, would defeat the manifest intention of the parties.
    Words of doubtful meaning'will be so construed as to carry out the apparent intention of the parties.
    This is a Bill in Chancery, reserved in Erie County,
    The bill is brought to enforce the specific performance ’of a contract, by compelling the defendant to accept a conveyance of real estate..
    The plaintiff is constructing a Rail Road from Richland county to Sandusky ; the defendants are contractors, and the contracts, so far as they bear upon this case, are as follows :
    “This agreement, made the 6th day of February, A. D. 1844, by and between the Mansfield and Sandusky City Rail Road Company, by Burr Higgins, their agent and general superintendent, of the Northern Division of said Company’s Road, of the first part, and John P. Veeder, Robert Higham, Andrew DeGraff, and John F. Barnard, of the second part, Witnesseth : That the second party, for and in consideration of the premises and undertakings hereinafter contained, of the first party, do hereby promise and agree, to and with the said first party, that they, the said second party, of their own proper costs and charges, will execute and perform the following work :

      First. Said second party are to grub and fall all the timber necessary to be grubbed and felled in said first party’s roadway between the village of Monroeville, in the. county of Huron, and the north line of Richland county. This work to be performed under the direction and control of the Company’s engineer, and the compensation for the same to be estimated and fixec* said engineer.

      Secondly. The said second party are to grade all such parts of the above described section of said Company’s Road as the said first party by their said engineer may direct, plans and profiles of the excavation, embankment, and all other work necessary to complete the said grade under the superintendence of said engineer, have been exhibited to said second party, and the said second party are to perform all the work necessary to complete the said grade under the superintendence and direction of said engineer, and are to receive from the said first party at the time, and in the manner hereinafter pointed out, nine cents per cubic yard, for all embankments, and the same price for all excavations by the said second party made in the constructing of said grade, and no other compensation is to be paid for the same to the said second party, except three hundred dollars extra to be allowed on the excavation; and in cases where the said second party may be obliged to excavate fast rock, shale rock, or hard pan, in which cases the additional compensation is to be determined by said engineer.

      Third. The said second party are to do and perform all the grading which the said first party by their said engineer may require them to do, upon that part of said Company’s Road which is situated between the north end of the first bridge north of Monroeville, where the new location intersects the old Road line, and a point in said old Road line fifteen miles north of the intersection aforesaid. And the said second party are to receive from the said first party as compensation for this portion of said work, the same prices which they are to receive for similar work south of Monroeville and no other; this part of the work is also to be performed under the direction of the engineer, and to be by him estimated and measured.

      Fourth. It is understood by the parties to this agreement, that that portion of said work which is situated south of Monroeville is to be constructed, portions of the section as a pile road, and other portions as a sill road, and that other contractors are to be engaged in the performance of some portions of the work, at the same time that the said second party are to . ^ J engaged m the performance of their portion of said work; it is further understood by the parties that the work north of Monroeville is to consist chiefly in alterations and repairs of the old road bed now in use, the extent, kind and quality of which alterations and repairs have not been fully determined by the engineer of the said first party, and that therefore a necessity exists of referring the whole work during its progress, both as to time, quality and quantity, to the determination of the engineer of said Company. The said second party therefore agree that the work which they are to perform under this agreement, shall be done at such time as said engineer may direct, and he shall have full power to determine, not only the time, but the quantity and quality of all the work by them to be performed under this agreement.

      Fifth. The Engineer of said Company shall estimate all the work which may be completed by said second party under this agreement every ninety days, until the. entire work is completed. The first estimate is to be made on or about the first day of April, A. D. 1844, and before the last estimate shall be paid, the entire work shall be accepted by the engineer and superintendent of said Company.

