author: Shauck, J.

text:
    Hubbard, as Treasurer of Cuyahoga County, v. Fitzsimmons.

      Erection of armory — Use of national guard, — General purpose oj state — Invalidity of act of April £7, 1898 — Constitutional Law.

    1. The erection of an armory for the use of the national guard is a general purpose of the state, and taxes to be devoted to that purpose, must, in obedience to the requirement of section 2, of article 12 of the Constitution, be levied by a uniform rule upon all the taxable property within the state.
    2. The act of April 27,1893, (LocalLaws, vol. 90, p. 115,) entitled “ an act to authorize the commissioners of any county containing a city of the first class, second grade, to borrow money and issue bonds therefor, for the purpose of building and furnishing a central armory in any such city for the use of the Ohio national guard, and procuring a site therefor ’ ’ is void, being an attempt to make such general purpose the subject of a local imposition.

      (Wasson et al. v. The Commissioners, 49 Ohio St., 622, followed and approved.)
    (Decided January 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The cause having been appealed to the circuit court and submitted on demurrer to the answer of the plaintiff in error, the demurrer was sustained and a final judgment rendered in favor of Fitzsimmons as prayed for in his petition.
    In his petition he alleges that he is a citizen and taxpayer of Cuyahoga county, that he brings the suit for himself and all other taxpayers of the county; that pursuant to the provisions of an act passed April 27, 1893, (Ohio Local Laws, volume 90, page 115) the commissioners of said county, which contains a city of the first class, second grade, issued bonds in the sum of $225,000, denominated Central Armory bonds, that for the purpose of paying the interest on said bonds and to raise a fund sufficient to redeem them at maturity, said commissioners have levied a tax upon all the property appearing on the duplicate of the county; that said bonds were issued for the purpose of building an armory in the city of Cleveland, in said county, for the use of the Ohio National Guard, which is an organization of the .military force of the state, organized and maintained for state purposes and not for a municipal purpose, and that said tax is levied upon the taxable property of Cuyahoga county alone, although the purpose is to provide a drill shed and a place for the storage of the arms and equipments of said state organization. Averring- that said act is unconstitutional and that the commissioners are without authority to levy the tax aforesaid, the plaintiff prayed that the treasurer be enjoined from its collection.
    The treasurer answered admitting that the Ohio National Guard is the active militia of the state, and averring that it is organized not only for state purposes but also for the purpose of protecting the persons and property of the citizens of the several counties upon call of the civil authorities, and that the object of Cuyahoga county in furnishing said armory was for the police purposes of said county and the city of Cleveland; that although the tax is levied upon the taxable property of Cuyahoga county alone, it was levied solely for the police purposes and to enable the sheriff and mayor to maintain order, and to suppress riots and tumultuous assemblies threatening the peace and safety of the persons and property of the citizens of said county; that while said guard is a state organization, it is under the command and control of the 'civil authorities of said city and county by whom it may be used for the purpose of maintaining order.
    For a further defense the treasurer alleged that under authority of the act aforesaid, the commissioners issued, and sold the bonds aforesaid and used the proceeds thereof in purchasing an eligible site causing the title thereto to be vested in Cuyahoga county and in the erection of an armory thereon in accordance with the provisions of said act, and that the purchase of said site and the erection of said armory were necessary to the preservation of the peace in said county.
    The circuit court sustained the demurrer to this answer upon the ground that the act referred to is unconstitutional.

      P. H. Kaiser; M. R. Dickey and Garfield & Garfield, for plaintiff in error.
    Brief of P. H. Kaiser and M. R. Dickey.

    It is claimed that this statute is enacted in violation of the Constitution. Revised Statutes of Ohio, section 3096.
    We maintain that the authority of the commissioners of the county, under the statute cited, is affirmatively conferred and given, by article 10, section 7, of the Constitution of the state of Ohio.

      Sessions v. Crunhilton et al., 20 Ohio St., 349; Miller & Gibson v. The State, 3 Ohio St., 475; Bloom v. Xenia, 32 Ohio St., 462.
    In the case at bar the authority has been prescribed by law. The Constitution vests the power in the commissioners. They have exercised their discretion. Cass v. Dillon, 2 Ohio St., 607.
    Under this provision of the Constitution, the discretion is vested in the commissioners of the county, and under the statute in controversy, the power, the discretion, vested by the Constitution in the commissioners, has been exercised.
    The facts set forth in the answer, are admitted by the demurrer. That this is local taxation, we admit. Was it for police purposes, under the averments of this answer? Holtz v. Commissioners of Henry County, 41 Ohio St., 423; Thorpe v. Rutland, etc. R. Co., 27 Vt., 149; Railway Co. v. Husen, 95 U. S., 465; Morgan v. Louisiana, 118 U. S., 455; 18 Am. & Eng. Ency. of Law, 739.
    Limited to the present purposes of this argument, we will admit, that this is a local law for local taxation, applying at the time it was passed, to Cuyahoga county only. In regard to section 3096 of the statutes, which we have cited, we believe there is no claim that it is unconstitutional.
    We think that the questions involved in regard to this law, are very properly stated and discussed in the case of Langdon et al. v. The Trustees of Columbia Township, Hamilton Co., Ohio, 14 Law Bull., 325; State ex rel. the Attorney General v. The City of Cincinnati, 20 Ohio St., 18; C. W. & Z. R. R. Co. v. Commissioners of Clinton Co., 1 Ohio St., 77.
    To us it appears clear that the act in question in this case is one specifically provided for and authorized by the Constitution of the state. But, if we are mistaken in this, we then affirm that it is not prohibited and is within the purview of the power vested in the legislature by virtue of the Constitution. Baker v. The City of Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573.
    We are informed that this statute contravenes section 5, Article 9, of the Constitution.

      Section 3097, Revised Statutes of Ohio, provides for the enforcement and execution of the call so made in the statute already cited, by the sheriff, mayor or judge of any court in the county, and for the punishment for disobedience to such call by the officers or enlisted men of such organization.
    The fact that the people of the state generally, may receive incidental benefits from this armory, and the result of this local taxation, certainly does not make this law objectionable.
    Under the provision of the Constitution cited, if necessary for police purposes in the county, and proper legislation provided for the same, it would certainly be legitimate for the county commissioners to purchase arms, organize companies of men, provide an armory for the arms so purchased, and at the sole expense of the county, by local taxation, provide for the protection of the persons and property of citizens residing in the county; and it appears to us, that if the commissioners can obtain these arms, and the services of the National Guard, organized and resident within the county, at less expense, and thus secure the desired result, it cannot be urged as an objection, that the people of the state are saved some expense thereby.
    We think that the true rule is announced by this court, in the case of Wasson et al. v. Commissioners, 49 Ohio St., 622.
    The statute in controversy in this case, does prescribe by law, the power -which in this case has been exercised for police purposes, and how this can be claimed to be unconstitutional, we are unable to see, as the Constitution specifically provides for the exercise of the power thus prescribed by the general assembly. Cass Township v. Dillon, 16 Ohio St., 38; The State v. Kiesewetter, 37 Ohio St., 546.
    Brief of Garfield & Garfield, for plaintiff in error.
    This court is asked to declare the tax in question and thereby the bonds now in the hands of innocent buyers illegal, and to make the injunction for the payment of interest thereon perpetual on the ground that the enabling statute of April 27, 1893, 90 O. L., (Local) 115, is in conflict with the Constitution.
    We venture to call the attention of the court to certain principles of constitutional construction which have been repeatedly enunciated by this court. Lewis v. McElvaine, 16 Ohio, 347; Lehman v. McBride, 15 Ohio St., 573; Railroad v. Clinton Co., 1 Ohio St., 77; State v. Cincinnati, 20 Ohio St., 18; Walker v. City of Cincinnati, 21 Ohio St., 14; Fletcher v. Peck, 6 Cranch, 87.
    It has been contended in some quarters that the judicial branch of the government was endowed with almost Papal powers of declaring void the act of the legislative branch of the government,if it conflicted with natural justice or the spirit of the written Constitution. There is no question but that such a contention, if admitted at all by the courts, is only admitted in very isolated cases. The great burden of authority, being as set forth in State v. Cincinnati, 19 Ohio, 178; Cooley, Constitutional Limitations, p. 128.
    The courts have repeatedly stated that under the present Constitution, the supreme legislative power of the state is reposed in the legislature, subject only to the express limitations of the Cod stitution. Baker v. Cincinnati, 11 Ohio St., 534.

