text:
    Andrew Byers v. Farmers’ Insurance Company.
    1. The plaintiff attached to and filed with his petition, and as part thereof, a copy of the policy of insurance on which his action was founded. On trial in the common pleas, and on error to the district court, the copy of the policy was treated as part of the petition, without objection by either party : Held, that it is not error in a reviewing court to treat said policy as a part of the petition.
    '2. Where, in a policy of insurance, the written application is referred to and expressly made part of the contract, such application thereby becomes part of the same as fully as if embodied in the policy.
    3. One condition of the policy was, “ and any false representations made by the assured of the condition or occupancy of the property, or any material fact — material to the risk,” avoids the policy: Held, that representations concerning a matter material to the risk contained in the application, if untrue in fact', avoids the policy, whether made intentionally or otherwise.
    4. In said application the question was: “Is the property incumbered? If so, state to what amount, and the value of the premises.” Ans. “Yes; mortgage $2,000 — $10,000.” When the fact was, this mortgage, which was made by the insured, was $3,200 principal and $240 accrued interest: Held, that this was a false representation, material to the risk, which avoided the policy.
    •5. It was a condition of the policy that, “if the property be sold or transferred, or any change take place in the title, either by legal process or otherwise, . . . without the consent of the company, the policy shall be void.” This condition was not broken by the execution, of a mortgage on the property, without such consent.
    Error to the District Court of Seneca county.
    The present plaintiff brought Ms action in the court below, to recover on a policy of insurance issued by defendant, a copy of which is attached to and filed as part of his petition.
    The contract was to insure one barn, $.375 ; hay and grain therein, $200; live stock therein (two horses), $250; and farming implements, $175 ; from August 2,1873, to August 2, 1875, of which property, and the real estate on which it was situated, plaintiff' was the owner.

      He avers that he duly kept, observed, and performed all the requirements and conditions contained in said policy, and in the application and survey therein referred to, by him to bo kept, observed, and performed.
    He alleges a loss by fire of the insured property, August 17, 1874, and damages, with notice and non-payment, and demands judgment for $970.
    The amended answer, for a first defense, alleges that plaintiff made a written application for said policy, “ set forth in said petition,” and that said application and the description of the property therein contained was specially referred to and made part of said contract of insurance; that it was provided therein that any false representations by the plaintiff in said application of the condition and occupancy of the property, or of any fact material to the risk, should render the policy void.
    As a breach of this provision, it is alleged that it is stated in said application that there was an incumbrance by mortgage of only $2,000 ; whereas, as the plaintiff well knew, the amount of said mortgage was $3,440.
    As a second defense, it is alleged that said contract of insurance stipulated that in the event that said property should be sold or transferred, or any. change take place in the title, either by legal process or otherwise, without the consent of defendant, then the policy should be void.
    As a breach of this condition, it is alleged that on the 13th of April, 1874, while the first named mortgage was in full force, the plaintiff, without the consent of defendant, executed a second mortgage to one Skinner upon said property for $406.78.
    The reply denies each and every of said allegations.
    Upon a trial, the plaintiff obtained a verdict for $750 damages.
    Defendant moved for a new trial: 1. Because the court erred in its chai’ge to the jury. 2. Because it erred in refusing to charge as requested.
    This motion was overruled, judgment rendered, and a bill of exceptions was taken, showing that the defendant gave in evidence the written application referred to in the petition and answer, of which the following is a copy:
    “Application to the Fanners’ Insurance Company, for insurance against loss by fire and lightning, for three years, on the sum of $1,000, to wit:
    Horse barn..................................................... $875 00
    Hay and grain therein.................................... 200 00
    Live stock, two horses therein........................... 250 00
    Farming implements, wagons and harness.......... 175 00
    Total insurance....................................$1,000 00
    Situate in range 13, township 3, lat. secs. 1 and 12.
    Barn. Its size, age, and condition.
    Ans. 26x30, built 1871.
    Are the buildings occupied by the applicant or a tenant t

    Ans. By applicant.
    ' Is the property incumbered ? If so, state to what amount, and the value of the premises.
    Ans. No. Yes; mortgage, $2,000 — $10,000.
    Andrew Byers, Applicant.”

    Also, that to maintain his first defense, he proved that at the time the application was made, the lands upon which the building stood, which was insured, was incumbered by a mortgage, given by the plaintiff, for $3,200 principal and $240 of accrued interest.
    To maintain the second defense, the defendants proved that on the 13th of April, 1874, the plaintiff, without the consent of defendants, executed a second mortgage on said real estate for $406.78, the first mortgage and accrued interest being in full force.
    The bill of exceptions further shows that the defendant requested the court to charge:
    “ That, if from the evidence given upon said trial, they found that at the time the plaintiff made his said application for said policy of insurance, he represented that there was an incumbrance by mortgage of only $2,000 upon the property so insured, when in fact there was at that time an incumbrance by mortgage amounting to the sum of $3,440 — then, and in that case, the defendant is entitled to a verdict, which was refused, and exception taken.”
    Also the following:
    “ And, that if the jury find that after said application for insurance, and after the issuing of said policy, the plaintiff further incumbered said property so insured, by mortgage, without the consent of the defendant, then and in that case the defendant is entitled to a verdict, which was refused, and exception taken.”
    On these points the court charged as 'follows, which was excepted to:
    “But the court did thereupon instruct and charge the jury, that the several representations made and stated in the written application for said insurance, are not warranties but merely representations, and that the representation and statement in said application that there was an incumbrance by mortgage of $2,000 on said property, when in fact the incumbrance thereon amounted to $3,440, was not a false representation that will avoid the policy, and that is no defense.”
    On error to the district court, where, without objection, the copy of the policy was treated as part of the record, the judgment was reversed, the verdict of the jury was set aside, and the cause was remanded to the common pleas for a new trial.
    To reverse this judgment is the object of the present petition.

      George JE. Seney and Noble Lutes, for plaintiff in error:
    1. In an action on an insurance policy, section 117 does not apply. 2. If it does, the copy of the policy required to be attached to the petition forms no part of that pleading, nor of the record of the case. 2 Handy, 163; 1 Handy, 239, 276, 576; 1 Disney, 161; 2 W. L. M. 272, 315, 550; 27 Ohio St. 421; 29 Ohio St. 13.
    A false representation which will avoid an insurance policy, must be as to a “ material fact,” which material fact must also be material to the risk. Protection Ins. Co. v Harmer, 2 Ohio St. 452; Roth v. City Ins. Co., 6 McLean (C. C. U. S.) 324; Witherell v. Maine Ins. Co., 49 Maine, 200; Wall v. Howard Ins. Co., 14 Barb. (N. Y.) 383; Valton v. The N. F. L. A. Co., 20 N. Y. 32.
    It is argued, however, that the representation as to the incumbrance is a warranty, and must, therefore, be literally ■true.
    As before remarked, it will be noticed that there is ■nothing in the conditions of the policy requiring the applicant to state any thing about the incumbrance.
    The Supreme Court, in Protection Ins. Co. v. Harmon, 2 Ohio St. 452, hold that any facts stated in the application, not required to be stated by the conditions of the policy, or descriptive of the premises, belonging to the preliminary information, are to be treated as representations, and not warranties. To the same effect: Houghton v. M’f’g Ins. Co., 8 Met. 114; Farmers’ Ins. Co, v. Snyder, 16 Wend. 481; Alston v. Mechanics’ Ins. Co., 4 Hill, 330; Glendale M’f’g Co. v. Protection Ins. Co., 21 Conn. 32; Cumberland Valley Mut. Pro. Co. v. Mitchell, 48 Penn. St. 374.
    The giving of the mortgage made no such change in the title as would avoid the policy. Harkrader v. Leiby, 4 Ohio St. 602; McArther v. Franklin, 16 Ohio St. 193; Phelps’ Lessee v. Butler, 2 Ohio, 224; Ely’s Lessee v. McGuire, 2 Ohio St. 223.
    There is nothing in the conditions of this policy prohibiting incumbrance. Aurora & C. Ins. Co. v. Eddy, 55 Ill. 213; Conover v. The Mut. Ins. Co., 1 Comst. 290; Folsom v. B. Co. M. F. Ins. Co., 10 Fost. 231; Savage v. L. I. Ins. Co., 43 How. N. Y. Pr. 462; Holbrook v. Am. Ins. Co., 1 Curtis C. C., 193; Shepherd v. Union Mut. Fire Ins. Co., 38 N. H. 238.

