author: Martin, J.

text:
    Flickinger v. Saum.
    1. A testator devised all his real and personal property as follows : “ I give and bequeath to my beloved wife Eleanor the balance of my real and personal estate to sell, rent or possess so long as she may remain unmarried and my widow — after my lawful debts shall be paid; but in case of my wife’s death or re-marriage, then the remainder thereof to be equally divided among the heirs of John C., James H., William B., Lydia Ann and Eliza Ann Thomas” (his five children), “ as they become of age — after the lawful debts of my wife’s contracting are paid. And I hereby nominate and appoint Jacques Speer to be my executor of this my last will and testament.” The devisees survived the testator. The grandchildren accepted the devise and survived the widow, who left the real estate and a part of the personalty and a debt which she had contracted for her support. Held: A vested interest in-remainder in such of the personalty as might be left, and a remainder in fee in the z-eal estate (after the determination of the life estate of the widow) was vested immediately in the grandchildren as tenants in common. By accepting the devise, however, -the z’emaindermen became personally liable for the debt of the widow, which was also a charge on the remainders.
    2. The executor paid all the debts of the testator and settled an account showing a small balance, which he was ordered to pay to the widow. Held: Presumably the executor had no remaining duty to perform. It was not his duty to pay the widow’s debt, nor to divide the estates in remainder.
    3. Accordingly, notwithstanding the creditor obtained a judgment against the executor, as such, for the amount of the widow’s debt; and the executor sold the real estate under an order of court in a suit brought by him professedly to carz-y out the will and pay said debt out of the proceeds of a sale and divide the residue among the devisees (of which suit tlie sureties on the executor’s bond had no knowledge), the sureties are not answerable for the executor’s refusal to pay over to the devisees the proceeds of sale conformably to the order of the court confirming the sale, and of the probate court on settlement of an account therein.
    Ebjroe, to the District Court of Butler County,
    The original action was brought in the common pleas of Butler county by Mary E. Saum against Jacques Speer, executor of John H. Thomas, and Flickinger and Sanders, his sureties on the executor’s bond. The bond is in the usual form.
    The breach assigned is the executor’s refusal to pay her distributive share as legatee of a balance found due from the executor on settlement of his final account in August, 1878, in the probate court, and which he was ordered to-distribute according to the will. The will was admitted to probate in Butler county on the 17th day of April, 1856, and reads as follows:
    “ To all to whom these Presents may come:

    “I, John H. Thomas, of Wayne Township, Butler county, Ohio, having reflected on the uncertainty of life and being of usual sound mind and memory (blessed be God for the same) do make and. publish this, my last will and testament:
    “ By reference to accounts and receipts for the same in my family account book it will be seen that I have given to my five children, John C., James H., William B., Lydia Ann and Eliza Ann, each §500, which amount I hereby consider their present legacy. I give and. bequeath to my beloved wife Eleanor the balance of my real and personal estate to sell, rent or possess so long as she may remain unmarried and my widow — after my lawful debts shall be paid; but in case of my wife’s death or re-marriage, then the remainder thereof to be equally divided among the heirs of John C., James H., William B., Lydia Ann and Eliza Ann Thomas,, as they become of age — after the lawful debts of my wife’s contracting are paid.

      “And I hereby nominate and appoint Jacques Speer to be my executor of this, my last will and testament.
    “John H. Thomas.
    • “March 29, 1856.”
    The testator died the owner of real and personal estate situate in Butler county. His widow and grandchildren survived him.
    On the 27th day of May, 1859, the first account of the executor was settled in the probate court. Abalance of $17.86 was found in his hands and ordered to be paid to the widow. All the debts of the testator and expenses of administration had been paid and were credited in this account.
    The widow remained in possession of the real estate until her death in 1875. After the settlement of the account, the widow became indebted to one Yeager on account of her support in about the sum of $800. The executor paid a.part of this indebtedness and judgment for the balance was recovered against him as executor. In May, 1875, after the death of the widow the executor brought suit in the common pleas of Butler county for the sale of the real estate for the alleged purpose of paying said indebtedness contracted by the widow and dividing the proceeds among the devisees — the 18 grandchildren of the testator of whom Mrs. Saum is one.
    The heirs at law and devisees of the testator were made parties. The sureties were not parties, and it does not appear that they had any notice of the proceedings.
    On the 16th day of February, 1876, the land was sold and the sale confirmed the same day. On the 8th day'of August, 1878, the last account of the executor was settled in the probate court and a balance found in- his hands of $4,751.05, which he was ordered to pay over according to law under the will. .
    To recover her share of this balance was the object of the original suit brought by Mrs. Saum as one of the eighteen devisees.

      Iii this last account the executor charged himself with proceeds of sale of real estate amounting to $5,072.12, and with the amount received from the widow’s estate amounting to $447.35. The ages of the grandchildren are not shown in the record. The principal defense by the sureties was that the first account was final, and that thereafter there remained nothing to be done by the executor under the will or statute.
    In the common pleas Saum recovered judgment. On error the district court affirmed the judgment. To reverse this judgment of affirmance the sureties have brought this proceeding.

      Thomas Millikin, for plaintiff in error.
    I insist that the duties of the executor ceased at his settlement in 1859, and that they did not revive at the widow’s death. The land was given to the grandchildren directly with an incumbrance on it of the widow’s lawful debts and her life estate; but it was so given without any trust being imposed. Hence the sale of the land by the executor was unauthorized, and the sureties on his bond are not liable for any misappropriation of proceeds of sale.
    There are but three instances where an executor is authorized to sell real estate.
    (1) Where he is authorized so to do by the terms of the will. 2 Rev. Stats., sec. 6167.

      (2) When a testator has given a legacy by will that is effectual to ‘charge the real estate, and there is not sufficient personal estate to pay it. 2 Rev. Stats., sec. 6172.
    (3) Where the personal estate is insufficient to pay the debts of the deceased, allowance to the widow and children and charges of administration. 2 Rev. Stats., sec. 6136; Id., sec. 6147.
    . This case falls under neither head. The testator’s debts ■were all paid: there were no legacies. He gave the specific real estate directly to his grandchildren subject to certain incumbrances. Besides, he fixes the period of division among them as thej' become of age. He nowhere intimates that the land is to be sold.

      Speer was not Eleanor Thomas’ executor, and was not bound to pay her debts contracted after John H. Thomas’ death. The land was given cum onere to Mary E. Saum and the other grandchildren. It was their business alone to pay the widow’s lawful debts. There is no direction in the will to Speer, executor of John II. Thomas, to pay such debts. Nimmons v. Westfall, 83 Ohio St., 213, 224.
    But the executor was not directed by the will to divide it. It was given directly to the grandchildren without any trust being imposed. They .could divide it themselves.
    The condition of the executor’s bond was as follows:
    “ Secondly — Shall administer according to law and the will of the testator, all his goods and chattels, rights and credits, and the proceeds of all his real estate that may be sold for the payment of his debts or legacies.” See also sec. 5996 Rev. Stats. There has been no breach of this condition of t.he bond. The land was not sold for any of the purposes mentioned in the condition. The land was sold twenty years after the appointment and qualification of the executor and seventeen years after the final settlement of the executor in the probate court. See Ward v. Barrotes, 2 Ohio St., 242.
    The sale of Speer, as executor, was unauthorized and illegal. Saum was a party to the suit; was duly summoned; made no objection to the sale. She and the other “ Heirs,” who were all parties to the suit, are estopped to deny the legality of the sale, but the sureties on the executor's bond, who were not parties, and who did not consent to the sale, are not so estopped. They stand as they have a right to stand, upon the very words of the bond. Me-Q-ovney v. State, 20 Ohio Rep., 93; State v. Medary, 17 Id., p. 554. The sureties not being parties to the proceedings are in no way bound by the decree of the court ordering a sale, and the decree of distribution of proceeds of sale, if the sale and confirmation were unauthorized. 'Quinby v« Walker, 14 Ohio St.,' 193.