      The plaintiff in error therefore contends that the county may premise its argument on three unquestioned, well-settled principles of constitutional construction, to:wit:
    (1) That to authorize a court to interfere with a legislative act by declaring it unconstitutional, it must be so clearly and explicitly contrary to the letter of the Constitution as to be beyond a doubt.
    (2) That the courts may not adjudge a law unconstitutional because in their opinion it is contrary to the spirit and temper of the Constitution or to natural right and justice, and
    (3) That the legislature is supreme and absolute, subject only to the express limitations of the Constitution.
    Examining the statute in question, through the perspective of these rules of construction, the court is asked to declare it unconstitutional on the ground that it is in violation and contravention of the following clauses of the Constitution, to-wit: Article IX, section 5; Article X, section?; Article XII, section 2.
    We submit that by the act in question (90 O. L. (Local) 115), the legislature is but giving effect to the Constitution by providing for the housing of the arms. It is to be borne in mind that counties and townships are but quasi-corporations, ministerial divisions of the state and endowed with public and sovereign powers. They are mere administrative circumscriptions, and as such, within the complete control of the legislature. They possess no vested rights and are but convenient agencies for accomplishing the ends of government. In endowing them with authority to erect an armory, the legislature has done just what re does when it authorizes the construction of roads, bridges, schoolhouses, drains, jails and courthouses for the common welfare. The act in question is in the nature of a delegation of power by the legislature leaving the acceptance thereof and the means to be employed to the discretion of the county. See volume 2, Debates, 747, 867, 868, 869. Hence, we contend that' the section limiting the power of local taxation to police purposes was only intended to exclude taxation for purposes of internal improvements, and is the only construction which gives point and meaning to Article X, section 7. Burgess on Political Science and Constitution, 1 Law, volume 2, p. 136; New York v. Miln, 11 Peters, 102; Barbier v. Connelly, 113 U. S., 27; Blackstone, Book 4, p. 161; Cooley, Constitutional Limitations, 572; Dillon, Mun. Corp., volume 1, section 54, note (1) p. 95, Lakeview v. Rose Hill Cemetery, 70 Ill., 192; State v. Noyes, 47 Me., 189; Tiedeman in Police Power, 1; Thorps v. Rutland, 27 Vt., 150; Boston Beer Co. v. Mass., 97 U. S., 25.
    We submit, in the light of the above rules of construction, the debates of the Constitutional Convention and the definitions of “police power,” that the erection of an armory is within the police power of the state, and included as a police purpose reposed in the counties by Article X, section 7.
    The act in question is further held to be in violation of Article XII, section 2, of the Constitution.
    See Debates of the Convention, volume 1, resolutions on pages 106, 108 and 298. The reports of the standing committee on Finance and Taxation, p. 513, and minority report. Note zoell volume 2, pages 34, 35 and 36 as to the intention to assess all property by uniform rule. See amendment of Dorsey, p. 36, which is an expression of the object of the above section and the real sense of the convention as manifested by the discussion. Also remarks of Humphreville, p. 37; Dorsey, pp. 38 and 39; Humphreville, pp. 41, 54, 55 and 56; Archbold p. 56; Loudon, p. 59.
    The same sentiment appears relative to section 4, article 12, see p. 116. This section finally was merged in article 12, section 2. See resolutions, 128, 129, 130; especially p. 131, petition from Hamilton County, p. 754; Mr. Gregg’s remarks, p. 755; resolutions, p. 831. On pages 818 and 819, the members gave an excellent idea of what the convention had in mind when it enacted this section. Note memorial introduced, pp. 151 and 192. Note also pp. 651, 755, 826, 831, 331, 732.
    The debates are to control the meaning of the Constitution in matters of doubt. Cass v. Dillon, 2 Ohio St., 607; State v. Foraker, 46 Ohio St., 677.
    And the evil intended to be remedied by the Constitution is to be taken into consideration in determining- its meaning. Cleveland v. Wick, 18 Ohio St., 303.
    From the above debates it would seem clearly apparent-that the convention, when it framed this section, never entertained the view contended for by the attorneys for the defendant in error, and that to so interpret the section, is to do violence to its true meaning; to read into it a meaning no suspicion of which appear's anywhere in the debates. The various decisions of this court, on this section are not inconsistent, but represent a growth, and development of the section under the hands of the court is interesting. Exchange Bank v. Hines, 3 Ohio St., 1.
    The legislature, in the absence of express constitutional limitation, is the sole judge of the apportionment of taxation as well as the amount thereof. Moreover, and. we believe this goes to the gist of the ease, whenever the purpose authorized is a mixed one, partly state, partly local, partly appertaining to the well-being of the state and partly appertaining to the specific community benefited, the legislature is the sole judge of the expediency or propriety of the tax. Walker v. City of Cincinnati, 21 Ohio St., 14; Railroad v. Clinton Co., 1 Ohio St., 77; Bowles v. State, 37 Ohio St., 35; Schenley v. Allegheny, 1 Casey, 130; Sharpless v. Philadelphia, 21 Pa. St., 147; Cooley, Const. Lim., 598; Peoples. Supervisors, 20 N. Y., 252; People v. Lawrence, 41 N. Y., 137; Litchfield v. Vernon, 41 N. Y., 123.
    It is this general principle - which sustained the issuance of the railroad aid bonds by local civil divisions in nearly all the states and also by the federal courts. Olcott v. Supervisors, 16 Wall., 678.
    And we find this court reaching a conclusion similar to that claimed by the plaintiff in error in this action in the so-called bounty cases. Anderson v. Harris, 17 Ohio St., 608; Cline v. Wilkinson Township, 20 Ohio St., 288; Bates v. Richland Township, 20 Ohio St., 370; Freeland v. Hastings, 10 Allen, 570; Corner v. Folsom, 13 Minn., 219; Veazie v. China, 50 Me., 518.

      White, Johnson, McCaslin & Cannon, for defendant in error.
    We claim the statute is in violation of the following provisions of the Constitution: Article I, section 19; Article IX, section 5; Article X, section 7; Article XII, section 2. And, if the argument of plaintiff in error is correct, it would also be in violation of Article II, section 26.

      If the sections, upon which we rely to sustain our contention that the statute in question is uncontitutional, are examined in connection with . the statute, it will be seen that our claim is that Article X,. section 7, authorizes giving counties power to impose a tax only for local police purposes; that Article IX, section 5, requires the state, at the expense of the state, to provide for the keeping of the arms of the state, in the custody of the state; that Article XII, section 2, requires uniformity of taxation in the taxing district; that the taxing district for the expense of a state institution is the state at large; and that part of this expense cannot be assessed upon the state at large, including a particular county, and another part upon that particular county, and that doing this to relieve other counties from the burden is also a taking of the property of that county for the private benefit of the citizens of the other counties of the state, and is also a violation of Article I, section 19. Analyzing this claim yet further, it will be found that our position depends upon the claim that the state militia and the national guard are a state force, created for state purposes, governed by the state at large, performing duties which the state, as a whole owes to ibs citizens, and that, hence, the expense of the militia or national guard should be paid for wholly by a state tax, and not by a tax imposed upon one county of the state.
    We suppose that about certain rules regulating taxation there can be little question, at least in Ohio. Taylor, McBean & Co. v. Chandler, 9Heisk., 349; Cooley on Taxation, 141-2; Wasson v. Commissioners, 49 Ohio St., 622; State ex rel. Long v. Brinkman., 7 Ohio C. C. Rep., 165; Daniel v. Columbus, 8 O. C. C. Rep., 642; Wilder v. Daniels, 53 Ohio St., 658; State ex rel. v. Kreighbaum, 9 O. C. C. Rep., 619; State ex rel. v. Commissioners, 54 Ohio St., 615.
   Shauck, J.

It is not supposed that the commissioners of Cuyahoga county were without authority to levy the tax in question, if the act of April 27, 1893, is constitutional, nor that such authority is otherwise conferred upon them.

It was settled in Wasson et al. v. The Commissioners, 49 Ohio St., 622, that section 2, of article XII of the Constitution, requires that “all taxes for general revenue for the state must be levied by a uniform rule upon all the taxable property within the state. ” No attempt will be made to add to the clearness or force of the very satisfactory reasons there given for that conclusion.

It remains to inquire whether the purpose to be accomplished by the taxation in question is local to Cuyahoga county or general to the state. That it is for the purchase of a site and the erection thereon of an armory for the use of the national guard, the active militia of the state, is averred in. the petition, admitted in the answer, and required by the act. The character of the guard and the purposes of its organization are not to be determined from evidence upon issues joined in the pleadings, but as matters of law from the constitutional and statutory provisions by which it is created and controlled.

It is ordained in section 10, article III, of the Constitution, that the governor shall be commander-in-chief of the military and naval forces of the state. The ninth article of the Constitution is devoted to the subject of the militia of the state, and the fifth section of that article imposes upon the general assembly the definite duty that it “shall provide, by law, for the protection and safe keeping of the public arms.”

Title XV. of the Revised Statutes, provides for the enrollment, organization, government, equipment and pay of the guard and the care of the public arms. The guard may be ordered into active service by the commander-in-chief, it is subject to his orders, and it is provided that “the adjutant general shall, subject to the order of the governor, have control of all public arms, ammunition, accoutrements, etc., belonging to the state. ’ ’ The character of the militia as a state organization is thus definitely fixed. It is not at all affected by the fact that it may sometimes be called upon to aid the civil authorities in the preservation of public order. That duty is as clearly due to the civil authorities of Lorain county as to those of Cuyahoga. It is equally due from the entire guard to the proper civil officers of every county and municipality of the state. That some incidental benefit would result to Cuyahoga county from the erection of a public building in its chief city is doubtless true. But any view which would recognize such incidental benefit as a proper basis for a local imposition, would equally justify a tax on the property of Franklin county for the erection of a state building for the use of this court.

Nor is this question in any way affected by the fact that the legal title to the armory is in Cuyahoga county. The character of the imposition is determined by the fact that the armory is to be used for the accomplishment of duties which the Constitution charges upon the general assembly and officers of the state.

The validity of a similar act was denied by the circuit court in Daniel v. The City of Columbus, 8 C. C. Rep., 642, and its judgment was affirmed by this court for reasons given in the opinion of the circuit court, 53 Ohio St., 658. It was there said: “The expenses incident to the performance of a duty of this general character cannot be made the subject of a local imposition. * * * The purpose to be accomplished by this expenditure is common to the state at large; and the taxes by which it is to be met, must, in obedience to the requirement of section 2, of article XII, of the constitution, be levied by a uniform rule upon all the taxable property within the state.”

The same conclusion was reached by the circuit court of Stark county in State ex rel. v. Kriegbaum et al., 9 C. C. Rep., 619, and its judgment was unanimously affirmed by this court. 54 Ohio St., 615.

The case presents no reason why the purchaser of these bonds should be exempt from the familiar and salutary rule that one who relies upon the act of a public officer must take notice of the limits to his authority. The courts of this state have never encouraged confidence in the validity of acts of this character. Not only so, but in a well considered case decided at the February term, 1893, the circuit court of Putpam county had held a similar act void. State ex rel. Long v. Brinkman et al., 7 C. C. Rep., 165.