      Critchfield ¿f Graham, for defendant in error:
    The plaintiff is estopped to object here for the first'time, -that the copy of the policy attached to and made part of his petition be regarded as a part of his pleading. Bigelow on Estoppel, 617-18; 7 Ad. & E. 161; 1 Handy, 276; Heman’s Law of Estoppel, 107; Bigelow on Estoppel (2 ed.) 542; Daniel v. Morton, 16 Q. B. 198; Dreyfous v. Adams, 48 Cal. 131; Thompson v. McKay, 41 Cal. 221.
    The application was a part of the contract. Flanders on Ins. 210-11; Wood on Ins. 271; Harris v. Columbiana Ins. Co., 18 Ohio 116; Hutchins v. The Cleveland Mut. Ins. Co., 11 Ohio St. 477; Haywood v. Mut. Ins. Co., 10 Cush. 444; Kennedy v. St. Lawrence Ins. Co., 10 Barb. (N. Y.) 285; Brown v. People’s Ins. Co., 11 Cush. 280; Gottsman v. Penn. Ins. Co., 56 Penn. St. 200; Pelton v. Ins. Co., 38 N. H. 344; Gahagan v. Union Mut. Ins. Co., 43 N. H. 176 ; Murphy v. People’s Ins. Co., 7 Allen, 239; Abbott v. Shawnee Fire Ins. Co., 3 Allen, 213; Eagan v. Mut. Ins. Co., 5 Denio; State Mut. Ins. Co. v. Arthur, 30 Penn. St. 315 ; Davenport v. New England Ins. Co., 6 Cush. 390; Marshall v. Colombia Fire Ins. Co., 7 Fost. 157; Draper v. Charter Oak Ins. Co., 2 Allen, 569; Wood on Insurance, 237-238 ; Daniels v. Hudson River Fire Ins. Co., 12 Cush. 417.
    The misrepresentation as to the amount of the incumbrance was a material one and avoids the policy. Hutchins v. The Cleveland Mut. Ins. Co. 11 Ohio St. 477; Wood on Insurance, 238; Flanders on Insurance, 278; Davenport v. New England Mut. Ins. Co., 6 Cush. 340; Patten v. Merchants’ Ins. Co., 38 N. H., 338; Carpenter v. American Ins. Co., 1 Story, 57; Commonwealth Ins. Co. v. Moninger, 18 Ind. 352; Daniel v. Hudson River Ins. Co., 12 Cush. 416; Shoemaker v. Glenn Falls Ins. Co., 60 Barb. (N. Y.) 84; Fitch v. American Pop. Life Ins. Co., 59 N. Y. 557; Campbell v. New England Mut. Ins. Co., 98 Mass. 381; Day v. Mut. Ben. Life Ins. Co., 1 McArthur (U. S.), 91; Miller v. Same, 31 Iowa, 216; Wilson v. Conway Ins. Co., 4 R. I. 141; Glendale Woolen Co. v. Protection Ins. Co., 27 Conn. 19; State Ins. Co. v. Arthur, 30 Penn. St. 315; Flanders on Insurance, 201; Phillips on Insurance, 354; 1 Marshall on Insurance, 354; Mitchell v. The Marine Ins. Co., 49 Me. 200.
    The question whether or not a mortgage is a violation •of the condition of the policy, prohibiting the property being sold, transferred, or any change of title, depends-upon the other question, whether a mortgage operates a sale, transfer, or change of title in the property; for if there has been any sale, transfer, or change of title, there-has been just such a sale, transfer, and change of title that comes within the conditions of this policy. See 52 N. Y. 502; 4 Ohio St. 602; 2 Cush. 303; 1 N. H. 171; 2 Gray, 385; 3 Kent’s Com. 129; 1 Hilliard on Mort. 151; 10 Mich. 279; 1 Allen, 311; McIntire v. Norwich Fire Ins. Co., 102 Mass. 230; Orrell v. Hampden Ins. Co., 13 Gray, 431; Abbott v. Hampden Ins. Co., 30 Me. 414; McCulloch et al. v. Indiana Mut. Ins. Co., 8 Blackf. 50; Indiana Mut. Ins. Co. v. Coquillard et al., 2 Cart. 645; Edwards v. Ins. Co., 1 Allen, 36; Lawrence v. Holyoke Ins. Co., 11 Allen, 387; Adams v. Buckingham Mut. Fire Ins. Co., 29 Me. 292; Dreher et al. v. Ætna Ins. Co., 18 Mo. 128; McEwen v. Fraser, 1 Mich. (N. P.) 118; Bates v. The Equitable Ins. Co., 10 Wall. (U. S.) 33; Ferry v. Lorillard Ins. Co., 6 Lans. 201; Dodman Man. Co. v. Worcester Mut. Ins. Co., 11 Met. 429; Finley v. Lycoming Ins. Co., 30 Penn. St. 311; Hoxsie v. Providence Ins. Co., 6 R. I. 517; Hazard v. Franklin Ins. Co., 7 R. I. 429; Mt. Vernon Man. Co. v. Summit Ins. Co., 10 Ohio St. 347; Hutchings v. Cleveland Ins. Co., 11 Ohio St. 477.
   Johnson, J.

1. Did the district court err in treating the policy of insurance as part of the record ?

That the district court did so treat it is evident, as without so doing no questions of law were presented by the-record.

No objection seems to have been made, either in the common pleas or district court to so treating it.

No suggestion was made, nor motion filed, seeking to eliminating this paper from among those being regarded as part of the record, as the plaintiff had asked that it should be.

He had in his petition expressly filed it “ as a part of his petition,” and had therein, without stating what its requirements and conditions as to him were, alleged that he had; h:ept and performed “ all the requirements and conditions contained in said policy and in the application and survey therein referred to.” The defendant made no objection to this mode of pleading.

On the trial in the common pleas, and, so far as we are advised on error in the district court, the policy was before •the court for all purposes as part of the petition.

We think this plaintiff is in no position now to object. To allow him to do so would enable him to take advantage of his own error, and to the manifest prejudice of defendant.

The averments in the petition, that he had performed all -conditions precedent, refers, as we have seen, to the policy .and application for those conditions.

In Crawford v. Saterfield, 27 Ohio St. 421, the commission' held, that the legal effect of this general averment was, that the plaintiff' had performed each and every act and thing required to be done as a condition precedent to his action, and that while such pleading was subject to a motion to •make more definite and certain, yet it could not be taken ■advantage of on error by the opposite party. Eor a stronger reason, the plaintiff should not be permitted to here complain.

In that ease, as in this, a copy of the contract in hcee verba was made part of the petition. It was said not to be good pleading, but the defect must be remedied by motion. If no objection was thus taken, error would not lie. So, here, the plaintiff has, by express act, attempted to dispense with proper averments, by reference to the conditions in the policy referred to and made part of the petition, and has made a general averment of performance of all those •conditions.

To make that petition complete, reference must be had to the policy.

The plaintiff has himself had the advantage of this mode ■of pleading, and it is now too late for him to complain, when it is evident all parties acted upon the assumption that the policy was a part of the record.

2. Did the district court err iu refusing to give the' charges asked and in charging as stated ?

This question involves two distinct legal propositions:

1. As to the effect of the representations made concerning the mortgage incumbrance on the property at the time-the contract was made.

2. As to the execution of the second mortgage, without-the consent of the defendant.

As to the representations made by plaintiff concerning" the amount of the mortgage.

The policy provides that “the application and description of the property insured and referred to in this policy shall be considered as £art of this contract, and any false-representations, by the assured of the condition or occupancy of the property, or any material fact material to t-he-risk, . . . this policy shall be void.”

The representation was that the mortgage was only $2,000. The truth was, that it was $3,440, including $240 of accrued interest.

That this was a representation material to the risk admits-v of no controversy. Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio St. 480; Davenport v. New Eng. Ins. Co., 6 Cush. 340; Howard v. New Eng. Ins. Co., 10 Cush. 444; Brown v. The Peoples’ Ins. Co., 11 Cush. 280; Jacobs v. Eagle Ins. Co., 7 Allen, 132; May on Ins., § 200 ; Flanders on Ins. 280.

The request to charge was that this representation being' untrue avoided the policy.

The charge given was, that it did not, that it was only a representation, and not a warranty, and was no defense.

No evidence was offered tending to show that the insureds was guilty of moral falsehood or fraud in making this false-statement, other than the presumption that arises from the-fact that it was a mortgage made by himself, and therefore-he knew, or must be presumed to have known, his statement was false.

Erom this fact alone, it might be fairly inferred that the-applicant knew his statement was false. Waiving this consideration, let us examine the request to charge and the-converse of it, which was given by the court.

It is based on the assumption that there was no intentional fraud by the assured, and that, being a representation merely, and not a warranty, the falsity of the statement would not defeat a recovery.

This policy was issued under an express agreement that, the application and description of the property insured shall be considered part of the contract, and upon the condition that any false representation of any material fact avoided it.

This made the statements as much a part of the contract as if written in the body of the policy.

The two papers must' be treated together as constituting the contract, as if both were embodied in one paper.

An express warranty is always a part of the contract as-completed. A representation is a verbal or written statement made by the assured as to the existence of some fact- or state of facts tending to induce the underwriter to assume the risk.

Warranties are conditions precedent to a valid policy,, whether such conditions are material or not, if the parties-have regarded them as material, and clearly intended them to be so treated.

In such cases, when the parties have stipulated that certain things shall constitute conditions, courts, as a general rule, will not inquire whether they be material to the risk or not. It is enough to know that they influenced the risk, and that the parties have fairly made them the basis of the contract. It does not follow, however, that all statements in the application, and made part of the policy, are necessarily warranties which avoid the contract, if not literally fulfilled. A discussion of this point would lead us beyond the proper scope of this case.

The law of marine insurance undoubtedly is, that a warranty must be exactly and literally fulfilled as a condition precedent, whether in fact material to the risk or not, and the great weight of authority probably is that this is true of fire insurance, though the courts have been astute in discriminating between cases, when the statements are representations, rather than technical warranties, even though called such.

In Glendale Mfg. Co. v. Protection Ins. Co., 21 Conn. 32, it was said: “We are by no means confident that representations in surveys preceding the issue of fire policies, extending, as they do, to the present and future condition < of the property about to be insured, have been considered as technical warranties, to be true to the letter for a long series of years, and not rather as representations, to be at the time and thereafter substantially exact and true. Nor are we certain that a mere reference to these representations, made in the body of the policy, in order to explain the rights and obligations of the parties, does necessarily change their character from representations to warranties.”

We are relieved from the discussion of this question, because it is only a false representation material to the risk that avoids this policy, and this representation, shown to be untrue, was, as to an existing fact, material to the risk.

This being so, the question is, does this representation avoid the policy, without proof of fraud ?

Contracts of insurance, like all others, must have a reasonable construction. Being contracts for indemnity, they should, in case of ambiguity, receive that construction which is consonant with the intention of the parties. Where there are two interpretations equally deducible from the terms, that .which enforces rather than avoids the policy should be preferred. Established principles of construction applicable to other contracts are equally so in insurance contracts.

At common law, a warranty of a fact, in a material matter, is a guaranty that the fact is as stated, and it is sufficient to show its non-existence without also showing that it was fraudulent, but in case of a representation, not amounting to a warranty, it must appear that it was fraudulent as well as false.

In this case, therefore, if the plaintiff warranted that the property was only incumbered $2,000, when in fact the mortgage was $3,440, he is bound, though not guilty of fraud or moral falsehood.

In this contract this material representation is expressly made a condition in the policy, and therefore is a warranty. The fact that it was not true of itself avoided the policy by the terms of the contract.