      N. B. Warwick, for defendant in error.

      I. The burden was on plaintiffs in error to show that the settlement made May 27, 1859, was a final settlement. It was not a final settlement, but an account current. The court did not treat the account as final. The executor did not treat the account as final, or file it as a final account, or consider the estate fully settled. The bondsmen of Speer were at no time discharged by the probate court. This is conceded by them, and it nowhere appears that they made any objection to Speer, the executor, for whom they were bondsmen, selling the real estate, as such executor. Yet Flickinger testifies that he was “in business with Speer at the time the farm was sold,” and lived six miles from the land, which was sold at public sale, so that he at-least must have known what Speer was doing, and that he was selling real estate as executor of John H. Thomas.
    II. But besides being considered by all parties as such executor, as well as treated as such by the probate court, the court of common pleas and district court, in all the proceedings in the case for the sale of real estate, and also that making the distribution of Eleanor Thomas’ estate, Speer’s duties under the will of John H. Thomas, by its very terms was to continue and not cease until either the death or re-marriage of Eleanor, his widow. She did not re-marry, and lived until March, 1875.
    Speer’s duties as executor were generally to fully execute the will; specifically, they required him,
    1. To collect and receive the estate wherever found.
    2. To pay the debts of 'John H. Thomas.
    8. To pay the balance, if any, to the widow for her use during life if she remained a widow.
    4. After the wife’s death or re-marriage, to pay the debts of her contracting, which the will as well as the district court, say are his debts.
    5. To divide the balance of the property, real and personal, among the grandchildren, as they become of age.
    The first, fourth and fifth duties remained unperformed at the death of Eleanor Thomas.
    III. By the decree of the district co-urt, $447.35, which was personal property, was ordered paid over to the executor of John H. Thomas (Speer), and treated as the remainder of said estate (that is, pass under the will to the grandchildren). Who would receive this money if Speer had eeased to be executor in 1859?. The express purpose of the will was to have some one at the death or re-marriage of the widow, that would pay her debts and receive and divide any balance of the proceeds of his estate she might not have used.
    Speer did receive this $447.35, the personal estate of John H. Thomas, as his executor, and accounted for it in his account as such in 1878. The $447.35 was merely a surplus over and above what the widow required for her use during life, and was accumulations to the personal estate of John H. Thomas from 1859 up to 1875. In course of nature the widow was liable to marry or die at any time, and mere lapse of seventeen years raises no presumption that the trust is ended. Indeed, the presumption is the other way, that the trust is contingent and continuing. McAfee v. Phillipps, 25 Ohio St., 374-377; Taylor et al. v. Thorn, 29 Id., 569-576. This last case I claim, is directly in point. This case is followed in Laifertii v. Shinn, 38 Ohio St., 46.
    IY. Now as to payment of wife’s debts. The husband wisely provided for their payment before any property should be divided to the grandchildren. The executor was charged with the duty of paying her debts; no person else had any authority to pay them. The district court found and decreed that her debts were his debts, as fully as though they were of his contracting, and of necessity they could not be estimated or paid until after her death or re-marriage. The assertion that the real estate was not sold for the payment of any debts due from the estate of John H. Thomas is not warranted by the facts.
    Plaintiffs in error claim they were no party to the proceedings to sell the real estate, and hence they are not bound by any of the findings in that case. They were not required to be parties. Section 6142 Rev. Stat. They also claim that the real estate was not sold for the payment of any of the debts of John H. Thomas. The judgment and decree of the district court in the case where the real estate was sold shows tills claim to be untrue. These plaintiffs in error have no right to contradict or collaterally impeach the finding and decree of the district court. That the real estate was properly sold, there can be no doubt, and any proceeds of real estate received by the executor is covered by the exact terms of the bond sued on.
    V. But the will of John II. Thomas required of Speer another duty, viz: to divide the estate equally among the eighteen grandchildren “as they become of age.” Speer says “ a great many of the heirs were minors at the time the land was sold.” Plaintiffs in error claim the grandchildren could divide the land themselves. This is clearly untenable and the division impossible, for two reasons: First — Because the real estate consisted of 80^^- acres in one tract, 1 acre in another tract, part of lots 24 and 26, and lots 2, 19 and 20 in Jacksonburg, and an equal division could not be made. Second — Because it was to be divided equally as they became of age. Who would do the dividing, the youngest or oldest? How many divisions would there be? Who would pay the debts of the wife’s contracting, (which would have to be paid before a division), the youngest or oldest? The idea is ridiculous and plainly was not intended by the testator, but he intended to leave some one who 'would take the estate in charge at the death or re-marriage of his widow, pay all debts she left, and divide the remainder equally among the grandchildren as they arrived at the age of discretion.
   Martin, J.

The original action against the sureties was for a breach of the following condition of the executor’s bond:

'■'•Secondly: Shall administer according to law, and to the will of said testator, all his goods, chattels, rights and credits, and the proceeds of all his real estate, that may be sold for the payment of his debts, or legatees, which shall at any time come to the possession of the executor, 'or the possession of any other person for him.”

The default assigned was the failure to pay over proceeds of remainders in real and personal estate which had been converted into money by the executor. The sureties claim that the conversion was not authorized by the will or statute, and that consequently the alleged default was no breach of the condition.

The executor was appointed in 1856. ' In April, 1859, he bad paid all the debts and turned over unconditionally all the personalty to the widow, and settled an account in the probate court. Presumably he1 had no remaining duty to perform. There were no debts or legacies to be paid, and he had no right to retain assets. The devise to the widow was of all the personal property, and was in its nature specific. The assent by the executor was a relinquishment of all claim to the property and perfected the title of the widow and the remaindermen.

The real estate was sold professedly to pay a debt of the widow, and divide the residue of the proceeds among the devisees. As we have seen, the testator gave to the widow with power of sale, &c., all his real and personal estate so long as she should remain his widow, and upon her death or marriage, the remainder to be equally divided among his grandchildren, as they became of age.

The only objects of his bounty were his widow and grandchildren. His manifest purpose was to provide a support for her during -widowhood, and when that object was accomplished to pass to his grandchildren all .that might be left. To carry out this purpose'he gave her a life estate determinable upon her marriage; and the more conveniently to ensure her comfort he charged upon the remainder her proper debts outstanding'at her death. To the grandchildren he gave a vested interest in remainder in the unconsumed personalty, and a remainder in fee in the realty after the determination of her life estate, the same to be divided equally among them as they become of age.

