author: Spear, J.

text:
    Armstrong, Receiver, v. The Herancourt Brewing Co.

      Term “substantial right" defined — Section 6767, Rev. Stat. — Corporation cannot refuse disclosure of condition, when — Sections 5652 and 5673, Rev. Stat.

    1. The term “ substantial right, ” as used in section 6707, Revised Statutes, involves the idea of a legal right.
    2. Such right is one which is enforced and protected by law.
    3. An Ohio corporation has not the right to refuse to make true disclosure of its condition in an action by stockholders brought under chapter 5, of title 1, division 7, Revised Statutes, to obtain a judgment of dissolution. Hence, an order upon officers of a corporation requiring them to file in court an inventory, etc., made in conformity to sections 5652 and 5673, is not an order affecting a substantial right, and is not reviewable on error.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Hamilton county.
    Pacts essential to an understanding of the question decided are stated in the opinion.

      Jacob Shroiler, Goebel <& Bettinger, and John IP. Ilerron for plaintiff in error.
    The judgment for Armstrong could have been only on the issue presented by the pleadings. It follows that the finding of fact by the court in favor of him and his co-plaintiffs was not reviewable, under the corporation’s assignment of errors or inthe absence of a motion for a new trial, assigning the finding to have been contrary to law and evidence. 49 Ohio St., 681.
    The record discloses that the proceedings are under section 5673 of Revised Statutes. The petition alleges the requisite facts and presents the prima, facie evidence for the order of February 18, 1891. The answer of March 20 puts in issue the material averments of the petition. The petition could not be dismissed until the issues thus made had been regularly tried and determined by a judgment. 35 Ohio St., 454; 33 Minn., 530; 128 U. S. C., 499; 3 Iowa, 463. The interlocutory or incidental order of May 23, which vacated the first order, could not and did not determine these issues. Subsequently, on the same day, the court vacated its original order of February 18, which left the case for further determination upon the issues made ■ by the petition and answer. This situation made it necessary to overrule on June 22 the motion to dismiss filed on May 26. 35 Ohio St., 454; 128 U. S., 499. But regardless of this being the state of the pleadings on June 22, there was sufficient ground for the order of that day in that on May 27 Adam P. Bauer filed his additional petition, alleging, together with the original petition, all the essential facts required by the statute. From the uncohtradicted allegations of this additional petition, as well as from the admissions of the supplemental and amended answer, the petitioners, excluding Armstrong, constitute holders of one-fifth of the paid up stock, as required by law.
    The foregoing clearly shows that the court possessed jurisdiction to make the order on the corporation officers of June 26. The nature of the proceedings under section 5673 warranted the admission of Bauer’s petition.
    The provisions for the hearing before the master (Revised Statutes, section 5654), contemplate the appearance in these proceedings of all of these interested parties. The characteristics and steps indicate thot the proceedings are in the nature of proceedings inrem(Q N. B. R., 210), and that the petitioners appear as representatives. In a ease of this kind there is no doubt of Bauer’s right to file his petition. He had the right to appear, and the manner and mode of his appearance were within the discretion of the court. Leave to appear as defendant and to file his cross-petition would certainly have been allowable. Bradford v. Andrews, 20 Ohio St., 208.
    The circuit court erred in assuming that the orders of refusal of Egner’s application were relevant to the questions presented by the petition in error of the Herancourt Brewing Company.
    The record shows that Frank Egner took no exception to the order refusing his application of May 23, and that he and Wilhelmina Egner took exceptions to the order of June 26, but prosecuted no error proceedings. As far as their interests were affected, they were satisfied with the orders and accepted them as a finality, since they took no steps in error to reverse them. The question arising under their applications was solely between themselves and their co-plaintiffs. Spaulding v. McGovern, 10 N. B. R., 188.
    Again, the order on the officers of June 22 is not a final order. It is a remedial process. It goes only towards the mode of trial, and does not even aim at the production of evidence in a trial. It is no order of reference and the compliance with it is intended only as a predicate for such an order. A preliminary order, which neither adjudicates nor affects substantial rights, is not final, and is not, under the statutes, subject to review on error.

      The proceedings are in the nature of proceedings iii rem. The vacating the first order an answer, being on file, was not final. The refusal to permit Egners to withdraw was not error.
    Manifestly, if the common pleas court did not err in refusing the applications of Egners to dismiss them from the case, then the judgment of dismissal made by the circuit court must be reversed.
    We contend that the action of the court is supported by both principle and authorities. No one petitioner appears upon his own motion and at his own expense separate from the others. All the petitioners are joined as representing the statutory quota of stock.
    The co-plaintiffs cannot be permitted to withdraw themselves from that character to the injury of the remaining plaintiffs. Dickson v. Park, 3 Sumner’s Edition, 1 Vesey, Jr., 402; Harkirk v. Harkirk, 4 Maddock, 50; Hanford v. Stone, 2 Simon & Stewart, 496; Williams v. Gibbs, 17 How., U. S., 239; Daniel’s Chancery Practice, 1206, 1207, and notes; Bradford v. Andrews, 20 Ohio St., 208; Atlas Bank v. Nahant Bank, 23 Pick., 491; Rosenfeldt’s 11th N. B. R. R., 86.
    It remains for the defendant’s counsel to show by what reason, or bywhat authority, the court had any power to dismiss the petition; there is nothing in practice, or in the decision,. or in the statutes, which endows the motion with the force of a demurrer. In this state the point has been repeatedly passed upon by the supreme court and circuit court. Mercantile Trust Co. v. The Aetna Iron Works, 4 C. C. Rep., 584; Makemson v. Kauffman, 35 Ohio Stat., 454; Finch v. Finch, 10 Ohio St., 501; Robinson v. Fitch, 26 Ohio St., 962.

      Gorman & Thompson and Paxton, Warrington c& Boutet, for defendant in error.
    We claim two things :
    1. The court had no jurisdiction of the subject matter of this action, and this was shown by the record, and this defect could not be cured, and the proceeding given new life by any other parties coming in thereafter, and the case should have been dismissed upon our motion.
    2. That any parties hada rig’htto withdraw from this proceeding at any time before the final order was made dissolving the corporation as they sought to do.
    The three questions for consideration are:
    1. Can a party withdraw from .a proceeding of this kind before the final hearing?
    2. Is a motion the proper means of disposing of a case when want of jurisdiction' of the subject matter appears on the record ?
    3. There having been found no jurisdiction of the subject matter, can new parties come in and give the court such jurisdiction ?
    Jurisdiction is the power to hear and determine a cause. 3 Ohio St., 493.
    The general rule that when jurisdiction once attaches, it is held for all purposes, applies to those cases only where, when the action is properly commenced, the court has general powers to grant the relief sought and not to those where the existence of the jurisdictional facts are also necessary to render the particular judgement itself. Hays v. Jones, 27 Ohio St., 218; MoGonnigle v. Arthur, 27 Ohio St., 251; Grinnel v. Adams, 34 Ohio St., 44; Makemson v. Kauffman, 35 Ohio St., 444; Dutten v. The Village of Hanover, 42 Ohio St., 215; Laylin v. Commissioners, 3 C. C. Rep., 338; City of Columbus v. Slyh, 54 Ohio St., 484; Lear v. Halstead, 41 Ohio St., 566.
    A court in a proceeding like this acts as a tribunal of special and limited jurisdiction. Adams v. Jeffriss, 12 Ohio, 253; 12 Am. & Eng. Ency., 276; County commissioners act in like capacity in road cases. 1 Bull., 116; 4 Am. & Eng. Ency., 386.
    As to this motion being the proper method of disposing of a case when there is no jurisdiction of the subject matter, see Norton v., McLeary, 8 Ohio St., 205; Wilson v. Holeman, 2 Ohio, 254; Nichols v. Patterson, 4 Ohio, 200; Paine v. Commissioners,, Wright’s Rep., 417; The Mayor v. Cooper, 6 Wall., 247; Rothwell v. Winterstine, 42 Ohio St., 249.
    There is no question better settled than that when the want of jurisdiction of the subject matter of a suit appears anywhere upon the record, the court will act sua sponte, and strike the case from its docket.
    If want of jurisdiction appears on the face of the petition, you can demur, but further than this, if the petition shows the necessary jurisdictional facts, but at any time afterwards it appears, from any part of the record, or from the existence of undisputed facts, that the court is acting without power, it will act upon its own motion and strike the petition from the files. McCloskey v. Cobb, 2 Bond, 16; People v. Board of Police, 26 Barb., 481; Ferris v. Ferris, 25 Vt., 100; Bennett v. Allen, 30 Vt., 684; Buel v. Long, 18 Ohio St., 521; 12 Am. & Eng. Ency. of Law, 309; Donaldson v. Hazen, Hemstead (C. C.), 423.
    After the additional petition was filed, we moved to strike it from the files. We also demurred. In the overruling of this'motion there was error, as well as in overruling our demurrer, and making- the order of June 26, 1891, finding that said Adam Bauer was a proper petitioner and including him in making up the necessary one-fifth of stock. In the first place, at the time this additional petition was filed,, the court .had no power to do a single act, and could not even render judgment for costs. Sheldon v. Newton, 3 Ohio St., 499; Fisk v. Railway, 6 Blach. (C. C.), 362. The original petition therefore was as a blank piece of paper in conferring jurisdiction, and it could not be amended, and this defect could not be supplied in 'any manner, or by any pleading known to the law. Jurisdiction of the subject matter cannot be amended. Pope v. Hibernia, Insurance Co., 24 Ohio St., 481; Abbott’s Trial Brief on the Pleadings, section 683; Cromwell v. Cunningham, 4 Sand., Chancery, 384; McIntyre v. Carriere, 17 Hun., 64; 11 N. B. R., 86 ; Mora v. Kuzac, 21 La. An., 756; Tippack v. Briant, 63 Mo., 581.
   Spear, J.