Instead of a contract of insurance, suppose it was a contract of sale of this land by plaintiff to defendant for an ■agreed consideration, the vendor covenanting that the property was not incumbered beyond $2,000, and the fact should turn out that the mortgage was $3,440. Does any one claim that the vendee could not recover without showing fraud or moral falsehood ?

Having expressly covenanted that the property was only incumbered for $2,000, be would be bound to make that •covenant good.

This is equally true when the covenant is as to a condition precedent.

In Davenport v. The New England Ins. Co., 6 Cush. 340, the question was: “Is the property incumbered?” The answer was in the negative. The court say, after holding that the fact is material: “ It is manifest that the defendants deemed this information material.”

“ The plaintiff having given an untrue answer, whether by accident, mistake, or design, it matters not, to a direct, plain, and practical question, can not now be heard to say it was immaterial.”

In Hayward v. The New England Mut. Fire Ins. Co., 10 Cush. 444, the insured was asked: “ ‘ Is the property incumbered ? If so, how much ?’ The answer was: ‘About $3,000.’ In fact, it was mortgaged for $4,000. It is said this inquiry was material, and the defendant had a right to require that the answer should be substantially true.” And it was held that, not being substantially true, he can not recover.”

To the-same effect is Brown v. The Peoples’ Mut. Ins. Co., 11 Cush. 280, where the question was, whether the property was incumbered, to whom, and what amount. The answer was : “About $4,000 ; to A. B.” 'When in fact there were two mortgages ; one to A. B. for $3,600, and another to J. P. for $1,100. Held, that the policy was void.

In that case the condition was : “ If the representations-made in the application do not contain a just, full, and true exposition of all the required facts and circumstances in regard to the title, condition, situation, value, and risk of the property insured, the policy shall be void.”

In Jacobs v. Eagle Ins. Co., 7 Allen, 132, the answer was-that there were two mortgages of $2,700 in all, when in fact there was $300 of accrued interest. The condition there was much like the case at bar : “ If any of the above-statements are false or incorrect, any policy issued thereon shall be void.” The representation avoided the policy.

Anderson v. Fitzgeral, 4 House of Lords Cases, 484, may be regarded as the leading case upon this point, because of the great deliberation it received at the hands of the most eminent jurists of Great Britain.

There the policy contained a proviso that “ if any thing-so warranted shall not be true, or if a circumstance material to this insurance shall not have been truly stated, or shall have been misreprented or concealed, or any false statements-made, etc., the policy shall be void.”

The point on which the case finally turned was whether it should be left to the jury to say whether certain answers-made by the insured were material as well as false, and it was held that the representations being made part of the-contract, their truth and not their materiality was the question'for the jury.

In discussing this point, the difference between a moral falsehood and a representation untrue in fact, but not intentionally so, was considered, and a majority of the judges-held that the condition of the policy was broken if the representations were untrue, though there was no intentional falsehood.

Baron Parke says: “A doubt may possibly exist whether the word ‘ false ’ is to be understood in the sense of false in point of fact or morally false, though I believe most of' us think that it is not to be limited to moral falsehood.”

This case is cited and approved in Jeffries v. Life Ins. Co., 22 Wallace, 47.

In that case the distinction is noted between answers in an application which do not relate to the risk, that do not necessarily avoid the policy, unless they influence the mind of the underwriter; and those where it is expressly covenanted as a condition of liability that the statements and declarations contained in the application are true.

The court say, that when the truth of such statements forms the basis of the contract, and are expressly made conditions of liability, they know of no respectable authority which holds that the policy is not avoided.

The case of Protection Ins. Co. v. Harmar, 2 Ohio St. 452, is relied on by plaintiff in error, and deserves special attention. The distinguishing feature of that case is, that the representations made in the application were not warranties, because not made so by the terms of the policy. In that case the only reference to the application was in these-words: “ Eor a more particular description of said premises see survey No. 74, furnished by the insured, which is hereby made part of this policy.”

Only so much of the application as constituted a description was held to be made part of the policy.

The other answers were held to be representations only, and not warranties. In the case at bar, the entire application, including the statement as to incumbrances, as well as-a description of the property, is expressly made the basis of the contract. The same distinction is found to exist in other cases relied on by the plaintiff.

The second request which was refused was that if after said policy was issued the plaintiff further incumbered the property without defendant’s consent, the plaintiff’ could, not recover.

The fact was proved that the plaintiff did, without such' .consent, make a second mortgage for some $400.

The condition of the policy on that subject is in these-words: “ If the property be sold or transferred, or any ■ change take place in the title, either by legal process or ■othei’wise, . . . this policy shall be void.”

We do not think that the execution of a second mortgage on the real estate was, in any proper interpretation ol the words, either a sale, transfer, or change of title, which avoided the policy.

This conclusion is supported by numerous well considered cases. The Com. Ins. Co. v. Spankneble, 52 Ill. 58; Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213; May on Ins., § ,269., and cases in note.

Judgment of the district court reversing the common pleas affirmed, and cause remanded.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Springer v. Avondale.
    ,1. "Where, on the trial of an action to enforce an assessment, the facts are found by the court, at the request of one of the parties, under section 280 of the civil code of 1853, an order for the sale of the property assessed is erroneous, unless the facts found are sufficient in law to warrant the judgment.
    ■2. In determining whether a parcel of real estate is “ land which is in bulk,” within the meaning of section 542 of the municipal code of 1869, r'egard must be had, not merely to a recorded plat of the municipal corporation, but the size of lots, in general, in such corporation; and if it is determined that the tract is land in bulk, the assessment, though by the frontage, must be made in accordance with that section as construed in Cincinnati v. Oliver, 31 Ohio St. 371.
    Error to the District Court of Hamilton county.
    October 28, 1874, the village of Avondale commenced an .action in the Court of Common Pleas of Hamilton county against Reuben Springei’, Patrick O’Donnell, and the United Colored Amei’iean Association. The petition is, in sub,stance, as follows: Avondale is an incorporated village, ■•having at the last federal census a population less in numher than four thousand, situate in Hamilton county,-which contains a city of the first class.
    May 17,1873, the council of the village declared by resolution that it was necessary to improve Clinton street in that village, and that the expense of the improvement should be assessed per front foot upon the property abutting on the street, and certified to the contractor in payment of the work.
    July 24, 1873, the council passed an ordinance providing for the improvement; the work was performed by William-Holmes, under a contract with the village made August 7,. 1873 ; on July 2,1874, the work was accepted by the village engineer and approved by the council; on the same day the council assessed a tax of one dollar and ninety-three cents on each foot front of the several lots of land bordering and abutting on Clinton street, to pay the costs and expenses of the improvement; and the assessment was accepted by Holmes, and the amounts payable on account of the same, with interest and penalty, are due to him.
    The lot of Springer, in which O’Donnell claims an interest, and the lot of the United Colored American Association, known as the cemetery lot, are then described in the petition; it is alleged that the amount assessed against the lots respectively, is $467.71, together with interest from July 2, 1874, and five per cent, penalty; and the village,, suing for the use of Holmes, asks that the lots be sold to pay the assessment.
    The defendants answered, in substance:
    1. The improvement did not receive the previous assent of a majority of the owners to be charged.
    2. The tracts described in the petition are in bulk, and the sum assessed on each tract exceeds trventy-five per cent, of the value thereof to the usual depth of lots in the village.
    The allegations of the answer are denied in the reply.
    After judgment had been rendered in the court of common pleas, the cause was appealed to the district court, where, at the request of the defendants below, the facts and the law were found separately by the court, in substance, as follows: The statements in the petition are true, except as hereinafter specifically found. There was informality in the proceedings of the village in this, that it did not cause the advertisements for proposals to do the work to be advertised on the same day of the week for four consecutive weeks prior to opening the bids. But the true value of the work was the price agreed upon in the contract, and the amount fixed in the assessment. Expenses have been incurred amounting to $467.71, which sum is chargeable against the Springer lot; and expenses to the same amount have been incurred, which are chargeable^ against the cemetery lot.”
    In 1845, in proceedings in the Court of Common Pleas of Hamilton county, to pay debts, Jonathan Bartlett, as administrator of Jonathan Dayton, subdivided the premises ordered to be sold into lots, acknowledged a plat thereof, which plat was properly witnessed, and caused the same to be recorded in the office of.the recorder of that county. The plat was designated at its head, “ plat of house-lots at Clinton, on the Lebanon turnpike, three miles from Cincinnati, of lots three and four, on plat of partition between the heirs of Jonathan Davis and others, in section nine, township three, fractional range two, Miami purchase, by Jonathan Bartlett, administrator of Jonathan Dayton.” The lots were designated by letters from A to M on the plat, and Clinton street was laid out on the plat and dedicated to public use, and the lots fronted on each side thereof. The cemetery lot is marked I on the plat, containing three and three-tenths acres, and being 3.66-| chains front, and 10.37 chains deep on the west line, and 8.51 chains deep on the east line. The Springer lot is marked J on the plat, and of the same front as the other and adjoining lot on the east line, being 8.32 chains deep, containing three and fifty-six hundredths acres. The lots on the opposite side of Clinton street were laid out seven chains deep.
    Samuel Cloon made a new subdivision of the property covering the Dayton estate plat, together with the other land, in 1852, but did not change the lines of the Springer lot or the cemetery lot. He laid out the lots on the opposite side of the street two hundred feet deep. The plat was properly attested, acknowledged, and recorded. Other .streets and lots were laid out on the plat.
    Tbe real estate assessor returned the cemetery lot as three and one-half acres in northeast quarter section 9, township 3, fractional range 1, Miami jrarchase, and the Springer tract as lot 58, in Cloon’s subdivision of Clinton. Clinton is the only street the tracts abut upon. The average depth of lots in the Cloon subdivision, on the adjoining cross streets in the neighborhood, as well as on the opposite side of Clinton street, is two hundred feet. The Western Railroad subdivision adjoins this property on the south, and its lots range from two hundred and twenty to four hundred and sixty-six feet in depth.
    The assessed value of the cemetery lot is $2,960, and of the Springer lot $2,830, and the proportionate part of the cemetery lot, running back a depth of two hundred feet, is $1,207, and of the Springer lot, $1,630.
    The assessment sued for was made by the village council by assessing the expense of the improvement in proportion to the foot front of the lots bounding and abutting on Clinton street, and not according to the value thereof as assessed for taxation.
    The court rendered judgment in favor of the plaintiff below for the amounts so found due, with interest, but without penalty, and found that Holmes, the contractor, had a lien on the tracts to secure the payment of the amounts.
    A petition was filed in this court, by the defendants below, on leave, so reverse the judgment of the district court.