      Sixth. The said first party are to pay for all the work performed under this agreement by the said second party according to the prices herein above stated, and the estimates and decisions to be made upon the same by the said engineer, in time and manner following, that is to say: upon the presentation of the estimates of the said engineer, said first party are to pay the same, saving and excepting therefrom ten per cent, which is to be reserved by the said first party as security for the performance of the entire work on the part of said second party until the entire work is completed ; but the said ten per cent, so reserved, together with the three hundred dollars extra pay' for excavation, as stated in article second, and all other sums which may be due to said second party, shall' be paid by the said first party to the said second party whenever the said f™a!1f completed.”
    Article 7th relates to payment of certain amounts in Rochester lands. Article 5th contains provisions as to the manner of prosecuting the work.
    The second contract of July 6, 1844, relates to a rock excavation and certain work on the old road bed, and to certain lands in Castalia, which are to be received in payment, upon which there is no litigation.
    The contractors prosecuted their work, and estimates and payments were made from time to time. At the close, the parties differed as to the amount of money due, and the contractors declined receiving the lands, and commenced suits at law. The Company, claiming it had made full payments of all moneys, brought this bill to compel the contractors to accept title of the lands in full satisfaction of their claim.
    The Common Pleas referred the case to a Master to take an account upon the following principles :
    1. “The compensation of the defendants is not limited to the plans and estimates, made at the time of executing said contract, but the parties are entitled to payment at the contract price for the whole work done by them, as it has been, or may be estimated by the Company’s engineer.
    2. “ The estimates of the Company’s engineer as to the quantity and quality of the work is conclusive upon the parties unless fraud be shown, or mistake, or undue influence, or want of good faith,” (such) “ as is the subject of relief by the ordinary principles of chancery.”
    In February, 1848, the Master returned the following report:
    The report of E. Andrews, Special Master Commissioner in the above entitled cause, to whom the same' was referred to take and state an amount of work done and payments made under said contracts, and to report the same, &.c., now states, that on the 5th day of May, 1848, pursuant to notice given, the parties, by their solicitors, appeared before the Master, at the court house in Sandusky City, in said county, and then and there proceeded to a hearing in said cause, which was progressed in through the 5th, 6th, and a part of the 7th days of May, aforesaid, both parties, by their solicitors, present. The Master having read and heard the pleadings, proofs and exhibits, and heard the arguments and allegations of counsel, and duly considered the same, came to the following opinion and findings, to wit: That by the terms of the contracts entered into by the parties, and by the order of reference made at May Term, 1847, the estimates of the Company’s engineer as to the quantity and quality of the defendant’s work, is to be conclusive upon the parties, unless fraud be shown, or such conduct or mistake, or undue influence, or want of good faith, as is the subject of relief by the ordinary principles of chancery.
    It is to be presumed that Webb, the Company’s engineer, acted in good faith, without fraud or undue influence. If he did not, it devolves on the party claiming fraud to prove it. Fraud is not to be presumed. It is true, that there is conflicting evidence as to what constitutes hard pan; or rather, whether any hard pan was found in the excavation of defendants’. But the fact that there were different opinions among men as to what was or was not hard pan, does not prove that Webb, the engineer, acted corruptly in making his decision. He might commit an error in forming his opinion, and yet riot act corruptly. But has not the engineer, Webb, made a correct decision is regard to the substance called hard pan ? The contracts of the parties were made in the State of Ohio, and were to be performed in this State. The construction, then, of the contract is to be governed by the laws of this State, as much so as if the law of the State affecting the contracts were embodied in the contracts and made part of them. If, then, the law of the land where the contract is made enters into the construction of the contract, are not the terms, or words made use of in the contract, more appropriate to be defined by those who reside and have resided for a great length of time within the limits of this State, and who, from the nature of their employment and the confidence reposed in them by the State authorities and the community, must be supposed to be better qualified to de1 cide as to the meaning of the words hard pan in contracts like the present ? The engineer, in deciding that the hard material found in the New Haven and Paris cuts was not hard pan, is sustained in his opinion by the testimony of Alfred Kelley, R. Dickinson, and Blickensderfer, men who have been for years on the public works of this State, and who ought to be, and probably are, best qualified to decide what is and what is not hard pan in the State of Ohio. It is true, that M. Porter, Shoemaker, -and some others, state that the material in question is hard pan. But the Master considers that the weight of the testimony is in favor of the decision made by Webb. The Master, therefore, finds that the material in question is not hard pan, and should, in stating the amount, be estimated as common earth excavation, and under the contract should be computed at 9 cents per cubic yard.
    The Master is of the opinion that no deduction should have been made by the engineer in measuring the embankments, on account of piles, small culverts and ties; but that the same should have been included as embankment in the measurement. He believes that, had the engineer been left to exercise his own judgment in the matter, uninfluenced by others, he would have included the piles and small culverts in the measurement. In answer to question 35; Webb says: “ I do think that piles are no advantage to contractors, even though measured as embankment.” In answer to 5th question, on re-examination, he says: “ But for one of these propositions, I should have measured the piles and small culverts as embankment. I then thought, and still think, in strictness, they should be deducted from embankments under that contract.” B. Vroman, in answer to 17th question, says: “ It is not customary to deduct them, (piles, ties and small culverts,) I never heard af such thing as- deducting them.” H. Darrow, in answer to 11 th question, says he had, in 1845, a conversation with Mr. Higgins in regard to building the road by defendants. “ He (Higgins) said they would make a good deal in their job by having the piles in the embankment estimated, as they would measure a great deal.” “ Afterwards (witness says) he had a conversation with Mr. Webb, he said Mr. Higgins had given him orders to deduct the in his estimates of the embankments; he said he did not think it right for him to do so.” C. Williams, former engineer of the Company, in his deposition in answer to 8th question, says: “ They, (the defendants) were to have no deduction made for the space occupied in the'embankments by the piles.” Porter says it has been the rule, on all works where he has been employed, not to deduct them. See answer to the 9th question, Porter’s deposition.
    I. The Master, therefore, finds that the defendants - have, under their contract with complainants, excavated, on the twenty sections south of Monroeville, one hundred and thirty-five thousand four hundred and eighty-four cubic yards of excavation ; and that defendants have, on said sections made, for complainants, one hundred and ninety thousand three hundred and thirty-two cubic yards of embankment, which includes six thousand eight hundred and thirty-eight cubic yards of piles, small culverts and rail crossings, estimated as embankment — making the total amount of excavation and embankment 325,816 cubic yards, at nine cents per cubic yard, is..... $29,323 44
    II. The Master considers that the existence of ditches are a necessary part of the work, to carry off the water that might otherwise accumulate at the foot of the embankments, as well as through cuts, and that the defendants should be allowed for the i same as for excavation; that there is no estimate made by Webb, the engineer of the company, and the Master has taken the estimate made by M. Porter, who makes the estimation of ditches to be 14,576 cubic yards, which, at nine cents per cubic yard, amounts to $1,311 84, which the Master finds in favor of defendants...... 1,311- 84