The answer in this case has received the particular attention which counsel invited. Its averments contrary to the Constitution and the laws are unavailing to change the legal character of the guard; and the suggestions of local advantages to result from the erection of the armory had been ably presented in tbe briefs of counsel in tbe former cases.

Judgment affirmed.

Minshall, J., dissents.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    Jackson v. Ely, Executor.

      Written instrument — Acknowledging settlement and payments— Is not a mere receipt — Cannot be contradicted by parol evidence— Section 524%, Revised Statutes.

    X. A written instrument in the following terms : “$15.50 Wooster, Ohio, May 13, 1890. This is to certify that I have this day settled with John Ely, and he has paid me all he owed me, up to this date, and I have no claims or demands against him of any kind whatsoever. Mrs. Wm, Jackson,” is not a mere receipt, but contains an agreement to the effect; that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other ; its terms clearly import that all matters of account existing between the parties at the time were included in the settlement; and as parol evidence which tends to prove that certain matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible.
    2. Conversations and admissions concerning which a party may testify under the provision of the fourth exception to section 5242, Revised Statutes, are those orally made by him. This exception does not authorize him to testify concerning a written statement in the nature of a settlement between the parties that may be adduced against him on the trial
    (Decided December 17, 1897.)
    Error to tbe Circuit Court of Wayne county.
    Tbis action was brought in tbe court of common pleas of Wayne county by Hannab Jackson, plaintiff in error, to recover of tbe defendant in error, as executor, compensation for personal services rendered by ber in ‘ ‘nursing, feeding, washing the person and clothing” of the testator, while he was “sick and confined to his room” during the last years of-his life.
    The executor, bjr answer, set forth that by “divers and numerous receipts, discharges and payments in full,” had between Mrs. Jackson and his testator, the last of which occurred only three days before the testator’s death, all claims that she might have had against the testator had been fully paid; he also set forth a settlement between himself and Mrs. Jackson, had of course after the death of the testator. The cause was tried to a jury and a verdict rendered for Mrs. Jackson, upon which the court of common pleas gave judgment. This judgment was reversed by the circuit court for error committed by the court of common pleas in allowing .Mrs. Jackson to testify and in its charg'e to the jury. Mrs. Jackson thereupon instituted proceedings in this court to reverse the judgment of reversal.

      John C. McClarran and Adair & Adair, for plaintiff in error.
    . The errors relied on in the circuit court were:
    I. —In overruling motion for new trial.
    II. —In charge.
    III. —Refusals to charge.
    IV-V. — Admission and exclusion of evidence.
    VI. — That the judgment was not sustained by the evidence.
    The determination of the remaining six grounds determines the first.
    It was urged that there were four portions of the charge that contained error as follows:

      1. ‘ ‘The burden of p roof of paymen t and receipts as evidence of payment is upon the defendant. ’ ’
    That the burden of proof of' payment.is on the party alleging- it, is well settled. 1. Rice on Evidence, section 118; Am. & Eng. Ency. of Law, 18, 201; 2. Greenleaf, section 516.
    2. ’ “The question for you to determine is whether the services paid for and evidenced by those receipts include the claim she now sues for, or not. ”
    This means no more than that in order to entitle these receipts to be regarded &s prima facie qyidence of payment for the services in question it must be shown by the date, by reference to the subject-matter of the receipt, or by any proper evidence that the receipts refer to the services in question. Merely to produce a receipt executed by a party, does not make a prima facie case of payment against him until it is shown that it refers to the payment that is in question.
    3. These receipts are not a bar, but are subject to explanation. That receipts are only prima facie evidence of payment is well settled. 1. Greenleaf Evid., (13th Ed.) section 305. 2. Greenleaf Evid. (13th Ed.) section 517; Babcock v. May, 4 Ohio, 334; Dean v. King, 22 Ohio St., 118.
    And it made no difference that the receipt purports to be in full. Merrick v. Boury, 4 Ohio St., 63; Toersch v. Blackwell, 14 Barb., 607; Ryan v. Ward, 48 N. Y., 204; Coburn v. Gansing, 46 Barb., 37; Ill. Cent. R. R. Co. v. Welch, 52 Ill., 183; Letts v. Letts, 41 N. W., 99.
    The instrument which this court in this case in the Bird v. Hueston, 10 Ohio St., decided was not a receipt, but a contract is wholly different from the instruments claimed to be contracts in this case; and that case is clearly distinguishable from this.
    1. If these instruments were receipts, there was no error in allowing them, to be explained.
    2. Did it violate the rule which prohibits a party from testifying in certain cases. This is to be. determined by the consideration of section 5240 et seq. of the Revised Statutes.-
    A receipt is simply a written admission. Receipts are treated under the head of admissions in all the text-books on evidence. They are uniformly treated as written admissions.
    Greenleaf, Volume I, section 212:
    “Receipts are mere admissions.”
    I Philip’s Evidence, (Fourth American Ed.) page 474:
    “A written receipt for money is an admission of great weight against a party. ’ ’ I Rice on Evidence, section 246-b.
    "Where a person secures the rendition of valuable services upon a promise to compensate by will and fails to do so, an action lies for the value of the services. Schouler on Wills, section 453.

      Charles M. Yocum, for defendant in error.
    That a receipt for money is not conclusive or that such a receipt may not be explained by the party executing it, is not denied, for that is the law as declared by. Greenleaf, Starkie, Phillips and every author on evidence, and so decided in many adjudicated eases, but that certificates of discharge of all indebtedness; releases from all claims and demands of whatsoever kind, and declarations of settlements therefor, such as the twenty-four exhibits signed by the plaintiff in error, may be varied, altered or explained by parol, is denied. These written exhibits mean the union of mind and mind; they are contracts and furnish their own evidence of consideration — a contract being ‘ ‘ an agreement to do or not to do a particular thing upon sufficient consideration.”
    When the law says ‘ ‘a receipt of money in part or in full may be explained by parol, ’ ’ the meaning-of that statement is very important. It is,that that fact may be denied or controverted by parol —but that is all. Por instance, the consideration named as received in a deed — by the grantor from the grantee — may be shown to be different from that specified, but no one would contend that the stipulations and covenants in the deed could be explained or controverted by parol.
    When parties declare payment, release, discharge and relinquishment of all claims, and enter into a contract of settlement in writing, executed by one and accepted by the other, the intentions of the parties are, in law, regarded as merged in the writing, and it is taken as the true purpose of the parties aid its operation cannot be thwarted and defeated by testimony in parol. Thompson v. Ketcham, 8 John., 148; Barber v. Brace, 3 Conn., 9; Stone v. Vance, 6 Ohio, 247.
    An instrument in writing — acknowledging the receipt of money — and further stating that same is in full for all claims, or demands, or for damages, or in settlement thereof, is not a simple receipt which can be explained or varied by parol evidence. Wait’s Actions and Defenses, volume 7, p. 464; Illinois Cent. R. R. Co. v. Welch, 52 Ill., 183; Stapleton v. King, 33 Iowa, 28; McCormick v. Sarson, 45 N. Y., 265; Goss v. Ellison, 136 Mass., 503; Hale v. Spaulding, 145 Mass., 483; Wakefield v. Stead-man, 12 Pick., 564; Bursley v. Hamilton, 15 Pick., 42; Eggleston v. Knickerbacker, 6 Barb., 464 and 466; Niles v. Hill, 8 Barb., 207; White v. Parker, 8 Barb., 48; Van Ostrand v. Reed, 1 Wend., 424; Creery v. Holley, 14 Wend., 26; Kellogg & Dumont v. Richards & Sherman, 14 Wend., 116; Sherman v. Mayor of New York City, 1 N. Y., 320; Coon v. Knap, 8 N. Y., 402; Goodyear v. Ogden & Pearl, 4 Hill, 104; Emrie v. Gilbert & Co., Wright’s Rep., 764; Wilson v. Bailey, 1 Handy, 177; Babcock v. May et al., 4 Ohio, 346; Stone v. Vance et al., 6 Ohio, 247; Bird v. Hueston, 10 Ohio St., 418; C. H. & D. and D. & M. R. R. Co. v. Pontius & Richmond, 19 Ohio St., 236; Perkins v. Fourinquet et al., 14 How., U. S., 327.
    In the foregoing and many other authorities, the principle is distinctly laid down that such instruments of writing will be enforced according to the plain intent of the contracting parties, unless they have been procured through fraud or mistake, neither of which is claimed in this cause by the plaintiff in error. Renner v. Bank of Columbia, 7 Wheat, U. S., 587.
    Can it be reasonably claimed that these ‘ ‘exhibits” are simply receipts ?
    Can it be claimed that they are receipts and contracts, that can in any way be disconnected ?
    Each and every one of them declares settlement with John Ely, or the executor of his estate — which is a contract of itself — and a further declaration that he has paid the plaintiff in error all he owed her to date and that she has no claims or demands against him whatsoever, with -a single exception, and therein she declares that she owes him. There is no such thing as a transposition of terms. Every one is a contract — an affirmation — an asseveration distinct, pointed, connected, linked together as on¿ instrument.
   Bradbury, J.

The record discloses only two questions that we think are of sufficient importance to require consideration; both of which rise out of the testimony of Mrs. Jackson, plaintiff in error.