The words of devise to the widow are not inconsistent with a fee in remainder. And it is well settled that where, as in this instance, the devise in remainder is of the entire beneficial interest, it carries a fee unless its words clearly manifest a contrary intent. It is also clear, both on principle and authority, that a devise in fee is not to be modified or fettered with a trust, by construction of its words, unless they plainly show that such was the intention of the testator. Such an intention is not to be imputed to him upon mere conjecture. We are to read this will in the light of these principles. It must be conceded that .there was no express duty imposed on the executor with respect to the remainders. It is claimed that it was his duty to convert the remainders into money by necessary implication from his duty, also implied, to pay the charge and to divide the land. The liability of the sureties hinges on the question whether the words of gift to the grandchildren of necessity raise an implication of trust for the purposes of exoneration and division. The. widow survived the testator about twenty years. At the date of his will the grandchildren were probably all under age. The words of the clause relative to a division of the remainders, by strict and natural construction, indicate that the testator thought it probable that the life estate would determine before any of them would attain majority. The event was otherwise. But whatever may have been his precise view it is clear that he gave no direction to the executor to make the division. Doubtless a division of the small farm and lots could not be conveniently or advantageously made on account of the number of grandchildren surviving the widow. But the testator gave no direction to sell. Even if he had, the mere nomination of an executor would not have conferred authority on' him to sell. It must further appear that the proceéds of sale should pass through his hands for payment of debts or legacies, or to serve some clearly expressed object of the will. It might have been expedient for ■ the testator to have expressly directed a sale by the executor, or to-have impliedly done so by directing'him to pay the charge and make the division, or imposing such duties as could-only be discharged by first making a sale.

He neither directed a sale nor imposed such duties.

The intervention of the executor in procuring a judicial sale may have been convenient and acceptable to the devisees. But this is not enough to involve the sureties on Ins official bond. To implicate them it must have been in discharge of his duty as executor, and furthermore within the limit of the spécific duties named in the condition above quoted, and not merely under semblance and as agent of the devisees or otherwise.

The rights of the devisees to their aliquot shares would have been regarded in proceedings to enforce the charge; or could have been enforced in partition where the charge would be provided for. We are unable to find an intention on the part of the testator to create any trust whatever in respect to these remainders.

It was not the duty of the executor to pay the debt left by the widow. The testator, as we have seen, provided an ample security for its payment. There he stopped. By-accepting a devise of the fee charged with the debt, the devisees became personally bound to pay it. Thompson v. Thompson, 4 Ohio St., 333; Decker v. Decker, 3 Ohio, 166. It was the debt of the widow, and on her death became the debt of her estate- and of the remaindermen. It was not the debt of the testator in any^ proper sense. Much less can it be said to be one of “ his debts ” in the strict sense in which these words are used in the sureties’covenant.

The fact that Yeager recovered judgment against the executor as such for the amount of the widow’s debt does not affect the sureties. They were not parties'to the suit, nor in any manner concluded by the judgment. As the estate was not bound for the debt the judgment does not conclude them. Curtis v. Bank, 39 Ohio St., —.

Nor are the rights of the sureties affected by the judicial proceedings resulting in a sale of the land and the order of distribution. Those proceedings throughout rest upon an unwarrantable assuniption of power and duty of the executor under the will. And it does not appear that the sureties participated in or had any knowledge of the transactions.

It follows that the liability of the executor for the money due Mrs. Saum is not official, but personal only; and his failure'to pay is not a breach of the condition.

Judgments reversed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Harper et al. v. Lackey, Guardian.

      Charles Darlington, for plaintiff in error.
    Error to the District Court of Greene County.
   By the Court.

L. held a note made by B., which was secured by a mortgage. B. became insolvent, and made an assignment for the benefit of his creditors. After the assignees had sold the mortgaged premises, L. presented to them for allowance, a copy of the note with an affidavit setting forth the mortgage lien which he claimed on the land. The assignees rejected the same “ as a' valid claim or lien.” Within thirty days thereafter L. sued on the note and recovered judgment “against said assignees that they allow said claim in the settlement of their said trust” to an amount stated. The proceeds of the mortgaged premises remained in the possession of the assignees, .and L. demanded payment of said judgment out of said proceeds. The assignees refused to pay, and L. sued to enforce his right to such priority. The assignees answered, setting up his failure to sue “on the mortgage within thirty days after the rejection of his claim.”

Held: Under the facts stated this was no defence.

Judgment affirmed.


text:
    Hurlbut v. Wade, Jr.

      P. Prentiss and L. Prentiss, for plaintiff in error.

      R. P. Paine and James Wade, for defendants in error.
    Error to the District Court of Cuyahoga County.
   By the Court.

A married woman, in 1853, loaned to her husband $3,000, he promising to repay it within a year with interest. He died in 1878 without having repaid her. In 1879, she sued his executors, they having-rejected her claim. The executors pleaded the statute of limitations (51 O. L., 59) in bar. The trial court held that the act of 1861, relating to rights and liabilities of married women (58 O. L., 54) “virtually repealed the exception contained in said statute of limitations in favor of married women,” and rendered judgment.against her.

Selcl: This rvas error.

Judgment reversed,.


text:
    Russell v. Moody.

      J. H. and 3. Morrison, for plaintiff in error.

      R. W. Taylor, for defendant in error.
    Error to the District Court of Columbiana County.
   By the Court.

A summons in a civil action before a justice of the peace required the defendants “to answer unto Edward A. Moody ” (the plaintiff) “ who claims of the defendants, in a civil action, the sum of $185.50 for a-promissory note and interest thereon.” There was no indorsement on the writ of “the amount for which the plaintiff rvill take judgment if the defendant fail to appear.” Russell, a defendant, on whom the summons was personally served, did not appear. The justice rendered judgment against Mm for $185 and costs. Russell filed a petition in error in the common pleas.

Held: The justice had no power to render judgment against Russell.

Judgment reversed.


author: Dickman, J.

text:
    Rutherford v. Brachman.
    1. Where a railroad was in process of construction, and the railroad com pany, hy resolution of its directors, duly recorded and signed by the company’s secretary, granted to the contractors, upon certain conditions, an extension of the time for completing the road; and the contractors accepted,,in writing, the terms of the extension, with a proviso that the guarantors for the payment of monthly estimates of the cost of the road, would consent to the extension, in a proposed written form of assent; the contractors might waive the proviso, without thereby invalidating the extension.
    2. Where such guarantors, with full knowledge of the facts, have assented to or ratified such extension of time, by parol, or by their conduct, they will not be discharged from liability, as guarantors, for the payment of such monthly estimates.
    S. Where the testimony established prima facie, that a written assent to such extension of time was signed by all the guarantors, except one, who was willing to sign .the same,' but had omitted so to do through inadvertence, such written assent is admissible in evidence to the jury, as a fact or circumstance tending to show the actual assent of the guarantors to the extension.

      4. Where the contract for building the road provided that the engineers of the company, on or about the first day of each month during the progress of the work, should make an estimate of all work done during the preceding month; and that on or before the fifteenth day of each month eighty-five per cent of the value of such estimate should be paid by the company to the contractors; and that, at the completion of the work, a final estimate should be made, and the balance appearing due the contractors should then be paid to them; the work done during the last month of the life of the contract became the proper subject of a monthly estimate, and, in an action against the guarantors to recover the amount thereof, it -was error in the court to withdraw from the consideration of the jury a final estimate made by the engineer, from which, by computation, might be determined the amount of such monthly estimate.
    Error to tbe District Court of Hamilton County.

