author: Bcjrket, J.

text:
    Buchanan Bridge Co. v. Campbell et al., Commissioners.

      County commissioners contract for erection of bridge — Disregarding statutes — Such contract is unlawful and void — No recovery against county for value of bridge.

    A contract made by county commissioners for the purchase and erection of a bridge in violation or disregard of the statutes on that subject, is void, and no recovery can be had against the county for the value of such bridge. Courts will leave the parties to such unlawful transaction where they have placed themselves, and will refuse to grant relief to either party.
    (Decided June 13, 1899.)
    ERROR to the Circuit Court of Fulton county.
    The amended petition, filed by the bridge company in the court of common pleas is as follows:
    “Now comes the plaintiff, and by leave of the court first duly granted to file its amended petition herein, says:
    The said plaintiff, The Buchanan Bridge Company, is a corporation duly created and existing under the laws of Ohio, and having its home office and principal place of business at Bellefontaine, in the county of Logan, in said state.
    1. The said plaintiff as and for its first cause of action against the said defendants, the Board of County Commissioners, of the county of Fulton, in the state of Ohio, say: That on or about the first day of November, A. D. 1894, • the said plaintiff company, at the special instance and request of the defendant Board of County Commissioners, of Fulton county, in the state of Ohio, sold and delivered to the said defendant board, free on board of cars at and in the village of Morenci, in the state of Michigan, all of the iron and steel material of and for the support of a bridge and consisting of eight steel piles, seven inches in diameter and twenty feet long and weighing eighty pounds to the foot in length, in all, 12,800 pounds, of the value of three and one-half cents per pound; also eight caps of and for said piles, two steel beams, also sway rods, bolts and nuts for the proper fastening and holding in place of said material in their designed use, and all weighing two thousand and eight hundred and twenty-seven pounds of the value of three and sixty-five_one hundredths cents per pound, making the sum of five hundred and fifty-three dollars and five cents, and at the same time and place, at the like instance and request of the said defendant board, the said plaintiff company sold and delivered to the said defendant board, free on board of cars, all the material of and for the superstructure of a ninety foot span high truss bridge of fourteen feet clear roadway, of the kind and style manufactured by the said plaintiff company, and all in conformity to plans and specifications thereof, exhibited by said plaintiff company to said defendant board, and of the fair market value as and when so delivered of the sum of eleven hundred and forty-seven dollars and fifty cents, in consideration whereof the said defendant board] promised to pay said plaintiff company, within a reasonable time thereafter, so much as the said several lots and quantities of material were then and there reasonably worth.
    That immediately upon the said deliver}?- of the said materials, the said defendant board paid the freight charges thereon, which should have been paid by plaintiff company, amounting to the sum of forty-two dollars and no more, and thereupon the said defendant board took all and singular the said materials from the said cars at the said village of Morenci, in the state of Michigan, and brought the same to the state of Ohio, and to the said county of Pulton, and there appropriated and used the same in and about the erection and construction of the substructure and superstructure, respectively, of a county bridge upon a public highway, to-wit, a county road of and in the said Pulton county, and not within any municipality therein, and on or about the third day of December, A. D. 1894, the bridge bo by the defendant board constructed was by the said board thrown open to and hath ever since said date been used by the general public as and constituting a part of the said public highway, and was and is appropriate and necessary to and in the use of said highway, which is much traveled by the public.
    That the county commissioners of said county, prior to purchasing and ordering from The Buchanan Bridge Company, of the materials aforesaid, did not give any public notice for public letting of the contract for furnishing either material or labor for either the substructure or superstructure, or both, of the said bridge so to be built, and said commissioners never caused any memoranda or minute concerning- said purchase or order for said bridge material to be entered on the county commissioners’ journal, and no plans, specifications or estimates were made by the county surveyor, or other civil engineer or architect at the instance of the county commissioners for the said proposed bridge, and no contract for said bridge was ever submitted to the joint action of the county commissioners, county auditor and county surveyor for approval by them, or a majority of them, nor the prosecuting attorney of the county for his approval.
    That the said, The Buchanan Bridge Company, having, as aforesaid, in good faith, delivered to the defendants the said bridge materials as aforesaid pursuant to its said purchase, order and request, and said materials having been accepted and received by defendant and taken by it from Morenci, Michigan, and used by said defendant county board, in the construction of the bridge aforesaid, upon the completion of the said bridge by the defendant board, out of and with the said materials, so as aforesaid furnished by plaintiff, the commissioners of said county, at the request of said The Buchanan Bridge Company, plaintiff, signed and delivered to it two (2) certain warrants or orders in the form customarily used by defendant to the auditor of said county, directing the said auditor to issue or draw his warrant or warrants on the. treasurer of said county for the payment of the same, or the price of the materials agreed upon between the said The Buchanan Bridge Company and said defendant board, less the sum of $42 which had been advanced and paid by the defendant board, as freight charges as aforesaid upon said materials; said auditor was by the said orders aforesaid directed to issue his warrant or warrants to the said treasurer on January 1, 1895, at which time it was understood and agreed between the parties that said bridge materials were tó bé paid for as aforesaid.
    ‘.j'That after the issuing of said orders by the county commissioners, and prior to January 1, 1895, at which date the same were to be paid by the issue of warrants directly upon the county treasurer by said county auditor, an action was begun in this court by the prosecuting attorney of said county against the commissioners of said county, the auditor and treasurer of said county, The Buchanan Bridge Company and others seeking to enjoin and for the purpose of enjoining payment for said bridge materials, and the issue of any warrant by the county auditor upon the county treasurer of said county in payment of the aforesaid orders so issued by said county commissioners, as aforesaid, for the reason that said county commissioners had not procured any plans or specification to be made for said bridge, or any estimate of its cost, and had not advertised for bids or sealed proposals for the furnishing of materials therefor, or the work of constructing th’e same, and had not caused any contract for the same to be submitted to the' prosecuting attorney of the county for his approval, whereupon a temporary injunction or restraining order was issued' restraining or enjoining the payment oí' said orders, and enjoining the said auditor from issuing his warrant upon the treasurer of said county to pay the same, and said treasurer from paying said warrant, and enjoining the said county commissioners from allowing or issuing any warrants for the payment of said bridge material.
    Said cause came on for final hearing in this court at its June term, 1895, and said temporary in junetion was, by the decree and judgment of this court, made perpetual; whereupon an appeal was taken in said cause to the circuit court of said county by rhis plaintiff, and upon the final hearing of said cause in said circuit court at its November term, 1895, a like judgment and decree was rendered by said circuit court, except that the injunction decreed by said circuit court and its judgment in said cause was expressly made and rendered without prejudice to the right of plaintiff to bring its action against the defendant board, as upon an implied contract for the recovery of so muchas' the said bridge materials, when and where delivered to and received by defendant, were reasonably worth.
    That after the rendition of said judgment and decree by the said circuit court, to-wit, on March 2, 1896, the plaintiff duly presented its said claim in writing for compensation for said bridge materials to the said defendant, Board of County Commissioners, for allowance and payment and then and there demanded from said defendants that the same be allowed as a valid claim against said county and be ordered paid out of the proper funds of said county, but the defendants wholly refused and declined to allow or pay the said claim, or any part thereof.
    That a reasonable time of and for the payment of the said sums of money hath long since elapsed, yet the said defendant board, though often requested, hath not paid the said sums nor any part of any or either thereof, save and except only the said freig'ht charges; and there is now due and owing from said defendant board to the said plaintiff, by reason of the premises, and for the said' materials so as aforesaid sold and delivered, the full sum of sixteen hundred and fifty-eight dollars and fifty-five cents ($1,658.55), and interest hereon from and after the first day of January, A. D. 1895, at the rate of six per cent, per annum.
    Said bridge materials have been in use by defendants in said bridge ever since December 1, 1894, and the value of the use of the same is fully five hundred dollars ($500) per year and more.
    That notwithstanding the refusal of said defendant board to allow plaintiff’s said claim for compensation for said bridge materials and order payment of the same, said defendants still insist on retaining and using said bridge materials, and give out and assert that they will retain, hold and keep said bridge materials and continue to use the same in said bridge, and that they will not pay plaintiff any compensation therefor or allow their claim for the reasonable value of said materials, or for any amount of compensation whatever.
    Plaintiff therefore prays judgment against the said defendant, Board of County Commissioners of Pulton county, for the sum of sixteen hundred and fifty-eight and fifty-five one hundredths dollars ($1,658.55), and interest thereon at the rate of six per cent, per annum, and they further pray that in the event the court should find that they are not entitled to recover from the defendant the said ' sum prayed for, or the fair or reasonable value of said bridge material, that the court order and direct that the said defendants, upon the surrender of said orders issued by the said county eommmissioners by plaintiff, return and deliver back to plaintiff the said bridge materials, placing the same on board of ears at Morenei, Michigan, where the same were delivered to defendant and in a good and suitable condition; that plaintiff may have suitable and just compensation for the use of said bridge for the time the same was used by defendant, and for all proper and equitable relief in the premises.”
    To this petition the county commissioners demurred, on the ground that said petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff, and against the county commissioners, defendant. The court of common pleas sustained the demurrer, and the plaintiff not desiring to plead further, dismissed the petition and rendered final judgment against the bridge company.
    The circuit court affirmed the judgment, and thereupon the bridge company filed its petition in error in this court seeking to reverse the judgment of the courts below.