The action was brought by Mrs. Jackson to recover the value of personal services bestowed by her on John Ely, the testator, during the last two years of his life. The services began in May, 1889, and continued until his death in April, 1891. He had reached an extreme old age when the services began, and they were such as an old and failing-person might be expected to require. She moved into a house belonging- to him and as she 'contends, under a contract which provided merely for his board and the care of his room, and, perhaps, for his washing, but not for nursing and other personal attentions. No other person than herself and family was in or about the house, or in a situation to bestow on him such personal attention as -one of his age might ordinarily require,, and from the time she began the occupancy of his house and to board him and care for his room, whatever personal attention he received was given by her, except at a certain period or periods, when severe illness required the services of a nurse. From time to time, during the period she was there, she and the testator came to an agreement, and he paid her the sum agreed to be due her, taking on each of these occasions, twenty-two or twenty-three in all, an instrument signed by her all of which were alike in substance and very nearly alike in form, their phraseology differing, where at all, only in the most immaterial particulars, and in many instances one is an exact copy of another, except as to date and amounts. The following is a sample:

“$4.50. Wooster, April 14, 1891.
This is to certify that I have this day settled with John Ely, and he has paid me all he owes me up to this date and I have no claims or demand against him of any kind whatsoever.
Mrs. H. Jackson.”

This is the last of the series, and was executed and delivered to the testator only three days before his death. A week later, and after the death of the testator, his executor, who it seems bore the same name, came to a settlement with Mrs. Jackson at which time the following instrument was executed by Mrs. Jackson and delivered to him:

“$23.00. Wooster, April 21, 1891.
This is to certify that I have this day settled with John Ely, and he has paid me all he owes me up to this 'date and I have no claims or demands against him of any kind whatsoever.
Mrs. H. Jackson.”

On the trial, this series of instruments were put in evidence by the executor in support of his contention. After the defendant had closed his evidence, .the plaintiff, Mrs. Jackson, was called as a witness in her own behalf, and over the objection of the defendant, founded on her incompetency as a witness, as well as on the inadmissibility of her testimony, she was permitted to testify touching the items that were included in the settlements, evidenced by these writings. Her attention was called to them one by one, until she had explained, substantially, all of them. Taking, for example, No. 5 of the series, which reads:

“$15.50 (No. 5.) Wooster. Ohio, May 13,1890.
This is to certify that I have this day settled with John Ety, and he has paid me all he owed me up to this date, and I have no claims or demands against him of any kind whatsoever.
Mrs. Wm. Jackson.”

This was handed to her and she testified in regard to it.

“Q. Look at Exhibit 5.
A. That is for the same; boarding and meals; that is for the S3.00; a week’s boarding or some meals for grandpa and for his washing and ironing and mending and caring for his room; that is what that is for.
Q. Was it given for taking care of him?
A. No, sir, it was for his washing and mending and ironing and caring for his room and boarding.”

Whatever the general rule may be as to the reception of parol evidence to explain a mere receipt, it is not admissible, at least in Ohio, to vary the terms of a contract although, the contract should be included in an instrument which was also a receipt for money or property. Stone v. Vance et al., 6 Ohio, 246; Bird v. Hueston, 10 Ohio St., 418, 421, 430.

The line that divides receipts, open to parol explanation from written contracts to which nothing can be added to or taken from by parol evidence, has not been satisfactorily established, and eases can be found, which it is extremely difficult if not impossible to reconcile. That the above instrument (No. 5), is something more than a mere receipt seems quite clear from an inspection of its terms. It states that the parties had come to a settlement in respect to every claim or demand that had before then existed between them. The sum of money stated in the margin, $15.50, manifestly is a part of the instrument, it represents the amount found to be due upon an adjustment of whatever items were then open between them. True, the instrument does not expressly state who was found to he the debtor, hut the unmistakable inference is that it was the testator; neither did he sign the paper; that, however, was the case with the instrument in States. Vance et al., 6 Ohio, 246. There, only the party that. received the property signed the instrument which was in the form of a receipt, but, nevertheless, it was held to embody the terms of a contract binding- on all parties. The fact that the party not signing, takes into his possession, control and custody, the instrument, establishes his assent to its terms.

A settlement is a contract between two parties by means of which they ascertain the state of the accounts between • them and strike a balance. Bouvier defines it in contracts as “An agreement by which two or more persons who have dealings together so far arrange their accounts as to ascertain the balance due from one to the other.” Volume 2, 634; 22 Am. & Eng. Ency. of Law, 488.

In Gass v. Ellison, 136 Mass., 503, the Supreme Court held a writing in the following terms to constitute a contract that could not he contradicted by parol. “Received of Mr. Elmer Ruggles a note on six months for fifty-one dollars, with interest as full payment, as per claim.” The court, speaking through Morton, C. J., says: “If this could be treated merely as a receipt, it might be open for plaintiff to show by parol that it was not intended as full payment and satisfaction of his claim against Ruggles. But it is more than a receipt. It is not only an acknowledgment of the receipt of Ruggles’ note for fifty-one dollars, but is a statement of what the note was received for. It was received as full payment for the plaintiff’s claim against Ruggles. If the plaintiff should sue Ruggles, this contract would be a bar to the suit, because it is conclusive evidence of a settlement and satisfaction of the claim against him.” See also, Brown v. Cambridge, 3 Allen, (Mass.) 474.

If under our statutes Mrs. Jackson had been a competent witness in the action, the rule which permits the parol explanation o f receipts, may have authorized- her to testify that the amount found due on these settlements had been paid in part only, or not at all. If, however, this should be conceded, it would be no grounds to allow her to contradict or vary by parol, the declarations of those instruments as to the matters that had been included in the settlements which they evidenced. These instruments clearly and unequivocally import that every matter in difference between the parties to them, existing at the time they were respectively executed, had been comprehended in the settlements to which they relate; therefore, to permit her to testifj’, orally, that the demands on which her action was founded had not been included, was to permit her to contradict by parol the terms of the instrument. This was prejudicial error.

2. There was, however, another ground upon which her testimony on this subject should have been rejected. The adverse party was the representative of a deceased person, and on that ground she was excluded by section 5242, Revised Statutes.

She was testifying to matters that necessarily occurred in the lifetime of the testator, for it related to the matters that entered into a settlement had between herself and him. The fourth exception of section 5242, Revised Statutes, it is claimed, made her a competent' witness in respect to this testimony. That exception is in the following terms: “4. If a party offer evidence of conversations or admissions of the opposite party, the latter may testify to the same conversations or admissions.” Counsel contend that these instruments signed by Mrs. Jackson were admissions within the meaning of that term as it is used in the exception above cited, and, therefore, as those instruments,- being her admissions, were offered in evidence by the opposite party, she could testify respecting them. This contention has, at least, the merit of novelty. Doubtless the usual meaning attached to the word “admission” is broad enough to include written as well as oral admissions, so that the contention is not wholly groundless if it is novel. We think, however, that the subject-matter to which it relates and the connection in which it is found, indicate quite clearly that oral admissions, only, are intended. Every written contract, or statement in writing, is in one sense of the word, an admission made by each person who may sign it; but certainly, there must be many such, that may be introduced in evidence, which are not admissions within the exception, and it would be extremely difficult to distinguish those which would fall within from the others which fall without that exception, if parol evidence in such cases should be admitted at all. The only practicable rule on the subject, perhaps, open to adoption, would be that which would give to the living party the right to give his version of his written admissions, wherever they are introduced against him, if the writing should he such that it is open to parol explanation.

We do not, however, think this to be a correct interpretation of the statute. The word admissions in this exception is employed in connection with the word conversations, and as supplementary to it. “Conversation” when employed to denote an interchange of sentiments, or a talking together, implies mutuality; the notion ordinarily conveyed by its use, is an oral discourse, or talk, in which two or more participated, while the word “admission” is applicable to a statement or declaration made by one person alone. The two words together seem to embrace every form of oral statement contemplated by this exception, while either, alone, might not be broad enough to do so. W ritten statements speak for themselves; the3r are composed of the very words chosen, or adopted by the person against whom they are offered in evidence, while the witness who attempts to repeat oral statements made by another is neither expected, or required bjT law, to give the statement with that precision; he need only give the substance of the conversation, or admission, and this, too, in language of his own choosing’. He may not have heard every word the other employed, or if he did, may not have fully comprehended their meaning, or if he at the time they were spoken, heard, and accurately understood the meaning, he may have forgotten some of them when called as a witness. While oral admissions are often valuable and satisfactory evidence, those who are conversant with such matters are keenly alive to the possibility that even the most conscientious witness may convey to the court or jury an impression of what was said quite different from that which the words of the party himself would have conveyed, had they been accurately repeated. Substantial reason, therefore, appear for discriminating between oral and • written statements of a party in this regard. Reasons that have no application to written statements, hut furnish strong grounds for permitting a party to give his version of his own oral discourse or admission that has been adduced against him. The court of common pleas therefore erred in holding Mrs. Jackson to have been a competent witness under the fourth exception of section 5242, to testify concerning the matters that were embraced in the settlements established by the instruments introduced in evidence against her. They were not admissions within the meaning of that word as used in that clause of the statute.

The circuit court committed no error in reversing the judgment of the court of common pleas»

Judgment affirmed.


text:
    Mack v. The Degraff & Roberts Quarries et al.

      Sale of building materials — In another state and delivered in this state — Right of mechanics' lien — Law of inter-state contract.

    One, who, in another state, sells and delivers tó a principal contractor, materials to be transported by the latter to this state and used by him here in constructing a public improvement, is entitled to the same rights under the mechanics’ lien laws of this state, that one may assert who sells and delivers, within this state, materials to be thus used. To apply to such a transaction the mechanics’ lien laws of Ohio, is not giving to them an extra territorial operation.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiff in error brought in the court of common pleas of Cuyahoga county, against the city of Cleveland, an action to recover a sum of money claimed to be due, on account of a paving contract, entered into between the city and J. L. Sterling & Son, the plaintiff’s action being founded on an assignment and transfer, from J. L. Sterling & Son to “The John Porter Company” and by that company to the plaintiff. The plaintiff recovered a judgment in the court of common pleas, which the cirquit court reversed, whereupon the cause was brought to this court to reverse the judgment of the circuit court. Such facts as are necessary to understand the question decided will be stated in the opinion.