      The original action was brought by the plaintiffs in error, John W. Rutherford, James M. Brown, and Silas W. Cochran, partners under the firm name of John W. Rutherford & Co., in the Superior Court of Cincinnati, against the defendants in error, Henry Brachman, Paul F. Mohr, Jr., David K. Este, Aaron A. Colter, Joseph Clare, Wils. H. Corbly, and Abraham Hopper. The action was brought to enforce a contract in writing, made by the defendants with the plaintiffs in error, whereby the defendants agreed and pledged themselves, for the payment of “monthly estimates,” in accordance with a certain other contract made by the plaintiffs in error with the Cincinnati & Portsmouth R. R. Companj'.
    The following facts, necessary to an understanding of the case, are disclosed by the record.
    On the 13th of September, 1876, the plaintiffs in error, Rutherford & Co., made a contract in writing with a corporation, under the laws of Ohio, known as the Cincinnati & Portsmouth R. R. Company, whereby Rutherford & Co. agreed to construct, ready for the rolling stock, a railroad from the corporation line of Cincinnati, at Columbia Station, to the Augusta road at Bethel, in Clermont County, a distance of twenty-eight miles. By the terms of the contract, the railroad was to be completed, ready for rolling stock, on or before May 1, 1877. The contract also provided, as follows:
    “ On or about the first day of each month during the progress of the work, the engineer shall make an estimate of all work done and material delivered during the preceding month, and on or before the fifteenth of each month, eighty-five per centum of the value of said estimate at above prices shall be paid to said party of the first part by the treasurer or other disbursing agent of the said railroad company; and when all the work embraced in this contract is completed agreeably to the specifications and according to the directions, and to the satisfaction of the engineei’, a final estimate shall be made according to the terms of this contract, and the balance appearing due the said first party shall be paid to them, upon their giving a release, under seal, to said railroad company, from all claims or demands whatsoever growing in any manner out of this contract.”
    The road was not completed on May 1, 1877, and a supplemental agreement was made on May 4, 1877, the terms of which do not appear by the record.
    On June 29, 1877, a new agreement was made, containing the following clauses:
    “ They (Rutherford & Co.) agree to relinquish all claims and rights to build and complete the said railroad from Mt. Carmel to Bethel under the original contract, releasing the railroad company from all claims and profits, damages, etc., except on' pipe and culverts which are already put in — the railroad company reserving the right to require said John W. Rutherford &' Co. to complete the road between Mt. Carmel and Bethel according to the terms of the original contract, providing satisfactory arrangements as to payment of estimates are made with said John W. Rutherford & Co.
    “The.said Cincinnati & Portsmouth Railroad Company hereby agree to pay now to • said Rutherford & Co. the estimates for April and May, already due and payable, and hereafter to pay .to said Rutherford & Co. monthly, as per estimates of the engineer, based upon schedule of prices in original contract, the amount of suc.h -estimates on all the road, bridges, etc., from Columbia to Mt. Carmel, until the same is ready for the rolling stock, less than fifteen per cent, retained as per contract. This obligation to include and cover that part of the road between the junction of the Little Miami Railroad and the corporation limits.
    “ If, as soon as Mt. Carmel is reached, the railroad company should conclude to stop at Mt. Carmel, a final estimate shall be made, and amount thereof paid said Rutherford & Co. upon their giving a release under seal to the said, railroad company from all claims and demands whatever growing in any manner out of this contract, as provided for in original contract; but if the work is to be prosecuted to completion to Bethel, the original contract shall govern, and the fifteen per cent, on the work, as provided for in the contract, is to be withheld until the road is ready for the rolling stock to Bethel.
    “ The original contract is modified to conform to the terms of this agreement. The supplementary agreement of May 4th, 1877, to be rescinded and held for naught.
    “ The said John W. Rutherford & Co. bind themselves to complete the road ready for the rolling stock to Mt. Carmel by September 1st, 1877.”
    On the same day, June 29, 1877, in consideration of one dollar, and the guaranty of Rutherford & Co., that their contract of June 29, with the railroad company, would be faithfully fulfilled, the defendants in error executed to the plaintiffs in error, a guaranty in writing, which reads as follows :
    “For and in consideration of one dollar, to us paid, and of the above guaranty, we, the undersigned, guarantors of the Cincinnati & Portsmouth R. R. Co., do hereby agree and pledge ourselves for the payment of monthly estimates in accordance with the contract entered into by and between John W. Rutherford & Co. and the Cincinnati & Portsmouth R. R. Co., this 29th day of June, 1877, with the exception of the retained fifteen per cent.”
    All the parties signing this last guaranty were, at the time, members of the board of nine directors of the railroad company; and this last guaranty and that by Rutherford & Co. were written on the same sheet of paper.
    On account of a disaster to the work, at the Miami river, negotiations were entered into between Rutherford & Co. and the railroad company, for an extension of time for the completion of the road; and on August 1st, 1877. the following action was taken by the company:

      From Minutes of the Proceedings of the Cincinnati and

      Portsmouth Railroad Company Incorporated, page 133.
    “ August 1 st, 1877.
    “ Messrs. J. W. Rutherford & Co. applied for an extension of time in completing their contract, on account of the disaster at the Miami river.
    “ Mr. C. A. White moved that the time for completion of that part of the Cincinnati and Portsmouth Railroad lying between Columbia and Mt. Carmel be and the same is hereby extended from the 1st to the 20th of September, 1877, and it is expressly understood that this extension is made upon this condition — that if the contractors having said work under their charge fail to complete said work within the time so extended, that they be held responsible for all damages said railway company may sustain by reason of their failure to complete said work within the time so limited, and said contractors shall forfeit to said company the fifteen per centum reserved to secure the performance of said work, and said company shall retain the same as compensation for all delays and failures of said' contractors to complete said road under the terms of original contract, and as modified; that said contractors be notified of the passage of this resolution, and that they be requested to signify their acceptance of the same in writing, immediately.
    [Said motion carried.] ”
    At the meeting of the board of directors of the company, on August 8th, the following action was taken: —

      From Minutes of Cincinnati and Portsmouth Railroad Company, Pate, August 8th, 1877, page 134.
    “John W. Rutherford & Co., contractors for the first eleven miles, present the following:

      “President of Board of Directors, Cincinnati and Portsmouth Railroad Company:

    “We accept the proposition made us in your resolutions of the 1st inst., provided the guarantors consent to such an extension in the form .given in agreement herewith, and that the resolution be so modified as that instead of loss of fifteen per centum retained if work is not finished by September 20th, we agree to pay you one hundred dollars per day for each day’s delay in completing the road after that date.
    (Signed), “John W. Rutherford & Co.
    “ Mr. Este moved that the penalty be made five hundred dollars per day for each day’s delay after the 20th day of September; said penalty or forfeiture to be retained out of the fifteen per centum retained from monthly estimates.
    [Motion carried.]
    “ John W. Rutherford of said firm being present, signified on behalf of said firm their acceptance of game, and same was ordered indorsed on contract and agreement of guarantors.”
    Thereupon the following agreement of extension was endorsed upon the back of the guaranty: —
    “ We, the undersigned, as guarantors for the payment of estimates that are or may be due to John W. Rutherford & Co., pursuant to the terms of our contract under date of June 29th, 1877, do hereby agree to the change made in the original contract aud supplementary contract between the Cincinnati & Portsmouth Railroad Company and said Jno. W. Rutherford & Co., by the terms of the resolution of said company passed August 1st, 1877, and the acceptance of the terms of said resolution by Jno. W. Rutherford & Co., as modified August 8th, 1877.

      “ Witness our hands and seals this 9th day of August, 1877.
    “ PIenry Beaciimann, [seal.]
    “ Wils. PI. Coebly, [seal.]
    “ P. F. Mohe, [seal.]
    “ Aaeon A. Colter, [seal.]
    “ D. K. Este, [seal.]
    “ A. Hopper, [seal.] ”
    Joseph Clare, also one of the guarantors and a member of the board of directors, was present at the meetings of the board on August 1st and August 8th, when the extension was agreed tp by the company. On August 8th, after the meeting of the board, he as one of the guarantors, agreed to the extension of time, and agreed and promised to sign the above agreement of extension on the back of the guaranty. But he failed to sign it. All the guarantors were present at said meeting of August 1st, except P. F. Mohr; and all, except Wils. H. Corbly, and A. Hopper, were present at said meeting of August 8th. The proceedings of said meetings were duly recorded, and signed by the company’s secretary.
    The acceptance by Rutherford & Co. of the terms of the resolution of the railroad company passed August 1st, 1877, as modified August 8th, 1877, was as follows: —
    “ Cincinnati, Ohio, August 9, 1877.