      Collins & Herron, for plaintiffs in error.

      Stallo & Kittredge, and Goss & Peek, for defendants in error.
   Okey, J.

Where a finding of facts under section 280 of the civil code (Rev. Stats., § 5205), fairly admits of two constructions, one of which calls for the- affirmance, and' the other the reversal of the judgment, the finding should receive that construction which will sustain the judgment. Jack v. Hudnall, 25 Ohio St. 225. But there is a presumption that no evidence was offered from which any other material fact could be found than those set forth in such finding; and where, as in this case, the record does not contain the evidence, and the finding is within the issue, that presumption is, on error, generally conclusive. As the mere rendition of judgment may be a sufficient statement of the conclusion of law (Levi v. Daniels, 22 Ohio St. 38), any other view than the one stated would lead to this-absurd result, that such finding of fact and conclusion of law could afford no ground of reversal, unless the evidence be incorporated in the record. This case, then, must be determined from such statements in the pleadings as stand admitted, and from the finding of facts.

The plat of lands, embracing the tracts now sought to-be sold, prepared in 1845, by or under the direction of Jonathan Bartlett, administrator of Jonathan Dayton, was made with reference to the sale of a portion of the lands of the decedent to pay debts. This was doubtless done under section 132 of the administration act. 1 Curwen, 735. Bartlett was not the owner of the land, nor the agent of the owner, and hence that was not a town plat executed and recorded in pursuance of the act then in force relating to that subject. 3 Curwen, 2465. Cloon’s plat, made in 1852, did not include the cemetery tract, but did embrace the Springer tract, which, without subdivision, was designated on the plat as number 58. Whether Cloon was then the owner of the Springer tract does not directly appear, nor is any reason given why it was not subdivided; but assuming the ownership to have been then in Cloon, and that sufficient reasons existed for leaving the lot as an entire tract, it must be remembered that it contained more than three and one-half acres, fronting on Clinton street and extending therefrom nearly five hundred and fifty feet. Lots on the opposite side of the street, and others in the village near the Springer lot, were only two hundred feet in depth; and, indeed, for aught that appears in the record, there may have been lots on each side of the tracts in question which-would fairly furnish a standard for the assessments of those-tracts. Council, in any view, would have had no difficulty in resorting to section 542 of the municipal code of 1869.

In determining whether a particular parcel of real estaféis “ land which is in bulk,” within the meaning of section 542, regard must be had, not merely to a recorded plat of the town, but to the size of lots generally in the municipal' corporation. If the lots in a particular village contain, as a general rule, three and one-half acres, a lot of that size can not be regarded, in that village, as land in bulk; but the-holding should be different with respect to a lot of that size in a village where the usual size of lots is one acre. In-other words, the phrase is relative in its character.

Where it is determined that the tract is “ land which is-in bulk,” the assessment must be made according to section 542, as construed in Cincinnati v. Oliver, 31 Ohio St. 371. The cemetery lot is clearly “ in bulk,” within the meaning of that section, and so we must regard the Springer lot, which is larger. And as the council has taken no step to-make an assessment under that section, the assessment can not be sustained. It clearly appears that the assessment extended over the whole of both tracts. Formerly this-would have rendered the assessment void, but under the-curative provisions of our statutes, such result does not necessarily follow.

It is contended, furthermore, that the assessment was-made under section 543 of the municipal code, as amended. March 30, 1874 (71 Ohio L. 45), and that this was erroneous for the reason that the contract had then been let, and for the further reason that the proviso giving power to villages in Hamilton county, in making special assessments,, to have regard to the value “after such improvement is made,” is in conflict with the constitution, article 2, § 26, which requires that, “ all laws of a general nature shall have a uniform operation throughout the state.” But there is another constitutional question which may be involved in this case, not only with respect to the above-mentioned amendment of 1874, but also as to section 540 of the municipal code, as amended March 12,1873 (70 Ohio L. 63). That question is, whether the exceptions or clauses which are claimed to take certain villages, including Avondale, out of the general provisions as to assessments in villages, -are not special provisions granting corporate power, and hence in conflict with section 1 of article 13 of the constitution. See The State v. Mitchell, 31 Ohio St. 592. As the question has not been argued we are unwilling to decide it. But we would be unwilling to determine the constitutional question argued without deciding other constitutional questions presented in the record, unless the decision of the question argued should be deemed essential to a determination of the case. We find, however, that this case may be disposed of without, at present, entering upon an examination of the constitutional questions. Looking to the finding of facts, we are unable to say, that, even if the assessment was made according to the value “ as assessed for taxation,” either under the amendment of 1874, above mentioned, or under section 543, as amended in 1871 (68 Ohio L. 125), the tracts, or either of them, could legally bear the assessment, limited, as it must be, under section 542, as to territory; nor does it appear they could bear such assessment, even if regard be had to the value after the improvement was made. If free from constitutional objection, the case no doubt is a proper one for a resort to the curative provisions of our statutes, but the finding does not contain facts sufficient to justify a judgment under those provisions. To justify a special assessment the right to levy it must be made to appear (Sharp v. Spier, Sharp v. Johnson, 4 Hill, N. Y. 76, 92), and here the requisxte facts do not appear.

Judgment reversed.


author: Johnson, J. White and Okey, JJ.,

text:
    The Baltimore and Ohio Railroad Company v. Thomas Whitacre.
    1. In an action for an injury, occasioned by negligence, where the circumstances require of plaintiff the exercise of due care to avoid the injury, and his testimony does not disclose any want of such care on his part, the burden is upon defendant to show such contributory negligence as will defeat a recovery.
    2. But if plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.
    3. In an action by a traveler on a public highway, against a railroad company, to recover for injuries by collision with a passing train at a public crossing, alleged to have been caused by negligence in the management of the train, where the evidence tends to show that he did not exercise proper care and caution to avoid the injury, it is competent for him to show that there was no signboard up, as is required by law, as reflecting upon the question of his want of care, although the want of such signboard is not alleged as a ground of recovery.
    4. "Where a person familiar with a dangerous railroad crossing, in passing over the same, neglects the exercise of any care to ascertain if a passing train is near, and in consequence of such neglect is injured by a collision with the train, he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing will not excuse such neglect.
    Error to the District Court of Belmont county.
    Whitacre brought his action against the plaintiff in •error to recover for personal injuries sustained, by reason, as he alleges, of negligence in the management of a train of cars, at a point where the track crossed the highway on which he was traveling with a team of horses and a sled.
    Two defenses were interposed: 1. A general denial of negligence; 2. Negligence of the plaintiff, by failing to look or listen, or to use ordinary precautions to avoid injury.
    The reply denies this.
    There was a verdict and judgment for the plaintiff, mo-

      tion for a new trial, and a bill of exceptions, embracing all the evidence.
    The judgment was affirmed by tbe district court, and the-case comes here to review that affirmance.

      J. H. Collins, for plaintiff in error:
    1. The burden was on the plaintiff to show that he exercised due care. Railroad Co. v. Miller, 25 Mich. 274; Railroad Co v. Von Steinberg, 17 Mich. 99; 1 Hilliard on Torts, 140, 141; 12 Met. 477 ; 6 Grey, 64; 1 Allen, 190; 8 Allen, 137; 101 Mass. 429 ; 58 N. Y. 248, and cases cited; 25 Maine, 234 ; 43 Maine, 492; 9 Md. 108; 16 Ill. 300, 558 ; 17 Ind. 102; 34 Iowa, 153; 7 Wis. 425 ; 37 Wis. 508; 72 Penn. St. 140 ; Wharton on Negligence, 246, §§ 425, 426; Robinson v. Grey, 28 Ohio St. 241; 24 Ohio St. 631, 642, 654; Sherman & Redfield on Negligence, 43, 45; Railroad Co v. Elliott, 28 Ohio St. 340.
    2. A person, on approaching a railroad crossing, should use all his faculties to discover an approaching train. If the conditions of discovery are unfavorable, he should exercise greater precaution on that account. 79 Ill. 137; 72 Penn. St. 509; Schultz v. Railroad Co., Penn. St. 1878.

      D. D. T. Cowen and St. Clair Kelly, for defendant in error:
    A statute (S. & C. 279) requires “ signs ” to be put up at railroad crossings, and makes the company liable for injuries resulting from neglect of that duty.
    Statutory provisions .on this subject are cumulative, and railroad companies are bound to use such other proper precautions as the circumstances may require (Pierce on Railroad law, 40, 41; 1 Redfield, 566, 567, 5th edition), such as slackening the speed of their trains, and ringing a bell, or sounding a whistle, or both (S. & R. on Negligence, § 481); and at dangerous crossings they may be required to station a watchman or flagman to warn persons passing (S. & R. on Neg., § 483).

      If they omit any of these proper precautions, and injury result, they are liable for the damages.
    It can not be imputed to plaintiff as negligence that he did not anticipate culpable negligence on the part of the defendant (S. & R. on Neg., § 31). Baker v. Pendergrast, 32 Ohio St. 498; Jetter v. N. Y. & H. R. R. Co., 2 Keyes (N. Y.) 154.
    The public have the right to travel the highway in security and faith that they will receive some timely warning by sign, whistle, or bell. In such case the traveler “ walks by a faith justified by the law,” and if he is misled and suffers an injury the party in fault must respond in damages. S. & R. on Neg., §§ 28, 31; lb. 488, note; lb., § 485.
    The failure to use such precautions as looking and listening will not be regarded as negligence, “ if, under all the circumstances of the case, a person of ordinary care and prudence would be justified in omitting the use of them.” ‘The Sipes ease, 24 Ohio St. 631.
   Johnson, J.

Did the court err in permitting the plaintiff to show that there was no signboard at this crossing to warn travelers on the highway ?