      Gustav A. Laubscher and John G. White, for plaintiff in error.
    Different views prevail in different states as to what, under the statute, gives rise to a mechanics’ lien. Some states, among which are Illinois and Nebraska, hold that it is the use of the materials in the construction or repairing of the building. In Ohio, however, it has become a rule of property that the lien arises out of the furnishing of the materials with a contract that the same shall be used in the construction or repairing- of the building; that the lien exists even though the materials have never been actually used. This was first settled by an inferior court in Horton v. Carlisle, 2 Dis., 184; Hazard Powder Co. v. Loomis, 2 Dis., 544; and afterwards by this court in Beckel v. Petticrew, 6 Ohio St., 247.
    We believe it to be a well established rule of interstate and international private law, that, when the place of contract and the place of x>erformance are the same, the “obligation” and “nature” of the contract are to be determined by the law of that place. No implied incidents will be attached to the contract unless authorized by that law, and, usually, such incidents as are attached to the contract by the law of that place, will be enforced wherever else the contract may come under consideration.
    Thus, if no rate of interest is expressed in the contract, the interest of the place prescribed by the law of the place of payment governs. Story, Conflict of Laws, sections 291 and 296.
    If, by the law of the place of contract, partners are liable in solido, they are then thus liable everywhere, even though, by the law of the domicile of the partnership, each is liable only for his proportionate part. Story, Conflict of Laws, .sections 264, 265, 322; Gilman v. Broton, 1 Mason, 191; Whiston v. Stodder, 8 Martin, Ohio St., page* 95; Tyree v. Sands, 24 La., Ann. 363; Watercraft Act of Missouri, Revised Statutes of Missouri, 1845, page 181, section 1.
    Missouri if the contracts or torts occurred outside of the state. It will be observed that the language of the statute was quite broad enough to cover such cases. Noble v. Steamboat St. Anthony, 12 Mo., 261; Twitchell v. Steamboat Missouri, 12 Mo., 412; Fisk v. Steamboat Forest City, 18 Mo., 587; James v. Steamboat Pawnee, 19 Mo., 517; Revised Statutes of Illinois, Edition 1845, page 71, section 1.
    This was held to apply only to contracts made within the limits of the state of Illinois. Frink v. King, 3 Scam, (4 Ill.) 144-150; Revised Statutes of Michigan, Edition 1846, page 537, section 1. This was held to apply only to contracts and torts contracted and committed within the limits of the state of Michigan. Bidwell v. Whittaker, 1 Mich,, 469;
      Turner v. Lewis, 2 Mich., 350. The reasoning of this case seems directly applicable to the case at bar. Nearly the same ruling was made by this court, under our own Watercraft Law in Steamboat v. Jantzen, 16 Ohio 91; Goodsill v. Brig St. Louis, 16 Ohio, 178, and Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steadman v. Patchen, 34 Barb., 222; Dewitt v. Burnett, 3 Barb., 89; In re Ins. Co., 22 Fed., 109; Cartright v. N. Y. R. & M. R. R. Co., 59 Vt., 675; Le Forest v. Tolman, 117 Mass., 109; Holman v. Johnson, Cowp., 341.
    Take the finding of fact as well founded, and we claim it to be merely an inference which is unsupported by the facts actually found, that there was an expectation on the part of the Quarries Company that the stone would be used in the paving of Kinsman street. There still rested no obligation upon the purchaser to so use it. Had he not so used it, no cause of action would have arisen in favor of the Quarries Company against him. It would not have injured or damaged the Quarries Company, had the purchaser not so used it.
    Carrying out this same thought, it has been repeatedly held that, if intoxicating liquor is sold in a state where such sale is forbidden, the contract remains valid, and the price may be recovered, although the vendor knows that the vendee intends to take the liquor into another state and there sell it contrary to law, provided the seller does no other act to assist the violation of law than to sell the goods, and this rule prevails even though the action for the price of the liquor may be brought in the state where the vendee intends to violate the law. Boothby v. Plaisted, 51 N. H., 436; Williams v. Feineman, 14 Kans., 288; McCarty v. Gordon, 16 Kans., 35; Kling v. Fries, 33 Mich., 275; Dolan v. Green, 110 Mass., 322; Abberger v. Marrin, 102 Mass., 70; Roethke v. Phillip Best Brewing Co., 33 Mich., 340; Webber v. Donnelly, 33 Mich., 469; Bachman v. Jenks, 55 Barb., 468; Feineman v. Sachs, 33 Kans., 621; Mack v. Lee, 13 R. I., 293; Fuller v. Leet, 59 N. H., 163; Sherley v. McCormick, 135 Mass., 126; Lauter v. Rowen, 59 N. H., 215.
    The same doctrine has been applied to the sale of lottery tickets to be re-sold in another state in violation of law. McIntyre v. Parky, 3 Met., 207.
    And to insurance solicited in Ohio by an unauthorized agent, contrary to the laws of Ohio, but the application accepted in New York. Hyde, Receiver, v. Goodnow, 3 N. Y., 266.
    We answer first that while the statute as to mechanics’ liens should be liberally construed when it has once been ascertained that the lien exists, it should be strictly construed when considering whether or not the circumstances bring the case within the statute and give rise to a right to a lien. White v. Rockel, Mech. Lien, pages 44-5; Phill. Mech. Liens, sections 15-21; 2 Jones, Liens, sections 15, 54M3; Tilford v. Wallace, 3 Watts., 141; Copeland v. Kehoe, 67 Ala., 594.
    We answer next, that the presumption is always against our laws applying to contracts made in another state, when the effect of such application is to attach to such contracts incidents or liens not attached by the law of the state where made. Stetson v. City Bank, 2 Ohio St., 167; Booth v. Hubbard, Admr., 8 Ohio St., 243; Hoover v. Penna. Co., 25 Ohio St., 667; Brooks, Admr., v. Ry. Co., 53 Ohio St., 655; Woodard, Admr., v. Railroad Co., 10 Ohio St., 121; Steamboat Ohio v. Stunt, 10 Ohio St., 582; Brigel v. Starbuck, 34 Ohio St., 280;
      Whitford v. Penna. R. R. Co., 23 N. Y., 465; Crowley v. Penna. R. R. Co., 30 Barb., 99; Needham, Admx., v. Grand Trunk R. R. Co., 38 Vt., 294; McCarty, Admr., v. Railroad Co., 18 Kans., 46; The Lottawanna, 21 Wall., 558; Trustees v. Beers, 2 Black, 448; Bourgette v. Williams, 73 Mich., 208; Kinney v. Sherman, 28 Ill., 520. The same ruling was made by the Supreme Court of Massachusetts; Donahy v. Clapp, 12 Cush., 440, and by the Supreme Court of Pennsylvania; Fahnestock v. Wilson, 95 Pa. St., 301.
    So it has been repeatedly held, that, when a contract is made at a time when the statute attaches a mechanic’s lien as an incident to it, the lien cannot be taken away by subsequent legislation. Hallahan v. Herbert, 11 Abb. Pr., N. S., 326. Buser v. Shepard, 107 Ind., 417; Streubel v. Mill & Miss. R. R. Co., 12 Wis., 67.
    These cases seem to be sufficient, also, to dispose of the proposition that attaching a mechanic’s lien to a contract is merely giving a remedy, which all concede is to be governed by the lex fori. We insist that the mechanic’s lien is much more than a mere remedy. That it is a right of property, as was said in the Supreme Court of the United States in the Lottawanna case, already referred to. Christman v. Charleyville, 36 Mo., 610; Fahnestock v. Wilson, 95 Pa. St., 301. The same ruling that a mechanic’s lien was not a mere remedy was made in Weaver v. Sells, 10 Kan., 609, and Warren v. Woodard, 70 N. C., 382; King v. Ship Building Co., 50 Ohio St., 320.
    This is a distinct decision that the furnishing intended by the statute is synonymous with such a delivery as passes title under contracts of sale. The same interpretation is given to the word “furnish” in Horton v. Carlisle, 2 Dis., 184; Hazard Powder Co. v. Loomis, 2 Dis., 544; Beckel v. Petticrew, 6 Ohio St., 247; Watson Coal & Mining Co. v. James, 72 Ia., 184; State v. Freeman, 27 Va., 520. This being so, the goods were furnished in New York. Shall our statute be construed to apply to such contracts? Then had the Quarries Company furnished the stone direct to the city for the purpose of having it used in the paving of Kinsman street, it could have had no lien, or else, to get a lien, it must have filed its verified statement with the county recorder of the county in which Albion,N. Y., is situated. To give this construction would be an absurdity. Does the statute intend to give a lien to sub-contracting material men when it does not give one to principal contracting material men ? Section 3187, which provides for giving a lien where a street, turnpike, road, etc., is constructed by virtue of a contract made with the owner, contains the same provision that the verified statement shall be filed with the recorder of the county where the materials or machinery was furnished.
    Coming down to the decisions directly in point against the ruling of the circuit court, we may refer to the decision of another inferior court in Ohio, Bender, Assignee, v. Stettinius, 19 Bull., 163, 167. We may also refer to the great authority of the court of appeals of New York in Birmingham Iron Furnace Co. v. Glen Cove Co., 78 N. Y., 30; 3 Banks v. Bros., Revised Statutes N. Y., 6th Ed., 797, section 1; Birmingham Iron Foundry v. The Glen Cove Starch Mfg. Co., 78 N. Y., 30; Thurman v. Kyle, 71 Ga., 628; Atkins v. Little, 17 Minn., 342; 2 Compiled Laws of Mich., section 6789; Stout v. Sawyer, 37 Mich., 313.