      The Master makes no allowance to defendants for excavation of side ditches, or borrowing pits; considers that it was not the intention of the parties, at the time of making the contract, to allow for the same; that borrowing pits were resorted to for the convenience of defendants; that such pits form no part of the road, nor are they necessary for the use or preservation of the same.
    III. The Master finds and allows to defendants the sum of $2,784, the value, as estimated by the engineer, of clearing and grubbing 1856 stumps, at $1,50 each,.................... 2,784 00.
    IY. The Master also finds and allows to defendants the sum of $300 for extra work, by the terms of the contract,..................... 300 00
    The Master further reports, that, as the excavation of slate rock, in that part of complainants’ road north of Monroeville, was to be, by the terms of the contract, measured and estimated by the Company’s engineer, and as the said engineer has estimated the same at 25 cents per cubic yard for excavation, the Master is of the opinion that, under the reference aforesaid, such estimate is conclusive; and as the last above item is the only disputed item and allowance made by the engineer in the work north of Monroeville, the Master reports and finds the estimates for that work to be the same as estimated by said Webb, the engineer, that is as follows, to wit :
    Y. For excavation and embankment, commencing at the crossings of Milan road, in Sandusky City, and extending at the north end of the plank road on section 12'—

      From C. Williams’ estimate,....... 23,316
    Estimate for rise of grade, 3-10 ft. cubic yard,................... 11,200
    Cubic yds. at 9 cts. per cubic yd.,... 34,516 3,106 44
    VI. For slate excavation, 9 and 8, 950 yards, at 25 cents,............................ 237 50
    VII. Taking up old iron, sawing pike, and plates, filling and tamping old sill pit, as directed by engineer, 10 3529-5280 miles, at 150 dollars per mile,............................... 1,600 25
    VIII. For grubbing and clearing above sections,.. ,39 00
    IX. Sandusky bay, as measured by Webb and Sargent, 6655 cubic yards, at 14 cts.,........... 931 71
    X. Rock excavation of above section, as measured by Webb and Sargent, 13,700 cubic yards, at 75 cents,................ 9,755 25
    XI. The Master allows for extra work (over and above the §300 named in the contract,) to the defendants the sum of §189 75, the items of which are particularized and fully stated in the . Exhibit hereto attached, marked A., and is a part of this report, under the head of “ Items of extra work allowed,”..................... 189 75
    §49,579 18
    XII.That as to the title of the lands in Rochester, in the State of New York, the Master reports and finds that the complainants having procured a quit claim deed, executed by George F. Dan-forth and wife to Burr Higgins, dated October 8th, 1847, and delivered the same to defendants on hearing before the .Master; and the defendants, through their solicitor, expressed themselves to be satisfied therewith; by consent of parties, the Master reports and finds the title to the RoChester lands to be good, and that complainants can make a good title to the same.
    XIII. That the title to the Castalia property is also good.
    XIV. The Master reports and finds, that the complainants have, from time to time, made payments to defendants, each item of which, the time of payment and the amount of each item, are particularly specified in a statement of an account of items paid by complainants to defendants, as stated in the exhibit hereto attached, marked A., the full amount of which, as admitted by defendants to be correct, is $39,965 08, to which should be added, $45 91 paid com plainants on taxes and interest on the same — making the total amount paid by complainants to defendants to be $40,010 99,............. 40,010 99
    XV. Leaving a balance now due defendants, of work done, of nine thousand five hundred sixty---eight 19-100 dollars,..................... 9,568 ] 9
    XVI. The Master further reports and finds, that there is due defendants for interest on $ 9,568 19, the sum of $ 1,127 46, being interest at the rate of 6 per cent., computed from May 28, 1846, the time when the work was completed, to May. 19, 1848; no date was shown to the Master of the several estimates intermediate, so as to enable the Master to go back of May 28, 1846, in making his computation,.................. 1,127 46
    Making the total amount due defendants, including interest to the first day of this Term, of ten thousand six hundred and ninety-five 65-100 ---- dollars,................................$10,695 65
    For time spent, &c., Master’s fees, $100.
    E. ANDREWS,

      Special Master Corner.