The cause of action did not charge this omission as a .ground of recovery.

The-negligence complained of was in the running of the train against the plaintiff as he was crossing. Therefore this evidence was not admissible as a ground of recovery .as the pleadings stood. Still we think it was admissible for the plaintiff to show that he was not guilty of contributory negligence.

In Robinson & Weaver v. Gary, 28 Ohio St. 241, it was held that “ in an action for an injury by negligence, when the case is such as necessarily devolves carefulness on the plaintiff, and the testimony to support his action fairly puts in question the due exercise of care on his part, the jury, in the determination of the question of contributory negligence, should be left free to consider all the evidence.”

If the plaintiffs evidence shows an injury by defendant’s negligence, and does not raise an implication that his own contributed, the burden of proving such contributory negligence as will defeat a recovery rests upon defendant.

But if plaintiff’s testimony raises a presumption of contributory negligence, then it is his duty to remove that presumption, otherwise he would fail in his action. Hays v. Gallager, 72 Penn. St. 140; Wharton on Neg., §§. 425-428; Robinson v. Gary, 28 Ohio St. 241.

This accident occurred at a public crossing. The duties-of the parties were mutual.

Each was bound to the exercise of ordinary care commensurate with the dangers that were incident to the use of the crossing.

Neither can recover if his failure to exercise this car-e-causes or directly contributes to his injury.

The plaintiff’s own evidence raised a strong suspicion that he drove along the highway, and directly on the track in front of the passing train, without either looking or listening for the train.

He was a man of ordinary hearing and sight.

His own evidence, therefore, tended to show contributory negligence, such as might defeat his recovery, unless he excused the omission to exercise his faculties, to ascertain if a train was approaching.

In this state of proof it was his right, if this omission-would defeat his recovery, to remove the presumption thus created.

When the question of contributory negligence depends-upon a variety of circumstances, from which different minds may arrive at different conclusions, as to whether the plaintiff' exercised proper care and caution, the question should be submitted to the jury under proper instructions. The M. & C. R. R. v. Picksley, 24 Ohio St. 654; C., C. & C. R. R. v. Crawford, 24 Ohio St. 631. It was, therefore, competent for the plaintiff, in order to relieve himself from the suspicion of negligence created by his own testimony, to prove-any fact or circumstance having that effect.

The object of such a sign-board is to give warning, and put all passers on their guard.

If the traveler is a stranger to the crossing, the want of such a warning would be calculated to mislead him into danger, and if he was familiar with the crossing, it might operate as a reminder of a danger, which he might otherwise forget.

The omission of a sign-board did not relieve the plaintiff' from that diligence and care which requires that a person,, in the full enjoyment of his faculties of seeing and hearing, should exercise them at such a crossing; yet, it was a circumstance, with others shown to exist in this case, competent to go to the jury, to enable them to determine whether,, under all the circumstances, his failure to use these ordinary precautions could be regarded as such contributory negligence, as would defeat his recovery.

The plaintiff’s right of recovery is not precluded in all cases, where he omits to employ his senses to discover and avoid injury, even though the omission be regarded as negligence. It does so only when the omission contributes to the injury, that is, when, by their employment, he might-have avoided the injury. C., C. & C. R. R. v. Crawford, 24 Ohio St. 638.

2. As to the errors assigned to the charge, and to the refusal to charge. They will be considered in connection with that, which asks a reversal on the ground that the verdict is contrary to the evidence and the law.

A substantia] statement of the main facts will be found in 24 Ohio St. 642, and need not be here repeated. It may be added, that 'Whitacre was aged about sixty years, of good habits, and in full possession of his sight and hearing.. He had lived in that vicinity over forty years, and had been familiar with, and had frequently used this crossing, for about twenty years. There was no sign-board, as required by law. Had there been one, it would have given no information he did not already possess. He lived within, four miles of Earnesville, and had, on the morning of the day of the accident, gone to town, passing this crossing, with a load of wheat, and was returning about one o’clock in the afternoon when he was injured.

Through the Smith farm, on which the accident happened, the railroad track runs N. 80° E. in nearly a straight line. The public road crossed the track three times on this farm.

The western crossing, where the accident occurred, was about one mile east of Barnesville. In crossing the track, on his way home, his sled was struck, and he was injured by the regular west-bound train, which was behind time about seven minutes.

It clearly appears that he approached this crossing, which was more than ordinarily dangerous, in apparent forgetfulness of the fact that he was crossing a railroad track, or that a train was due, or might be in the vicinity. He took none of the usual precautions by looking or listening, but drove onto the track seemingly oblivious of danger, and oply saw the train when it was too late.

The plaintiff’s own testimony; that of witnesses who saw the transaction, and his admissions to sundry persons, fully warrant these conclusions.

This being the proof, the settled law of this state will defeat a recovery, unless the jury were warranted in finding that there was a reasonable excuse for a failure to use the ordinary precautions of a prudent man.

We assume that the jury were warranted in finding the defendant was guilty of such negligence in running its train, at such a rate of speed, as was shown, without sound, or bell, or whistle, as entitled the plaintiff to a verdict, unless he was defeated by his own want of care. That he did not use such care we are fully satisfied. The failure, if it contributed to the injury, defeats a recovery, unless there was a reasonable excuse therefor.

What constitutes such excuse is ordinarily a question of fact for the jury, to be determined upon all the facts and circumstances, guided by proper instructions by the court.

This leads us to notice two points in the charge given.

The defendant’s first request was to charge, that the plaintiff, in order to maintain his action, must establish:

1. That there was no want of ordinary care on the part of Mr. Whitacre, contributing to the accident.

2. That the injury to Mr. Whitacre resulted solely from the want of ordinary care on the part of those managing the train.

Which charge the court refused to give, to which refusal the defendant accepted.

Upon this point the court charged:

If negligence on the part of the defendant be shown, "by the testimony, still the plaintiff can not recover if there be absence of reasonable care and caution on his part.
But it is not incumbent upon the plaintiff' in the first instance to prove such care and caution, or to disprove contributory negligence on his part; and if such want of reasonable care and caution as will amount to contributory negligence be not shown by the plaintiff’s testimony, then, it devolves upon the defendant to show such want of care and caution on the part of the plaintiff.”

Instructions should have special reference to the issues made by the pleadings and the evidence, so as to secure the opinion of the jury on the point at issue. General propositions, equally applicable to all cases of the same class, while correct as general rules, sometimes are misleading or incorrect, when applied to evidence, which varies this rule as to the rights and duties of the parties in the special ■case.

In this case, the charge given, and the refusal to charge, were calculated to mislead, as to the burden of proof, and was incorrect upon a state of facts, which the jury might well have found to exist.

The plaintiff’s testimony, as well as that of defendant, tended to show that he was guilty of contributory negligence, and the jury may well have found such to be the fact.

The rule is, that where, upon the evidence adduced by the plaintiff, it appears that his own want of care, contributed to his injury, the burden is upon him, to remove the presumption thus raised ; but, if this does not appear, the burden is upon the defendant to establish such negligence.

The charge given was, that it was not incumbent on the plaintiff in the first instance, to prove care and caution on his part, is correct, when his own evidence does not raise a presumption against him, but not so, if it does.

If plaintiff’s own evidence raised such a presumption against him, as would defeat his recovery, then the request of defendant, that plaintiff' must establish ordinary care on his part was correct, and should have been given to the jury as the rule, if they found such presumption was-created.

The charge further was, that the burden of proof was on the defendant to show contributory negligence, if it be not shown by plaintiff’s own testimony, but wholly omits to state, except by implication, where the burden is, in case-the plaintiff’s testimony does so show.

This omission, taken in connection with the refusal to-charge, as requested, was calculated to, and, it is probable, did, mislead the jury.

'The exact question presented upon the evidence was,. Where was the burden of proof? If the jury should be of opinion that the plaintiff’s own evidence raised the presumption of his want of care, which contributed to his own-injury, then the burden was upon him, and the defendant’s-request should have been given; otherwise the ordinary presumption of due care will prevail:

3. Again, the charge is, that it was the duty of plaintiff' in attempting to cross, to look and listen, to discover and avoid danger, and if he omits this duty, without reasonable-excuse, and thereby contributes to the injury, he could not recover.

What amounts to such excuse is stated in the charge-to be: 1st. If ordinary precautions would not have avoided the injury; and, 2d: “ If, under all the circumstances of the case, a person of ordinary care and prudence would have been justified in omitting to use such precautions.”

The charge then proceeds:

“You will, therefore, in considering this question, look to all the testimony; you may consider the situation of the highway with reference to the railroad track; the situation of intervening ground; whether the view was obstructed or not, and to what extent; the speed of the train, the situation or position of the plaintiff at the time when, by the exercise of ordinary care, he could first have become aware of the train; you may consider his knowledge of the crossing, the nature and safety of the approaches to the railroad track, whether he could have seen the approaching train before he did see it; his exact location at the time he saw it approaching, and his situation with reference to the track and the train. You may, also, consider the state of the weather; the condition of the atmosphere as to winds, and whether such winds prevented him from hearing; you may consider his ability to hear, the mode in which he was traveling, and any and all other circumstances shown by the testimony calculated to influence the conduct of a prudent person, as they shall affect the question whether Mr. Whit-acre, under all the circumstances, exercised ordinary care— whether he did use his eyes and ears so far as he had opportunity, to see, hear, and avoid the danger. And if, from a full consideration of all the circumstances, you shall be satisfied that the plaintiff, Whitacre, was not in the exercise of common prudence, and that by the exercise of common prudence he could have avoided the accident, then he can not recover.” .

Upon this point, as to what constitutes a reasonable excuse, the attention of the jury is thus especially directed to a series of circumstances named, such as the dangerous character of the crossing, the state of the atmosphere, course of the wind, etc.

Some of these enumerated circumstances were materially calculated to stimulate to greater care and caution, rather than to excuse the exercise of ordinary care.

Care and caution should be commensurate with the danger. If any of these circumstances increased the danger, greater care, commensurate with, the increased danger, should be exercised.

These considerations should have been left to the jury, as affecting the whole question of ordinary care, rather than as probable excuses merely. Whether they should tend to excuse, or to awaken greater caution, was for the jury to determine.