      It is not true that any of the combinations of facts to which the Ohio law attaches a mechanic’s lien occurred in Ohio. Ohio law, as already shown, attaches the lien to the contract, and to the “furnishing. Both these occurred in New York.
    Did it attach the lien to contract, plus furnishing, plus use, it would be correct to say that part of the combination of facts occurred in Ohio. As it is, the essential facts were a New York contract and a New York delivery.
    It is found by the court of common pleas, and we have shown by our citation from the 78 N. Y., that, were this case turned around, had an Ohio citizen sold and delivered in Ohio, materials to a New York citizen, to be used in constructing a building in New York, the New York courts would not give a lien to the Ohio citizen. Under such circumstances, why should our courts give a lien in this case to New York citizens ? Under such circumstances, it has been held that courts, acting on a so-called principle of retaliation, will not give remedies denied by the law of another state to citizens of that state. Smith v. Brown, 3 Binn., 201; Boggs v. Teackle, 5 Binn., 332.
    By the public policy of Ohio no privileges are to oe extended to persons of states which refuse similar privileges to Ohio citizens. This is strongly marked in the statutes relating to insurance companies.
    Section 3630c, which provides that no certificate shall be given to a company of a state whose statutes do not authorize Ohio companies to do business there on the same basis as in Ohio, was enforced against a New York company in the case of Ohio v. Moore, 39 Ohio St., 486. The same principle was recognized in State v. Reinmund, 45 Ohio St., 214, and the law again applied in State v. Ins. Co., 47 Ohio St., 167 et seq.

    By the amendment in 88 Ohio Laws, page 252, section ,3630c has been made still more stringent, thereby indicating the policy of the state, in accordance with which the DeGraff v. Robert Quarries, a New York corporation should not be granted the relief which the courts of New York would refuse a citizen of Ohio under similar circumstances.
    Supplemental section 6134a (91 Ohio Laws, 408) giving a right to maintain actions in this state for death by wrongful act in another state, provided such other state gives a reciprocal right, is another illustration of this rule of public policy in Ohio.

      Wilcox, Collister, Hogan & Parmely; Ford, Boyd & Crowl and M. G. Norton, for defendants in error.
    The precise question herein made seems not to have been authoritatively decided in Ohio, but decisions construing laws analogous in their force, operation and effect, furnish a solution of the questions herein presented, which, as we understand them, are as follows:

      First — Was it within the legislative power to make the mechanics’ lien law apply to a material man, who, under contract made out of the state, furnished material which was delivered outside of the state, but to be used within this state ?
    And if so,

      Second — Was the mechanics’ lien law in force at the time of the transaction in question, broad enough to include, and did it include, such material man ?
    If we understand the position of the plaintiff in error, he answers both of these questions in the negative.

      He insists, first, that it is not a question of legislative intent, but of legislative power. If the statutes had in terms given this remedy to all who contribute labor or material for the improvement of property within this state, whether the material be actually delivered within or without the state, and irrespective of the place of contract, he would still contend that no lien could be enforced. And yet, the.precise question has been repeatedly decided the other way by the courts of this state in cases arising under the Water Craft Law. Steamboat Champion v. Jantzen, 16 Ohio, 91; Goodsell v. the Brig St. Louis, 16 Ohio, 178; Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125.
    Here it was clearly announced to be competent for the legislature to afford a lien and remedy in this state, for liabilities incurred beyond the limits of the state. Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steamboat Messenger v. Pressler, 13 Ohio St., 255.
    The analogy between the water-craft lien law and the mechanics’ lien law is complete. The former have, in the cases above referred to, been upheld, and will in cases where the facts authorize it, be enforced by our courts irrespective of the place of contract or delivery of supplies.
    The next question presented is: Has the legislature clearly expressed an intention to give to section 3193, Revised Statutes, this comprehensive effect?
    The language of that section is perfectly general.
    The benefit of the act is given to “any material man” who furnishes supplies. Again the analogies of decided cases in this state are complete.
    Section 5430, Revised Statutes, in general language gives exemption to any person who has a family, and the protection of this section has been held to extend to nonresident debtors. Sproul v. McCoy, 26 Ohio St., 577; Cross v. Armstrong, 44 Ohio St., 261.
    If it be true that it. is within the power of the legislature to give a lien for material's furnished to be used in this state, whether delivered outside of or within the state, no good reason can be urged for giving the general language of section 3193 the limited application contended for by the plaintiff in error. Campbell v. Coon, 149 N. Y., 556.
    It will be seen that the New York courts are not upon the principles contended for by the plaintiff in error, in conflict with the following cases, all of which are directly in point and all of which fully sustain our contention: Thompson v. St. Paul Ry. Co., 45 Minn., 13; Fagan v. Boyle Ice Co., 65 Texas, 324; Gatey v. Casey, 15 Ill., 189; Great Western Mfg. Co. v. Hunter, 15 Neb., 32; St. Louis Bridge Co. v. The M. C. & M. W. R. R. Co., 72 Mo., 664.
    The plaintiff in error attempts to distinguish some of these cases from the cáse at bar by pointing out that under the laws of those states it is the placing of the material on the property to be improved which gives the lien, while under the laws of Ohio it is sufficient if the material be furnished for that purpose, whether actually used or not. We do not see how this distinction is of any advantage to the plaintiff in error. The lien in this ease arises under sections 3193 and 3195 of the Revised Statutes.
    It therefore appears that this case being one in which the sub-contractor seeks to reach funds, the only statement required to be filed, is to be filed as in Illinois and Minnesota, with the recorder of the county where the property is situated. It needs no citation of authority to establish the proposition that the same word may have different meanings in the same statute. Thus the word “heir” in the statute of descent and distribution. The word “owner” may mean tenant. B. & O. Ry. Co. v. Walker, 45 Ohio St., 577. The word “owner” may include a mortgagee : Harrison v. The Incorporated Village of Sabina, 1st O. C. C. R., 49.
    And in this very statute the word “owner” may mean “tenant for life,” for “years,” or “owner in fee.” What does “furnish” mean in section 3193, which controls the cáse at bar ? ' Here the delivery would be only to the contractor, and may occur in a county or state other than that in which the property is situated. .
    The plaintiff realizes‘that to give the word “furnish” the meaning contended for in determining the question as to the proper place for filing the lien, will be to confine the right to a lien to cases where materials are actually delivered within the county in which the building or other structure is erected, and he therefore boldly asserts that this was the legislative intent.
    That such construction is too narrow, has been held in two well-considered cases decided in this state by tribunals of jurisdiction inferior to that of this court. Phoenix Furniture Co. v. Put-in-Bay Hotel Co. et al., 33 Bulletin, 318; Carnegie Bros. & Co. v. Railway Co., 1 Ohio, Nisi Prius Reports, 300.
    That laws providing for the creation and enforcement of mechanic’s liens are remedial in their nature, and that the lien does not arise out of, nor is it of the essence of the contract for labor, nor dependent on the motives which suggest its being enforced, is a proposition which is elementary. Phillips on Mechanics’ Liens, 15, section 9, 44, section 28; Woodbury v. Grimes, 1 Colo., 100.
    The following authorities may be cited in support of the proposition that a mechanic’s lien relates solely to the. remedy; is controlled solely by the law of the forum; is not of the essence of the contract of employment, and is subject at all times to legislative control and change: Frost v. Illsley, 54 Me., 345; Bangor v. Goding, 35 Me., 73; Hall v. Bunte, 20 Ind., 304; Martin v. Hewett, 44 Ala., 418; Best v. Bumgardner et al., 122 Pa., 17.
    We contend that the obligation of Sterling & Son to The DeGraff & Roberts Quarries will not be ehang'e'd, and no obligatory incidents will be attached to their contract by giving to The DeGraff & Roberts Quarries the benefit of the Mechanics’ Lien Laws of Ohio. That the sole effect will be to give to The DeGraff & Roberts Quarries a preference over another creditor of Sterling & Son; that this preference arises under the laws of this state and operates sole]y upon property within this state, is not sought to be enforced in any jurisdiction without this state, and that the law relating to and providing for enforcement of this lien is not in any sense extra-territorial.
   Bradbury, J.

In the year 1893, J. L. Sterling & Son entered into a contract with the city of Cleveland, for paving Kinsman street in said city. Prom time to time, as the work progressed, estimates were made of the amount of work done, and of the sums payable to the contractors on account thereof. About the fifth day of July, 1893, an estimate was made, designated as the third, amounting to $2,437.43. Before this estimate was made, the contractors assigned and transferred to “The John Porter Company” $3,000.00 of it. This sum . was larger than proved to have been earned when, after-wards, the assessment was made, so that the assignment covered this entire assessment and was not then fully satisfied.

Notice of this assignment was duly given to the city; afterwards the “The John Porter Company” assigned to the plaintiff in error whatever claim it had against the city of Cleveland by vi rtue of the assignment before noted, made to it by the contractors, J. L. Sterling & Son.

The contractors, J. L. Sterling & Son, procured the stone with which they paved Kinsman street, from the “The DeGraff & Roberts Quarries,” defendants in error, and on the 3d day of July, 1893, the latter company proceeding under section 3193, Revised Statutes, filed with the proper boards of the city of Cleveland, a sworn and itemized statement of the amount and value of the stone furnished by them to the contractors 'for paving Kinsman street, and at the same time filed a copy of such statement with the recorder of Cuyahoga county.

The city of Cleveland declining- to pay the assignee the sum assigned, he brought, in the court of common pleas of Cuyahoga county, an action against the city for its recovery. Thereupon the city answered admitting the making and the amount of the estimate in controversy, but denying that it owed the full amount thereof, and asking that the “The DeGraff & Roberts Quarries” be made a party to the action, which accordingly was done. The “The DeGraff & Roberts Quarries,” on being brought into the action, answered, setting forth that it was a corporation organized under the laws of the state of New York, and duly authorized to transact business in the state of Ohio, and also setting forth that it had furnished to the contractors, under a contract entered into with them, the stone used for paving- Kinsman street, and that not having been paid for the same, they had perfected a sub-contractor’s lien on any fund due from the city on account of the paving of Kinsman street.