      W. W. Touvelle and James Hunt, for plaintiff in error.
    We maintain—
    1. That the county commissioners are liable as upon an implied contract, for the fair value of these bridge materials so purchased by them; although the purchase was had without advertising for bids and complying with the other requirements of the statute necessary to make a valid writ - ten contract, when, as in this case, the materials were in good faith furnished by the bridge company and accepted by the commissioners and put up and used by them iri a place where a bridge was needed and required and for which place they had undoubted authority to provide a bridge.
    2. That if the plaintiff in error, cannot recover the fair value of the bridge materials as upon
      quantum meruit, the county cannot keep them, but Inust make restitution of the same.
    3. If neither compensation nor restitution can be had, the county must pay á fair rental value for the use of such bridge materials.
    We do not dispute the .principle settled by the case of Ohio ex rel. v. Yeatman, 22 Ohio St., 553, but we .contend that while there is probably no case in Ohio, bolding either way upon the question of our right to compensation, under these circumstances,. the doctrine or principle of restitution, however, is settled and established in this case and as bearing upon that principle, we call the attention of the court to the case of Trustees v. Cherry et al., 8 Ohio St., 564; Clark v. United States, 95 U. S. Rep., 539.
    Counties have sometimes been held liable when they have knowledge and beneficial use of anything although the formalities ordinarily necessary to bind them, have not been complied with. 4 Am. & Eng. Ency. of Law, 363; County v. Bradenhart, 16 Pa. St., 488; Salt Lake City v. Hollister, 118 U. S. Rep., 259.
    If a county obtains the money or property of others, the law independent of statute, will compel restitution or compensation. Marsh v. Fulton County, 10 Wallace (U. S.), 676; Louisiana v. Wood, 102 U. S. Rep., 294; San Francisco Gas Company v. San Francisco, 9 Cal., 453; Sedgwick’s Statutes and Constitutional Law, page 73; North Western Packet Company v. Shaw, 37 Wisconsin, 655.
    The principle contended for by plaintiff in error is recognized. Board of Supervisors v. City of Springfield, 63 Illinois, 66; Maher v. City of Chicago, 38 Ill., 266; Brown et al. v. City of Atchison, 39 Kan., 37; Borough of Henderson v. County

      of Sibley, 28 Minn., 515; Dill v. Inhabitants of Wareham, 7 Met., 438; Stamp v. County of Cass, 47 Mich., 330; Waitz v. Ormsby County, 1 Nev., 370; Clark v. County Commissioners, 9 Neb., 516; Utica Ins. Co. v. Scott, 19 John., 1; Utica Ins. Co. v. Cadwell, 3 Wend., 296; Utica Ins. Co. v. Bloodgood, 4 Wend., 652; Dillon on Municipal Corporations, section 750; Chaplain v. County of Douglass, 107 U. S. Rep., 348.
    As bearing upon the principle contended for by-plaintiff in error, we cite the following cases in Ohio: Athens v. R. R. Co., 37 Ohio St., 205; Wilder v. Commissioners, 41 Ohio St., 601; Cincinnati v. Cameron, 33 Ohio St., 336; City of Parkersburg v. Brown, 106 U. S., 487.

      W. II. Fuller, Prosecuting ■ Attorney, W. H. Handy and John Q. Files, for defendants in error.
    Statutes governing the commissioners in making contracts for bridges costing over one thousand dollars. Revised Statutes, sections 795, 796, 797, 798 and 799,. 799a, 800, 846, 853, 850, 851, 878, 894 and 1024.
    Our position is that in order to bind a county in a case like the one before us it is necessary that the law as laid down in the sections cited be followed; that there are certain powers given to the commissioners and that in the exercise of those powers the statutes must be strictly followed.. Comrs. Gallia County v. Holcomb, 7 Ohio (Part 1) 232; Treadwell v. Com'rs, 11 Ohio St., 183; Goshen Township v. Shoemaker, 12 Ohio St., 624; Hoople v. Brown Township, 13 Ohio St., 311; The State v. Yeatman, 22 Ohio St., 546; Fornoff et al. v. Nash, etc., 23 Ohio St., 335; The State ex rel., etc. v. Nash, etc., 23 Ohio St., 568; Com'rs of Defi

      ance Co. v. Crowey, 24 Ohio St., 492; Miller et al. v. Pearce et al., 2 C. S. C. R., 44; Ruffner v. Board of Com'rs, 1 Disney, 196; 4 Am. & Eng. Ency., 359 and case cited; Pacific Bridge Co. v. Clarksworth Co., 45 Fed. Rep., 217; 1 Beach Pub. Corp., sections 217, 244, 252 and cases cited; 1 Beach Pub. Corp., sections 697, 698; Southerland on Statutory Con., 454-458; Bradg v. Mayor, etc., 20 N. Y., 312; McDonald v. Mayor, etc., 68 N. Y., 23; S. C. 23; Am. Rep., 144; Dickinson v. City of Poughkeepsie, 75 N. Y., 65; Wing v. City of Cleveland, 15 Law Bul., 50; 9 Dec. Re., 551; McCortel v. Bates, 29 Ohio St., 419; Sutro v. Pettet, 74 Cal., 332; s. c., 5 Am. St. Rep., 442; State ex rel. Scott, 56 N. W. Rep., 485 (Neb.).
    We call especial attention to and make a part of this brief the decision of the common pleas judge in passing upon this case below, as the same is found in 3 Ohio Nisi Prius Rep., 173; 4 Dec., 130; 3 Ohio Nisi Prius Rep., 176; 4 Dec., 134; City of Lancaster v. Miller, 58 Ohio St., 558.
    Parties dealing- with a public corporation must take notice of the extent of their powers and the mode of their exercise. Hoople v. Trustees, etc., 13 Ohio St., 311; Com'rs v. Andrews, 18 Ohio St., 50; Boreu v. Com'rs of Dark Co., 21 Ohio St., 311; City of Cincinnati v. Cameron, 33 Ohio St., 336; Clark v. Des Moines, 87 Am. Dec., 423; Donavan v. New York, 33 N. Y., 293; Beach Public Corp., section 691 and note; Cooley Con. Lim., 235 (5th ed.); Townsend v. Holt Co., 59 S. W., 381, (Neb.); Nash v. St. Paul, 11 Minn., 174.
    The doctrine of estoppel does not .apply to counties. 2 Beach Public Corp., section 1659; 2 Pomeroy Eq. Jur., sections 806-813; Tone v. Columbus, 39 Ohio St., 303; Counterman v. Dublin Twp.,
      38 Ohio St., 515; Brown v. First Nat. Bk. Columbus, 37 N. E. Rep., 158, (Ind., 1894); Heidelburg v. Francos Co., 100 Mo., 69; s. c. 12 S. W., 914.
    The disobedience of a statute by a public officer creates an incurable difficulty. The general doctrine of estoppel does not apply to public corporations. Where the mode of exercising a power by the board is prescribed by statute, that mode must be pursued. 103 Ind., 381; 18 Ind. App., 1; 79 Ind., 491.
    ■ What are the powers of the commissioners of a county and in what way do the corporate powers of a municipality differ from those of a county? Com'rs v. Meghels, 7 Ohio St., 120.
    While a county has corporate characteristics it is, in no sense, a municipal corporation, but a- mere governmental auxiliary and agency possessing no powers and subject to no duty hot originating from the statute creating it. Askins v. Hale Co., 54 Ala., 639; Grange v. Pulaski, 27 Ark., 37.
    We have already called attention to the sections of the statute which the petition of plaintiff in error expressly avers were violated.
    , The universal holding of the courts have been that the obvious policy of such laws and inhibitions are to “prevent the public treasury from being plundered by favoritism, rings and frauds” and “they ought not to be so construed as to defeat their purpose by a judicial repeal of” their “salutary provisions. ” Bean v. Yeatman, 22 Ohio St., 553; Fones Bro. Hardware Co. v. Erb, 54 Ark., 645; same case, 13 L. R. A., 353; Farman v. Com'rs, 21 Ohio St., 311.
    Nothing in the petition shows that there is a. scratch of a pen anywhere in the auditor’s office of Fulton county or elsewhere that refers in any manner whatever to the purchase of this bridge. The method pursued, according to the petition, was such as to make a record impossible for there never was a foundation for a record. And in this respect the case afc bar varies very materially from Com'rs of Athens Co. v. Ry. Co., 37 Ohio St., 205; Wilder v. Com’rs of Hamilton Co., 41 Ohio St., 601, cited in plaintiffs brief.
    If the statutes had been complied with in this case the object of their enactment would have been accomplished whether a full record of the same appeared in the auditor’s office or not.
    Plaintiff in error is claiming the right of one of three remedies, viz:
    1. To recover on a quantum meriut.