    May 15, 1848.

      Exceptions were filed, but overruled, and the Common Pleas entered a decree adopting and confirming the report, from which the defendants took an appeal. ■
    The exceptions to the title are waived and the following are the only present subjects of dispute:
    1. The right to additional compensation for the excavation of hard pan.
    2. The under-estimate by the engineer, both of the stipulated and the extra work.
    The plaintiffs rely upon the engineer’s estimate and determination as conclusive. That determination is as follows : “ I determine that Messrs. Yeeder & Co. are entitled to no extra allowance for slate rock, fast rock, quick sand or hard pan.” The defendants assert this determination was produced by fraud or undue influence, or unjust and improper means.

      Lane Beecher, for Complainant.

      Geo. Beber., T. Ewing and J. H. James, for Defendants.
   Birchard, C.

J. A preliminary question necessarily arising upon the exceptions to the report of the special Master is, how far conclusive is the decision of the Company’s engineer ? In the original reference, the Master was required to adopt as conclusive, the estimate of the Company’s engineer as to the quantity and quality of the work unless fraud be shown, or mistake, or undue influence, or want of good faith, such as is the subject of relief by the ordinary principles of Chancery. From a careful consideration of the various clauses of the contract, it seems to us that both parties contemplated relying upon the engineer’s judgment and science in estimating the amount of work to be paid for, and the price also to be paid in all cases where the terms of the contract do not fix the rate of compensation.

The contract itself is drawn with less precision than most contracts for labor upon the public works of the State, which have fallen under my observation. Many, indeed most that I have seen contain an agreement that the decision of the engineer final and conclusive in any dispute which may between the parties. Such was the contract between Easton and the Pennsylvania & Ohio Canal Company; 13 Ohio Rep. 81. With such a stipulation, -there would be very little room to doubt the conclusiveness of-the decision fairly made by the chosen umpire of the parties. It could not or ought not to be relieved against, upon any principle more loose than the rule given to the special Master as his guide by the Court of Common Pleas. But it is urged strongly that the terms of the engagement entered into by the respondents, do by no means bind them so rigidly. The question to be decided is one that ought to be so viewed by a Court of equity as to accomplish the intentions of the parties. They are in a Court of equity, and each seeks to stand upon his equitable rights, as they are fixed and controlled by the terms and spirit of their contract. The last claim of the second article of the agreement provides that “ in cases where the said second party may be obliged to excavate fast rock, shale rock, or hard pan, the additional compensation is to be determined by the said engineer.” This, as has been already said, does not in terms make the decision final, yet the force of the language is such as, in our estimation, to leave no doubt that the parties understood that they were both agreeing to abide his decision.

If we are right in this particular, it would follow that his opinion should be conclusive, unless susceptible of being relieved against for some of the causes specified in the order of reference. It was the duty of the Company to keep in their employ an engineer, capable, honest and free to exercise a sound, disinterested and impartial judgment in estimating the additional compensation, or, to employ the words of the contract, “to determine it.”

The engineer in the Company’s employ, after the completion of the work, estimated the entire excavation at the contract price of nine cents per cubic yard, making no additional allowance for excavating about thirty-five thousand cubic yards of a hard material, which cost from twenty-five to forty cents per yard. In this the Master’s report sustains him. The great question of difficulty, in this case, arises upon this The inquiry is, was the material thus difficult of excavation the substance contemplated by the parties and designated by the term hard pan. That the parties contemplated encountering a substance difficult to be removed, which was not common earth or rock, either fast or shale, is beyond doubt, but what they meant by this word is not clear. The term is not of very common use among men of science. It is not defined in treatises upon geology, and yet is here employed to denote a substantive and component part of the earth. Many practical men, and some who possess in a good degree both practical and scientific knowledge have, been called upon to testify what is to be understood by the term. It is singular that no two of them define it exactly alike. Yet it has long been a name in popular use among farmers and well diggers to denote a hard earthy substance, composed of gravel, sand and clay, very compact, nearly impervious to water and too hard to be excavated by the spade. And, as we believe, was and has been in this State, since the Geolological Survey of the State in 1837, used to designate a hard, compact earth, generally composed of sand and pebbles, cemented by clay, or clay combined with other ingredients.