The cause was tried to the court, and at the request of the defendants, the court found and stated -the facts, separate from its conclusions of law. It found that the city was indebted to the amount of the estimate No. 3, and that with interest thereon, aggregated $2,692.17.

There seems to have been no contention respecting the regularity of the assignment and transfer of this estimate by the contractor, J. L. Sterling & Son, to the John Porter Company nor from the latter to the plaintiff in error, so that his right to a judg’ment against the city was clearly established, unless the DeGraff & Roberts Quarries had acquired a right thereto as sub-contractors by virtue of section 3193, Revised Statutes. This brings us to the real question in the ease.

The finding of facts shows that the DeGraff & Roberts Quarries had taken every formal step required to perfect their lien upon the fund, but it shows also that the DeGraff & Roberts Quarries was a corporation created under the laws of the state of New York; that, the contract to furnish the stone for paving Kinsman street was made in the state of New York; that the stone was to be delivered to the contractors in that state and by them transported to Cleveland, Ohio; that it was so delivered and transported, and that the stone was sold and delivered for the purpose of being used by tbe contractors for paving Kinsman street, and except a small quantity was thus used. The court further found that by the laws of the state of New York, no lien exists for materials furnished in other states to be used in New York. The court of common pleas holding this to be a New York contract, and also holding that the mechanics’ lien laws of Ohio have no extra-territorial operation, refused to enforce the lien taken by the De-Graff & Roberts Quarries Company, and gave judgment for the plaintiff in error. On proceeding- in error had in the circuit court this judgment was reversed, and judgment rendered on the finding of facts in favor of The DeGraff & Roberts Quarries.

Section 3184, Revised Statutes, provides that:

“A person who performs labor, or furnishes * * * material for constructing, etc. * * * a house * * * by virtue of a contract with the owner * * * shall have a lien. ” * * *

Section 3193, Revised Statutes, which provides the remedy for sub-contractors, etc., employs language equally comprehensive. It reads as follows: Section 3193. “Any sub-contractor, material man, laborer or mechanic who has * * * furnished material * * * for the contraction * * * of any turnpike, road improvement, or other public improvement, provided for in a contract between -x- -» -x- any board or officer, and a principal contractor * * * may * * * file * * * a sworn and itemized statement.’’ * * *

The argument for the exclusion of defendants in error from the beneficial operation of these statutes is not based on any words of exclusion contained in the statutes themselves, but is vested on those general principles, that pertain to the conflict of laws.

Counsel for plaintiff in error contends that the lien is merely incidental to and arises out of the contract under which the material is to be delivered ; that as the contract under which defendant in error furnished the material in question was made and fully executed in the State of New York, it was a New York and not an Ohio contract; that it must have been made with reference to the laws ■ of New York and not to those of Ohio, and that therefore an incident, depending wholly on the statutes of Ohio would not attach to the contract, and in fact could not attach to it without giving to the statutes of Ohio an extra-territorial effect.

In confirmation of this view of the subject counsel cite a decision of this court: Beckel v. Petticrew, 6 Ohio St., 247. It was there held that: “The lien authorized by the act to create a lien in favor of mechanics and others in certain cases will extend to all materials, in good faith furnished .for the purpose of erecting, or repairing a house in pursuance of a contract with the owner notwithstanding a portion of such material may subsequently be otherwise appropriated without the consent of the party furnishing them. ’ ’

'This decision, it is claimed, vests the lien of the material man upon the contract and not upon the use to which the materials furnished by him were devoted.

It is quite correct to say that this decision holds that if the contract, under which materials have been furnished for constructing, etc., any building, etc., within the statute, discloses that such materials were furnished for the purpose of being used in the performance of the work of construction, etc., that this purpose is enough to create the lien, even if the materials should be diverted from such use, provided the material man did not consent to such diversion. Our attention also, might have been called to a still earlier case decided by this Court: That-of Choteau et al. v. Thompson & Campbell et al., 2 Ohio St., 114, when it was held: “If work be done or materials furnished, without a contract that they shall be put to the particular use of erecting, altering or repairing a craft or building, no lien can be asserted upon the building or vessel in which they may be placed. The contract intended by the Statute is one that has reference to the purpose for which the work is done or the materials furnished.”

These two decisions establish both the necessity of a contract prescribing the purpose to which the materials are to be devoted, and its sufficiency to create the lien, althoug'h the material should be diverted from the use agreed upon ; the lienor not assenting thereto. Notwithstanding the stress placed upon the contract by these decisions, we do not think it follows from them as a necessary sequence that the lien of the mechanic- and material men is a mere incident of such contracts, attaching only where the contracts are Ohio contracts, that is, where they are to be executed within this state.

The lien is a creature of our statutes, and whoever falls within the descriptive words of the statute may rightfully claim its benefit, wherever our statutes may be enforced. This court, in the cases of Choteau et al. v. Thompson & Campbell et al., 2 Ohio St., 114, and Beckel v. Petticrew, 6 Ohio St., 247, was not dealing with the question now under consideration; it was not then concerned about the nativity of the contract; it was construing the statute respecting the matters then in hand, in order to arrive at the legislative intention respecting them. In the first case it held, among- other things, that a sale of materials, without any reference to the use to which they should be put, would not afford a ground to assert a lien, because the contract referred to by the statute required that the materials should be sold for the purpose of being used for the construction, etc., of the house, etc., upon which the lien was to be asserted. In the second case it held that the statute, when fairly construed, did not require that all the materials furnished under the contract should have been used in the structure for which they were furnished and on which the lien was asserted. In those eases our predecessors were seeking to ascertain, and to declare the intention of the legislature, and for that purpose they looked to the language which that body had employed. We are required not only to ascertain the legislative intention, but also to determine whether the subject over which they attempted to legislate was within their authority.

To ascertain the legislative intention we must Took to the language it employed to express it. When this is done, we find the language employed, when construed according to its natural import, will clearly embrace all contracts to furnish materials for the purposes named in the statute, regardless of the place where the contract was made or the • materials to be delivered. The words are “any * * * material man,’’etc., “who has furnished material * * for the construction * * of an improvement,” * * * * more comprehensive language could not have been used. No other words appear that tend to establish an intention to narrow the scope of those recited, or that indicate a purpose to limit the benefits of the statute to vendors, who bring within the state the materials they furnish. The defendants in error, therefore, are plainly within the terms of the statute. This construction finds support in Sproul v. McCoy, 26 Ohio St., 577, where this court held that the statutes of this state allowing exemptions from execution and sale to “every person who has a family,” may be invoked by ‘ ‘any debtor against whom an action is prosecuted in the courts of this state, whether such debtor be or be not a resident of this state.” The language of the statute granting- the exemption is no more comprehensive than that employed by the mechanics’ lien statutes in giving a lien to sub-contractors and material men.

We now come to the question of the power of the legislature to dispose of the fund, or create alien, in favor of a vendor who sells and delivers materials in another state.

That the statutes of Ohio cannot operate, propria vigore, beyond the boundaries of the state, is a settled rule of law, and therefore, notwithstanding the intention of the legislature to embrace within the beneficial provisions of the statute all persons who should sell and deliver, in another state, materials to be brought here and used for the purposes designated by the statute, yet the statute could not be applied to such transactions, if thereby its operation was extra-territorial. Remedial laws, however, whether written or unwritten, do not operate extra-territorially, on account of being applied by the courts of the state in which they are in force, to actions pending in such courts on contracts made and to be performed in another state or country. Remedies will bead-ministered according- to the law of the place where the action is instituted, without regard to the law of the place where the right arose. Heaton v. Eldridge & Higgins, 56 Ohio St., 87; Andrews v. Harriott, 4 Cowen, 508; Robinson v. Bland, 2 Burr. 1084; De La Vega v. Vianna, 1 Barn, and Adolph, 284; Trasher v. Everhart, 3 Gill and Johns., 234; Hyde v. Goodnow, 3 Comstock, 270; Bank of the United States v. Donnally, 8 Peters, 361. This principle is illustrated and enforced by a large array of authorities, that are practically unanimous, but it is not necessary to refer to them further.

By the great weight of authority statutes that relate to liens of mechanics and material men are remedial; instead of creating new and substantive rights, they simply afford new and cumulative remedies to enforce obligations previously recognized. Hanes & Co. v. Wadey et al., 73 Mich. 178; Best v. Baumgardner & Co., 122 Penn. St., 17; Martin v. Hewitt, 44 Ala., 419; Hall v. Bunte, 20 Ind., 304; Bangor v. Goding et al., 35 Me., 73; Frost v. Ilsley, 54 Me., 345; Woodbury et al. v. Grimes et al., 1 Colo., 100.

These principles would seem to settle the question in favor of the operation of the statute in the case, of material delivered in another state.

However, should the rule in reference to the nature of mechanics’ lien laws be otherwise, and those laws held to create substantive rights,which, when once vested, are placed beyond legislative interference, nevertheless as the fund in controversy originated under our laws, was actually within our borders, and was in the . custody and subject to the orders of one of our courts, it would seem to naturally follow that its disposition should follow the course prescribed by our legislature. To thus dispose of the fund is to assert the dominion of our own statutes, while to distribute it according to the statutes or decisions of another state would be to acknowledge their superiority The case does not fall within the reasons of those rules which induce the court of one state or country to construe the rights of parties arising under a contract, made and to be executed in another state, according to the laws of the latter. In the case before- us the material was furnished for the purpose of being used in an improvement to be made in this state ; under such circumstances how can it be said that the parties did not contemplate the laws of Ohio in reference to rights which thus arise? Surely if the question related to a lien upon real estate, such as the mechanics’ lien laws of this state create, its existence and its terms would depend upon our statutes ; the laws of 'New York could place no burden upon land situated in Ohio. True, a lien upon real estate was not asserted nor involved in. the case before us, but there was involved the distribution of afund created and set aside by a statute of this state for the benefit of persons who might, fall within the class declared by that statute to have a right to share in its distribution. The statute in conferring this benefit made no distinction between a fund raised by a sale of real estate upon which a lien was given, and a fund in the possession of some public agency. In each case the distribution was to be made according to the same rule. We think the right of the parties in either ease was determinable according to the laws of this state.