The concluding part of this charge does so leave these circumstances; yet, in view of the context, the jury might well lose sight of their force, as tending to induce greater •care and caution, as some at least of them naturally would.

“The circumstances that will excuse a person who is .about to cross a railroad from using his eyes and ears to avoid injury from a passing train, must be such as are calculated to induce a person, in the exercise of ordinary care, to omit the precaution. This has already been declared by this court in several eases. But what these circumstances may be can not be prescribed beforehand, nor can a fixed standard be laid down for weighing them. It would be -clearly wrong to give the same effect, in all cases, to the •omission. The person whose conduct is to be judged can not be separated from the circumstances by which he is surrounded, and under which he is required to act. In some cases, no doubt, it would be the duty of the court to declare that the circumstances afford no excuse for the •omission; while, in others, they ought to be submitted to the jury, under proper instructions.

“ When the question of negligence depends on a variety •of circumstances, from which different minds may arrive at different conclusions as to whether there was negligence or not, the question ought to be submitted to the jury, under proper instructions. Marietta and Cincinnati Railroad Co. v. Picksley, 24 Ohio St. 668.

A majority of the court, after a careful examination of the evidence, have reluctantly come to the conclusion that the jury were not warranted in finding that there existed any reasonable excuse for the plaintiff’s failure to use the ■ordinary precautions, which the law and common prudence demand, and that plaintiff’s injury is the result of this-failure.

We think it highly probable that the omission, by the court, to give to the jury the rule as to the burden of proof when the plaintiff’s own testimony raised the presumption of negligence against him, as well as that part of the charge which directs their attention to the dangerous character of the crossing, and state of the atmosphere, and-course of the winds, on the question of a reasonable excuse for omitting the ordinary precautions, tended strongly to-influence their verdict in plaintiff’s favor.

In the application of the well-settled rules governing the-mutual duties of railroads at public crossings, and the public, who cross their tracks, public policy, as well as exact justice, requires that each party should exercise that ordinary care and caution which the circumstances demand, to-avoid injury.

The evidence fully warranted the jury in finding that tlie railroad was culpable; but if the plaintiff can recover, upon the state of facts disclosed in this case, it is hard to-conceive of a case in which he could not.

We concur in the opinion of the court in Runyan v. The Central Railroad Co., 1 Dutcher, 556, which was a case-much like the present: that “ The necessities of railroad, travel demand a speed at which it is impossible to stop in time to prevent a collision, if persons traveling on the highways rush carelessly or recklessly upon a crossing ahead of an approaching train; and every collision of the kind places not only the party driving on the track, but the passengers on the train of cars in imminent peril, and many times occasions great loss of life.

“ Every precaution should be used, by both drivers of the train, and persons traveling in their own conveyances,, to guard against coming in contact. The proper siguals should always be given from a locomotive on approachiug a crossing, and the omission of this caution should be punished. But, beside this, persons approaching a crossing invehióles of their own must use their eyes and ears, and ex■ercise common care and prudence commensurate with, the danger, or they are no less reprehensible.”

It is no excuse to a plaintiff seeking to recover for injuries received under such circumstances, that he was absent minded and did not look to see, or stop to hear, the cars. The L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 274.

Judgment reversed and cause remanded.

White and Okey, JJ.,

were of opinion that the question, whether the plaintiff was guilty of contributory negligence ■or not, was, under the circumstances, a question for the jury; and that the case was not such as to justify this court in interfering with the verdict and judgment of the •courts below.


author: "White, J. Johnson, J.,

text:
    The Reformed Presbyterian Church et al. v. James P. Nelson et al.
    1. Where the plaintiff gives notice of appeal, and part of the defendants enter into an undertaking on his behalf to perfect the appeal, the undertaking, though defective, does not entitle the other defendants to the unconditional dismissal of the appeal. "Under the statute such a dismissal is only authorized after the failure of the plaintiff to give an undertaking in accordance with the order of the court.
    2. In a ’suit to contest the validity of a will, the legatees and devisees are indispensable parties; and the omission to make a legatee a party to such suit is error, for which the decree setting aside the will will be reversed.
    Error to the District Court of Muskingum county.
    The original petition was filed in the Court of Common. Pleas of Muskingum county, by William S. Nelson and •John Nelson, two of the heirs of Susannah Forsyth, deceased, to contest her last will and testament. The legatees, ■devisees, and executors named in the will were made defendants in the petition, as were also the other heirs of the testatrix, to wit: James Nelson, Sarah Nelson, and Mary Ann Nelson.

      The will, among other bequests, gave to David Eorsvth the silver watch of the testatrix. After satisfying these bequests the residue of her property was given to the Reformed Presbyterian and Covenanter Church; and H. P. McClurken and Marshall Hardesty were appointed executors.
    There was no service of process upon the defendants David Forsyth, James Nelson, or Mary Ann Nelson; nor was their appearance in way effected. A verdict and decree were rendered sustaining the will. The plaintiffs gave notice of their intention to appeal, and the court fixed the penalty of the bond for such appeal at $500. To perfect the appeal a bond was executed and filed, of which the following is a copy:
    APPEAL BOND.
    Kuow all men by these presents : That we, William Forsyth and Thomas Mintier, of the county of Muskingum, in the State of Ohio, are held aud firmly bound unto B. P. McClurken and William M. Hardesty, executors of Susan-nah Forsyth, deceased, and others, in the penal sum of five hundred dollars, lawful money of the United States, to the payment of which sum, 'well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents; sealed with our seals, signed and dated at Zanesville, this 15th day of December, A. d. 1874. The condition of the above obligation is such, that whereas, at the November term, A. d. 1874, of the court of common pleas, within and for the said county of Muskingum, in a certain civil action in the said court of •common pleas, then pending, wherein William S. Nelson and others were plaintiffs, and H. P. McClurken and others were defendants, a certain judgment was, by the said court of common pleas, rendered in favor of said defendants and against the said plaintiffs, finding the paper writing mentioned in the petition in said action was the valid last will of the said Susannah Forsyth, deceased, and for the costs of suit; and, whereas, the said plaintiffs, at the said term of the said court of common pleas, gave due notice of their intention to appeal from the said judgment and finding to the district court, within and for the said county of Muskingum, and are now desirous of perfecting such appeal ; now know ye, that if the said plaintiffs shall abide and perform the order aud judgment which may be made or rendered by the said district court against them, in this behalf, and shall also pay all moneys, costs, and damages which may be required of or awarded against them by the said district court, in this behalf, then the above obligation shall be void; otherwise, in full force and virtue.
    William Forsyth. [seal.]
    Thomas H. Mintier. [seal.]
    Accepted and approved by me this 15th day of December, a. d. 1874. Fred. Geiser,

      Clerk of the said Court of Common Pleas.

    In the district court, McClurken and Hardesty, as executors filed their motion to dismiss the appeal “ for the reason that the undertaking for the appeal is not sufficient under the statute in such case made and provided.”
    On the hearing of the motion, the court found that William Forsyth and Thomas H. Mintier, who executed the appeal bond, were defendants in the case, and overruled the motion, to which ruling the executors excepted.
    The trial in the district court resulted in a verdict and decree setting aside the will, and a judgment was rendered in favor of the plaintiffs against the defendants for costs.
    It is now assigned, among other errors :
    1. That the court erred in overruling the motion to dismiss the appeal.
    2. In trying the action before David Forsyth, one of the’ legatees named in the will was served with summons, or' his appearance otherwise effected.

      Evans & Beard, for plaintiffs in error :
    The appeal should have been dismissed. Job v. Harlan, 13 Ohio St. 486.
    The legatees were necessary parties. 21 Ohio St. 131 ;, section 36 of the Code of 1853.

      W. H. Ball & John O'Neill, for defendants in error.
   "White, J.

There was no error, in onr opinion, in the-overruling of the motion of the executors to dismiss the appeal.

The statute provides that, the party desirous of appealing his cause, shall give an undertaking with one or more-sureties, to be approved by the clerk of the court, or anyjudge thereof, in the penalty and with the conditions therein-provided. S. & C. 1163. The undertaking is to be made “payable to the adverse party, or otherwise, as may be-directed by the court, where the conflicting interests of the parties require it.” Ibid. 1165.

In the present case, two of the defendants, William Forsyth and Thomas Mintier, executed the undertaking, or appeal bond, on behalf of the plaintiffs. The plaintiffs-were the appellants, and as Forsyth and Mintier could not execute an undertaking, or a bond, to themselves, the instrument could only be operative in favor of the other-defendants. Such an instrument, though not in conformity to the statute, was sufficient to give the appellate court jurisdiction, and to bring the case within the provisions of the act of April 8, 1856, supplementary to the act regulating appeals. S. & C. 1169.

That act is as follows : “ That, in all cases where an appeal has been, or shall be, taken from the court of common pleas to the district court, and the surety in the undertaking for appeal shall have removed from the state, or for any cause whatever shall be insufficient, or if such undertaking- shall be insufficient in form or amount, it shall be lawful for the district court, on motion, to order a change- or renewal of such undertaking, or said court may order a new undertaking to be given, with security, to be approved by said court, or the clerk thereof; and if the said order of said court shall be complied with and obeyed, said appeal shall not be dismissed, . . . but if said order of said court shall not be complied with and obeyed, said ap~ peal, on motion for that purpose, shall be dismissed, and the judgment, or decree, in the court below shall be revived.”

This being a remedial statute, should be liberally construed. Thus construed, the defect in the undertaking did not lay the foundation for the absolute dismissal of the canse. But, under the statute, such dismissal was only authorized after the failure of the appellants to give an undertaking in accordance with the order of the court.

There was error in trying the issue and in rendering the decree, without the appearance of David Forsyth, one of the legatees, having been effected in the action.

The code, in respect to parties, has adopted, substantially, the rules before existing in courts of equity.

Section 40 provides, that: “ The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy •can not be had without the presence of other parties, the ■court must order them to be brought in.” S. & 0. 958.