The action below was by D. Armstrong, as Receiver, and others, against the Herancourt Brewing Company, to procure a dissolution of that corporation.

It was averred in the petition, in substance, that the defendant is a manufacturing corporation under the laws of Ohio, with capital stock of $500,000, divided into 500 shares, 458 only of which have been paid up ; that plaintiffs are the owners of more than one-fifth in amount of the paid-up stock; that the corporation has been in existence since 1881, and that for two out of the last preceding three years the net earnings have not been sufficient to pay an annual dividend of six per cent, upon the paid-up stock above salaries and expenses. Plaintiffs prayed the appointment of a receiver, for a dissolution, and for full relief.

After answer filed, two of the petitioners appeared in open court and asked to withdraw as plaintiffs, which was refused. Another stockholder, one Bauer, applied for leave to become plaintiff and file an additional petition, which was allowed. A motion by defendant to dismiss for want of jurisdiction was overruled. A demurrer by the defendant to the pleading of Bauer was overruled; also a motion to strike that pleading off. A demurrer by plaintiffs to parts of an amended and supplemental answer b}r defendants was sustained. To all these rulings the defendant preserved exceptions. The court thereupon, after hearing and consideration, made the following order : ‘ It is now ordered that the officers of said defendant corporation on or before the 2d day of July, A. D. 1891, file in court and in this cause a full, just and true inventory of all the estate, both real and personal, in law and in equity of the corporation, and of all the books, vouchers and securities relating thereto; also a full, just and true account of the capital stock of the corporation specifying the names of the stockholders, their residence when known, the number of shares belonging to- each, the amount paid in upon such shares respectively, and the amounts still due thereon; also a statement of all the incumbrances on the property of the corporation, and of all the engagements entered into by it which have not been fully satisfied or canceled, specifying the place of residence of each creditor and every person to whom such engagements were made, if known, if not known, the fact to be so stated, and the sum owing to each creditor, the nature of each debt or demand, and the true cause and consideration of such indebtedness, and the sheriff of Hamilton county, is hereby ordered to serve a copy of the within order upon each of the officers of the corporation, to all of which defendant excepts and the defendant gives notice of appeal, and the court fixes the bond at $100.”

From this, and from all previous adverse orders and holdings of the common pleas, error was prosecuted by the Brewing Company to the circuit court, where a judgment of reversal was obtained, an order dismissing the plaintiffs’ petition, and a judgment in favor of defendant for costs. The journal entry of that court shows that the order for inventory, etc., was treated as a final judgment.

Whatever else this order is or is not, one thing is perfectly clear : it is not a final judgment. The proceeding was to obtain judgment of dissolution. No question of dissolution was before the court, nor was there any attempt to determine any such question. It is true that the common pleas, as a predicate of the order, made findings purporting to be upon pleadings and evidence. But error is not prosecuted from findings. Is the order one of those described in section 6707, Revised Statutes, which authorizes a review of “an order affecting a substantial right in an action, where such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment?” To bring it within this category, the order must at least affect a substantial right. • Is it such an order? To determine this we must consider the statute under which the proceeding is brought.

Provision is made for the dissolution of corporations, and the settlement of their affairs, by chapter 5, of title 1, division 7, embracing sections of the Revised Statutes from 5651 to 5688, inclusive. Authority is given by section 5651 to a majority of the officers having the management of any corporation, or to stockholders representing- not less than one-third of the capital stock, whenever they discover that specified conditions exist, to apply to the court of common pleas of the proper county, or a superior court, by petition for .the dissolution of the corporation. Section 5652 prescribes that the application must contain the reasons relied upon, and a statement of which the following is the substance: 1. A true inventory of all property and of books, vouchers and securities relating to it. 2. A true account of the capital stock, names and residences of stockholders, amount of shares, with amount paid and amount due. 3. List of incumbrances on the property, all unsatisfied engagements, with residence of the creditors, the sum owing to each and nature of the debt, and the consideration. The petition and exhibits must be verified by affidavits. Section 5654 directs that upon the filing of such petition, with inventory, etc., a master or referee shall be appointed, and a notice by publication given to all persons interested in the corporation to show cause before the master at a time and place fixed why it should not be dissolved. A hearing is then to be had, and a report is to be made to the court. If it is made to appear to the court that, for any of the reasons stated, the corporation should be dissolved, a judgment of dissolution shall be entered and a receiver appointed to wind, up its affairs; “and the corporation shall thereupon be dissolved and shall cease. ’ ’ The duties of the receiver are pointed out by succeeding sections. Section 5673 gives authority to owners of one-fifth the capital stock of any manufacturing or mining corporation to commence a like proceeding1 by petition which shall contain the statement, that for two of the three preceding years, the net earnings have not been sufficient to pay an annual dividend of 6 per cent, upon the paid-up stock above salaries and expenses, and that they desire a dissolution. Thereupon, on the filing of such petition, the court shall make an order requiring the officers of the corporation to file in court the inventory, etc., required by section 5652, and, upon the filing’ thereof, the court shall proceed, as.provided in section 5654, requiring all persons interested to show cause why the corporation should not be dissolved, “and the court may adjudge a dissolution of the corporation in conformity with the provisions of this chapter made upon finding that the statements contained in the petition are true.” The Brewing Company is one of the corporations described in this section.

It is argued, and was assumed by the courts below, that the defendant might invoke the court’s action on its denial of the ownership by plaintiffs of one-fifth of the capital stock in advance of a trial on the merits otherwise, and if successful, prevent the making’ of the order for inventory, etc., and end the case then and there upon the ground that the jurisdiction of the common pleas depended upon whether in fact the plaintiffs were theowners of one-fifth of the paid-up stock. This conclusion is supposed to follow from the words of the opening sentence of section 5673, which are: “When the stockholders owning one-fifth or more in amount of the paid-up stock * * * file their petition containing, etc., * * * the court shall make an order requiring the officers of the corporation, within a reasonable time, to file in the court inventories,” etc. We think the conclusion does not follow, and that the assumption is unwarranted. While the statute is not couched in the clearest language, construing it as a whole, its meaning is not difficult of ascertainment. The requirement (section 5662) that where the action is commenced by a majority of the officers, the statement as to inventory, names and residences of stockholders, etc., must be annexed to their petition, indicates that such a statement is deemed necessary at the inception of the proceeding. How else could the court cause notice to be given to all interested in the corporation requiringthem to show cause against or in aid of, the petition? And should the court stop then to try the question, whether as matter of fact, the persons appearing to be, are in reality such officers, and whether or not- they had in fact made the discovery specified as a basis for their action, and whether or not the facts, all or any, so alleged to have been discovered, were true? If not, why should such preliminary trial be had where the action is based on section 5673? The language conferring authority to begin the action is not broader in the former than in the latter section. Ordinary rules of pleading require, also, that, where the action is instituted by stockholders, the petition must contain an averment of the ownership of the requisite amount of stock by the plaintiffs in order to bring them within the operation of the statute. This is an issuable fact, and where denied must be proven. By the words of the statute the power to render final judgment of dissolution depends upon the court “finding that the statements contained in the petition are true. ” This means all the statements, those relating to ownership of stock as well as the others. Giving this construction to the statute its meaning is that where a petition is filed in the proper court containing an - averment that the plaintiffs are the owners of one-fifth the paid-up stock, and the other necessaryaverments, the court shall proceed to make the order. It is obvious that the procedure provided contemplates but one trial and one judgment, viz: a trial to determine whether or not the allegations of the petition are true, and a judgment of disso lution, or a refusal, and consequent dismissal of the petition. The construction of the statute contended for would lead to the absurd result of trying and finally determining a material fact in issue before the necessary parties had been brought into court.