    2. To have restitution of bridge material.
    3. To have fair rental value for use of bridge.
    Defendants in error deny a right of recovery
    upon any terms or conditions whatever.
    1. The county being a political division of a state, can not be sued, except by the consent of the state, and unless statutory authority to sue is given by the state. The county is not subject to suit by an individual. 68 Am. Dec., 296, note; 3 Ohio Nisi Prius, 176; 4 Dec., 134.
    2. This contract was against public policy and void. Beach on Injunctions, section 426; Burelfteld, v. City of New Orleans, 42 La. Am., 235; Dill on Munic. Cor., 457, 464; Beach Public Corp., 243 and note.
    Now applying these rules to the case at bar, if the plaintiff in error can recover from Fulton county the price of the bridge or its fair rental value or the bridge itself, then it has succeeded in evading the statutes and such a decision renders null and void every act of the legislature by which it has sought to protect the taxpayer. Chicago, M. &

      St. P. Ry. v. Wabash Ry., 27 U. S. App., 1; 66 Fed. Rep., 240; 13 U. S. C. C. A. Rep., 426.
    We wish to call especial attention to the case of Parr against the village of Greenbush, 72 N. Y., Appeal 473; Brady against the city of New York, 20th N. Y. Appeals, 312; McDonald v. Mayor, 68 N. Y. Appeals, 23; Newbery v. Fox, 37 Minn., 141; s. c. 5 Am. St. Rep., 830; Young v. Board of Education, 54 Minn., 385; s. c. 40 Am. St. Rep., 340; Mulnix v. Mutual B. L. I. Co. 23 Colo., 81; s. c. 33 L. R. A., 827; Wells v. Saline, 119 N. G., 280; 7 L. R. A., 759.
    The distinction between statutes which do not permit and those which prohibit the making of contracts is clearly pointed out in City of St. Louis v. Davidson; 102 Mo., 149; s. c. 22 Am. St., Rep., 764.
   Bcjrket, J.

This case has been ably argued both orally and on briefs, and many cases cited to the effect, on part of plaintiff in error, that a recovery may be had against a city or county as upon an implied contract, independent of any statute, for value received and retained by such city or county; and on part of the defendant in error, to the effect that when the transaction is in violation or disregard of a statute in a material matter that no recovery can be had. We have no disposition to review or attempt to reconcile these cases. We regard them as having been correctly decided under the statutes and rules of decision in the particular locality, and under the peculiar circumstances of the respective cases.

Whatever the rule may be elsewhere, in this state the public policy, as indicated by our constitution, statutes and decided cases, is, that to bind the state, a county or city for supplies of any kind, the purchase must be substantially in conformity to the statute on that subject, and that contracts made in violation or disregard of such statutes are void, not merely voidable, and that courts will not lend their aid to enforce such a contract directly or indirectly, but will leave the parties where they 'have placed themselves. If the contract is executory^© action can be maintained to enforce it, and if executed on one side, no recovery can be had against the party of the other side.

Experience has shown that this policy is necessary to prevent abuses, and protect the public treasury from depletion by unscrupulous public officers. The abuses as to public printing had be- ■ come so flagrant as to induce section 2 of article 15 to be inserted into the present constitution of this state. That section is as follows: “The printing of the laws, journals, bills, legislative documents and papers for each branch of the general assembly, with the printing required for the executive and other departments of state, shall be let, on contract, to the lowest responsible bidder, by such executive officers, and in such manner, as shall be prescribed by law. ”

In line with the spirit of this section, statutes have been passed providing for the public letting of contracts after advertisement by municipalities and providing that contracts not so let shall be void; and this court has construed those statutes as absolving municipalities from all obligations as to contracts made, work done, or supplies furnished in violation or disregard of such statutes. City of Lancaster v. Miller, 58 Ohio St., 558; McCloud et al. v. Columbus, 54 Ohio St., 439; Ohio ex rel v. Yeatman, 22 Ohio St., 546.

The manner of purchasing, contracting for, and erecting a bridge by county commissioners, is regulated and controlled by statute, and nothing-is left to inference.

Section 795, Revised Statutes, requires that before entering into a contract for the substructure of a bridge, the commissioners shall make or procure some competent architect or civil engineer to. make full, complete and accurate plans • therefor, working plans, accurate bills, showing the exact amount of all different kinds of materials to be used, and also complete specifications of the work to be done, and a full, accurate and complete esti-mate of each item of expense and the aggregate cost of the whole; but the commissioners may re-ceive from bidders on iron substructures the necessary plans and specifications therefor.

Section 796 requires the commissioners to determine ,the length and width of the ■ superstructure of a bridge, whether the same shall be single or double track, and requires them to advertise for proposals for performing the labor and furnishing the materials necessary in the erection of the bridge, and they may cause plans and specifications to be prepared or not, at their option, and they may receive bids or plans and specifications proposed by others, but in such case it must be stated whether there is any patent right upon such plan, or any part thereof. In the advertisement for the proposals the commissioners are required to invite bidders to bid for all or any part of the work or materials, and to state the time and place, when and where the bids will be opened, and at that time and place the bids must be publicly opened and read, and the contract awarded to the lowest and best bidder, and the plans and specifications upon which the contract is awarded must be made a part of the contract, and kept on file in the office of the county-auditor.

Section 797 requires that the plans, drawings, representations, bills of materials, specifications of work and estimates as to the bridge, shall be submitted to the county commissioners, auditor and surveyor of the county, and if approved by a majority of them, a copy thereof shall be deposited with the auditor and safely kept in his office.

Section 798 requires that after the approval of such plans and specifications, etc., the county-auditor shall give public notice in two of the principal papers of the county of the time and place, when and where, sealed proposals will be received for performing the labor and furnishing the materials necessary for the erection of such bridge, and making a contract therefor; which notice shall be published weekly for four consecutive weeks next preceding the day named for the making of such contract. But when the estimated cost of a bridge is less than one thousand dollars, no public letting is necessary.

Section 799 requires the commissioners to award the contract for the substructure of a bridge to the lowest bidder who will give a good and sufficient bond for the faithful performance of his contract. All contracts exceeding one thousand dollars in amount, are - required to be submitted by the commissioners to the prosecuting attorney before any work is done or materials furnished, and if found by him to be in accordance with the law on that subject, and his certificate to that effect is endorsed thereon, then the contract shall have full force and effect, otherwise it shall be null and void.

Section 800 provides that no contract for a bridge or bridge substructure shall be made at a price in excess of, the estimates so required to be made.

Section 850 requires a full record oí the board to be kept by its clerk, to be signed by the commissioners and certified by the president and clerk of the board, and to be received in evidence in all courts of this state.

By section 853 the commissioners are authorized at any regular or special session to make any necessary order or contract in relation to the building of any public bridge.

Section 878 requires that it shall be essential to the validity of every contract entered into by the commissioners or order made by them, that the same has been assented to at a regular or special session, and entered in the minutes of their proceedings by the auditor.

Section 894 provides that no claim against the county shall be paid otherwise than upon the allowance of the county commissioners upon the warrant of the county auditor, except when thé amount is fixed by law, or is authorized to be fixed by some other person or tribunal; but in no case are the commissioners allowed to disburse any public money.

Section 1024 makes it the duty of the auditor to issue warrants on the county treasurer, whenever the proper order or voucher is presented therefor.

To make a valid contract of sale by the bridge company to the county commissioners, and a valid contract of purchase of a bridge exceeding one thousand dollars by the commissioners, it is essen. tial that the foregoing provisions of the statute should be substantially complied with. This was not done. The bridge in question amounted to over one thousand dollars. .One paragraph of the amended petition is fatal to the validity of the contract in question, viz.:

“That the county commissioners of said county, prior to purchasing and ordering from The Buchanan Bridge Company, of the materials aforesaid, did not give any public notice for public let-, ting of the contract for furnishing either material or labor for either the substructure or superstructure, or both, of the said bridge so to be built, and said commissioners never caused any memoranda or minute concerning- said purchase or order for said bridge material to be entered on the county commissioners’ journal, and no plans, specifications or estimates were made by the county surveyor, or other civil engineer or architect at the instance of the county commissioners for the said proposed bridge, and no contract for said bridge was ever submitted to the joint action of the county commissioners, county auditor and county surveyor, for approval by them, or a majority of them, nor to the prosecuting attorney of the county for his approval.”

Whether or not said pretended purchase of the bridge was made at a regular or special session does not clearly appear, but it would seem that if it had been made at any session, that fact would have been averred, followed by an averment that the auditor through mistake or otherwise failed to make a record of the action in fact had by the commissioners. As the amended petition stands it must be construed as conceding that the commissioners were not in either regular or special session when the supposed contract was made. '

No notice of the proposed letting was published; no record of the contract was entered in the minutes of the commissioners by the auditor; no plans or specifications were ever made, approved or deposited with the auditor; no contract was ever' submitted by the commissioners to the prosecuting attorney for his approval, and none was ever approved by him.

These omissions are fatal to the validity of the contract, and by force of the above cited sections of the statute, the contract is totally void and imposed no obligation on either party to it.

The statutes are notice to the world as to the extent of the powers of the commissioners, and the bridge company is bound by that notice. It knew, and was bound to know, that the commissioners had no power to thus enter into a contract, and that a contract thus attempted to be entered into would be null and void and would not bind either party. • ■

It is necessary to so construe the statutes, in order to prevent the evils which induced the enactment of them. If such statutes could be evaded, there would always be found some public servants who would be ready and willing to join in transactions detrimental to the public, but favorable to themselves or some favored friend; and if public officers • should be ever so honest, some persistent agent or salesman would impose upon them, and obtain more out of the public treasury than is justly due. When the provisions of the statute are followed, and all is done openly and publicly, 'the public interests are best conserved, and even then there is often complaint to the effect that some one has been favored.

The plaintiff seeing that the contract must be held to be void, seeks to recover on the ground that the commissioners received and retained the bridge, and promised to pay what it is reasonably worth.

The amended petition pleads an express contract, and where there is a subsisting express con. tract the recovery must be had thereon, and an action can not be had in such case upon an implied contract.

But it is urged that the express contract being void, the case is the same as if no contract had been made, and as if the commissioners had received and retained the bridge without an express contract.