The proposition that, where no objection is made by demurrer or answer on account of the defect of parties, the objection is to be deemed as waived, applies only in cases where it is competent for the party pleading to waive the objection. ,But where the presence of an absent party is essential to the determination of the controversy, the parties can not waive the objection. The court, in such case, must order the party to be brought in. Moreover, in a suit to contest the validity of a will no answer is required. The statute directs what the issue is to be, whether there is an .answer or not.

It is the duty of the plaintiff instituting a suit to settle a controversy, to see that the necessary parties are brought before the court.

We are not without adjudications directly on the question now before us.

McMacken v. McMacken, 18 Ala. 576, was a proceeding in error to reverse a decree setting aside a will. A person named as a legatee in the will was not made a party to the .suit, in which the will was set aside. It was held, by the •court, that to a bill to set aside a will all the legatees are indispensable parties, and that the omission of one, who is .an indispensable party to the bill, is a defect, for which the decree will be reversed on error, although the objection is taken for the first time in the reviewing court. To the same effect is Vancleave v. Beam, 2 Dana, 155, and Rogers v. Thomas, 1 B. Mon. 390.

In the case last named one of the questions stated was, whether there was available error in trying the issue as to the validity of .the will when all necessary parties were not before the court. In answering this question, on page -398, the court say : “ Two slaves, emancipated by the contested document, were not made parties. They were necessary parties, whose rights can not be concluded by the verdict and decree between other parties. One of the chief ■objects of such a procedure by bill, was to settle, finally and -conclusively, all litigation as to a contested will; and it is the chancellor’s duty in such a case to require all persons interested as heirs or devisees to be made parties before he permits a final trial or renders a final decree. Endless litigation and confusion might result from permitting a decree to stand, which can not conclude all persons directly interested in establishing or invaliding the will.”

In Shields v. Barrow, 17 How. 139, Curtis, J., in speaking of the different classes of parties in equity, describes the third class as follows : “ Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree can not be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent th equity and good conscience.”

In Holt v. Lamb, 17 Ohio St. 375, the effect of the decree .setting aside the will was drawn in question in a collateral suit. And it was there held that the parties to the suit in which the decree was rendered were bound by the decree, that it was not void as to them ; but that as to all other persons in interest the decree was void. No question arose in that case as to the decree being reversible on error. But as it was held to be void as to some of the persons in interest and binding as to others, in respect to the same property, it would seem to be necessarily erroneous as to the parties to the suit.

In Singleton v. Singleton, 8 B. Monroe, 340, a different view was taken of the effect of a decree setting aside a will. And it was held in that case that the verdict of the jury upon a bill filed, contesting a will, must be binding on all interested in the will, or it is not binding upon any. But this case recognizes the authority of Rogers v. Thomas, supra, in which it was held that the absence of a necessary party to the proceeding setting aside of the will, was ground for the reversal of the decree on error. See page 356 of the opinion.

Judgment reversed and cause remanded.

Johnson, J.,

dissenting : — The judgment of the court below setting aside the will, is reversed by this court, on the application of the executors and others, who were served and made full defense, on the ground that one Forsythe, a legatee, who was a defendant, was not served or otherwise before the court below. No objection was made by any one, on this account, in the common pleas, or after appeal in the district court, before final trial and judgment.

The executors as such, defended for all claiming under the will, and so far as this court is advised, represented Forsythe as legatee. He does not complain and is not even a party before us. Without taking space to state the reason therefor I am of the opinion that under the wills act, and under the civil code, the plaintiffs in error, having made no objection at the proper time, can not ask a reversal of this judgment because Forsythe, a legatee only, was not before the court below.


text:
    Hiler v. Hiler.
    The court reversing a judgment has inherent power to make an order of restitution, which order when made will be final and conclusive between the parties, and can not be questioned by them collaterally; and, in such case, an action may be maintained by the plaintiff in error against the defendant in error, to recover money paid by the former on the judgment prior to the reversal, in which action it will be no defense for the defendant in error to show that the money was paid voluntarily.
    Error to the District Court of Brown county.
    M. L. Hiler recovered a judgment in the Court of Common Pleas of Brown county, at the June term, 1872, Against Jacob J. Hiler and Rudolph Hiler, for $159.25 and costs.
    Jacob J. Hiler thereupon commenced a proceeding in error, in the district court, to reverse the judgment.
    During the pendency of the proceeding, one of the attorneys of M. L. Hiler informed Jacob J. Hiler, that unless 'the judgment was paid, he would cause execution to issue.
    Shortly thereafter, on October 11, 1872, Jacob J. Hiler, having failed to obtain surety in an undertaking for supersedeas, paid to the clerk of the court of - common pleas the amount due on the judgment. No execution was issued.
    At the September term, 1873, of the district court, the judgment was reversed as to Jacob J. Hiler, and it was ordered that he “be restored to all things he has lost by reason thereof.”
    The cause was remanded to the court of common pleas, where, in 1874, it was dismissed at the cost of M. L. Hiler.
    Jacob J. Hiler, in 1875, commenced an action in the Court of Common Pleas of Brown county, against M. L. Hiler, to recover the money so paid..
    An answer and a reply were filed, M. L. Hiler relying on -the fact that the payment was voluntary.

      The cause was submitted to the court on the pleadings and' evidence, judgment was rendered in favor of Jacob J. Hiler for the amount claimed, the district court affirmed the judgment, and on leave a petition in error was filed in this court by M. L. Hiler, to reverse the judgment of affirmance.

      J. G. Marshall & Thomas, and Loudon & Young, for plaintiff in error:
    The payment was voluntary. Mays v. Cincinnati, 1 Ohio St. 268; Baker v. The State, 11 Ohio St. 534; Boston & S. Glass Co. v. Boston, 4 Met. 181.

      White, Waters & McKnight, for defendant in error:
   Okey, J.

Under the former practice, where the precise' sum or thing to be restored appeared in the record, the writ of restitution might be awarded immediately on reversal of a judgment. But where the matter to be i’estored was not specified in, but depended on evidence dehors the record, a scire facias was issued, and the writ of restitution waa not awarded until the defendant in error had an opportunity to make a defense. Cowden v. Hurford, 4 Ohio, 374; and see Bickett v. Garner, 31 Ohio St. 28.

In Duncan v. Kirkpatrick, 13 S. & R. 292, it was held that where a judgment is reversed and an order is made that the plaintiff in error shall be restored to all things which he lost by reason of the judgment, he can not maintain an action to recover money collected on the judgment prior to the reversal, the sole remedy being scire facias. The apparent approval of that case in Cowden v. Hurford must be referred to what is said in relation to the practice, in general, with respect to restitution, for the question whether such action could be maintained was not presented or considered in Cowden v. Hurford. But the weight of authority is clearly against Duncan v. Kirkpatrick, as will appear from the cases on the subject, among which are the following: Clark v. Pinney, 6 Cowen, 297; Sturgis v. Allis, 10 Wend. 354; Maghee v. Kellogg, 24 Wend. 32; Langley v. Warner, 1 Sandf. (S. C.) 209; Cummings v. Noyes, 10 Mass. 433; Stevens v. Fitch, 11 Met. 248; Jamaica v. Guilford, 2 D. Chip. 103; Homer v. Barrett, 2 Root, 156; Raun v. Reynolds, 18 Cal. 275; McDonald v. Napier, 14 Ga. 89; Bank of United States v. Bank of Washington, 6 Peters, 8; Williams v. Simmons, 22 Ala. 425 ; Glover v. Foote, 7 Blackf. 293; 1 Stephens’ N. P. 357.

A court reversing a judgment has the inherent power to make such order of restitution. It is, in effect, a judgment; and it has been held'that an action may be maintained on a judgment rendered in this state, although such judgment-is not dormant, and an execution might issue thereon. Headley v. Roby, 6 Ohio, 521; Brooks v. Todd, 1 Handy, 169.

Without deciding whether the same thing formerly effected by scire facias might not be attained by the order of a court or judge, or still by scire facias, which, although even the name of the writ has disappeared from our statutes, has not been in terms abolished; yet a proper, and as-we think the appropriate remedy, in a case like this, is by action.

But it is said the payment was voluntary, and, therefore, Jacob J. Hiler is not entitled to recover. We do not find it necessary to determine what constitutes such voluntary payment of a judgment as will preclude the party paying-from recovering back the money paid. An objection like that goes to the question whether the original judgment should have been reversed, and that question is not before us. As the objection is now presented, it is well answered in the language of Lewis, C. J., in Breading v. Blocher, 29 Pa. St. 347: “ A judgment of restitution, given upon the reversal of an erroneous judgment, is conclusive of the matters adjudged by it. It establishes beyond further question the right of the plaintiff in error to be restored to all things which he has lost by reason of the erroneous judgment. Its justice can not be rejudged in any collateral proceeding.”

Judgment affirmed.


author: Boynton, J.

text:
    Farmers’ College v. Cary.
    1. The plaintiff was incorporated by the act of February 6, 1846 (44 O. L. 103), and thereby invested with all the powers and privileges necessary to carry into effect the object of the association. The object of the association was declared to be, to direct and cultivate the minds of the students in a thorough and scientific course of studies particularly adapted to agricultural pursuits. The stock of the association, originally limited to $40,000, and divided into shares of thirty dollars each, was, subsequently, under the power granted by the ninth section of the act of April 9, 1852 (1 S. & C. 266), increased to $150,000. Of this sum less than $125,000 has been taken. After such increase of the capital stock the defendant subscribed the sum of $100 to an “endowment fund” for the college, for which he was to receive instruction for one pupil, perpetually, free of any charge for tuition: Held, that the right to receive such subscription and engage perpetual tuition therefor, is within the powers granted to the college by its charter.
    2. The court does not lose jurisdiction of a cause from the fact that for several years it was omitted from the docket by the clerk.
    Error. Reserved in the District Court of Clermont county.
    The action below was brought by the planitiff in error against the defendant, Francis N. Cary, on the following instrument:
    “Farmers’ College Scholarship Subscription. For the purpose of more fully endowing Farmers’ College, and to secure to ourselves, and our children, the benefits and blessings of said institution, we severally agree to pay to the board of directors of said institution, or their authorized agents, the several sums by us respectively subscribed on the first day of-, 1854, and to draw six per cent, per annum until paid. These subscriptions are made upon the terms as proposed by said board, as follows: Each contribution to the amount of thirty dollars shall be entitled to two years’ instruction for a pupil free of charge for tuition ; each contribution to the amount of fifty dollars to he entitled to five years’ instruction, free of charge for tuition; each contribution to the amount of one hundred dollars to be entitled to the instruction of. a pupil, free of charge for tuition, perpetually; not more than one pupil to be at one time on a single scholarship, and in all cases such pupil to be subject to the rules and regulations, and amenable to the discipline of the college. Certificate of scholarship to bo issued on the payment of the money.
    I take a perpetual scholarship in Farmers’ College, to pay one-third on the 1st of June, 1856, and one-third yearly thereafter until paid, without interest unless I use it, in which case I pay the interest in advance at six per cent.