The common pleas had jurisdiction, not because of ownership of the requisite amount of stock by the plaintiffs, but because the statute itself gives the jurisdiction, and that question, like every other, would be determined in the exercise of that jurisdiction. It follows, therefore, that upon the filing in that court of a petition which filled all the requirements of the statute in form, the court was clothed with the power, and it was its dutyq to issue the order for inventory, etc., and all other orders, or process necessary to bring the ease to trial on its merits as to dissolution or no dissolution. Necessarily, if the plaintiffs failed to show ownership where contested, or any other essential fact, they would be defeated, their petition dismissed, and judgment awarded defendant for costs; but this result would follow, not because of want of jurisdiction in the court, but for want of merit in the plaintiff’s case. It is difficult to see that the question of ownership of stock in this kind of a proceeding differs in principle from the question of the real party in interest in any case. And we believe it has not been usual for a court to be asked to stop and determine, as question of fact, whether or not the plaintiff is the real party in interest in advance of a trial upon the merits of the entire controversy.

Taking the chapter as an entirety, it must be obvious that all the steps which precede trial are steps looking- to the bringing in of the proper parties and the furnishing to the court of data necessary for its final judgment; facts and things to be ascertained preparatory to final judgment as distinguished from facts and things to be ascertained in execution of final judgment. The order complained of does not take from the corporation any of its property, nor disturb its managers in their full control and use thereof; it simply requires a showing’ as to its condition. In every essential sense, therefore, is the order an interlocutory one. Without doubt a compliance with it is calculated to work more or less inconvenience to the officers who manage the corporation; but does it affect a substantial right? A substantial right involves the idea of a legal right, one which is protected by law. The corporation is itself a creature of the statute, and the duty to make an exhibit of its affairs in compliance with law, is assumed the moment it becomes incorporated. It would be inconsistent, it seems to us, with an enlightened public policy for the state to clothe an artificial person of its own creation with power to unreasonably obstruct an inquiry on the part of agencies also created by the state, into its workings, set on foot for the purpose of determining whether or not it is fulfilling the object of its creation, and in the absence of clear expression to that effect, it should not be assumed that such was the legislative intent. The secrecy and mystery which often attends corporate management is a feature not worthy of encouragement. There can exist no legal right on the part of a corporation to conceal its true condition from its stockholders, nor is such concealment from the public with whom it deals conducive to good morals or sound policy. We think it clear that an 'order requiring the corporation to make true disclosure as to its condition in á proceeding authorized by statute for that purpose, to the end that the court may intelligently pass upon its right to longer exist, is not an order affecting a substantial right within the meaning of section 6707.

It follows that the circuit court had not jurisdiction to review the proceedings of the common pleas. The judgment of that court will, therefore, be reversed and the cause remanded with direction to strike the case from the docket.

Reversed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Garrett v. Hanshue et al.

      Deed or written instrument, other than will — Execution of, how proven — Power of attorney of record in behalf of client — Abstract of title may be introduced as evidence, when.

    1. The execution of a deed ■ or other written instrument, other than a will, may be proven by either one or more of the subscribing witnesses, the officer before whom the instrument was acknowledged, or the party who signed and executed the same.
    2. An attorney of record has power to do on behalf of his client all acts, in or out of court, necessary or incidental to the prosecution, defense or management of the action, and which affect only the remedy and not the right, and this includes the power to waive objections to evidence, and enter into stipulations for the admission of facts on the trial.
    3. The attorneys of record placed upon an abstract of title, over their signatures, the following agreement: “It is hereby agreed that the within abstract shows the true condition of the title to the lands therein abstracted.” Held: That this is sufficient to authorize such abstract to be introduced in evidence on the trial.
    ( Decided November 26, 1895. )

    Error to the Circuit Court of Richland county.
    The action in the common pleas was brought by W. II. Garrett, plaintiff, against W. S. Hanshue and Barbara Hanshue, his wife, defendants, to recover damages for breach of covenants of title to certain lands in Iowa, conveyed by them to one Mattie Shephard by deed of general warranty, and by her conveyed to the plaintiff by like deed. By written assignment on the back of her deed to plaintiff, Mattie Shephard assigned and transferred to him her right of action against Hanshue and wife for breach of warranty as to the title of the- Iowa lands, and this assignment was set out in the petition.
    The defendants, among- other things, denied the conveyance from Mattie Shephard to plaintiff, and also denied the assignment of the cause of action, and failure of title to the Iowa lands. Plaintiff had an abstract of- the title of the lands in question, and for the purposes of the trial the attorneys of record of said defendants placed upon said abstract the following written agreement:
    “It is hereby agreed that the within abstract shows the true condition of the title of the lands therein abstracted.
    “Cummings & McBride.”.
    Upon the trial of the case to a jury, the plaintiff having proved by Mattie Shephard, the grantor in the deed to plaintiff, that she executed and delivered said deed to him, offered to introduce said deed in evidence, to which defendants by their counsel objected, upon the ground that before the deed could be received in evidence, its execution should be proved by at least one of the subscribing witnesses, unless it should appear that the evidence of such witness could not be procured.
    The court sustained the objection, and plaintiff excepted, and the deed was ruled out. Plaintiff also offered to introduce said abstract in evidence to show the state of the title to said lands, and to prove that defendants had no title to the lands at the time of their conveyance to Mattie Shephard.
    Defendants by their counsel objected to the introduction of said abstract as evidence, upon the ground that aside from the said agreement of counsel it was incompetent, and that such agreement did not make it competent when objected to on the trial. The court sustained the objection, to which plaintiff excepted.
    The court instructed the jury to return a verdict for defendants, which was done. A motion for a new trial was filed, assigning, among other things, the ruling out of said deed and abstract by the court. Said motion was overruled, and judgment entered on the verdict, to all of which plaintiff excepted.
    The circuit court affirmed the judgment of the common pleas, and thereupon plaintiff filed his petition in this court to reverse both judgments below.
    • 8. G. Parker and D. Dirlam, for plaintiff in error.
    We contend it was error to reject the abstract of title. It is entirely competent for parties by stipulation to agree upon certain - facts, or all the facts in a case for the purposes of a trial, and when so agreed upon, they go to a court or a jury as conceded facts.
    The rule that the subscribing witnesses must be called to establish a deed between third parties has outlived its usefulness. The reason- for the rule having ceased, the rule should cease. It was established when deeds were not verified by a certificate of an official that the parties solemnly acknowledged the execution, and where there was no statute making the record proof of the execution, and where parties were incompetent to testify.

      Gummings & McBride and Lewis Brucker, for defendants m error.

      First — The pretended deed was not competent as evidence.

      Second — The pretended abstract of title was not competent, and if the plaintiffs failed on either one of these questions the court of common pleas was right in instructing the jury to find for the defendants.
    ' The agreement entered into by Cummings & McBride simply stated that the abstract represented the true state of the title of the land described in the abstract, but in no way can it be presumed or inferred from the agreement that Cummings & McBride expected to admit the abstract, whatever it might be, as being competent in this case. The agreement was made wholly for the convenience of plaintiff’s attorneys and no thought was given it by the defendants’ attorneys that it in any way could be competent evidence unless properly made so.
    That the abstract in the form in which it was presented was not competent as testimony.
    The deed as offered in evidence was not competent as testimony and there being a failure of proof as to either the deed or the abstract failing to show the chain of title or failing to show that there was any title, there was only one thing for the court of common pleas to do and that was to instruct the jury to find for the defendants.
   Burket, J.

As far back as we have been able to trace the matter both in England and this country it has been uniformly held that the execution of a deed or other written instrument having one or more attesting- witnesses must, as to rights between the parties or their privies, be established by the testimony of at least one of the subscribing witnesses, and that .other proof of execution is incompetent, unless it be first shown that the evidence of such witness cannot be had.