The answer to this is that the commissioners have no power to bind the county in that way, and to allow such a course to be pursued would permit the evasion of the statutes. The contention in this case is not as to the amount to be paid for the bridge, but whether the county shall pay at all. To say that the commissioners accepted the bridge, and retained it, and promised to pay what it is reasonably worth does not aid the plaintiff. The commissioners cannot purchase supplies upon the reasonably worth plan, and no one is permitted to deal with them on that plan. The statute is the only authority and guide for both parties. 1 In this case both parties have acted in disregard of the statute, and the court will leave them where they have placed themselves, and refuse to aid either.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Gladwell v. Holcomb et al.

      Tenancy from, year to year — Termination of — Notice to quit not necessary, when — Tenant holding over after expiration of lease— Option of landlord to treat him as trespasser or tenant for another year — Parol agreement for lease — Statute of frauds.

    1. Notice to quit is not necessary to terminate a tenancy from year to year arising from the tenant holding over his term.
    2. When the tenant holds over after the expiration of any year, the landlord has the option to treat him as a tenant for another year, or as a trespasser; and unless there has been an election to treat him as a tenant, possession may be recovered by the landlord in an action of forcible detention, after the service of the three days ’ notice required by the statute.
    3. A parol agreement for a lease to commence in the future, with a person already in possession of the premises as a tenant, is within the statute of frauds.
    (Decided June 13, 1899.)
    Error to the Circuit Court of Lucas county.
    This case is sufficiently stated in the opinion.

      A. W. Eckert for plaintiff in error.
    Leaving out of question for the present all thought as to- the new lease of ten years, we affirm that Gladwell’s tenancy of said premises was a tenancy from year to year.
    Since the commencement of this action, The B. & O. R. R. v. West, 57 O. S., 261, has been decided, fully answering this question, making such a tenancy from year to year. Doe v. Porter, 3 Term R., 13; Doe v. Bell, 5 Term R., 47l; Bradley v. Covel, 4 Cow., 349; Jackson v. Salmon, 4 Wendell, 327; Conway v. Starkweather, 1 Denio, 113; Pugsley v. Aiken, 11 N. Y., 494; Schuyler v. Smith, 51 N. Y., 309; Hull v. Meyers, 43 Ind., 446;
      Ames v. Schuesler, 14 Ala., 602; Gardner v. Commissioners, 21 Minn., 33; Williams v. Ackerman, 8 Or., 405; Steadman v. McIntosh, 4 Ind. Law, 291; Den v. Drake, 14 N. Y. Law, 525.
    We contend that a notice of six months is necessarjr to terminate a lease from year to year. •
    The common law constitutes the basis of our state jurisprudence in all of the United States, except Louisiana: Van Maren v. Johnson, 15 Cal., 308; Bogardus v. Trinity Church, 4 Paige (N. Y.), 178; Horten v. Sledge, 29 Ala., 478; Sibley v. Williams, 3 Gill & J. (Md.), 52; Card v. Grimman, 5 Conn., 164; Middleton v. Prichard, 3 Scam. (Ill.), 184; Wagner v. Bissell, 3 Ia., 396; Stout v. Keyes, 2 Doug. (Mich.); Morgan v. King, 30 Barb. (N. Y.), 9.
    The common law, as established by decisions of courts, has the force of the law of the land in the United States, and cannot be changed by subsequent rulings, etc. Henry v. Bank of Salina, 5 Hill (N. Y.), 535; Sydnor v. Guscoigne, 11 Tex., 449; Lamp v. Hastings, 4 Greene (Ia.), 448; Fisher v. H I. M. Co., 10 Wis., 351; R. R. v. Ketcham, 34 How. (N. Y.), 302; Thompson v. Dill, 34 Ala., 175; Gray v. Gray, 34 Ga., 499; Dugan v. Hollins, 13 Md., 149; Bane v. Wick, 6 Ohio St., 13.
    This brings us to inquire what is the rule of common law as to notice to terminate a tenancy from year to year?
    The following authorities, and almost an illimitable number not specifically referred to, make a six months’ or half a year’s notice necessary therefor at the Common Law. Wood on L. & T., sections 22 and 23; Taylor’s L. & T., sections 55, 56, and 649; Wash, on R. P., 609, 614; 6 En. of Law, 888; 6 Lawson, P. P. & R., sections 287; Morehouse v. Watkyns, 5 Ben. Monroe, 228; Ross v. Garr
      ison, 1 Dana, 35; Hunter v. Frost, 47 Nin., 1; Critchfield v. Remaley, 21 Neb., 178.
    That there was a parol contract for a lease, entered into by and between Mr. Holcomb • and Mr. Gladwell, for the period of ten years from and after January 1, 1894, under the terms set forth in ' the pleadings in this cause, is beyond question.
    But we are at once met with the proposition, that not being in writing and being a lease of real estate, for. a term longer than is provided for by our statutes of frauds and perjuries, and conveyancing, it is within said statutes, and within the rule of Armstrong v. Cattenhorn, 11 Ohio, 265.
    We deny that said rule, thus stated, has any application in the ease at bar, or that said contract is void because it is not in writing. It is not now, and it never was, the law of Ohio, that a lease for any number of years is void because not in writing. That such a notion has obtained we admit. Lefferson v. Dallas, 20 Ohio St., 68.

      Smith c& Beclffwith and ü. G. Denman, for defendants in error.
    Our statute requires but three days’ notice to be given previous to the beginning of a suit in forcible detainer, and it is well settled that this notice may be served either before or after the expiration of the term. Leutzey v. Herchelrode, 20 Ohio St., 334.
    Tenancies from year to year are recognized in this state and it is only reasonable to conclude that periodical tenancies for shorter terms will also be recognized. Scott v. Wasson, 3 West. Law M., 148; 2 Dec. Re., 460; Moore v. Beasley, 3 Ohio, 294; West v. R. R. Co., 57 Ohio St., 161.

      It is clear from the evidence that defendants in error knew nothing- of the alleged oral lease and that they regarded Gladwell’s holding as one from year to year on the conditions of the original written lease. And, barring all consideration of any new arrangement to begin January first, 1894, and considering the tenancy as a mere holding over after the termination of the original lease, it certainly was, for the purpose of paying rent, what is known in the books as a tenancy from year to year. Bacon v. Brown, 9 Conn., 338; Amsden v. Atwood, 38 Atl. Rep., 263; Gear on L. & T., section 30, and cases under note 7; Lodge v. White, 30 Ohio St., 569.
    And if this alleg-ed oral lease was made on an annual holding for ten (10) years then it was void as to the term, creating only a tenancy from year to year and determinable at the end of any year within or after the term. Doe v. Bell, 5 Term, R., 471; Gear on Landlord & Tenant, section 29, note 7.
    There was no new possession, no change in the rent as to amount or time of payment, and no improvements or changes of any kind in any way; of this statement there can be no dispute, and it seems clear that the facts cannot take the ease out of the statute and above decisions and that the justice did not err in refusing to charge the jury as asked by plaintiff in error in his first request-ninth assignment of error above. But the refusal could not be prejudicial in any event for his tenancy would still have been one from year to year, of no effect as to the term that being (10) years, 57 Ohio St., 161, and therefore determinable at the end of any year as stated above.
    We must therefore conclude that the alleged verbal lease cannot be sustained, and Gladwell’s tenancy has been one from year to year since the expiration of the written lease.
    It is true, as claimed by counsel for plaintiff in error, that the common law in England as established by the decisions of its courts, requires that a six months’ notice shall be given to terminate a tenancy from year to year, and it is also claimed and is true, that such is the law of some of the states of thé union. It is also true that in many states a different rule has been adopted by statute and that thus far in Ohio no rule has been adopted either by statute or by courts. Walker’s Am. Law, section 133.
    Now it is clear that plaintiff in error was not entitled to any notice to quit at the expiration of the written lease under which he went into the possession of these premises, .for a lease for a term certain expires by efflux of time and is ended without notice to quit. Wood on Landlord and Tenant, section 82; Gear on Landlord and Tenant, section 28.
    A tenancy from year to year is not a continuous one but recommences every year unless the principle of continuance is introduced into the original contract and each party must know when the current year ends and expect that he may be required to deliver possession or get a new tenant, as the case may be. Gear on Landlord and Tenant, section 29; Wood on Landlord and Tenant, sections 13 and 21.
   Williams, J.

On the fifteenth day of December, 1889, Horace Holcomb, then the owner of a store room on M onroe street in the city of Toledo, executed a lease of the same to Thomas J. Gladwell for the term of one year commencing on the first day of January, 1890; the lessee agreeing to pay as the rent therefor the sum of three hundred and sixty dollars, in monthly installments of thirty dollars each on the first day of each month during the term, and further agreeing to surrender possession of the'premises at the end of the term to the lessor, his heirs, or assigns. The lessee occupied the premises and paid the rent according to the lease during the term, and 'continued to hold over and pay rent at the same rate from year to year thereafter, until and including the year 1896. On the thirty-first day of August, 1896, the lessor having then died intestate, his heirs to whom the estate descended, served the tenant with a written notice to yield possession to them on the first day of January following. The tenant having failed to comply with that notice, and with the further notice required by the statute to leave the premises within three days which was served on him on the second day of January, 1897, the heirs of Holcomb brought their action of forcible detention against him, before a justice of the peace of Lucas county. That action was defended on the grounds, (1) that the tenancy having become one from year to year, after the expiration of the lease, could not be determined by the complainants without a notice to that effect given six months' previous to the end of the year; and, (2) that the tenant, during his occupancy, had a verbal contract with the lessor for a further lease of the premises for the period of ten years. The justice instructed the jury that six months’ notice was not necessary to the determination of the defendant’s tenancy, and, that the verbal agreement, if one was made, was invalid. A verdict was returned against the defendant, on which judgment of restitution was rendered in favor of the complainants. The defendant, claiming1 there was error in the instructions of the justice to the jury, sought to have the judgment reversed; but it was affirmed in the court of common pleas, whose judgment was affirmed by the circuit court; and the two questions arising upon the charge are presented for decision by this court.