      '■■'•To the President and Board of Directors, Cincinnati and Portsmouth Railroad Company.

    Gentlemen, — We accept the proposition made us in your resolutions of 1st mst., provided the guarantors consent to such extension in form given in agreement herewith, and that the resolution be so modified, as that instead of loss of fifteen per centum retained if work is not finished by September 20, we agree to pay you five hundred dollars per day, for each and every day’s delay, in completing the road, after that date, until said work is completed, and accepted by said company, to be retained out of said fifteen per cent.
    (Signed), “John W. Rutherford & Co.”
    Under the terms of the contract with the railroad company, estimates were made each month of the work and material done and furnished- by Rutherford & Co. Each of these estimates included all of the work done and material furnished prior thereto; and the amount for each respective month, was found by deducting the amount of the prior estimate, and the fifteen per cent, to be retained under the contract. Rutherford & Co. demanded of the railroad company an estimate, with the deductions - so made, and showing on its face the amount of work and material done and performed during the month of September, 1877, up to the 20th day thereof, when the railroad was completed. But the company neglected to make any estimate until the 1st of November, 1877, when the proper officers made and delivered to Rutherford & Co. a “ final estimate ” of all the work done and material furnished. This estimate contained the amount of labor and material which was shown in the estimate made of the work during August and prior to August; but, the deductions of the prior estimate, and of the fifteen per cent., were not made so as to show on its face the amount of the September estimate. Rutherford & Co. accepted this estimate, and there was no dispute as to the amounts contained therein; and from this estimate, they made the computation, of the amount due, less the fifteen per cent., for the month of September, 1877, and made demand of the company for the payment of the amount of the same, but payment was refused.
    Rutherford & Co. thereupon brought suit in the Superior Court of Cincinnati, against the guarantors on said guaranty, for the value of work and material done and furnished during the month of September, 1877, less the fifteen per cent., amounting to the sum of $58,036.47, with interest from September, 1877. On tbe trial of tbe case, the plaintiffs put in evidence, under objection of defendants, the agreement for extension of time, dated August 9th, 1877, and signed by all the guarantors except Jos. Clare; also, the three original monthly estimates for work done in June, July, and August, and the said “final estimate ” of November 1st, 1877. When the plaintiffs rested their case, the court, on motion of the defendants, withdrew the testimony from the jury, and directed the jury to return a verdict for the defendants, which was done. Thereupon the plaintiffs filed a motion for a new trial, and to set aside the verdict, which the court overruled, and entered judgment for the defendants. The district court on error affirmed: the judgment of the court below, and a petition in error1 is filed in this court, to reverse these judgments.

      Hoadly,. Johnson Colston, Jordan, Jordan f Williams, and Sayler $ Sayler, for plaintiffs in error.
    I. Does the fact that Joseph Clare, one of the defendants, did not sign the assent to the extension release him, or the other defendants from liability on their contract?
    What we claim, distinctly, is, that the defendants have assented; or at least they are estopped by conduct from claiming a discharge on the ground of non-assent. We claim that it is abundantly shown that all the defendants assented in fact; and that all of them, except Clare, after-wards expressed that assent in the written form suggested by Rutherford, and that the fact that Clare, did not sign this written form, does not release him, and a fortiori does not release the others.
    As to estoppel see Corwin v. Collett, 16 Ohio St., 289; Wiseman v. Macy, 20 Ind., 239; Mardis v. Mardis, 13 La. Ann., 236; Morford v. Bliss, 12 B. Monroe, 257; Judevien v. Goodrich, 35 Vt., 19, 23.
    The English cases relied on by defendants in error, hold that a plaintiff cannot recover upon an oral variation of a contract required, by the statute of frauds to he in writing. They do liot apply here. The defendants fail in their premises. There was here no variation, alteration, or modification of any contract required to be in writing. If what took place amounted to a variation of any contract, the contract varied was not the promise of the defendants, but was the contract of the railroad company ; and that contract was not required to be in writing. The defendants themselves do not deny that a written contract, not within the statute of frauds, may be subsequently varied by oral agreement, and that recovery may be had upon such written contract aided by the oral agreement. The extension of time for the completion of the railroad contract upon the terms named did not vary, or import new terms into, the contract of guaranty so called. The only effect upon that contract, produced by the extension granted by the railroad company, would be to discharge it, not to vary it; —and the assent of the guarantors to this extension of time operates as a waiver of their right to claim a discharge on that ground. So that to establish their cause of action against the defendants the plaintiffs proved a promise in writing to pay the amounts they seek to recover; and by showing that the railroad company extended the time for completion of its contract, plaintiffs do not establish thereby any alteration or variation in the contract between Rutherford and the defendants. Plaintiffs aver and rely upon the assent of defendants as an estoppel, and not as constituting a new agreement or a variation of an already subsisting one. 'The assent of the defendants was not, in legal effect, an assent to an extension of their own contract, but to an extension of the railroad contract. Their assent merely prevents the defendants from availing themselves of the failure to complete by the day named as a means to defeat recovery from them.
    Again, we claim that the promise of the defendants sued on in this case is not required by the Statute of Frauds to be in writing. The defendants are original contracting parties. Their contract is an original and not a collateral undertaking. They required Rutherford & Co., in consideration of one dollar paid him by them to enter into an engagement with them to faithfully fulfil the contract for the completion of the railroad. For failure to fulfil this contract defendants would have a causé of action against Rutherford & Co., and defendants are as much original parties to the contract of June 29, 1877, for completion of the road, as is the railroad company, except that the amount of their liability is limited to eighty-five per cent, of the contract price. They have every remedy for enforcement of that contract which the railroad company has. We cite for this proposition: Emerson v. Slater, 22 How., 28; Nelson v. Boynton, 3 Mete., 402; Leonard v. Vredenburgh, 8 Johns., 39; Alger v. Scoville, 1 Gray, 391,; Whit-comb v. Hephart, 50 Pa. St., 85.
    Calling a contract a guaranty does not make it such: Leonard v. Sweetzer, 16 Ohio, 1; Ilill v. Smith, 21 How., 286; Moorehouse v. Grangle, 36 O. S., 132.
    The question in all such cases is: Has the defendant sought to be charged assumed as his own the debt which is the subject of the action, or has he merely assumed to pay in case some other person, primarily liable, fails to pay ? In the present case the defendants upon a new and distinct consideration, namely, the payment to them, by-Rutherford, of one dollar, which they have received, and Rutherford’s promise to them, not to the railroad company, that he would complete the road by a given day and in a certain manner, “ agreed and pledged themselves for payment of monthly estimates in accordance with the contract ” referred to.
    It may be claimed that the consideration of one dollar is merely nominal; but this makes no sort of difference. Lawrence v. McOalmont, 2 How., 452; Davis v. Wells, 104 U. S., 167; Dutchman v. Forth, 5 Bingham (N.'C.), 577.
    We come next to the question whether the fact that Clare failed to sign this formal written assent releases him and the other defendants, notwithstanding the fact that Clare did assent to the extension of time for completing the work ready for rolling stock.
    In making this claim the defendants rely upon the doctrine, that where a surety executes a bond upon condition that another shall sign as co-surety with him, and that the bond shall not be delivered until the other surety has so executed it, the instrument will not bind him, if it be delivered without the signature of the co-surety, if the obligee knew of the condition upon which it was signed, or if the bond showed upon its face, that it was intended to be signed by such co-surety. Bair v. United States, 16 Wall., 1; State v. Pepper, 81 Ind., 76; Allen v. Marney, 65 Ind., 398; State v. Pede, 53 Me., 284; 3 American Law Register (N. S.), 402, Redfield’s note.
    This rule of law rests upon the ground that the surety loses his indemnity. In order to make the rule applicable, two things are necessary: 1. That there was such condition attached to the act of becoming. surety; and, 2. That such other person has not become bound, and in consequenceof not becoming bound, the indemnity bargained for by the surety signing has not been furnished him.
    In the present case neither of these things exist. There is no evidence in the record that the defendants agreed among themselves, as a condition of signing the formal written assent, that unless all signed it none would sign it. And even if there was such understanding as between them, there is no evidence that Rutherford knew it. Such knowledge is essential, Brandt on Suretyship, § 354. The defendants do not claim that there is any direct evidence in the record that there was any such understanding between them; but they claim that such conditional assent is derivable from the circumstances of the case. But this claim is not well founded. The only condition there was that all should sign the formal written assent was imposed by Rutherford, and not by the defendants. Rutherford would clearly have the right to waive this condition as to all _ or any one of the defendants in the absence of any knowledge of an agreement as between them, that unless all signed none of them would sign. He had no such knowledge; but on the contrary, Clare told him that they had all agreed to sign that paper. Had there been such understanding between defendants, they waived it by delivering the written assent without Clare’s signature attached. They are now estopped to interpose such objection. Volenti non jit injuria. Smith v. U. S., 2 Wall., 230; Dair v. U. S., 16 Wall., 4 ; State v. Pepper, 31 Ind., 83; Rindslcopf v. Roman, 28 Ohio St., 516.
    II. Does the contract, called the guaranty, properly construed, cover payment of the money sued for in this case ?
    For the rule of constitution of such contracts, see Brandt, § 78; Davis v. Wells, 104 U. S., 169.
    That contract-simply amounts to this: that payments of a certain amount of the entire price for the entire work were to be made monthly, and that the entire price was not to be withheld until the entire work was done. In other words there were to be partial payments. The precise amount of those partial payments was determined by the contract to be eighty-five per cent, of the value of work done. The fifteen per cent, was retained, as an earnest or pledge for the faithful performance of the contract. The “ function ” of the final estimate was simply this: It was to be a revision of all the work after the whole had been done. By the final estimate any monthly estimate, whether it was for the first month or the last month, or an intermediate month, could be revised, and if the contractor had been paid for more work than was actually done, it would be deducted from the retained fifteen per cent. Or if he had not been paid enough it would be added to the fifteen per cent. The construction of the. term “ final estimate ” contended for by the defendants is that it applied only to the work done in the last month of the contract; but that is not the meaning of the term. The final estimate according to that meaning would apply o;nly to that part of the road on which. wo>rk had been done within the last month of the contract, and would not give the engineer power to revise any of the estimates or to supervise the work on any part of the road falling within the earlier months of the contract. The work done during the last month of the contract is just as much the subject of “final estimate ” as the work done during any other month. The functions of the monthly estimate and of the final estimate are entirely distinct and separate, although a final estimate may embody the last monthly estimate, it not being necessary they should be separate papers. The monthly estimate is a mere approximation. It is intended only as a protection to the company in making partial payments, but the final estimate is a revision of all that has been done, and the fifteen per cent, is retained to meet the exigencies of such revision.
    Now, therefore, when the defendants undertook payment or pledged themselves for payment of monthly estimates and expressly exempted themselves from liability for the retained per cent., they undertook payment of eighty-five per cent, of the contract price for building that road, and their engagement was nothing more or less than that; and they undertook to pay this until the road was ready for rolling stock.