Starkie in his work on Evidence, page 320, states the rule as follows:

“If the deed or instrument produced purports to have been attested by one or more witnesses, whose names are subscribed, the party must call at least one of the witnesses, and in cases where the instrument labors under any doubt or suspicion, he ought to call them all. The law requires the testimony of the subscribing witness, because the parties themselves, by selecting him as the witness, have mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of the circumstances which then took place, and because he knows those facts which are probably unknown to others. So rigid is this rule, that it is not superseded, in the case of a deed, by proof of any admission or acknowledgment of the execution by the party himself, whether the action, be brought against the obligor himself, or against his assignees after his bankruptcy; nor by proof of an admission of the execution made by the defendant in his answer to a bill in equity. The rule applies, whether the question be between the parties to the deed, or strangers; whether the deed be the foundation of the action, or but collateral, or whether it still exist as a deed, or has been canceled; and although the issue be directed by a court of equity to try the date, and not the existence of a deed. Upon an indictment against an .apprentice for a fradulent enlistment, it was held that, the indentures must be proved in the regular way. And the same rule applies to all written agreements and other instruments attested by a witness, as for instance, a notice to quit in ejectment, in which case it was held that proof of service of the notice upon the tenant, and that it was read over to him without his making any objection, was not sufficient. ’ ’

Greenleaf in his work on Evidence, section 569, states the rule as follows:

£ £ The instrument, being thus produced and freed from suspicion, must be proved by the subscribing witnesses, if there be any, or at least by one of them. Various reasons have been assigned for this rule; but that upon which it seems best founded is, that a fact may be known to the subscribing witness, not within the knowledge or recollection of the obligor; and that he is entitled to avail himself of all the knowledge of the subscribing witness, relative to the transaction. The party, to whose execution he is a witness, is considered as invoking him, as the person to whom he refers, to prove what passed at the time of attestation. ”

Wharton in his work on Evidence, section 723, states the rule as follows:

“By the strict rule of the English common law, when there are subscribing witnesses to an instrument, such witnesses should be called to prove its execution, or their absence should be duly accounted for. The statutes allowing parties to be witnesses do not of themselves abrogate this rule.”

This rule was recognized and followed by this court in Zerby v. Wilson, 3 Ohio, 43, and also in Warner v. Railroad Co., 31 Ohio St., 269, and the same rule is found in Swan’s Treatise, page 154.

It is said that this rule isfounded upon the reason that a fact may be known to the subscribing witness not within the knowledge or recollection of the obligor, and that he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction. This is the reason given by Le Blanc, J., in Call v. Dunning, 4 East., 54, and followed by many judges since , without ques-. tion or investigation as to its soundness.

That this reason is unsound is clear from the consideration that the competency of evidence does not depend upon the fact of either knowledge or recollection of a particular witness.

Where two witnesses have equal means of knowledge of a particular fact, both are equally competent as witnesses, although one may have imperfectly comprehended the fact, and but faintly recollects the transaction, while the other may be clear as to the fact, and perfect in his recollection. The want of comprehension and recollection, will go as to the weight, but not as to the competency of the evidence.

Another reason given for the rule is, that because the parties themselves, by selecting the witnesses, have mutually agreed to rest upon their testimony in proof of the execution of the instrument, and of the circumstances which then took place, and because they know those facts which are probably unknown to others. This supposed mutual agreement is a pure fiction, and rarely, if ever, exists in fact. If in any case it has a real existence, and can be shown, it may perhaps be enforced; but the mere fiction is entitled to no weight and to no respect. The fact that such witness may know facts which are unknown'to others, does not go to the competency of the evidence of another witness as to facts, actually within Ms knowledge.

It is also said that the party to whose execution he is a witness, is considered as invoking him, as the person to whom he refers to prove what passed at the time of attestation. This is also a pure fiction, but may have been well enough when parties were debarred from testifying. The execution of written instruments does not involve a sacred ceremony, but a business transaction, and should, like any other fact, be proven by the best evidence of which it is capable; that is, by evidence which does not presuppose the existence of other evidence of a higher character. As this rule had its origin when parties to actions were not permitted to testify, when deeds were not required to be acknowledged before an officer, and when the execution of such instruments was attempted to be proven by the admissions of the grantors, there was some reason for holding that the direct evidence of the subscribing witnesses was better and of a higher character than the admissions of the grantor, whether made orally, or in a written answer in chancery. The oral admissions were evidence only upon the presumption that a man would not admit that which was against his interest; but often the establishment of the instrument was for his interest, and then of course he should not be permitted to prove it by his admission. The same was true of an admission in an answer in chancery, with this additional objection, that he should not be permitted to prove a fact by an admission in his answer in chancery which he could not be allowed to prove by his evidence in court. He could not by his answer, do indirectly that which he could not do directly by his sworn evidence upon the trial.

But as parties to actions can now testify, and deeds are required to be acknowledged before an officer, this reason of the rule has ceased.

True, in Hodnett v. Smith, 2 Sweeny (N. Y.), 401; S. C., 10 Abb. Pr. N. S. 86, and 41 How. Pr., 190, it was held that the statutes allowing parties to be witnesses do not of themselves abrogate this rule. That decision was by the superior court of the city of New York, and the cases there cited and relied upon, are decisions of the courts of common pleas of the state of New York, and those courts followed the old rule without question. Not being by a court of last resort, the case is not of controlling weight here. The question was not examined on principle, and if it had been, a different conclusion should have been reached.

While a statute making a party to an action a competent witness, does not of itself make that part of his evidence competent which was before incompetent; yet if the evidence was in its nature-competent before the statute, and was made unavailable by reason of the ineompetency of the witness, when such incompetency is removed by statute, the evidence thereby becomes available, and may be introduced through such newly enfranchised witness.

As to the execution of an instrument, it was said that the subscribing witnesses should be first called, because they not only saw, but participated in the transaction, and had their attention thereby specially called to the subject, while mere bystanders with equal opportunity to see and hear, would not so fully understand the matter as those who actually took part in the transaction, and although the grantor saw the transaction and participated therein, and was in fact the principal actor, and had full information, yet as he was an incompetent witness, it was held that the testimony of the subscribing witnesses was the best evidence of the fact of execution. On principle it was not the evidence of the g’rantor that was incompetent, but it was the witness that was incompetent. By removing the incompetency of the witness, his evidence, which in its nature was always competent, became available to prove the fact of execution, and Ms evidence in such case is as good and of as high a character as that of the subscribing witnesses.

True, he may be interested, but that goes only to the weight and not to the character or competency of the evidence. By section 310 of the Code, adopted in 1853, parties to actions became competent witnesses, but it was provided that their interest might be shown to affect their credibility. Later the credibility part of the section was removed, and ever since that, parties to actions are competent witnesses, upon an equality with other witnesses, the credibility of all alike to be determined by the jury in view of all the circumstances.

As the evidence of those who were present and participated in the execution of the instrument, was regarded as the best evidence of its execution, and the incompetency of the grantor as a witness being now removed by statute, it inevitably follows that he is now, equally with the subscribing witnesses, competent to establish the execution of the instrument.

The rule requiring’ the execution of a deed to be proven by the subscribing witness, would exclude the officer before whom the deed was acknowledged, when we all know that such officer sees and knows all that the witnesses do, and most likely much more. The witnesses are usually hurriedly called in, and give but slight attention to the matter, while the officer usually prepares the deed and acknowledgment, shows the parties where to affix their signature, sees them sign the deed, and hears them acknowledge it; and a rule which requires such officer, and the party who signed- the instrument, to stand aside until the testimony of the subscribing’ witness is first taken as to its execution, cannot be sound in this day, when all persons are equally competent to testify to any fact within their knowledge, unless otherwise provided by statute, as in the case of wills.

In Warner v. Railroad Company, 31 Ohio St. 269, the grantor being-dead at the time of the trial, it was proposed to establish the execution of the instrument by proving his signature, and his admission that he had. executed the instrument, without first calling the subscribing witnesses or accounting for their absence. This the court held could not be done. The testimony of the subscribing-witnesses who saw the party sign his name to the instrument, was better evidence and of a higher character than the testimony as to his handwriting- or admissions. The case was therefore correctly decided, and the rule as to the subscribing witness was not necessary to sustain the decision.

While the rule as to the testimony of the subscribing witnesses was in full force in this state, this court held in the case of Simmons v. State, 7 Ohio, 116, that the rule did not apply in the prosecution for forgery wherein the signer of the forg-ed instrument was a competent witness. Wood, J., used the following language: “In a case arising between the parties to such an instrument, having- a subscribing witness, and where the obligor, being interested, is excluded from testifying, the rule is a good one, which requires such witness to prove its execution. * * * When the obligor is competent, he must be the best witness of which the ease will admit; and the subscribing witness,in such case, need not be called.’'

As early as the case of Gray v. Smithyes, 4 Burr., 2273, it was held that the rule did not apply to' third persons in a collateral proceeding having no privity with the grantor in the deed. The same was afterward held in Ayers v. Hewitt, 1 Applet., 286. There are some other exceptions to the rule, as is shown by the notes to section 569 of Green-leaf on Evidence. In Maryland the rule was regarded so narrow, that it was changed by statute as early as 1825.

We think that the statutes requiring deeds to be acknowledged before an officer, and permitting parties to testify, have so enlarged the rules as to the manner of proving the execution of a written instrument having subscribing witnesses, as to abrogate the old rule, and to permit such execution to be proven alike by the grantor, the subscribing witnesses, or the officer before whom the acknowledgment was taken.