That Gladwell’s occupancy of the premises by holding over with the assent of his landlord after the expiration of the lease, became a tenancy from year to year, upon the terms, and subject to the conditions of that lease, is settled by the recent case of Raillroad Co. v. West, 57 Ohio St., 161. But what notice, if any, is requisite to the termination of a tenancy of that nature by either party without the consent of the other, has not, as far as we have been able to discover, been considered in any reported decision of this court.

It is not doubted that when the time of the termination of a tenancy is definitely fixed, the landlord, upon the expiration of that time, may maintain an action for possession without any notice to quit except the three days notice required by the statute; nor, generally, that upon the termination of a farming lease of uncertain duration, otherwise than for his own default, the tenant is entitled to emblements. Leases of this latter class, though strictly creating tenancies at will, were early construed by the English courts into tenancies from year to year, when a periodical rent was paid; and out of them, and of leases that by their terms were to continue from year to year, grew the common law rule requiring notice from the party desiring to bring the tenancy to an end. That rule rests upon the presumed intention of the parties that such tenancy should be prolonged for an indefinite number of years, and that, so being of uncertain duration, either party should have reasonable notice before the expiration of any year, of the other’s intention to end it. In agricultural tenancies the notice was fixed at six months, in order that the tenant might be enabled to reap, before he should be dispossessed, the crops which he had sown; though Mr. Justice Wilmot, in Timmons v. Rowlinson, 3 Burr, 1603, 1609, is authority for the statement that the notice required “varied according to the custom of different counties.” The rule was afterwards extended, without apparent reason, to like tenancies of tenements, and of other property not used for agricultural purposes. It has in this enlarged application, varying as to the length of the notice required, been adopted in some of the states by statute, and in others by adjudication of their courts; but has not hitherto obtained in this state, where the doctrine of emblements in cases of farming tenancies of indefinite duration has been adhered to. A distinction has been made between those tenancies from year to year from which, as has been seen, the rule requiring notice to quit had its origin, and those arising from a holding over by the tenant after the expiration of a lease for a specified term. In each year of occupancy under the former, there is, it is said, a growing-interest in the ensuing year springing out of the original contract; while in the latter case, a new contract arises each year of the holding over, by implication from the conduct of the parties. This distinction is pointed out in the opinion of Chief Justice Marshall, in Alexander v. Harris, 4 Cranch, 298, 302, in showing that a plea of a demise for three years is not supported by proof of a lease for one year and a holding over for two years thereafter. It is there said : ‘ ‘The lease stated in the avowry is obviously a different lease from that which was given in evidence. A lease for three years is not a lease for one year. But it is contended that a subsequent possession, without any new express agreement amounts to an extension of the original lease, and for this Bacon’s Abridgment, and a dictum of Judge Buller, in the case of Birch v. Wright, 1 Term Rep., 378, have been cited. But those eases do not prove the point they were supposed to establish. In those cases, the original terms of the lease admit of the extension which was afterward made by consent of parties. The lease was made for one year, and afterwards from year to year, as long as both parties should please. The principle of continuance is introduced into the original contract, and the occupation for three years is evidence that the circumstance had occurred, by force of which the contract should be a lease for three years. But in this ease the original contract contains no principle of continuance. It is for a limited time, and can only be extended by a new contract, either express or implied.” A similar view of the contract arising each year that the tenant holds over beyond the term of his lease? was expressed by this court in Railroad Co. v. West, 57 Ohio St., 161, 168, where, as showing that such a contract does not fall within the statute of frauds, it is said: “The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and the landlord’s acceptance of the proposed, tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio, 265, and Crawford & Murray v. Wick, 18 Ohio St., 190. Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over; and is therefore referable to it, rather than to the possession under the prior agreement which had expired. The holding over is equivalent to a-new entry.”

As the assent of both parties is necessary to the creation of this new contract at the beginning of each year, it is obvious that if the tenant chooses not to hold over, and vacates the premises at the end of any year, the tenancy ceases without liability for rent for the ensuing year, though no notice of his intention to remove be given, as certainly as it does upon the expiration of a lease expressly made for a specific term.. So it does, though he hold over, unless the landlord chooses to accept him as a tenant for another year. By remaining1 in possession without any new arrangement, the tenant is regarded as offering to take the premises for another year Upon the terms of his tenancy which has just expired. But the landlord is not bound to accept the offer; and unless he does so, by receiving rent, or some other act of assent or acquiescence, the tenancy is thus terminated, and notice of his intention not to renew it for another year is unnecessary. The holding over after the end . of any year, without the landlord’s consent, is equivalent to holding over after the expiration of a lease for a specific term. And, if the landlord does not choose to accept the proffered tenancy for another year, he is at liberty to treat the occupant as a trespasser, and may maintain ejectment against him, without previous notice of his intention not to prolong the tenancy. This result necessarily follows from the fact that the tenancy terminates at the close of the year, unless the. parties by some new agreement, express or implied, extend it for a longer period. Some of the authorities on this subject are referred to in Railroad Co. v. West, supra, and there are numerous others. It is not readily seen how, otherwise, such a tenancy could escape the statute of frauds. If six months, or any number of months notice, before the end of the year were required to terminate the tenancy, then, upon the failure to give such notice a new implied agreement, with the tenant in possession under a former one, would immediately arise, for another year commencing in the future, which could not less certainly be obnoxious to the statute than an express parol agreement for a future lease; and an agreement of that kind not accompanied with actual possession taken under it has been repeatedly held invalid. Our statute authorizes a suit in forcible detainer,, in all cases without exception, against tenants who hold over their term; and no notice is necessary before the commencement of the suit, except a written notice to leave the premises within three days after its service. This requirement was complied with.

Judgment affirmed.


author: Minshall, J.,

text:
    Doyle v. West.

      Mortgage foreclosure — Sale of property and balance still due mortgagee — Action can be maintainedfor balance, evidenced by record —Statute of limitations.

    1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and after applying the proceeds, a balance of $102.21 remained. Held, that an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.
    2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no inter, mediate payments having been made. Held, that under our statute of limitations, the action is barred.
    3. Whether the limitation is fifteen, or ten, years, is not necessary to determine in this action; and is left undecided. .
    (Decided June 13, 1899.)
    Error to the Circuit Court of Lucas county.

      Boyle & Lewis, for plaintiff in error.
    The petition in this case in the court below was filed April 20, 1895, and is an action brought to recover the balance claimed to be due upon what the plaintiff below claims to be a judgment rendered in his favor by the court of common pleas of Ottawa county at its October term, 1876.
    A demurrer was filed to the petition upon two grounds:

      Fwst — A general demurrer.

      Second --That more than fifteen years has elapsed since the accruing of any cause of action described in the petition.

      As noted above, a copy of the complete record of the Ottawa suit, which is made the basis of the right of action in the case at bar, is attached to the petition and made a part thereof, and for the purposes of the demurrer is a parf of the pleadings, and is an admission by the plaintiff below of all of the recitals in the record. Byers v. Insurance Co., 35 Ohio St., 606.
    As will be noted, the petition does not ask for a personal judgment, and if one had been rendered, it would have been invalid under the decisions of this court, as “a personal judgment, cannot be rendered in an action to foreclose a mortgage,unless there is a prayer for such personal judgment.” Giddings v. Barney, 31 Ohio St., 80; Moore v. Ogden, 35 Ohio St., 430; Rankin v. Hannan, 37 Ohio St., 113.
    But not only was no personal judgment asked for, but no personal judgment was in fact rendered.
    Our contention in this case is:

      First -That the Ottawa county decree, as shown by the record, has been fully complied with, and it cannot be made the basis of a right of. action.

      Second — That even if any action could be based upon that decree, under any claim that it represents a debt of record, it is barred by either one of two sections of the Statutes of Limitations.
    The action in Ottawa case was solely an action brought to foreclose a mortgage. Myers et al. v. Hewitt et al., 16 Ohio, 449.
    No such judgment was taken as authorized on execution as was described by this court in Hamilton v. Jefferson, 13 Ohio, 428.
    It is apparent that the plaintiff did not act under this authority, but relied solely upon the foreclosure of his mortgage, and therefore the decree was not so framed as to make the balance a debt of record.
    The record shows that all that was ordered by the court to be done has been done. The money was not paid, and in accordance with the order of court, the property mortgaged was brought to sale, and the proceeds applied as directed by the court. No further orders of any kind were made by that court' in the case, and no attempt was made to secure a deficiency judgment; upon the sale of the mortgaged property, the power of the court, in that case, was entirely exhausted. The notes sued upon in that action were still held by the plaintiff subject to a credit, in the amount of the proceeds of the sale paid to the plaintiff in that action, and for the balance due on the notes as such, the plaintiff below undoubtedly had a right of action based on the notes, subject to the endorsement of payment of the amount realized from the sale of the mortgaged premises. Durbin v. Fisk, 16 Ohio St., 533; Spence v. Insurance Co., 40 Ohio St., 518; Globe Insurance Co. v. Lansing, 5 Cow., 380; Lansing v. Goelet, 9 Cow., 346; Stevens v. Dufour, 1 Blackf., 387; Porter v. Pillsbury, 36 Me., 278; Tooks v. Hartley, Bro. C. B., 125.
    So likewise in case of strict foreclosure. Hatch v. White, 2 Galliston, 152; Amory v. Fairbanks, 3 Mass., 562; Dunkleyv. Van Buren, 3 Johns Ch., 330.
    A foreclosure in equity, it is said, though' not a proceeding in rem, is in the nature of such a proceeding, and is not intended ordinarily to act in personam. 2 Jones on Mortgages, pars., 1709-1711; Wiltsie on Mortgage Foreclosure, pars., 85-86; Smith v. Moore, 53 Mo. Appeal Reports, 525. That the decree rendered by the Ottawa county court is not a personal judgment and is not a decree for the payment of money only, is apparent from the decree itself. If, in any sense, that decree can be said to be a debt of record, it seems to be included under the term “Specialty” as defined in Revised Statutes, section 4980, and would be barred in fifteen years.
    If it is not a judgment, no action at law can be based upon it, but if it has any force as a debt of record because there is a finding of the amount due as distinct from a judgment, then it is as much a specialty, certainly, as a foreign judgment which is a specialty, although it certainly is a debt of record. Stockwell v. Coleman, 10 Ohio St., 33.
    On the other hand, if it is not a “Specialty,” and that, indeed, is the highest title that can be given to it, then such a right of action is not specifically designated in the Statute of Limitations, and it must be included within the provisions of section 4985.