      William Worthington, Wulsin JPerTcins, Mallon $• Coffey, and Stallo Kittredge, for defendants in error.
    I. We submit that no monthly estimate ivas to be made for work done in the last month, viz., in August, 1877, under the contract of June 29; and in September, 1877, under the extension of August 1-9.
    ■ The reasons are, in brief, that the contract of June 29 provided, “The original contract is modified to conform to the terms of this agreement,” thus incorporating that contract, except so far as modified; that in the original contract the terms “ monthly ” and “ final ” estimates were defined and distinguished by several unmistakable pecuParities, e„ g., monthly estimates were to be made on or about the “first day of each month during the progress of the work,” while a final estimate was to be made on completion; fifteen days were given for the payment of monthly estimates, while the final estimate was to be paid at once upon tender of a release under seal by the contractor. With such provisions as these in force, there could not be such a thing as a monthly estimate for work done in the last month; for first, it could not be made on the first day of any month during the PROGRESS of the work ; and secondly, it could not become due until the fifteenth of some month, which would be after the time contemplated by the contract for the final settlement of all matters by payment of the final estimate, and giving a release from all claims under the contract.
    These distinctions are retained in the contract of June 29; for under it, monthly estimates are to be made until, i. e., while the work is progressing until, Mt. Carmel is reached; at that time if the Railroad Company conclude to stop, as they did, i. e., on- completion, a final estimate and not a monthly, is to be made, and paid at once, as provided in the original contract.
    We submit: —
    1. That the original contract provided for two classes of estimates, a monthly and a final;

    2. That these two classes of estimates are retained in the contract of June 29th, 1877;
    8. That the guarantors bound themselves to pay the monthly estimates only ;
    4. And that they are not bound to pay the amount of the final estimate;
    II. On the first of August, the railroad company, acting upon the application of Rutherford & Co. for an extension of time to complete their contract, extended the same to September 20th.
    Rutherford accepted such extension, “ provided the guarantors consent to such an extension, in the form given in agreement herewith.”

      Six of tlie seven guarantors who had signed the guaranty as claimed by plaintiffs," consented, in writing, to this change of time in the contract for completing the work.
    We deny that six or any other number of the guarantors ever consented to that extension of time.
    Assume their theory of the proofs and case to be true, which we deny, that six of the guarantors did sign, and the seventh did not, are they in any better position ?
    Seven originally agreed to guarantee the payment by the railroad company of monthly estimates, in consideration of Rutherford & Co.’s contract and guaranty of June 29, to complete the work by the 1st of September. The work was not completed within the time agreed upon, and the railroad company extended the time for completion to the 20th of September. Suppose six of the seven guarantors did consent to this extension in writing, it is conceded the seventh, Joseph Clare, did not so consent, but agreed verbally, and promised to sign. If the original guaranty were not in writing, the contract being within the statute of frauds, no recovery could be had against them. We claim the guaranty was an entirety, and its terms could not be changed except by the consent of all; and that consent must be signed by all. It is not sufficient that part consented in writing, and part verbally. The whole contract, with its modifications, must be in writing, otherwise it cannot be proven.
    The completion of the work within the time agreed upon, was a condition precedent to the right of recovery on the contract. Lawrence v. Dole, 11 Vt., 555; Oreig v. Talbot, 2 B. & C., 179; Porter v. Stevens, Aikens, 417; Lana v. Hancoclc, 80 Vt., 619; Melmrin v. Stone, 37 Ohio St., 49 ; Scott v. Avery, 5 H. of L. Ca., 811.
    Where a rvriting signed by a surety or guarantor, shows upon its face that others are also to sign before the writing is complete, or.where the obligee is advised that such is the agreement, although it is not expressed on the paper, the obligee can take nothing by the paper, although he may have possession of it. The reason is- that the offer to contract made by the proposed sureties is made on certain conditions; these conditions are not performed, and therefore there is no offer; being aware of the conditions and their non-performance, the obligee is aware that no offer exists, and there is nothing for him to accept; and being aware of the facts, there can be no estoppel in his favor, by which he could preclude the proposed sureties from denying the existence of an unconditional offer.
    It is plain under this evidence that the written agreement for or consent to an extension of the time for the completion of the road by the guarantors, which it was contemplated they might make, in order to be binding upon any of them, was to be executed by all of them. As we have said, there was no proof that any of the guarantors signed or delivered the agreement in question in this ease. It appeared affirmatively upon the paper offered that Joseph Clare did'not sign it. And it did not appear', nor was there any testimony tending to prove that the other defendants signed or delivered it to the plaintiffs. The law is settled, that an agreement or promise • to execute a written agreement is of no binding force until the agreement is signed, and that an agreement upon its face to be executed by several parties is of no binding force until executed by them all. This last proposition, of course, is not weakened by urging that the execution and delivery of such a bond by certain of the parties, as a complete instrument, as happened in certain of the cases cited by our learned opponents, presents a wholly different question, that did not arise in this case. Barber v. Burrows, 51 Cal., 404; Fuller v. Beed, 38 Cal., 99; Pawling v. U. S., 4 Cranch, 219; Johnson v. Baker, 4 B. and Aid., 440 ; Ban v. U. S., 16 Wal., 1; P. B. $ W. B. B. v. Howard, 13 How., 334; Fletcher v. Austin, 11 Vt., 447 ; Allen v. Marney, 65 Inch, 398.
    III. The Statute of Frauds in force at the time of this transaction (1 S. & C., 659) provided: —