Whether or not the court erred in not permitting the abstract to be received in evidence, depends upon the question, as to whether the attorney of record has power to bind his client by agreement in writing before the trial, as to a matter of evi- ’ dence, to facilitate the preparation for trial, or to save expense, or shorten the trial; and whether what was written on the abstract, made it competent evidence on the trial.

Section 5288, Revised Statutes, provides, that either party may exhibit to the other, or to his attorney at any time before the trial, any paper or document material to the action, and request an admission in writing of its genuineness; and if the adverse party or his attorney fail .to give the admission, such party shall pay the costs of proving the genuineness of such paper or document. This section clearly recognizes the authority of the attorney to bind his client in such eases.

In practice it is a daily occurrence for attorneys to enter into written stipulations as to matters of evidence, and the uniform current of authorities, both in England and this country, is in favor of the power so to do.

In vol. 1, page 954 of Am. & Eng. Enc. of Law, we find the following:

“An attorney at law has authority, by virtue of his employment as such, to do on behalf of his client all acts, in or out of court, necessary or incidental to the prosecution or management of the suit, and which affect the remedy only, and not the cause of action. This includes the right to demand and receive payment in money of the client’s debts; ■and part payments are within his power to receive as well as payments in full. As long as he appears as attorney on record, bona fide payments to him discharge the debt, no matter what private instructions he may have received from his client. He may ■ also sue out an alias execution. He may receive livery of seisin of land taken under an extent; may waive objections to evidence and enter into stipulations for tne admission of facts or conduct of the trial, and for release of bail; may waive notices, and give extensions of time to file papers and confess judgment; and may open a default which he has taken (whether improperly or not) and vacate the judgment entirely, even though (it has been held) his client has instructed him to the contrary.”

The authorities cited in support of the power here in question, fully sustain the text. Among-others the following are cited: Lacoste v. Robert, 11 La. An., 33; Stephen’s Digest of the Law of Evidence, 46; Moulton v. Bowker, 115 Mass., 36; Lewis v. Sumner, 13 Met. (Mass.), 269; Elton v. Larkins, 1 Moody & Robinson’s Reports, 196; Young v. Wright, 1 Campbell’s Reports, 139.

In Ish v. Crane, 13 Ohio St., 574, the case was submitted to the district court upon an agreed statement of facts, signed by the attorneys of record, and the case was reserved to this court, and after such reservation and before the hearing, counsel for defendant in error attempted to revoke, withdraw and annul the agreed statement of facts, to which the attorney for plaintiff in error objected. This court refused to permit the withdrawal of the agreed statement, and in deciding the point used the following language:

“It has long been the practice in this state, as well as in the courts of other states, for counsel to mutually agree upon a state of facts, and to reduce the agreement to writing, and file it in the case, instead of being to the trouble and expense of taking proof by depositions, or otherwise, to show the facts. And when such agreement is reduced to writing, and signed by the parties, or their counsel, and filed in the case, I think the general understanding, both of the bar and court has been that the same was to be regarded,, until set aside by the court, as a special verdict of a jury, expressing the result of the proof made by both parties, and so belonging to both parties, that neither party could withdraw the same.

It is not doubted that, in case of an agreed statement having been so made and filed by mistake, or misapprehension of the existing state of facts by one of the parties, he might, consistently with fair practice, upon notice to the adverse party or his counsel, apply to the court for leave, on the ground of such mistake or misapprehension, to withdraw from the files such agreed statement, or such part thereof as was, in fact, untrue and had been so assented to by mistake or misapprehension. ■ And upon the merits of such motion being sustained by-proof, satisfactory to the court, it is not doubted the court might grant such relief as the party should show himself justly entitled to. ’ ’

In view of these authorities, we are of opinion, and so hold, that an attorney of record has ample power to do on behalf of his client all acts, in or out of court, necessary or incidental to the prosecution, management or defense of the action, and which affect only the remedy, and not the right, and that this includes the power to waive objections to evidence, and. enter into stipulations for the admission of facts on the trial. .

In case the court should, on motion, allow such agreed statement to be withdrawn, ample time should be given for the preparation of the case on other testimony, so as not to take either party by surprise. The spirit is the same as that of section, 5286, Revised Statutes, which requires exceptions to depositions to be heard and disposed of before the commencement of the trial.

The abstract which was ruled out is found in the bill of exceptions, and seems to sustain the contention of the plaintiff. • It was therefore material, and if the agreement was sufficient, it should have been received in evidence.

The agreement states that the abstract shows the true condition of the title of the lands therein described, and it appears- that the lands therein described are the lands in question; but the agreement fails to state that the abstract may be used as evidence on the trial. But this was not necessary. Whatever is true may, if relevant, be received in evidence. The truth of the abstract being admitted; plaintiff had a right to use it as evidence, without further agreement of defendant that he might do so. It follows that the court of common pleas erred in ruling out the deed and abstract, and in overruling the motion for a new trial, and that the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and the cause remanded to the court of common pleas for a new trial.

Reversed and remanded.

Spear, J., dissents on the ground that the facts do not warrant the judgment of reversal on the second ground.

Minshall, C. J., dissents from the first proposition of the syllabus in so far as it decides that a deed may be proved by the officer before whom it was acknowledged, unless also made a witness to the deed. To so decide, is not necessary to the decision of this case.


author: Williams, J.

text:
    Tuttle v. Burgett’s Admr.

      Contract — Place of performance — • When not agreed tipon, obligee may designate — Ch al declarations at time of execution of written instrument — • When inadmissible in evidence.

    1. "Where no place of performance of an obligation is agreed upon by the parties, the obligee, as a general rule, may designate any reasonable place of performance.
    2. Under a mortgage conditioned that the mortgagor shall furnish the mortgagee and his wife during life, comfortable rooms, food, clothing, medicine and medical attendance in sickness, and provide them with the necessaries and comforts suitable for persons of their age and situation in life, no place being specified where such support shall be furnished them, they are not. obliged to receive it at the house of the mortgagor, but are entitled to have it furnished at such reasonable place or places as they may select.
    3. When, with knowledge of such selection, the mortgagor fails to furnish the support required by his contract, and declares his intention not to do so, or pay for any support which may be furnished by others, the condition of the mortgage is broken, and an action of foreclosure may be maintained for the reasonable value of the support provided by others, though it was provided without the request of the mortgagor, or demand upon him to furnish the support required.
    4. The oral declarations of a party to a written instrument, made before or at the time of its execution, of an intention or purpose not therein expressed, or different from that to be derived from its terms, are not within the rule which permits extrinsic evidence of the situation of the parties and of the surrounding circumstances when the instrument was executed, and are inadmissible in an action on the instrument where its reformation is not sought.
    5. A grantee who has agreed to support his grantor during life, in consideration of the conveyance of the property, will not be discharged from his obligation by the bringing of a suit to set aside the conveyance and recover back the property, where the suit has been abandoned and dismissed without trial, and the grantee has not been disturbed in the possession or enjoyment of the property.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Ashtabula comity.
    William Burgett, who was the owner of a valuable farm in Ashtabula county, and of a considerable amount of personal property, together estimated to be worth about $10,000, being of advanced years, and his wife an invalid, conveyed his farm, his wife joining in the conveyance, and transferred his personal property to his son-in-law, Philander W. H. Tuttle, upon the consideration that he would support Burgett and his wife during life, furnish them with comfortable rooms, food, clothing, medicine and medical attendance in sickness, provide for each of them the necessaries and comforts suitable for persons of their situation in life, and at their death place a marble slab properly inscribed at the grave of each, and also pay to Burgett $50 a year so long ás he should live.
    To secure the performance of his obligation, • Tuttle and his wife united in the execution of a mortgage of the farm back to Burgett. The condition of the mortgage, which, it is admitted by the pleadings, contains the entire contract relating to the support of Burgett and wife, is as follows:
    “The condition of this deed is such, that whereas the said P. W. H. Tuttle has this day received the above described lands, together with an amount of personal property this day delivered, in consideration of supporting said William Burgett, and Mary Burgett, during’ the term of their natural lives. To furnish each of them with comfortable rooms, food, clothing-, medicine and medical attendance in sickness, and at their death to place at the grave of each of them a marble slab, properly inscribed. To pay to William Burgett $50 each year, and to carefully provide for each of them the necessaries and comforts of life, suitable for persons of their age and situation in life.
    “Now, if the said P. W. H. Tuttle, his heirs, assigns, executors’ or administrators, shall well and truly perform all covenants and agreements, according to the tenor thereof, to the said William Burgett and Mary Burg’ett, the above deed shall be void; otherwise the same shall remain in full force and virtue in law. ’ ’
    The deed and mortgage were executed on the 4th day of April, 1884, and soon thereafter Burgett and his wife left the farm where thejr had lived for many years and went to reside with Tuttle in the village of Geneva some miles distant from the farm, and remained there receiving their support from Tuttle and his wife until February following, when they became dissatisfied and went to the home of their son Henry, which was near the farm, • and after staying there a short time went to the home of their son-in-law, Woodruff, and remained there until the date of their death, which occurred on the 28th day of January, 1886, both dying on the same day. While Burgett and his wife were at Henry’s, he took care of them, providing everything- necessary for their comfortable support, under an agreement with his father that he should be paid a reasonable compensation therefor; and they were in like manner provided for by Woodruff while they remained at his house, under a like agreement. Administration having been granted on the estate of William Burgett, Henry and Woodruff presented their claims for the support furnished by each respectively, which were allowed, and suit was brought in the court of common pleas of Ashtabula county, to foreclose the mortgage for the amount due on them.
    When Burgett and his wife were leaving- Tuttle’s house, he forbid their going, and declared, in substance, in the presence of Henry, that he would not provide support for them while they were away, nor pay for any furnished to them; and afterward gave that information to Woodruff. Tuttle alleges in his answer that he was always ready and willing to furnish and provide at his home in Geneva everything he was required to do by the condition of the mortgage, but was prevented by the absence of Burgett and his wife.
    Soon after leaving Tuttle’s, Burgett brought a suit to set aside the deed and mortgage and recover back the farm and personal property, charging that the conveyance and transfer were obtained by fraud and undue influence while he and his wife were incapacitated by age, sickness and their enfeebled condition, to transact business.
    These charges were denied by Tuttle, and after Burgett’s death the action was dismissed without trial. The bringing of that action was set up as a defense in the foreclosure suit, the claim being, that it constituted an abandonment and repudiation of the contract, and released Tuttle from the further performance of the condition of the mortgage. Other issues were made which it is not necessary to notice. After trial and judgment in the common pleas court, the cause was taken on appeal to the circuit court, where all the issues, were found for the plaintiff, and a decree of foreclosure rendered, from which error is prosecuted here. It appears from the bill of exceptions that the court, on objection made by the plaintiff’s, counsel, excluded evidence offered by the defendant of verbal declarations which it was claimed Burgett had made while the negotiations between him and Tuttle were in progress, to the effect that if the arrangement was consummated Burgett expected he and his wife would live at Tuttle’s, in Geneva, or that they were to live there. Any furtlier facts necessary to an understanding of the questions raised in the case, will be stated in the opinion.