In the Geological Report to the Legislature in 1838, Mr. Briggs, Assistant Geologist, in describing the limestone region of Wood.county, says: “ Resting on the limestone is a blueish clayey stratum, in which are sometimes found pebbles of primitive and secondary rocks. At some localities, where the pebbles predominate, it assumes the character of a blue, compact hard pan, while at others it is nearly free from these coarser materials.”

Again, in Mr. Kelly’s well, in the south part of Montgomery township, Wood.county, the following arrangement of the material was observed:

1. Surface loam.

2. Yellowish loamy clay, 10 feet.

3. Blue hardpan 15 do.

4.Limestone.

The same deposites are found in the Black Swamp. Their average thickness is,

1. Dark soil, 1 foot.

2. Yellowish sand, 2 feet.

3. Blue hardpan, 3 feet, resting on brownish yellow limestone. — Geological Rep. 1838, p. 115.

I cite this report not because it is believed to be scientifically accurate in its description of material, for it is supposed that the Geologist instead of adopting a scientific has employed a popular term, in the popular sense as found used by him among the people of that part of Ohio ; and because we have by Mr. Kelly’s deposition evidence of what was meant by the word hard pan, as here used by Professor Briggs. Specimen^ of the material have been produced, taken from the well mentioned by Mr. Briggs, and we have compared them ourselves with specimens of the article claimed by the respondents to be hard pan, taken from the excavation of complainants’ road. The substances are not distinguishable, the one from the other. If Briggs found hard pan in Kelly’s well, the respondents found it on the rail road. But there is a mass of evidence which tends strongly to the same point. Sundry witnesses have been called who have for a long time been employed upon roads and canals in this and other States, who have seen the material excavated from the track of complainants’ road, and who concur in stating that it is what they have known as hardpan. Specimens have been produced from the public works of New York which are proven to have acquired that name there, and which when compared with the substance of specimens taken from the road here, are substantially alike. We profess not to be accurate chemists, or scientific geologists, yet the experiments which have been made in our presence, prove to our satisfaction that the respondents clearly supposed they were stipulating for a payment of more than nine cents per cubic yard for the excavation of this hard substance, and that their belief was that the hard pan embraced it, It would be the height of injustice turn them away with that pitiful compensation, when the actual cost of the labor was three or four times that sum. It ought not to be done unless their case is such that the injustice is unavoidable. That the laborer is worthy of his hire, is a maxim of morals too sound to be disregarded for a slight cause. Nevertheless, if the other contracting party did not understand hard pan to mean what the respondents understood from it, there may be propriety in refusing the allowance for this labor.

How is that ? For what purpose did the Rail Road Compa- > ny cause that word to be inserted ? It must have been placed there for some purpose. Their witnesses, Forrer, Kelley, and others, had never known it to be used in contracts made with the Board of Public Works. They had never known any estimate to be made for any such substance, in any of the State contracts. Those contracts contained no such clause. And most, I think all but one, say they have never seen on any of the public works or in this State, the article which they should call hard pan, and that the specimens in evidence are not such; In their definitions they do not agree with each other. They do not pretend to be guided by works on science, for it is admitted that the aid is not to be derived from books which would enable any of them to testify with certainty. No one of them could refer to a scientific work for a definition. One of them produces a specimen of the material which he calls hard pan, taken from near Zanesville. On inspection, it compares well with a substance described by Lyell as conglomerate or pudding stone, “ Rounded water-worn fragments of rock or pebble, cemented together by another mineral substance, which may be of a silicious, calcarious, or argillaceous nature.” I Lyell’s Geol. 532.

In the Natural History of New York, part 4, p. 160, under the head of “ Compositions of the Drift Deposites,” Profesr sor Mather says: “ The drift deposites are composed of fragments of all the pre-existing rocks, exposed to the action of the causes that have contributed to their transportation and deposition. They are mostly coarse, composed of blocks, boulders pebbles, gravel and sand, sometimes loose, but frequently partially aggregated by argillaceous matter that renders a pick necessary to dig it. Most of the material that is called Hard pan, in New England and New York, and marl on some parts of Long Island, is formed of blocks, boulders, pebble, gravel, sand and clay, partially cemented by the latter. The gravel beds are also cemented by carbonate of lime into a coarse sandstone and conglomerate by the action of alluvial causes.” He mentions places where this last may be seen, viz: At West Point and near the Crows’ Nest, in New York. In a note, also at Zanesville and the Narrows of the Scioto Valley, two miles from Chillicothe. We have in this note sufficient to satisfy us what name the Professor would give to the specimen produced by the witness Blickensderfer. It is taken from the very locality to which he has referred as furnishing conglomerate. The material is often mentioned by geologists as consolidated gravel. It is so treated by Prof. Hitchcock, Dr. Houghton, and Dr. Buckland, and they always mean a species of pudding stone, more or less perfectly cemented by lime or lime and other mineral substances as distinguished from a cement purely argillaceous or clayey.