      Waite <& Snider, for defendant in error.
    The questions presented by the record in this case are those which arose in the common pleas court on the demurrer to the petition, andaré—

      First — Could the suit be maintained on the decree set out in the petition; and

      Second — W as the action barred by the statute of limitation.
    I. As to the first question: We insist it is now settled by the Supreme Court of Ohio that, in proceedings to foreclose a mortgage on real estate in which the court renders a decree finding the amount due on the mortgage debt and ordering the debtor to pay the same within a time limited, and, in default of such payment, that the mortgaged property be sold by the proper officer of the court and the proceeds, applied by him towards the satisfaction of the amount .found due, an action at law can be maintained on such decree for any balance remaining unpaid after the mortgage security has been exhausted. Moore v. Adie's Adm'r, 18 Ohio, 430; Moore v. Ogden, 35 Ohio St., 430; Moore v. Starks, 1 Ohio St., 369; Maholm v. Marshall, 29 Ohio St., 611; Pennington v. Gibson, 16 How., 65; Post v. Neafie, 3 Caines, 22; Warren, v. McCarthy, 25 Ills., 95; Mutual Fire Ins. Co. v. Newton, 50 N. J. Law, 571; Thrall v. Waller, 13 Vt., 231.
    II. If, then, this suit on the decree is a proper proceeding for the collection of the balance due on the mortgage indebtedness, such action is not barred by the statute of limitations. Tyler's Exrs. v. Winslow, 15 Ohio St., 364; Fries v. Mack, 33 Ohio St., 52.
   Minshall, J.,

In .an action commenced in the court of common pleas of Ottawa county by Chai-les West against John H. Doyle, March 28, 1876, to foreclose a mortgage on certain-land, made by Doyle to one Cyrus Coy, and by him assigned to West, the court found the amount due to be $182.54, and-made the usual order of sale. There was no prayer for a judgment, and none was rendered,-nor was there an order that execution issue for any balance. The land was sold, and after payment of the costs, the remainder of the proceeds, $89.40, was, on May 15, 1877, applied to the plaintiff’s claim, leaving a balance of $102.21, remaining unpaid. This not being paid, on April 20, 1895, over seventeen years after the $89.40 was applied, West commenced the action below in the common pleas court of Lucas county against Doyle to recover the balance with interest from May 15, 1877. These facts were contained in and appeared from the petition of the plaintiff. Doyle demurred on the ground that the petition did not state facts sufficient to entitle the plaintiff to relief; and, also, on the ground that the right of action, if any, is barred by the statute of limitations, over fifteen years having elapsed from the time it could have been brought.

The demurrer was sustained by the common pleas and the petition dismissed, the plaintiff not desiring to amend. The judgment of the common pleas was reversed on error by the circuit court. Hence this proceeding in error by Doyle.

We are inclined to think, that, the statute of limitations aside, there is not much'doubt but that the petition states a cause of action. The finding of the amount due is a necessary predicate to an order of sale in a foreclosure proceeding, and the finding is a judicial determination of the amount. The defendant can take issue as to the amount claimed. Where issue is taken, it must be, and is heard as a question of fact; if no issue is taken, the finding is made as on confession. The policy of the law is against the relitigation of questions of law or fact, once heard,and determined between the same parties. A question of fact once so determined is binding on the same parties in all subsequent litigation. It would be somewhat anomalous if, after the amount due on a note secured by mortgage, had been, on issue taken, heard and determined in a foreclosure suit, afterwards a suit might be brought on the notes, and the whole question again litigated. We regard the finding of the amount due in a foreclosure proceeding as a judicial determination of the question; and where it, or any balanee, after applying the proceeds of sale, remains due and unpaid, a suit may be brought on the finding to recover the amount. We find nothing in the decisions of this state that conflicts with this holding-. It is not, as we shall see, a judgment with any of its incidents, but is a debt evidenced by record, and can only be discharged by payment. It does not become dormant in the sense that a judgment does (Moore v. Ogden, 35 Ohio St., 430) for it is at no time active in the sense that an execution can be issued upon it, unless so ordered; and it does not become a lien upon the other lands of the debtor. These are the incidents of a judgment and distinguish it from a simple finding of the amount due ón a mortgage. This leaves for consideration the question, whether the suit is barred by lapse of time.

2. It would seem that, under the provisions of our code of civil procedure, it was the intention of the legislature to prescribe a limitation for the commencement of all actions in this state. It would also seem that, in the nature of things, and a sound public policy, interested in. the repose of society, this should be so. . No reason is perceived why there should have been a purpose of this kind in one class of actions and not in another. The difficulty of preserving evidence, the frailty of the memory, and the contingency of the death, of witnesses, are the same in one ease as in another. Again, the statute itself makes no exceptions. The first provision is section 4976, Revised Statutes. It provides that ‘ ‘civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; but where a different limitation is prescribed by statute it shall govern.” Causes of action are then divided into certain classes, and a specific limitation prescribed for each, class; and then is added a general provision, to the effect, that all other actions for relief shall be brought in ten years — section 4985, Revised Statutes. This would seem entirely conclusive of the question, and would be so, but for the decision of this court in Tyler's Exrs. v. Winslow, 15 Ohio St., 364, where it is said that “judgments and debts of record are not specified as causes of action to be limited; ” and it was there held, that an action on a domestic judgment is not limited by any statute, and a recovery can only be defeated by such a lapse of time, or other circumstances, as will raise a presumption of payment, the time there adopted being twenty-one years. There is no disposition to overrule this case; but if persuaded that it was not rightly decided, there is the more reason for confining its application to cases identical with it in facts. The suit was, as we have said, on a domestic judgment, and not a mere finding of an amount due, as in this case, and arose under the statute of 1831, which limited the commencement of all actions, other than those specially provided for, to four years. This seemed to have exercised a controlling influence upon the mind of the court, as it is observed in the opinion, that a judgment could not have been included therein, as it might be revived in five years and execution issued thereon. And it cannot be doubted that there is much force in this observation. But it is without application to our present statute, where the limitation for actions, not otherwise provided for, is ten years; and it would seem that this is quite long enough, regard being had to the repose of society on the one hand, and the convenience of creditors on the other. The reasoning, however, of the court, that the rendition of a judgment does not seem, in the ordinary sense, the accrual of a cause of action, is less satisfactory. It is true that an action on a judgment accrues somewhat differently from most actions. Actions generally accrue from a violation of a primary or sanctioned right; but in the case of a judgment the right of action on it accrues on the termination or extinction of a secondary or sanctioning right. This peculiarity suggested itself to the analytical mind of John Austin, who pointed out that a judgment generates a right of action at the moment it. terminates such a right, and called for some modification of his terminology. 2 Austin Juris., 460. A judgment ascertains and determines thata party is entitled to a definite sum of money from another. It at once becomes a debt in the strictest sense of the term; and if it is not paid, might, at common law, have been recovered in an action of debt (Headley v. Roby, 6 Ohio, 521), or in our state, may be, by the civil action of the code. This is not disputed in the case of Tyler’s Executors; but, is it not a contradiction in terms to say, that an action can be brought and a recovery had, where no cause of action has accrued ? Yet it is apparently upon this absurd distinction that the action in that case, being on a judgment, was taken out of the statute of limitations, so far as the reasoning proceeded on this last ground. Placed on the first ground — the construction of the act of 1831— it is not unreasonable; but that ground, as we have shown, is without application to an action on a judgment under our present statute of limitations. It may, however, be argued from the provision of section 5368, which is that an action to revive a judgement can only be brought in twenty-one years from the time it became dormant, that a suit on it may be brought in a like period from its rendition. But whether this is so or not, it seems evident that that case cannot control this one — it is not on a judgment, but on a simple finding of an amount due, not put into judgment, and has none of the incidents of a judgment; and the commencement of a suit upon it as a cause of action, seems upon reason, to require a limitation as much as any other action for the recovery of money; and therefore within our statute of limitations.