      Burroios d¿ Jerome, and F. B. Smith, for plaintiff; in error. '

      Howland <& Stcvrhey, for defendant in error.
   Williams, J.

In behalf of the plaintiff in error, it is claimed, (1) that under the agreement of the parties as expressed in the condition of the mortgage, Burgett and his wife were obliged to receive their maintenance and support at the residence of Tuttle, and therefore, the failure or refusal to furnish it elsewhere constituted no breach of the condition; or (2), if such is not the legal effect of the condition as written, it was competent to prove by the verbal declarations of Burgett, made contemporaneously with the execution of the contract, or prior thereto, that the support and maintenance were to be provided at the house of the mortgagor; and (3), that the commencement of the suit by Burgett to set aside the conveyance was an abandonment and repudiation of the contract by him, which excused further performance of it by Tuttle.

1. The agreement as expressed in the mortgage contains no stipulation which makes it a condition to the right of the mortgagee and his wife to the support which Tuttle thereby agreed to furnish, that it be accepted at the home of the latter, or which requires that it be either furnished or received at that, or any other specified place. It is silent on that subject, and creates a general obligation on the part of Tuttle to supply Burgett and wife with what ever he agreed to furnish them, without limitation as to the place where performance of the agreement should he made, or might he required. The obligation is expressed in the language of the promisor who executed the mortgage, and according to a well established rule, should be taken most strongly against him, if there be doubt or ambiguity m its terms. If it were the intention of the parties that performance of the obligation could be required only at a particular place, that intention could easily have been expressed, as could any other condition qualifying the rights of the promisee. As a general rule, where no place is mentioned for the performance of an obligation, it is to be performed to the obligee in person, who may designate any reasonable place of performance; and that rule has been held applicable, in many cases, to contracts of the kind we have under consideration. Wilder v. Whittemore, 15 Mass., 262; Crocker v. Crocker, 11 Pick., 252; Thayer v. Richards, 19 Pick., 398; Pettee v. Case, 2 Allen, 546; Hubbard v. Hubbard, 12 Allen, 586; McArthur v. Gorden, 126 N. Y., 597; Stillwell v. Pease, 4 N. J. Eq. (3 Green), 74; Rowell v. Jewett, 69 Me., 293.

In some of the cases cited, the question arose upon the construction of wills, requiring devisees or legatees to provide support for persons named; while in others, it was made on mortgages with conditions similar to that of the mortgage in question; and the rule as stated is recognized in all'of them. In the case of Wilder v. Whittemore, it was held that: “Upon a mortgage, conditioned that the mortgagor shall maintain and support the mortgagee during life, the mortgagee has the right to support wherever he shall choose to reside, so that needless expense be not created to the mortgagor. ’ ’ And in Pettee v. Case, the court held, that the condition of a mortgage, not differing in any essential feature from the one before us, was broken when the mortgagor after knowledge that the persons entitled to support are at a reasonable place, where they intend to receive their support, declares to the person in whose family they are that he will not pay for their support at that place, and dqes not pay therefor, though no special demand is made upon him for the support. It is said in the opinion of the court, that under such a contract the mortgagor “was bound to support the mort gag’ees, without their making- a demand for support. And they were not bound to receive support at his house, but had a right to be supported wherever they might choose to live, provided they causo no needless expense. ” We concur in that interpretation, and find nothing in the obligation of theplaintiff in error which requires a different construction, or gives it any different effect.

Contracts of this nature, entered into by persons of declining years when their capacity for business has in some measure become impaired, with children or relatives who receive not only a full consideration for their engagement, but usually something- ' in way of bounty also, should receive a liberal construction in favor of such elderly people, and the corirts have enforced a corresponding performance in their behalf. A comfortable support and maintenance, which Tuttle’s agreement bound him to furnish, must have been understood by the parties to be such as would comfortably situate Burgett and his wife, as well as sripply them with adequate food and clothing, and other necessaries of life; and to afford them that comfort, they should be allowed reasonable liberty in the choice of their situation and surroundings, there being no express limitation in that respect contained in the contract. To deny them that privilege, and compel them to remain under the control of the party whose pecuniary interest it is to be relieved of the burden at the earliest moment, would place them in a condition of dependence scarcely less in degree than that of persons under guardianship, and occasion a constant dissatisfaction and discomfort which would defeat an important purpose, and the real spirit of the contract, though there should be the strictest observance of its letter in the'supplies provided for them; and that restraint should not be imposed unless it is made to appear with reasonable certainty that such was the agreement of the parties.

The cases of Parker v. Parker, 126 Mass., 433, and Currier v. Currier, 2 N. H., 75, are cited in support of the construction claimed by the plaintiff in error. In the former of these cases, in giving construction to a will by which the testator gave to his widow during life the use of all his property, including the homestead farm where he and his family had always lived, and to his unmarried daughter a small sum of money, and “a home and maintenance during the time she remained unmarried, ” it was held to be the intention of the testator that the daughter should have “the home and maintenance” given her, on the farm where the family lived. It was evidently expected by the testator that the widow would remain on the homestead devised to her, and that the daughter while she remained unmarried, should live at home with her mother. In giving that construction to the will, the court said.: “Where a testator provides in his will, that his wife, child or other person shall be supported and maintained by his executor, or where the condition of a deed or mortgage recites that the grantee or mortgagor shall support the grantor or mortgagee, and the instrument does not point out that the support shall be provided in a particular place, then the party so entitled may have the support where, under reasonable limitations, he may choose to reside. But if the instrument points out the place where the support shall be furnished, it is not the right of the party entitled to receive it to demand that it shall be furnished elsewhere. Each case must be decided on its own facts, looking to the instrument and the surrounding circumstances.” In the Currie case, a son-in-law, in consideration of a conveyance of land made to him by his father-in-law, agreed to pay the latter’s debts and provide necessary support for him and his wife; or, on failure to do so, to lease to them for life the farm where he resided ; which latter clause it was held, sufficiently indicated the home of the son-in-law as the place of performance of his agreement. . The court say that where, in contracts of that description, the parents retain a life lease or mortgage interest in the farm they occupied before, “the place of performance would then seem to be the house before, occupied by the parents.” What would be the proper interpretation of a mortgage, securing an engagement to support the mortgagee, taken upon lands granted to the mortgagor as the consideration of his promise, was not before the court, and the statement of what seemed to that court would be the proper construction of such an instrument concerning the place of performance, is against the weight of authority, as will be seen by reference to the cases we have hereinbefore cited, which, in our opinion, establish the better rule. But conceding the force of the circumstances mentioned as indicating the home occupied by the parents, or that of the testator, as the place for the performance of such an engagement, they are without force as tending to fix any other place where support shall be furnished ; and therefore, neither of the cases relied on by the plaintiff in error sustains his contention that his home in Geneva, remote from the Burgett homestead, was the place where he should perform his contract; and, as neither of the parties claim the homestead was such place of performance, the cases loose their applicability, and leave the obligation of Tuttle in that class where no particular place of performance is specified.