      “ Sec. V. That no action shall be brought whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person,” unless evidenced by waiting signed by the party to be charged, or his agent.
    Plaintiffs’ counsel virtually concede that the guaranty of the defendants, made June 29, 1877, falls within this statute ; and could not well do otherwise, in view of Kelsey v. Ilibbs, 13 Ohio St., 340, for the liability of the principal debtor, the railroad company continued.
    That a parol modification of a contract required by this statute to be in waiting, cannot be the basis of an action, is wrell settled. Plevins v. Dozening, L. R., 1 C. P. D., 220; Stowell v. Robinson, 3 Bing., N. C., 928; Emmet v. Dezeherst, 3 McN. & G., 596; Blood v. Goodrich, 9 Wend., 78; Marshall v. Lynn, 6 M. & W., 110; Stead v. Daubez', 10 A. & E., 57; Dana v. Hancock, 30 Vt., 616; Clark v. Russell, 3 Dallas, 415, 424; Leake on Contracts, 796; 2 Wharton on Contracts, Sec. 661.
    IV. But even if the plaintiffs had sued upon the original guaranty, they could not have recovered.
    The guaranty of June 29 was discharged by extension.
    It is conceded that an extension made without the consent of the guarantors would discharge them. That they did not consent wre have already, as we think, shown.
    But the plaintiffs say their assent to the extension wras conditioned upon that of the guarantors ; and that if the guarantors have not consented, neither have they. The answer is, this was a condition inserted by Rutherford & Co., for their own benefit, which they might, and did, waive.
    They had a perfect right, instead of insisting upon the consent of the guarantors in the required form, to be content with a consent in another form (as indeed they claim they were), or with a conditional consent, or with no consent at all, looking only to the railroad company. The motives inducing them to this course are evident. On August 1, when Rutherford & Co. asked for an extension, it had become apparent to them that they could not finish the work by September 1; at that time the reserved fifteen per cent, amounted to $10,372.35, and the balance then payable was $9,266.24; so the whole amount then due was $19,638.59.
    Four courses were then open to them: (1) to obtain the consent of the railroad company and guarantors to an extension of the contract and guaranty; (2) failing that, to abandon the whole contract; or (3) to go on with the work under the contract of June 29; or (4) to get an extension with consent of railroad company, but without that of guarantors. The first course they failed in, as is conceded for the sake of the present argument. If they took the second, they forfeited the $19,638.59 under the forfeiture • clause of the original contract, still in force, which exonerated the railroad company not merely from paying the fifteen per cent., but “ from any and all obligations arising under this contract.” If they took the third course, they secured the $9,260.24, but rsked not only the $10,372.35, — fifteen per cent., reserved on August 1, — but every penny they put into the road during August, for the engineer might forfeit the contract at any time. If they took the fourth course, .they got rid of the forfeiture clause, and, instead of losing $19,638.59 (or more, if they did work in August) outright, they risked the amount claimed in this action upon the responsibility of the railroad company alone.
    Their conduct shows they preferred the last alternative. They make no proof that any written consent was ever signed or delivered to them; they go on with the work knowing from Clare that the agreement between the guarantors was that all were to sign, and that he, at least, had not signed; they make no attempt to finish the work in August, but leave over $60,000 worth, fully forty-five per cent, of the whole in value, to be done after August; they make strenuous efforts to finish by midnight of September 20. Thus by their whole course of conduct they lulled the railroad company and its engineer with the belief that the contract of August 9 was adopted between them, and so prevented an exercise of the right of forfeiture, which would have existed if the contract of June 29 had remained in force.
   Dickman, J.

The contract of September 13, 1876, between Rutherford & Co. — the plaintiffs in error — and the railroad company, provided, that on the first day of each month during the progress of the work of constructing the road, the engineer should make -an estimate of all work done and material delivered during the preceding month, and that, on or before the fifteenth day of each month, eighty-five per cent, of the value of such estimate,' at the agreed prices, should be paid to the plaintiffs, by the treasurer or other disbursing agent of the railroad company. There was also a provision, that when all the work embraced in the contract was completed, a final estimate should be made according to the terms of the contract, and the balance appearing due the plaintiffs in error, should be paid to them upon their giving a release, under seal, to the company. The defendants in error, as guarantors of the railroad company, upon good and sufficient consideration, guaranteed, in writing, the payment of the monthly estimates provided for in the contract.

It is contended, however, that they were discharged from their liability as, guarantors, by reason of the railroad company having granted to Rutherford & Co., through its board of directors, an extension of time for the completion of the road, from the first to the twentieth day of September, 1877. The guarantors would doubtless be discharged if the company granted the extension without their assent. But if such assent was given, the liability would still continue. The assent i may be siguifietl in writing, or it may be given by parol, or it may be manifested by the conduct of the guarantors. And whether they gave their consent at the time the extension was granted, or subsequently, with a full knowledge of the facts, ratified and approved of it, they would remain bound for the performance of their agreement. Woodcock v. Oxford Worcester R. W. Co., 1 Dreury (Eng. Ch.), 521; Adams v. Way, 32 Conn., 172; Gardner v. Harback, 21 Ills., 129; Knoebel v. Kircher, 33 Ills., 308; Pelton v. Prescott, 13 Iowa, 567; Rindskopf Bros. v. Doman, 28 Ohio St., 516.

In determining the question of the liability of the defendants in the light of adjudged cases, the governing principle applies alike to sureties and guarantors. While the words surety and guarantor are often used indiscriminately as synonymous terms, there are points of difference between them. But the rule with reference to the discharge of a surety by the giving of time, is equally applicable to the guarantor of a debt of another. Campbell v. Baker, 46 Pa. St., 243. “ That a guarantor and an ordinary surety are alike affected by such extension of the time of payment, seems to be required by sound principles of law, and has often been held.” Dewey J., in Chace v. Brooks, 5 Cush., 43.