In this case it is not necessary to decide whether it is fifteen years, the time fixed for a suit on a specialty or a contract in Writing; or ten years, the time fixed for the commencement of all actions for relief not otherwise provided for, as over seventeen years have elapsed since the cause of action accrued. There is much authority'for saying that it is an action on a specialty. Stockwell v. Coleman, 10 Ohio St., 33-36 ; Fries v. Mack, 33 Ohio St., 52. Though it certainly is not literally accurate to call a foreign judgment, or a finding of an amount due, a specialty, the usual definition of a specialty being, an instrument under seal. But from the cases cited, and some English cases, there seems to have been a disposition to use the term in a transferred sense, and as including any debt evidenced in a solemn form. In the case of a sealed instrument, its character is in fact referable to the solemnity of affixing the seal, rather than to the seal itself; and there can be no more solemn act in law, than that of a court or jury finding, on issue joined, that the defendant is, or-is not, indebted to the plaintiff; and on this ground it has been held that a foreign judgment, even of a justice of the peace, is a specialty. Walker says: “Specialties include contracts under seal, and obligations of record;” and adds, “it is then the seal or record which constitutes a specialty.” Am. Law, 9th ed., 492.

Judgment reversed and that of the common pleas affirmed.


author: Minshall, J.

text:
    The Nelson Business College Company v. Lloyd.

      Agency — Liability of employerfor willful or malicious acts of servant — When in course of employment — Questions of motive of act —Law of evidence.

    1. An employer is liable for the willful or malicious acts of his servant done in the course of the servant’s employment.
    2. When the act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.
    3. In a suit against an employer for an injury caused by the wrongful act of his servant, and the evidence is such, that different minds may fairly draw different conclusions from it as to the real motive and purpose of the servant in doing an act, apparently within the course of his employment, it should be left to the jury to determine the question, under proper instructions as to the law; and it is error for the court, in such case, to direct a verdict for the defendant.
    (Decided June 13, 1899.)
    Error to the Circuit Coürt of Hamilton county.

      W. O. Qoclwan, for plaintiff in error.
    An examination of Stranahan Co. v. Coit, 55 Ohio St., 398, shows that the circuit court misconceived the scope of the decision and misapplied the law as there announced, as they probably would not have done if the statement of facts and opinion of the court had been before them.

      This court not only did not announce any such doctrine as the .Hamilton circuit court lays down in its syllabus and opinion, but carefully distinguishes the Stranahan case from such a case as the one at bar.
    The ease is carefully distinguished from Wright v. Wilcox, 19 Wend., 345, and Railroad Co. v. Wetmore, 19 Ohio St., 110. The law of Ohio remains today as announced in the latter case.
    There is no controversy about the essential facts in this case, all of which are established by plaintiff’s own testimony. The petition sworn to by the plaintiff, alleges that defendant’s ‘‘janitor assaulted plaintiff and violently, wrongfully, recklessly and carelessly caused a ladder upon which plaintiff was lawfully engaged at work in the school room of said defendant to be overturned, and thereby throwing plaintiff violently to the floor, ’ ’ etc.
    There is not a scintilla of evidence that the janitor was authorized by defendant to make this assault, or that it was within the scope of his employment to order these men to come down off the ladder. On the contrary, he was interfering’ with the work his principal wished these men to come and do. The arg’ument that he was engaged in cleaning up the room, and that it was within the scope of his employment to move tables and chairs and therefore his angry jerking of this table was done in the execution of his authority, is so patent a fallacy that it is a wonder the learned circuit court should have been influenced by it. An authority to move a chair for the purpose of cleaning up a room is not an authority to strike a man on the head with it, any more than authority to use the hatchet in the W etmore case was authority to strike the passenger.
    Nothing is better settled by the authorities than the principle that the master is not liable for unauthorized assaults or trespasses committed by the servant, even though the servant was acting in the scope of his employment up to the instant of the assault. The departure from the line of duty may be, and generally is, instantaneous. McManus v. Crickett, 1 East, 106; Mali v. Lord, 39 N. Y., 381; Chicago City Ry. Co. v. Mogk, 44 Ill. App., 1; Meehan v. Morewood, 52 Hun., 566; Hamburg v. Singer Mfg. Co., 4 N. Y. Supp., 185; Church v. Mansfield, 20 Conn., 284; Porter v. Chi. R. I. & Pac. Ry. Co., 41 Ia., 358; Williams v. Pullman Palace Car Co:, 40 La. An., 87; Gilliam v. Railroad Co., 70 Ala., 268; Railroad Co. v. Ross, 31 Ill. App., 170; Central Ry. Co. v. Peacock, 69 Md., 257; Yerger v. Warren, 31 Pa. St., 319.
    Even if the janitor did not intend the consequences of his act, the injury was done by him while attempting to compel plaintiff to come down off the ladder, an undertaking entirely foreign to his employment.

      William M. Pames and William P. Bundy, for defendant in error.
    This case should have been submitted to the jury by the trial court. It is a well established principle that is the duty of the master to employ competent, and prudent servants, with good judgment and qualifications for the positions in which they are placed. Lloyd the plaintiff was sent to one of the rooms of the Nelson Business College Company, and in the performance of his duty as an employe of the Electric Light Company, had a right to rely upon the reasonable conduct towards him of -the person left in authority over the room in which he was engaged at work, and to assume that he could safely proceed with his employment, without interference' or assault from any agent or servant of the Nelson Business College Company.
    Lloyd was not a transgressor, and it was the plain duty of the latter company, and its agents, to protect, rather than to assault him while in their care, and lawfully upon their premises. It is reasonable to expect that the employer should know the character and disposition of their employes, rather than that third parties should be so informed. Suppose that Lloyd had remained upon the ladder one or two hours, instead of five or ten minutes, extending over the time when the hall actually had to be cleared, and refused to vacate; and the janitor conceived that Lloyd was occupying too long’ a time and interfering with the performance of his (the janitor’s) duties, as he did. in this case, the principle would have been the same. It was his duty to clear the room, and Lloyd, the ladder and the table were in his way, and whether he jerked, pulled, pushed, or shoved the table, willfully or maliciously, is not material. 3 South Carolina (new series), 1; Mott v. Consumers Ice Co., 75 N. Y., 555; 64 N. Y., 154.
    The case of the Philadelphia & Reading Ry. v. Derby, 14 Howard U. S., 468, is directly in point upon this question as to the willfulness of the agent being’ the willfulness of the principal.
    Also 21 Howard U. S., page 202; Stranahan Co. v. Coit, 55 Ohio St., 399, involves principles very similar to those in this case. Railroad Co. v. Young, 21 Ohio St., 524.

      And we particularly refer to the rule as stated by Mechera on Agency, section 740, quoted by this court with approval on page 410 in the Stranahan case.
    It is not important whether or not the master had especially authorized his servant to commit an assault or injury upon another, before recovery can be had in damages, as counsel for plaintiff in error seems to argue.
    If the tort was committed by the servant, having his master’s interests in view and in the course of his employment, the master would be liable even if the wrongful act be directly contrary to the orders of the master. Philadelphia & Reading R. R. v. Derby, 55 U. S., 457.
    A reference to the statement of facts in the case of Railway Company v. Whetmore, 19 Ohio St., 110, will readily show that the principle there decided is not applicable to the facts in this case. There is a wide distinction between the two cases.
    It is immaterial whether the act of the janitor was malicious, wanton, or merely negligent, if it was done within the scope of his employment.
   Minshall, J.

In the original suit the plaintiff sought to recover of the defendant damages for injuries occasioned him by one of its servants, acting in the capacity of janitor, the averment being that the janitor being then and there engaged in the performance of his duties as such, “assaulted the plaintiff and violently, wrongfully, recklessly and carelessly caused a ladder on which he was lawfully engaged at work in the school room of the defendant, to be overturned” whereby he was violently thrown to the floor and seriously injured. On the trial to a jury, at the close of the plaintiff’s evidence, the court, on motion of the defendant, instructed the jury to render a verdict for the defendant, which was done. A motion for a new trial was overruled, exception taken and judgment rendered on the verdict. A bill of exceptions, containing all the evidence, was also taken and made a part of the record. On error to the circuit court the judg’ment was reversed for error in directing a verdict for the defendant; and the question is now presented to this court, whether the trial court erred in directing a verdict for the defendant on the evidence produced by the plaintiff.

The evidence offered tended to show that the plaintiff had been called by the company for the purpose of repairing an electrical light in a room of the college, and was so engaged at the time he was thrown from the ladder to the floor by the act of the janitor and injured. It also tended to show that the janitor was at the time engaged in the performance of his duties, cleaning up the room, and this required the moving of the tables from one part o'f the room to another. The ladder had been placed on one of these tables, so that the light that needed repair could be reached. That the janitor, being delayed in his work by the time taken to repair the light, became impatient, and demanded the plaintiff to get down; he was told that it would only take a few minutes, but he was unyielding, and violently shoved the table, with the result before stated.

It would seem that there cannot be much doubt that the janitor was at the time engaged in the performance of his duties, or, at least, that that question should have been submitted to the jury. He had, for the time being, the custody of the room, and was engaged in cleaning it up and putting it in order fon use that evening, which, as before stated, required the moving of tables from one part of the room to another. There was some evidence that the janitor had an ill will against the plaintiff, and availed himself of this opportunity- to injure him. If this were so, and the act was done with no other purpose, it was a clear departure from his employment, and the master is not liable. Railroad v. Wetmore, 19 Ohio St., 110. Whether the act was done with this purpose or not was certainly a matter for the jury to determine upon a consideration of all the evidence. The manner and character of the witnesses testifying in this regard, might largely influence the jury in arriving at a conclusion on the subject.

Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of a servant, done in the course of his employment and within the scope of his authority. Mechem on Agency, sections 740, 741; Smith, Master and Servant, 151.

Among the older cases on the subject, and which have frequently been followed, are McManus v. Crickett, 1 East, 106, where it was held that the master was not liable for the act of his servant in purposely driving his chariot against the chaise of the plaintiff, the master not being present; and Wright v. Wilcox, 19 Wend., 343,“where it was held, on the authority of the previous ease, that a father was not liable for the willful acts of his son in running over a small boy while driving the wagon of the father, the latter not being present. In these cases, and those following- them as precedents, it' is held that the master is liable only for the negligent acts of his servant done in the course of his employment and the scope of the authority conferred; and that, in the absence of evidence, he cannot be supposed to have authorized the doing of a willful or malicious act. This, as observed by Chief Justice Ryan, in Craker v. Railway Co., 36 Wis., 657, seems an unnecessary subtlety, for, by a parity of reasoning, a master should not be held for the negligent acts of his servant, though done in the course of -his employment, since it could hardly be presumed that any master would authorize negligence on the part of his servant, in conducting his business, any more than he would malice or willfulness; and such, it would seem, as observed by Chief Justice Ryan, was the ground of the decision m Middleton v. Fowler, 1 Salk., 282, which was a case for negligence, where it is said, “no master is chargeable with the acts of his servant but where he acts in the execution of the authority given him, ’ ’ and, he remarks, that it is a singular commentary on the subtleties of McManus v. Crickett, that Middleton v. Fowler, is the only adjudged case cited to support it.

In Wright v. Wilcox, it is said, that “the dividing line is the willfulness of the act.” The great weight of modern authority and reason, is against this as the proper distinction. The learned judge just referred to, after an elaborate examination of the cases, and the reason of the rule, respondeat superior, observes that, “In spite of all the learned subtleties of so many cases, the true distinction ought to rest, on the condition whether or not the act of the servant be in the course of his employment.” Craker v. R. R. Co., supra; Redding v. Railroad Co., 3 S. C., 1. The learned author, whose work on Agency we have cited above, makes this comment: “It does not follow, by any means, from this rule that the principal is liable for any willful or malicious act of his agent but only for those which are committed by the agent while acting in the course of his employment and within the scope of his authority. At the same time, it is not to be inferred that the principal’s liability depends upon whether he has'or has not intentionally authorized the doing of the wrongful act. If he has done so, he is, of course, liable. But what is meant, is, that if the agent, while engaged in doing something which he is authorized to do, and while acting in the execution of his authority, inflicts an injury on a third person, though willfully or maliciously, the principal is liable. But if, on the other hand, the agent steps aside from his employment to do some act having no connection with the-principal’s business, and to which he is inspired by pure personal and private malice or ill will, the principal is not liable.” The author then gives many instances in which the master has been held liable for the willful acts of his servant. For example: Where the engineer of a locomotive wantonly and maliciously sounded the whistle so as to frighten the horse of a traveler on the highway causing it to run away and injure him; where an engineer purposely ran down and killed the plaintiffs’ cattle; where an agent in the course of his employment instituted a malicious prosecution; where a railway brakeman assaulted and grossly insulted a passenger, upon the false pretense that he had not surrendered his ticket; where, under like circumstances, the conductor willfully and wrongfully caused a passenger to be ejected from the train; where the servant and some of the table-waiters upon a passenger boat, wrongfully and without provocation assaulted a passenger; where the conductor of a passenger train kissed a female against her consent; where a brakeman struck a passenger in the face with a lantern because the passenger, who had lost his watch, said he thought the brakeman had it; where the driver of a street railroad ear maliciously assaulted a passenger because he expostulated with the driver about an assault made by him upon another person outside the ear; and where a railway brakeman made a malicious assault upon a passenger who attempted to enter the wrong car. He then refers to the Ohio case of Railway Co. v. Wetmore, 19 Ohio St., 110, and distinguishes it as a ease “where a prospective passenger, while seeking to get his trunk checked, provoked a personal quarrel with the baggage-master, and was struck by the latter as an act of personal resentment,” and the company was held not liable. This case, and that of Stranahan Co. v. Coit, 55 Ohio St., 398, may be regarded as standing at the opposite extremities of the master’s liability for the willful and malicious acts of his servants, the one without, and the other within, the liability. In the latter case, the defendant had a contract with Stranahan Co., the plaintiff, for the delivery of pure milk; the milk delivered was adulterated and the plaintiff was thereby injured in its business. From the evidence it appeared that the adulteration had been caused by the wrongful act of the defendant’s servant, delivering the milk, and that he adulterated the milk for the malicious purpose of injuring the business of his employer. It was claimed that this fact exonerated the employer; but it was held that the delivery of milk was in the course of his employment, and that his ill motive toward his employer, did not relieve the latter from his liability to the plaintiff. Bradbury, J., dissented; but there seems to be [no real ground for the dissent. The case embodies a correct application of the principle of respondeat superior, as nbw interpreted, and as laid down in the earlier case of Railroad Co. v. Young, 21 Ohio St., 524. It was a case where the plaintiff below and his wife were by force, wrongfully excluded from a passenger car; and it was argued that the master was not liable for such wrongful acts unless shown to have been authorized by him directly or by some general rule of the company. White, J., after showing that the act was done in the course of the conductor’s employment, said “When a person is injured by the act of a servant, done in the course of his employment, we see no' good reason, why the motive or intention of the servant should operate to discharge the master from liability. If the nature of- the injurious act is such as to make the master liable for its consequences, in the absence of the particular intention, it is not perceived how the presence of the intention can be held to excuse the master.”

The liability of the master for the acts of his servant, is fully and accurately stated, conform-ably to the modern rule, in Smith, Master and Servant, 151. See, also, Weed v. Railroad Company, 17 N. Y., 362; Mott v. Ice Company, 73 N. Y., 543; Railroad Company v. Derby, 14 How. (U. S.), 486; Marshall v. Stewart, 33 Eng. L. & E., 7. It would seem from Seymour v. Greenwood, 7 Hurls. & Nor., 354, that the case of McManus v. Crickett, has been materially modified, and .the law there brought more in harmony with the modern cases.

Applying the principles of the master’s liability for the acts of his servant, as interpreted by the modern decisions, to the facts of the case as disclosed by the plaintiff’s evidence, should the trial court have directed a verdict for the defendant? That it was a part of the janitor’s employment to clean up the room, and that, to do so, it was necessary to move the tables from one part of the room to another, is not disputed. And it may be inferred from the evidence, that a part of the work of moving the tables had been done; and that the completion of the work was delayed by the use made of one of the tables by the plaintiff in repairing the light; that the janitor became impatient, would wait no longer, and proceeded to move the table in a violent manner, regardless of the safety of the plaintiff, and he was thrown to the floor and injured. On the other hand it is claimed that the janitor, by reason of his ill will toward the plaintiff, was actuated wholly by malice, and violently shoved the table, not in the performance of any duty within his employment, but with the willful purpose only of injuring the plaintiff. But it must be observed, that this is the inference the defendant would have drawn from the evidence ; but, certainly, an impartial mind may draw from it the former conclusion ; and this shows that, from the same evidence, different minds may draw different conclusions — one favorable, and the other unfavorable, to the claim of the plaintiff; and hence the evidence should have been submitted to the jury under proper instructions as to the law. This is the proper rule in determining whether a verdict should be directed in any case. The so-called “scintilla rule,” frequently applied as a stigma to the practice that requires the case to be submitted to the jury when there is any evidence to support the plaintiff’s case, is better calculated to confuse than enlighten the mind.

In many cases it is clear from the nature of the act, that it is not within the scope of the servant’s employment. This is so in the Wetmore case. There the servant’s duty was to check baggage; and when he made a violent assault on the plaintiff because he had provoked him, he turned aside and made an assault, not in the course of his employment, and for which bhe master was not liable. But when, as in this case, the act done — the pushing of the table — was, in its nature, within his employment, and the question is, whether it was in fact done in the performance of his service to his master, or was done wholly for the purpose of injuring the plaintiff and none other, it necessarily becomes, under our system of administering justice, a question to be determined by the trial of the fact. Reddiny v. Railroad Company, 3 S. C., 1; Jackson v. Railroad Company, 47 N. Y., 274; Rounds v. Railroad Company, 64 N. Y., 129, 137. In the latter case, which is one where a brakeman kicked a boy from a train while it was moving, it is said, by Andrews, J., delivering opinion, “Neither was the defendant entitled to have the court rule, as a matter of law, that, upon the circumstances as shown by the evidence on the part of the plaintiff, the defendant was not responsible. It is conceded that the removal of the plaintiff from the car was within the scope of the authority conferred upon the baggageman. The plaintiff had no right to be there. He'was not a passenger or servant, and had no express or implied permission to be upon the car. The brakeman in kicking the boy from the platform, acted violently and unreasonably, and to do this while the ear was in motion, and when the space between it and the wood-pile was so small, was dangerous in the extreme. But the court could not say from the evi: dence that the brakeman was acting outside of and without regard to his employment, or designed to do the injury which resulted, or that the act was willful within the rule which we have stated.” The rule “stated” is substantially the same as that adopted, as the result of the modern decisions. After having so stated it, the learned judge says: “And when it is said that the master is not liable for the willful wrong of the servant, the language is to be understood as referring to an act of positive and designed injury, not done with a view to the master’s service, or for the purpose of executing his orders.”

Affit'med.

Shauck and Spear, JJ., dissent from the judgment.