2. The record shows that on the trial in the circuit court, counsel for the plaintiff in error asked of one of his witnesses what Burgett said, prior to the execution of the deed and mortgage, “as to where he was to live if this contract was entered into.” An objection to the question was sustained, and an exception taken, counsel stating that he expected ‘ ‘ the answer would be that at the time the contract was made, it was understood between them, and Mr. Burgett said that he expected, if the contract was made, to live at Mr. Tuttle’s in Geneva; that he was going to live with Mr. Tuttle; that one inducement in making the contract was to get off the farm.” The exclusion of that testimony is assigned for error, and it is contended that it was admissible under the rule which permits proof of the circumstances surrounding the parties when a written contract is entered into.

There can be no doubt that in giving- construction to a written instrument regard may be had to the situation of the parties, and the surrounding-circumstances; and these may be shown by parol, to enable the court called on to interpret the instrument, the better to understand its terms, and arrive at the intention of the parties when not clearly expressed. But we do not understand that the oral declarations of a party made prior to or at the time of the execution of the instrument, of an intention or purpose not thérein expressed, or different from that properly derived from its terms, are within the rule; and unless the evidence excluded by the court below had that effect, it was wholly immaterial and its exclusion of no legal significance. It was competent to show, as was done at the trial, that after the deed and mortgage were delivered, Burgett and wife went to live at the home of Tuttle; but, since by the terms of the mortgage they were entitled to receive their support and maintenance at such reasonable place as they might select, the fact that they accepted it for a time at Tuttle’s house, was not inconsistent with their claim that they had a right to receive it elsewhere; nor did it establish a practical construction of the mortgage at variance with that claimed by the plaintiff in the action.

3. The claim most earnestly pressed by the plaintiff in error is, that the suit of Burgett to set aside his conveyance and recover back the property transferred to Tuttle, relieved the latter from the further performance of his agreement. It may be accepted as a general principle, that where one party refuses performance of his part of an executory agreement, or denies his obligation to perform, the other party cannot be compelled to perform Ms part of the contract; but the application of that principle here is not so apparent. Burgett had fully performed his part of the contract made with Tuttle, by the conveyance of the farm and delivery of personal property in accordance with its terms. Nothing remained for him to do; but the contract was executory on the part of Tuttle only. Having concluded he had been overreached in the transaction, Burgett sued to rescind and recover what he had parted with under it. Tuttle might have accepted the offer of rescission thus made, which, if followed with a reconveyance and surrender of the property, or by a decree restoring the property, would undoubtedly have discharged him from all further liability. But he resisted the suit,which was abandoned and dismissed without trial, leaving the parties in the same situation as if it had never been commenced; and if the claim he now makes were sustained, he would be enabled to retain both the property and the consideration he agreed to pay for it. That, we think, he cannot be allowed to do. While he retained the property his obligation to furnish a support for Burgett and his wife was a continuing one so long as they lived, which could only be discharged by performance, or voluntary relinquishment. The trial court found there had been a failure to perform; and the suit afforded satisfactory evidence of a purpose on the part of Burgett to secure the whole of the property for his use, instead of so much only as could be enforced under the mortgage, from which an intention to fore-go the benefits of the mortgage, if he failed to establish his right to the restoration of the property, could not reasonably be inferred. The case of Jenkins v. Stetson, 9 Allen, 128, on which, reliance is placed by plaintiff in error, rests upon the general principle we have stated. There, a suit was brought on a bond by which the plaintiff agreed to support a widow and her two daughters during their natural lives, in consideration of which the daughters agreed to leave him and his heirs all of their personal property, including what they should receive from their father’s- estate. The mother and one of her daughters having died, the surviving daughter took up her residence with a brother-in-law, and afterward left her personal estate, by will, to her sisters. There was no evidence that the plaintiff had been requested to furnish any support to the daughter after she went to her brother-in-law’s house, but she was requested by the plaintiff to return to his house and receive her support there. It was held, that under the circumstances of that case, a failure by the plaintiff to tender the support at the brother-in-law’s house was not a breach of the bond. But it was not held that the daughter was not entitled to receive it there if she had so requested, nor that a failure to so furnish after demand made would not have been a breach. The proposition declared is: “It is not sufficient proof of a breach of a bond to support another during his natural life, to show that he left the house of the person bound to furnish such support and resided elsewhere for several years, without at any time requesting- him to fulfill his agreement'or in any way exhibiting to him an intention or desire to hold him to the performance thereof. ” It will be observed that the agreement under which the party was entitled to support in that case, was executory on her part, she having agreed to leave all her personal property to the plaintiff as the consideration for his promise to support her; and that she did not perform her-part of the agreement, but left her property to other persons. That feature' of the ease, the court say, tended “very strongly to show that it was her intention, without the knowledge or assent of the plaintiff, to avoid the obligation of the contract into which she had entered with him, and, by ceasing to receive support at his hands, to get rid of the performance of her part of this mutual obligation. Under such circumstances, a tender of performance by the plaintiff was not necessary, and no inference of a failure or omission by the plaintiff to fulfill the agreement would have been warranted.”

We see nothing in that case which conflicts with the conclusion we have reached in this one. Here the contract, as we have seen, entitled Burgett and his wife to have performance of it by Tuttle at such reasonable place as they should select, and he having declared his intention not to furnish them support while absent from his house, no demand upon him was necessary to an action on the mortgage for the reasonable value of their support by others while so absent.

Judgment affirmed.


author: Minshall, C. J.

text:
    Burdge v. The State of Ohio.

      Forgery of promissory note — Power of attorney to confess judgment attached — Omission in indictment as to description of note —Sections 7216 and 7218 Rev. Stat. — Confessions of defendant offered in evidence — Questions for jury.

    1. In an indictment for forgery of a promissory note, the omission, in setting it out according to its “purport and value” (section 7218, Revised Statutes), of a power of attorney to confess judgment, attached to the note, is not a variance material to the merits of the case, nor prejudicial to the defendant, and, therefore, not a ground of acquittal. Section 7216, Revised Statutes.
    2 Where a party is indicted for the forgery of a note, evidence that the defendant released a judgment he had taken on the note, without consideration, after being charged with the forgery, is competent on the question of his guilt.
    3. Where confessions of the defendant are offered in evidence on a criminal prosecution, and it is claimed that they were .not voluntary; the preliminary proof as to whether they were obtained by the influence of hope or fear, may, if the evidence is conflicting, be submitted by the court to the jury, under instructions to disregard the evidence, if satisfied that the confessions were involuntary.
    (Decided November 26, 1895.)
    Error to the Court of Common Pleas of Marion county.

      J. F. McNeal c& Son and T. F. Powell, for plaintiff in error.

      Ch'ant E. Mousur, for defendant in error.
   Minshall, C. J.

The plaintiff in error, Marshall S. Burdge, was, on the charge of forgery, indicted by the grand jury of Marion county, and tried, convicted and sentenced to imprisonment in the penitentiary. He claims that various errors to his prejudice were committed in the trial of the case by the court below, and asks that the conviction and sentence be reversed, and a new trial awarded him. The principal assignment of error relied on is, that there is a variance between the indictment and the evidence offered in support of it. The indictment charged that he did falsely make, alter and forge a certain promissory note for the payment of money ‘ ‘ of the purport and value” as follows:

' “$3,100.00. La Rue, O., August 21, 1886.

“Eleven months after date, for value received, we jointly and severally promise to pay M. S. Burdge, on order, thirty-one hundred dollars, with interest payable annually at th® rate of eight per cent per annum from date until paid.

“E. Gillespie.”