But whether we have placed it under the proper geological name, or whether an experienced geologist might think it more appropriately classed as a species of Breccia, is a matter of not much moment, so far as this suit is concerned, for it is clearly stone of some sort or other, and not hard pan.

I recur to the question, what did the Company intend to include by hard pan ? If they did not use the word as used by the common people of the neighborhood, if they did not use it in the sense used in the geological survey of that section of the State, it is difficult to suppose they attached any meaning to it. There must have been a purpose in incorporating it into the contract, and yet if no such article as they now claim to be the material called hard pan, was ever known on the route of their road, the query why they used the word at all is very to answer. Their proof, it seems to us, establishes too It should have stopped short of showing that there was nothing upon the road or in that part of the State that was ever called hard pan. We conclude, then, it is fair to suppose that both parties understood the contract alike, and that the engineer, in so construing the contract as to exclude any additional compensation for this excavation, was mistaken, and that equity should afford relief for the error.

It is on the ground of mistake in forming a judgment as to the true meaning of the parties that we choose mainly to place the respondents’ title to relief, in reference to this important. item. Mr. Webb may have been influenced in forming his opinion, and most likely was to some extent, by the honest opinions of others, whom he justly regarded men of sufficient science to justify him in listening to their counsels.upon a matter which he regarded as doubtful.

We do not believe he has knowingly erred, or that any one of the civil engineers, whose testimony has been taken in all this controversy, has been influenced in testifying by any motive derogatory to the character of an honest, pure minded man. They have differed, it is true, in opinion upon points about which honest and intelligent men might well disagree — upon which bias or errors of opinion formed in childhood might have influenced them beyond what they were conscious of; yet on reading their testimony and considering the general candour of their statements, we felt regret that counsel should have been betrayed by zeal for their clients on either side, into any severity of remark concerning their evidence.

As to the other items it is sufficient to say that there is nothing in the evidence sufficient to induce us to change the report of the Master. He has placed much reliance upon the estimates of the engineer in charge of the work. In all doubtful matters he should have done this. His decision ought not to be disturbed without strong evidence of its being mistaken and erroneous.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    Hugh C. Stewart and others vs. Wm. R. Southard.
    A declaration averring that the plaintiff is a resident of a certain school district, having children which he is desirous to have taught in said school, and that the defendants, directors of the school district, contriving to .deprive him of the benefit of having his children therein educated, unlawfully admitted colored children into the school, whereby the plaintiff was deprived of the benefit and advantage of having his children taught in said school, is bad on demurrer.
    An officer, acting within the scope of his authority, is only responsible for an injury resulting from a corrupt motive.
    This, is a Writ op Error to the Court of Common Pleas of Fayette County.
    The original action was Case. In the declaration Southard avers that he was resident, &c., of school district No. one, in the township of Paint, in which a common school was taught, that he had sons and daughters of the proper age which he was desirous to have taught at said school. That the defendant (now plaintiffs in error) at the time, &c., were school directors of said district, and contriving, &c., to deprive him of the benefit of having his said children educated, &c., at said district school, wrongfully admitted certain colored children into said school, whereby he was deprived of the benefit and advantage of havv ing his children taught at the same, and has been put to great trouble and expense in procuring them to be taught and educated.
    A second and third count are contained in the declaration, neither of which is materially different from the first.
    To this declaration the defendant demurred.
    His attorney adds to the demurrer this : “ all objection to form and substance waived. The only question to be raised to be the constitutionality of the school law.” ' The Court of Common Pleas overruled the demurrer. The defendant plead the genenral issue. The cause was submitted, to the Court and judgment rendered for the plaintiff for $25. Two errors are assigned.
    ... 1st. That the declaration is insufficient.
    2d. That judgment was given for plaintiff when it should have been given for defendants.

      Robert Robinson and J. II. Thompson, for Plaintiffs in Error,
    cited the following authorities:

      Ramsey v. Riley, 13 Ohio Rep. 157; Kendall v. Stokes et. al., 3 How. Rep. 97 ; Harman v. Tappender, 1 East’s Rep. 555; 3 How. Rep. 794 ; 1 Denio’s Rep. 599.

      J. L. Green, Thurman &f Sherer, for Defendant in Error,
    cited the following authorities :

      Williams v. Directors of District No. 6, Wright’s Rep. 578; Jeffries v. Ankeny et. al., 11 Ohio Rep. 372; Thacker v. Hawk et. al., Ibid. 376; Lane v. Baker et. al., 12 Ohio Rep. 237; Chalmers v. Stewart, .11 Ohio Rep. 386; McCormick v. Alexander, 2 Ohio Rep. 65.
   Birchard, C. J.