      April 2,1855. Nathan Barkly.
    I take a perpetual scholarship on the same terms as Mr. Barkly above. Francis N. Cary.”

      April 3, 1855.
    By a special act passed February 23, 1846 (44 O. L. 163), Charles Chaney and fourteen others, with their associates and successors, were created a body politic and corporate, with perpetual succession, by the name of Farmers’ College of Hamilton County, and, by that name, were authorized to sue and be sued, and invested with all the powers necessary to carry into effect the object of the association.
    Further provisions of the charter were as follows :
    Sec. 2. The stock of said company shall be divided into shares of thirty dollars each; each share to entitle the owner thereof to one vote.
    Sec. 3. The stockholders of said association shall meet at Pleasant Hill Academy on the second Monday of April, a. d. one thousand eight hundred and forty-six, and triennially thereafter, and elect by ballot fifteen of their number trustees, who shall constitute a board of directors for said association; said directors shall have power to fill all vacancies that may occur in said board, and shall hold their •office until their successors shall be elected and qualified. It shall be lawful at all elections for the stockholders to vote by proxy, duly authorized in writing; said stockholders shall also meet annually on the second Monday of April for the transaction of business.
    Sec. 4. The said directors shall have power to appoint a •treasurer, secretary, and such other officers, agents, and superintendents as they may deem necessary; may make all contracts, manage and superintend the affairs of the association, and adopt such by-laws as they may deem necessary for the government of said association, not inconsistent with the constitution and laws of the United States, and of the State of Ohio.
    Sec. 5. The object of this association shall be to direct and cultivate the minds of the students in a thorough and scientific course of studies particularly adapted to agricultural pursuits.
    Sec. 6. Said corporation shall be permitted to hold real estate, not exceeding ten . acres, for college purposes, together with such other property as may be necessary for the objects mentioned in the fifth section of this act, not. exceeding in the whole, $40,000.
    Sec. 7. The said corporation is made subject to the provisions of so much of the act entitled, “ an act to regulate' incorporated literary societies,” passed March 7th, one thousand eight hundred and thirty-nine, as are now in force,, except so far as changed by this act.
    Sec. 8. The capital stock of said company shall be transferable by assignment on the books of said company.
    Sec. 9. The board of trustees of said association, with the approbation of the instructors, shall have power to establish a course of studies, and they may grant certificates or diplomas, under their corporate seal, to such students as. they may deem worthy of such honor.
    On the 6th of February, 1847, the following act was-passed :
    AN ACT TO AUTHORIZE THE ESTABLISHMENT OE PROFESSORSHIPS IN THE FARMERS’ COLLEGE OF HAMILTON COUNTY.
    Section 1. Be it enacted by the General Assembly of the State of Ohio, That the trustees of Farmers’ College of Hamilton county, be, and they are hereby authorized and empowered to establish such number of professorships in connection with said institution, one of which shall be a professorship of agriculture, as they may from time to time-deem conducive to the interests and welfare of the institution.
    Sec. 2. That any individual subscribing and paying to-said trustees the sum of $500, in annual installments of $100 each, to aid in creating a professorship, to be created in connection with said institution, shall be entitled to at scholarship for life in said institution.
    Sec. 3. That whore any individual shall subscribe and pay to said trustees the sum of $100 to aid in the creation and support of any such professorship, they shall be entitled to three years’ tuition in said institution.
    Sec. 4. The funds obtained by the trustees under the second and third sections of this act, shall be safely invested by them in such manner as to yield at least six per cent, per annum, and shall not be xxsed by them for any other-purpose than the purpose specified in this act.
    Sec. 5. That said trustees shall enter into a written agreement with each individual who may subscribe money under the provisions of this act binding said • individuals to the payment of the money according to his or her subscription, and binding the said trustees to a compliance with the provisions of the agreement under which said subscription was made.
    Sec. 6. This act to take effect and be in force from'acd after its passage.
    On May 18, 1852, the directors of the college made out and signed the following certificate, and on May 11, 1853, caused the same to be duly recorded in the office of the recorder of Hamilton county :
    “ The undersigned, director’s for the time being of Farmers’ College of Hamilton county, being authorized to do-so by a vote of more than two-thirds of the shares of stock represented at a meeting of the stockholders held in pursuance of the tenth section of an act passed by the General Assembly of the State of Ohio, on the 9th day of April,, in the year 1852, entitled, ‘ an act to enable the trustees of colleges, academies, universities, and other institutions, fox the purpose of promoting education, to become bodies corporate/ to wit: by one hundred and thirty-seven, the unanimous vote of the meeting in favor, and not one against, do hereby certify that the amount of the capital stock of said institution be increased to the sum of $150,-000. The object being to increase the facilities for education, to render said college more public and permanent in its character, and diffuse and extend the blessings of thorough, sound, and practical learning. This certificate being ing intended to secure to said corporation the full benefit proposed by the ninth section of this act above referred to.”
    After the recording of this certificate the capital stock of the college was increased to about $124,000, which was composed of original subscriptions and scholarships, all perpetual scholarships having been subscribed for after the recording of said certificate. On the foregoing facts clearly appearing from the evidence, the court of common pleas held, that the college had no legal authority to raise the subscription sued on, nor to sell perpetual scholarships, and, thereupon, gave judgment for the defendant.
    A motion for a new trial was overruled, and on error to the district court, the cause was reserved for decision here. The date of reservation was September, 1869. On October. 11, 1869, the case was docketed in this court, and remained upon the docket until the December term, 1872, when it was inadvertently dropped from the docket. It next made its appearance by reservation from the Clermont District Court, in 1876. The defendant now claims that the court lost the jurisdiction acquired by the first reservation, and that it acquired none by the second, as he was not a party •and did' not assent thereto.

      George W. Heulick, for plaintiff in error.

      Nichols & Davis, for defendant in error.
   Boynton, J.

We are of the opinion that the court erred in overruling the motion for a new trial, and in giving judgment for the defendant. The act of March 7,1889 (1 Cur-wen, 544), to which the act incorporating the plaintiff is made subject except so far as changed by the latter act, contains no provision restricting the right of the plaintiff to engage to furnish tuition, and to issue certificates of perpetual scholarship therefor. Nor is the right of the plaintiff to issue certificates of scholarship affected in the least by the act of February 6, 1847. (45 Ohio L. 67). The only purpose of that act was to authorize the establishment of such number of professorships, one of which was to be a professorship of agriculture, as the trustees might, from time to time, deem conducive to the interests and welfare of the institution. The act had no other aim or object.

The fund to be derived through subscriptions made under the second and third sections, was required to be invested in securities yielding an annual income of at least six per cent., and was expressly restricted to the use specified in the act, which was to aid in creating the professorships for the establishment of which the act_ provided. And it was made the duty of the trustees, when entering into any agreement with persons subscribing money under the provisions of the act, to bind themselves to a compliance with the provisions of the agreement under which the subscription was made :■ namely, that the fund should be used for no other purpose than to create and support the professorships established. The act was not designed to be, and in no sense is, a regulation of, or restriction upon, the right of the college to bind itself to furnish instruction in the future.

But we think the act by which the plaintiff was incorporated conferred ample authority upon the college, within certain limitations, to receive money, in advance of instruction to be furnished, and to issue certificates of perpetual scholarship therefor. It is true, that such power is not expressly granted by the charter, but it is a rule governing the construction of all statutes, that what is fairly to be implied from the language used is as fully granted as that which, in terms, is expressed. And on looking into the statute, we find the declared object of the association to be, to direct and cultivate the minds of its students in a thorough and scientific course of studies, particularly adapted to agricultural pursuits. The per-sons named in the charter, and their associates and successors, were incorporated with perpetual succession, and invested “ with all the powers and privileges necessary zo carry into effect the object of the association.” To furnish Instruction, by supplying the means of education, was the •sole object for which the college was created; and that it was entirely within its power, to engage to give instruction to one or more students for a definite period of time, or through its course of study, no one doubts or denies. If it were otherwise, the object of the association could not be carried into effect. And where the limit fixed by the charter to the amount of capital which the association may hold, is not exceeded, it seems to us equally within its power, to receive contributions to an -endowment fund and to bind the college to furnish tuition therefor, to one or more students, perpetually. The powers conferred by the charter are of perpetual duration. The ■object of the association must forever remain the same; .and to carry such object into effect, by securing to the public the means of education which the college was created .and expected to provide, provision for its future support and maintenance was as necessary as for its present.

The right to insure such support, and to place the college on a substantial financial foundation, by the creation of a fund in consideration of an agreement by the college to furnish tuition perpetually, as well as for a less period of time, we think clearly embraced within the power with which, the college, by its charter, was invested.

The proceedings by which the capital stock of the college was increased to $150,000 seem in strict conformity to the statute. 1 S. & C. 268. The amount of stock taken, together with the amount received for scholarships, does not exceed $125,000. The action by which the stock was increased did not impair the powers granted by the charter to

issue certificates of scholarship. The only limitation upon: the power is, that the authorized capital be not exceeded.

The circumstance, that after the cause was reserved for decision here, it was inadvertently omitted from the docket, does not oust the jurisdiction of the court, although it remained off the docket for several years.

Having been reserved, and the papers properly filed, the case remains in court until disposed of by some affirmative action upon the part of the court.

Judgment reversed, and cause remanded.