The instrument offered in evidence was a promissory note for the payment of money, not only of the purport and value of that set forth in the indictment, but identical with it in all respects, except that it had thereto attached a power of attorney, in the usual form, to confess judgment upon it; and there were also indorsed, on the back of it, certain payments of interest amounting to about $500. The note and power of attorney were over the same signature. The rules as to a variance between an indictment and the proof offered to support it, have been much relaxed by statute, not only in this state, but-, elsewhere. In the first place, it is no longer necessary to set forth the instrument alleged to have been forged with literal accuracy; it is sufficient if it be set forth according to its “purport and value.” Section 7218, Revised Statutes. The word ‘ ‘value, ” as here used, does not mean its value in money as between the parties, but its value or effect in law, as a legal instr u - ment. Chidester v. State, 25 Ohio St., 433. The rules of the common law as to.the effect of a variance seemed rather to facilitate the escape of the guilty than to protect the innocent as they were designed to do. Hence, it is now provided by statute, among* other things, that, when, on the trial of an indictment, there appears a variance between the indictment and the evidence “in the name or description of any matter or thing therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had, find that such variance is material to the merits of the case, or may bevprejudicial to the defendant.” This preserves to the defendant all that he is entitled to on the ground of a variance, without in any way imperiling the rights of the innocent. The court must determine in the first instance, whether the variance, if there is one, is material to the merits of the case, or may be prejudicial, to the defendant. We must presume that the court did so, and held the variance, if one, to be neither material to the merits nor prejudicial to the defendant, in admitting the instrument in evidence. It is true that its action in this regard may be reviewed on error. Lytle v. State, 31 Ohio St., 196. But, as to a variance, it may be well questioned, whether by the rules of the common law, there was any shown between the indictment and the proof. The instrument averred to have been forged was a promissory note for the payment of money. The instrument offered and received in evidence was such an instrument, and, as to it, there was no variance. The fact that it had a power of attorney attached, did not affect its value as a promissory note; nor did the fact that there were payments indorsed on it, affect its legal value or effect in this regard. Osborn v. Hawley, 19 Ohio St., 130; Wilson v. People, 5 Park, Cr. Cases, 178. All that can be claimed is, that on the same paper and under the same signature, there were two instruments, one a promissory note and the other a power of attorney — both distinct in character and, as much so, as if they had been on separate pieces of paper. The forgery was of the promissory note and not of the power of attorney; and as, in this ease, the forgery consisted in the alteration of a valid note without any alteration by the forger in the power of attorney, it would seem, that the indictment conformed to the facts as developed by the proof, and is open to no objection on the ground of a variance, if we were to apply the stricter rules that formerly prevailed. East’s Pleas of the Crown, 925.

But if it were otherwise, still was there any abuse of its discretion by the court, in admitting the instrument in evidence? This must depend on whether it was material to the merits of the ease, or prejudicial to the rights of the defendant. A variance could only be material to the merits, where the instrument offered in evidence tended to prove a different subject of forgery. So that the only question that remains on this point is, whether it would in any way prejudice the defendant. And we do not see how this could be the case, unless, as claimed, it would impair the rights of the defendant to plead a former conviction, if he should be indicted again for the same offense. This claim, we think, cannot be maintained. If, as shown, the instrument offered in evidence was not a variance from the indictment, and, therefore, sufficient to support it, the record of the eonviction on that indictment would certainly be sufficient to support a plea of former conviction in a prosecution on a second indictment, setting forth the instrument forged to be of the same purport and value as that contained in the record of the conviction bn the first indictment. And if, in the second indictment, the instrument should be set forth with the power of attorney attached, and the payments indorsed on the back, and a question were made as to the identity of the former conviction with the latter prosecution, the doubt could be removed by parol evidence, that the instrument offered on the former trial is identical with that offered in support of the plea; it being well settled that parol evidence is competent for such purpose. Regina v. Bird, 2 Eng. Law & Equity, 439; Bishop Crim. Prac., section 816; State v. Maxwell, 51 Iowa, 314; Dunn v. State, 70 Ind., 47; Walter v. State, 105 Ind., 589, 593; 3 Rice, on Evidence, 615..

It is also claimed that the court erred in the admission of certain testimony. The defendant below took judgment on the note for the amount due, under the power of attorney in the court of common pleas of Lawrence county. After the .commencement of the prosecution he executed a release and satisfaction of the judgment. The state offered evidence of these facts, and that the satisfaction was entered without any consideration. Objection was made which was overruled and exception taken: The defendant then offered evidence to show that the release was not a voluntary act on his part; that it was obtained from him during the pendency of the criminal prosecution, by representations and statements as to what the consequences would be if he did not execute it, and that the prosecution would be dropped if he did. He was not in custody at the time, and the person obtaining the release had no control over his person or the prosecution. The court left the matter to the jury, with the instruction that: “If it appear by the evidence that the defendant released and declared satisfied said judgment, and was induced to do so, by threats of criminal prosecution, or by promises to withhold criminal prosecution against him, such act, if thus done under the influence of hope or fear, cannot be considered by the jury for any purpose whatever. ” If the release was á voluntary act, the fact that it was without consideration, was competent evidence in the case. Judgments for such amounts are not ordinarily released without consideration. The release, in connection with the facts in the case, tended to show a consciousnesss that the judgment was wrong, and that the danger of a conviction of forgery might be avoided by its release. The claim of the plaintiff in error, however, is, that the.circumstances under which the .release was obtained was a matter of preliminary proof to be determined by the court, and should not have been admitted in evidence ' until it had determined whether the release was the voluntary act of the defendant. The general rule is that matters preliminary to the admission of evidence should be determined by the court; but when the court is in doubt about the matter, it may submit the questions arising upon the proof to the jury, under instruction to make no use of the evidence, unless satisfied by the preliminary proof that it is competent, as done in this case. Thus in Turpin v. State, 19 Ohio St., 540, which arose on an indictment for forgery, the court, being uncertain, left to the jury the question whether there was a variance between the name to the instrument as laid in the indictment and that to the instrument offered in evidence, and this court sustained the ruling. The ruling made in the case just cited is quite general in practice; and has frequently been applied where confessions of a defendant are offered in evidence against him on a criminal charge, and there is a conflict in the evidence as to whether they were voluntary.or not. See-opinion by Morton, J., in Commonwealth v. Piper, 120 Mass., 185, 188; and, also, Underhill on Evidence,' section 89, and authorities cited.

We have examined all the assignments and find no error in the record for which the judgment should be reversed.

Judgment affirmed.


author: By the Court:

text:
    McDonald et al. v. Ketchum.

      Filing petition in error — Commencement of Proceedings — Summons.

    Where a petition in error has been filed and a summons issued within the time limited for-the commencement of proceedings in error, and the service of the summons is made before the return day of the writ, the proceeding is .commenced in proper time, though such service be not made until after the expiration of the period prescribed for commencing a proceeding in error.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Perry county.
    Donahue, Spencer & Donahue, for plaintiffs in error.

      L. A. Fussing, for defendant in error.
   By the Court:

On the 15th day of December, 1891, a petition in error was filed in the circuit court to reverse a judgment of the court of common pleas, rendered on the 22d day of June, 1891. A summons in error was issued on the same day the petition was filed, but not served on the defendant in error until the 28th day of January, 1892, which was more than six months after the rendition of the judgment; and the circuit court ordered the case stricken from its docket for want of jurisdiction, for the reason that the service was not made within the time limited for the. commencement of the proceeding in error, though the petition in error was filed and the summons issued within that period, and the service was made within the return day named in the writ. This was error. A proceeding in error may be commenced at any time within six months after the rendition of the judgment, or the making of the final order complained of. Revised Statutes, section 6723. And, that section 4987, furnishes the rule, by analogy, for determining when such a proceeding shall be deemed commenced, has been several times decided by this court. Robinson v. Orr, 16 Ohio St., 285; Buckingham v. Bank, 21 Ohio St., 131; Bowen v. Bowen, 36 Ohio St., 312; Moore v. Chittenden, 39 Ohio St., 563. Under that section, an action is to be deemed commenced at the date of the summons which is served on a defendant, or one of several defendants who are united in interest; so that, by analogy, a proceeding in error must be deemed commenced when the petition in error has been filed, and a summons issued which, during the life of the writ, is served on the defendant in error; and, therefore, the proceeding in error is commenced in time when' the petition is filed and summons issued within the period limited by the statute for the commencement of such proceeding, though the service of the summons be not made until after the expiration of that period, the service being made within the return day of the writ. It has been suggested that a ^different holding was made in Bowen v. Bowen, supra. It is true, that standing alone, the language of the syllabus in that case is broad enough to warrant that suggestion, but when read in connection with the facts of that case, as it should be, it is apparent that it was not the intention of the court to so hold. It certainly was not necessary to the decision of the case, for the record of that case shows that no summons was issued until after the expiration of the time limited for the commencement of that proceeding in error. There can be no doubt that the mere filing of the petition in error, or the filing of the petition and issuing of a summons upon it, within the time prescribed for the commencement of such a proceeding, is ineffectual, where no service of the summons is made upon the defendant in error ; but where the petition is so filed and summons is so issued upon which service is duly obtained, the proceeding’ is commenced in proper time, although the service of the writ be made after the expiration of the statutory period. The service, when so made, relates back to the date of the writ, and completes,.as of that date, the commencement of the proceeding.

Judgment reversed and cause remanded to the circuit court.