This is in the nature of an action for misbehavior by a public officer in the discharge of his duty. The acts complained of are not charged to have been done either wilfully or maliciously. The most that can be made of the averments of the declaration when tried upon a demurrer is, that the plaintiffs in error, while acting in their corporate capacities as directors of- a school district, misjudged the law and acted erroneously. “ There is no instance of an action of this sort maintained, for an act arising merely from an error of judgment.” Harman v. Tappender, 1 East’s Rep. 555. In Ramsey v. Riley, 13 Ohio Rep. 157, this Court held that an officer acting within the scope of his duty is only responsible for an injury resulting from a corrupt motive. These principies are clearly applicable, and must be conclusive of the merits of this declaration, unless we should depart from them. We are not induced to do so unless required by the authority of our own decisions.

The case of Lane v. Baker, 12 Ohio Rep. 238, is presented as a decision directly in point, as opposed to the rule above stated. The only thing decided in that case was, that youth of more than half white blood are entitled to the benefit of the common school fund. No question seems to have been raised touching the sufficiency of the declaration, and had there been, we think that after verdict (the state in which the question was presented) that declaration would have been held sufficient. This declaration, under our statute, is to be tried on demurrer. The difference between testing the sufficiency of a declaration on demurrer, or after verdict, is too distinct to need remark. On demurrer, the intendement is against the pleader. After verdict it is in support of the pleading. So that in the latter case a good title defectively set forth is cured. In Lane v. Baker, the declaration avers a clear right in Lane to send his children to the school, avers it was supported by the common school fund, that he sent his children, who were white, to the school, and that the directors well knowing the premises and contriving and wrongfully intending to injure him, and to deprive him of his just rights, turned said children out of said school. I concurred in that decision and have always thought it went far enough and should not be extended. It is true the special verdict, in that case, does not find a corrupt motive or malice, but as said above, the object of taking it in that form was to present the simple question whether a child more white than, black was entitled to share in the common school fund, and in point of fact no other question was discussed and decided in that case. But, by this remark we do not mean to question or cause doubts of the correctness of the decision in Lane v. Baker, for there is a distinction between turning a scholar out of a school who has a just right to be there, and thus inflicting a positive injury, by depriving him of a privilege which ought to be regarded inestimable, and admitting into the school such scholars as may possibly render this lege less desirable. The one is a positive denial of a right, the other is an act which possibly may annoy one in the exercise of a right. The one is an injury which is tangible and can be measured, the- other is of a different character. ■ A distinction akin to this was taken in Jeffries v. Ankeny et al., 11 Ohio Rep. 374, in which, although the doctrine of general immunity of trustees of townships, when acting without a corrupt motive is fully recognized, as a general rule, yet they were there held liable for erroneously refusing a lawful vote without proof of malice, upon the ground that the law afforded no other adequate remedy — that necessity demanded it. It would hardly follow, from the fact that Jeffries was allowed to maintain his action for the erroneous refusal of the trustees to receive his, vote, that he would be entitled to maintain an action against a board of trustees who should erroneously receive the vote of an alien, whereby his vote was neutralized. Much less, if in consequence of the alien’s voting he should stay away from the' polls and refuse .to vote, would he be allowed to sue and aver that thereby he was deprived of the elective franchise.

Still this last supposed case of Jeffries would not be more novel than this action brought by Southard. That would be a case of first impression, and so is this. That, in principle, would be unlike any thing before known, and so is this, for in principle they are alike. If an action could be maintained against the trustees of townships by any voter who would refuse voting merely because they had erroneously received the votes of aliens, or if one could be maintained against school directors by any person who withdraws his children, in consequence of an error committed through conscientious and mistaken notions of duty, or through ignorance, it is easy to foresee that it would be difficult to procure men to accept such offices. The danger of being annoyed or perhaps ruined by vexatious prosecutions would be too great tQ justify a prudent man in hazarding the risk. Were we to take a stride beyond the cases of Jeffries v. Ankeny, and of Lane v. Baker, strong enough to sustain such action, we should place it in the power of captious persons to break up probably three fourths of the schools in the State. If suit may be maintained for an error in admitting colored children, (and we think it was probably wrong) it must be on a principle that will enable every member of the school district to maintain an action for the same, or for any other mistake in the discharge of their duties. No necessity demands the establishing of such a principle.

There is another objection however to the declaration. The 50th section of the statute (Swan 840) provides that a common school may be continued by the directors, or funds raised by voluntary subscription, or at the expense of those sending scholars. How this school was supported does not appear. Southard does not aver that it was supported in whole or in part from the school fund, or by voluntary subscription. It may have been sustained entirely by those sending scholars for any thing that appears in the declaration, and if so, he has no right of action. If the negroes furnished the funds which paid the teacher and he did not — if they became liable for it and he did not, he cannot complain that they enjoyed the benefit of their own money.