This view of the question is strongly supported by the decisions of this court in respect of the water craft statutes. Schooner Aurora Borealis v. Dobbie, 17 Ohio, 125; Steamboat Ohio v. Stunt, 10 Ohio St., 582; Steamboat Messenger v. Pressler, 13 Ohio St., 255. It also finds support in'the following cases: The St. Louis Bridge & Construction Co. v. Railroad Co., 72 Mo., 664; Thompson v. Railway Co., 45 Minn., 13, 15; Great Western Manufacturing Co. v. Bunter Bros, et al., 15 Neb., 33, 37; Fagan & Osgood v. Boyle Ice Machine Co., 65 Tex., 324; Gaty v. Casey, 15 Ill., 189.

The defendant in error, The De Graff and Roberts Quarries, was, by the court of common pleas, made a party to the action on the application of the city of Cleveland. This action of that court is attacked as erroneous by counsel for plaintiff in error, but as the question does not arise on the records, it has not been considered in this opinion.

Judgment affirmed.


author: Spear, J.

text:
    Smith, Receiver, v. Johnson et al.

      Action by receiver of corporation — Collection of unpaid stock subscription — Nature of suit — Defendants residing out of county— Method of service.

    3. An action to collect an unpaid subscription to the capital stock of a corporation, instituted by a receiver appointed under chapter 5, div. 7, of title 1, Revised Statutes, to wind up the affairs of the corporation, is a suit at law to recover a money judgment.
    2. It is not proper practice for such receiver to join in one action all delinquent stockholders as defendants, those who reside out of the county where the suit is brought as well as those who reside within such county, and issue summons to another county to obtain service upon such non-residents.
    3. Where this method of service is ttempted. a proper motion to set aside the service and quash the summons will be sustained.
    (Decided February 1, 1898.)
    Error to the Circuit Court of Portage county.
    The plaintiff in error obtained judgment in the court of common pleas of Portage county against the defendants in error, severally, which judgments were reversed by the circuit court. A reversal is asked. The case is sufficiently stated in the opinion.

      S. P. Wolcott and Cole & Douthitt, for plaintiff in error.

      Frank Higley, for defendant in error.
   Spear, J.

The plaintiff is the receiver of the J. B. Miller Company, an insolvent Ohio corporation, having its principal office at Kent, Portage county. He was appointed in a pi’oceedingkad for the dissolution of the corporation, which, at the commencement of the action, had ceased to do business. His suit was to collect from a large number of delinquent stockholders the several amounts due upon their subscriptions to the capital stock of the corporation, in order to raise a fund for the payment of debts. With the exception hereinafter stated, the defendants were served with summons in Portage county, and made no objection to the joinder of all delinquents in one suit.

It was alleged in the petition that it will require full payment of the par value of all the stock owned and held by solvent subscribers to pay off the debts, and the charges and expenses of settling the affairs of the company. Also that the action was brought ‘ ‘on behalf of all the creditors and all the stockholders of said corporation for the purpose of determining their individual and respective rights in the premises,” and the prayer is that the court determine the amounts of the debts, the solvent shareholders, and the amount of money to be raised to pay off debts, and for an order that plaintiff make such assessments on the unpaid subscriptions as will pay the debts and charges, and for such other relief as the nature of the case and equity may require.

The defendants in error were residents of Cuyahoga county, and were served with summons in that county, and no other service was had upon either of them. Each filed amotion to set aside the service, and quash the summons, expressly disclaiming intention to enter appearance for any other purpose. These motions were' severally overruled, although the court found that the facts constituting the ground, of the motion were true, and the defendants excepted. Thereupon the defendants each filed an answer, still insisting upon the ground of the several motions, and denying the jurisdiction of the court over him by reason thereof; also alleging that he had never subscribed for stock; that what he held was purchased, and that the company, and its receiver, were estopped to make demand of him. because of certain representations made by the company to him when the purchase was made.

Upon trial, the court rendered a several judgment against each of the solvent stockholders found delinquent, those against these defendants being for $750 each, which are the judgments reversed by the circuit court.

The question presented by the record is as to the jurisdiction of the court of common pleas over the person of these defendants, and this is to be determined by a consideration of the nature of the action below. If it could be maintained as a suit in equity then the court had jurisdiction and the motions were properly overruled; if it were an action at law merely, then the service of summons in Cuyahoga county could not have the effect to give the court jurisdiction, and the motions should have been sustained.

We suppose that the position of the receiver in this kind of an action does not admit of serious question. While, speaking in general terms, he is a trustee for creditors, and for stockholders as well, in respect to their interests in the property and ■ assets of the corporation, resting upon the fact that they are, or may be, the beneficiaries of the fund which he collects, yet he stands, in a suit against stockholders, as the representative of the corporation, taking the rights of the corporation such as could have been asserted in its name, and on that basis only can he litigate. Smith on Receiverships, section 231. That is, he succeeds . to the title and rights of action of the corporation itself, and takes all such, rights as the corporation itself originally had, and may enforce them by the same legal remedies. 23 Am. & Eng. Ency. of Law, 827; High on Receivers, sections 315, 316; Winters v. Armstrong, 37 Fed. Rep., 508; Rep. Life Ins. Co. v. Swigert, 135 Ill., 150. On the authority of Curtis v. Leavitt, 15 N. Y., 44, and of Alexander v. Relfe, 74 Mo., 495, Mr. High maintains that where acts have been done in fraud of the rights of creditors, but which are valid against the corporation, he may hold adversely to the corporation, and possibly, there is like power given a receiver by statute, but that is not of consequencein thepresent case.

Our statute regulating the dissolution of corporations, and the winding up of their affairs, chapter 5, division 7, of title 1. Revised Statutes, from section 5651 to section 5688, inclusive, seems to be framed in recognition of the foregoing rule. Section 5658 vests the receiver, upon his qualification as such, with all the estate, real and personal, of the corporation, makes him a trustee of the estate for the benefit of creditors and stockholders, and clothes him with the power conferred by law upon trustees to whom assignments are made for the benefit of creditors. Section 5659 gives express authority, where there is any sum due upon any share of stock subscribed, and the subscriber is not wholly insolvent, to commence and prosecute an action for the recovery of such sum. Section 5662 requires every person indebted to the corporation to account and answer to the receiver for the amount of the debt, or if any person have property of the corporation in his hands, he must account to the receiver for its value; And the means for discovery provided by law for trustees of insolvents are applicable to receivers.

But we are considering a case where the power to be exercised is such only as the corporation had. The action, as it affects these defendants, being simply for recovery against stockholders on their unpaid subscriptions, we need not consider the legal capacity of the receiver in other respects. The corporation itself had power to enforce that claim. The character of the action, therefore, is the same as it would have been, had the corporation brought it. What then is the nature of the obligation incurred by subscribing to the capital stock?' The answer to this question would not seem difficult. The ordinary subscription is the individual undertaking of the subscriber. It is a contract directly between him and the corporation, and, unless unusual conditions exist, is in no wise affected by the terms of others; it is a several, and not a joint, contract. In other words, a simple, several, promise to pay. Am. and Eng. Ency. of Law, 826 ; Hatch v. Dana, 101 U. S., at p. 210; Baines v. Babcock, 95 Cal., 581, Price v. Rd. Co., 18 Ind., 137. For a breach, therefore, there would-accrue the same kind of a right of action as would follow the breach of a contract to pay money between other parties ; that is, a suit at law; the same kind of an action as the company could have maintained. As held in Henry v. Rd. Co., 17 Ohio Rep. at p. 190 : “The company could compel payment at law, of the stockholders’ contract according to the charter, when the necessities of the company should require this to be done,” but it could not compel payment in any other manner. High on Receivers, sec. 394; Freeman v. Winchester, 10 S. &M., 577. The mere appointment of a receiver to stand, in this behalf, in place of the company, therefore, could not, in the nature of the case, authorize him to recover in equity a debt which, as between the original parties, was recoverable only at law. Nor could an averment in the petition that his action was brought on behalf of all the creditors turn the action into one by creditors so long as it was, in fact, a suit by the receiver alone. If the power of the receiver in this behalf had been enlarged by statute, a different question would be presented. But we have a suit at law only for the recovery of a several money judgment on the sole and several promise of each defendant, and it follows that no authority exists for issuing summons to another county. That is, the action against such defendant on such a claim is not properly brought in a county other than the county of his residence, and hence section 5038, which permits-summons to issue to another county, does not apply.

Where, however, an action has been commenced, as was this one, against stockholders who could be served within the county, as well as others, and the joinder is not objected to, no. reason is perceived why the action may not proceed against those who thus tacitly consent. And it is possible that the legislature might with advantage authorize an action by a receiver against stockholders to recover upon subscriptions to be brought in the same manner as actions by creditors to enforce statutory liability of stockholders are brought, thus bringing- in all stockholders upon whom service could be had within the state, provided there is power in that body to direct such an action, a question which we have not considered. Mr. Smith, in his valuable work on Receiver-ships, 174, collates authorities supporting his text that such a form of procedure is proper. But the power seems to rest upon statutory provision. We are satisfied that in this state no such authority has been given.

Three Ohio cases, Warner v. Callender, 20 Ohio St., 190; Clarke v. Thomas, 34 Ohio St., 46, and Peter v. Machine Co., 53 Ohio St., 534, are cited by counsel for plaintiff in error. Without taking space to point out distinctions, we are of opinion that neither of these cases affects the question at issue here.

Our conclusion is that the motion to set aside and quash should have been sustained.

Judgment affirmed.