The declaration is bad, and the judgment must be reversed. But the defendant has formally waived all matters of both form and substance and agreed that his case shall be decided upon the constitutionality of the school law. We cannot with propriety be called on to perform a work of mere supererogation. It is our duty to decide such questions only as become necessary to ascertain the rights of the parties litigant, and are legitimately presented upon the record, and we cannot admit that parties have the power to call for an opinion on a matter not thus presented, and which is out of the ease.

Judgment reversed and demurrer sustained.


author: Read, J.

text:
    Trumbull County Mutual Fire Insurance Company vs. James T. Horner.

      A member of a Mutual Fire Insurance Company when sued upon an assessment upon his deposite note, to pay a loss occasioned by fire, cannot set up as a deience that he and his associate corporators have neglected to comply with the provisions of their charter,
    This is a Writ of Error to the Court of Common Pleas of Trumbull County.
    The action below was Assumpsit. It was brought to recover an assessment upon the deposite note of the defendant, a member of said Company, executed by him to the Company upon the issuing of a policy to him by the Company — the assessment being needed to pay a loss sustained by fire.
    The defendant demurred to the plaintiffs declaration. The demurrer was sustained, and judgment rendered for the defendant:. That judgment is sought to be reversed by these proceedings.
    Two points were intended to be raised by the demurrer. 1. That there was no averment in the declaration that $100,000, had been subscribed before the Company issued the policy of the defendant, in accordance with the provisions of the charter. 2. That there was not a sufficient averment of demand before suit brought.
    The case was reserved for the purpose of publishing the opinion of the Court upon the first point.

      Van B. Humphrey, McLain Palm and Crowell &f Brown, for Plaintiff in Error,
    cited the following authorities:

      Henriques v. Hutch West India Co. 2 Lord Raym. Rep. 1535; Ang. & Ames on Corp. 506-7, 574-5, 746-9; 14 John’s Rep. 245 ; 6 Cowan’s Rep. 23; 8 Ohio Rep. 552; 10 Ohio Rep. Ill'; 15 Ohio Rep. 322; 5 Mass. Rep. 230; 5 John’s Rep> 378. 7 pick. Rep. 370; 12 Ohio Rep. 146; 3 Met. 137; 1 Wend. Rep. 557; 2 Blackf. Rep. 367; 16 Mass. Rep. 100; 9 Mass. Rep. 423 ; 9 Mass. Rep. 403 ; 16 Mass. Rep. 94; 14 John’s Rep 338; 13 Ohio Rep. 1.

      Hoffman &f Hutchins, M. £/ C. G. Sutliff, R. P. Ranney and Geo. M. Tuttle, for Defendant,
    cited the following authorities :
    ' tBank U. S. v, Dandridge, 12 Wheat. Rep. 64; Bank of Augusta v. Earl, 13 Pet. Rep. 587; Ohio v. Granville Alexandrian Society, 11 Ohio Rep. 12; 2 Kent’s Com. 298; 4 Pet. Rep. 152 ; 8 Ohio Rep. 286; 11 Ohio Rep, 97, 393; 10 Ohio Rep. 108; 4 Wheat. Rep. 636; 13 Conn. Rep 267; 8 Ohio Rep. 257 ; 2 Pet. Rep,. 527 ; 3 Wend. Rep. 482, 573 ; 2 Cow. Rep. 678; 7 Wend. Rep. 31; 2 Cranch’s Rep. 127.
   Read, J.

We recognize to; the fullest extent the cases cited to show that corporations are to be limited strictly to the powers conferred.

• The objection in this instance is urged by one of the corporators and one of the insured, and we doubt not had he sustained loss by fire, he would as strenuously have insisted upon his policy as he now opposes the payment of the amount assessed upon his deposite note, to pay loss, occasioned by fire to his neighbor.

It does not come with a very good grace from a corporator, after he has aided to put a corporation into action, and partook of its benefits, to deny its existence in order to escape its responsibilities. This would look very much like a man attempting to take advantage of his own wrong to avoid doing what was right, a defence not much favored in law. What the amount to be subscribed by the associates was to be composed of, whether premium notes, deposite notes, or the property to be insured, before policies could issue, is' not matter of easy solution. It is almost if not quite impossible, to determine it from the charter. But be this as it may, we consider a corporationDe when called upon to respond to the obligations of the corporation to be estopped from denying its existence in order to escape responsibility. At all events, when a corporation is sued, it is not necessary to aver in the declaration that the corporators have complied in all respects with the provisions necessary to give them power to act, whatever the ¡case might be in a suit against a mere stranger. Such matter in the case of a corporation, if good at all, must come by way of defence, and then it might be replied that he could not set up his own wrong. As to the averment of demand, this is sufficiently alleged to admit of proof.

The arguments in this case are of very great length and very great ability, as they usually are in cases of steamboats and corporations, and under some other heads of the law. Some fifty suits, it is said, are depending upon this case. But we believe we have said all that is material.

Judgment reversed and cause remanded.