As a surety or guarantor is one who becomes responsible for the debt, default, or miscarriage of another person, it is urged, that to hold the defendants liable for the work and material done and furnished during the period of extension, would be to permit a recovery upon an oral variation of a contract, required by the Statute of Frauds to be in writing. If the contract of the railroad company was varied by the agreement to extend the time of completing the road, it was the variation of a contract not coming within the operation of the Statute of Frauds, and one which might be subsequently modified, without discharging the contracting parties. But the agreement for an extension of time did not vary, alter, or modify the guaranty, or incorporate with it any new provision. Its effect, however, was to destroy the binding force of the guaranty, and to release the guarantors from their obligation, unless they assented to the extension, and thereby Avaived their right to be discharged. Having assented, — Avhether by writing, or parol, or by their own acts, —■ and thereby induced the plaintiffs to adopt and pursue a line of conduct which they otherwise would not have pursued, the doctrine of estoppel Avould properly apply to the guarantors, claiming a release to the manifest injury of those whose conduct they had thus influenced.

We have examined all the testimony embraced in the record of this case, and we are satisfied that the defendants gave their consent to the extension of time granted by the railroad company to the plaintiffs. They were all members of the board of directors, at the time of executing their guaranty. With one exception, they were all present at the meeting on August 1st, when the board, consisting of nine members, agreed to the extension of time; and with perhaps tvro exceptions, they were all present at the meeting on the 8th of August, when the granting of the extension Avas ordered to be endorsed on the agreement of the guarantors. As directors, they ordered that their assent as guarantors should be given to the extension, and true to their self-imposed duty, they all, on the 9th of August, signed a written assent on the back of their guaranty, Avith the exception of Joseph Clare, who Avas Avilling to sign, but accidentally failed so to do-. This written assent or agreement Avas, it is true, incomplete without his signature. Had he signed it, no question could have arisen, as to whether the defendants had agreed to the extension, or whether the plea of acting in the capacity of directors should save them from liability as guarantors. But this agreement, signed by all the defendants except one, though incomplete, furnished material evidence of the intention of the parties thereto. It Avas put in evidence by the plaintiffs, under objection, and when the plaintiffs rested their case, the court, upon motion of the defendants, withdrew it from the consideration of the jury. In this, we think the court erred. As a prominent fact or circuihstance, tending to show the actual assent of the guarantors to the extension of time, it was admissible in evidence to the jury, and should not at any time have been excluded.

It appears from the record, that Rutherford & Co. accepted, in writing, the proposition made them in the resolution of the board of directors for an extension of time, with the proviso, that the guarantors would consent to such extension in the written form of agreement accompanying the acceptance. As we have before observed, this written agreement was not perfected by obtaining all the required signatures; but Rutherford & Co. saw fit, notwithstanding, to proceed in their work, upon the actual assent of the guarantors signified in unmistakable methods. The proposed form of agreement which they desired the defendants to consent to, was for their own benefit, and they were privileged to waive the same, without thereby impairing their right to the extension granted to them by the railroad companjr.

The original action was brought by the plaintiffs in error, to recover the amount of the monthly estimate for September, 1877, covering the work done and material furnished between the first and the twentieth day of that month. It is in contention, that there can be no recovery, as the guaranty of the defendants is for the payment of monthly estimates only, and that the work done during the last month of the contract was the proper subject of a final estimate only, and therefore not included in the defendants’ agreement. It is said that a surety has a right to stand upon the very terms of his contract, beyond which his liability is not to be extended by implication. But, while that is conceded, it is also true, that the terms used, and language employed in guaranties and obligations of sureties, are to have a reasonable interpretation, according to the intent of the parties, as disclosed by the instrument read in the light of the surrounding circumstances, and the purposes for which it was made. Belloni v. Freeborn, 63 N. Y., 383; Douglass v. Reynolds, 7 Pet. (U. S.), 113.

The defendants agreed and pledged themselves for the payment of monthly estimates, in accordance with the contract of June 29, 1877, with the exception of the retained fifteen per cent. The contract of June 29, in modification of the original contract, calls for the payment thereafter, monthly as per estimates of the engineer,of the amount of such estimates, on all the road from Columbia to Mt. Carmel, until the same is ready for the rolling stock, less the above-named percentage retained. If the company, however, should conclude to extend the. road no further than Mt. Carmel, a final estimate was then to be made, and the amount thereof paid to Rutherford & Co., upon their giving the proper release to the railroad company. It was evidently deemed by the contractors, Rutherford & Co., as essential, if not absolutely necessary, to the successful prosecution of their work, that during the progress of the work, they should receive partial payments to meet bills for labor and material, and not be compelled to wait until the completion of the road and a final settlement. The company, in June, 1877, being unable to pay for the work already done, and there being no better prospect of payments in the future, a continuation of work on the road was secured, by means of the defendants’ guaranty of the payment of eighty-five percent. of the monthly estimates.

Under the interpretation which we place upon the contract with the railroad company, it contemplated a monthly estimate, for each and every month, in which any work, more or less, was done on the road, up to its com-, pletion. It would be a forced and unreasonable construe-, tion, and contrary to the obvious intention of the parties at the date of the instrument, to hold, that if unforeseen circumstances had crowded all the work into the last month of the contract, the guarantors would thereby be discharged from their engagement, because such work was not the subject of a monthly estimate.

There were to bef “estimates oh all the road, from Columbia to Mt. Carmel,” and those estimates were to be paid “to Rutherford & Co. monthly.” Every part of the road, up to a given point, thus became the subject of a monthly estimate, whether constructed in the first or in the last month of the contract. But, it is suggested, that the contract provides, that if the railroad company should conclude to stop at Mt. 'Carmel, a final estimate was then to be made, which would preclude the idea of any other estimate in the same month. We find nothing in the contract which renders a final estimate — for the payment of which the contractors looked to the railroad company — inconsistent with a monthly estimate in September, for the payment of eighty-five per cent, of which they look to the guarantors, as well as to the company.

The functions of the two kinds of estimates were separate and distinct. The final estimate was not confined to the amount of work done or material furnished in the month of September, when the road was finished. It was designed rather as a revision of the entire work after its completion. Fifteen per cent, of the value of each monthly estimate having been retained as a pledge for the faithful performance of the contract, a final estimate would embrace a review of the whole period of operations. If, upon making such final estimate, the contractors were found to be underpaid, the deficiency would be made up to them; and, if overpaid, the excess would be deducted from the fifteen per cent, retained by the company.

On the trial in the court below, the plaintiffs put in evidence, under objection by the defendants, a final estimate of the date of November 1, 1877, from which, by computation, the monthly estimate for September preceding could easily be made. But, when the plaintiffs rested their case, the court, upon defendants’ motion, withdrew the paper called the “final estimate” from the' jury. In this we think the court erred. The final estimate furnished material evidence in support of the plaintiffs’ claim, and should not have 'been withdrawn from the consideration of the jury.

We are of opinion, that the judgments of the courts below should be reversed, and the cause remanded for_ a new trial.

Judgment accordingly.


text:
    National Bank v. Trimble.

      Balrymple and Powell, for plaintiff in error.

      A. K. and J. C. Bunn, for defendant in error.
    Error to the District Court of Morrow County.
   By the Court.

1. The two years within which an action under section 5198 Revised Statutes of the United States, for double the amount of interest paid, must be brought, begins to run from the day on which the interest that included usury was actually paid.

2. The amount of the recovery is twice the amount of the whole interest so paid. It is not twice the amount of the umrious interest.

3. If the payor of such interest, before action brought, was adjudged a bankrupt, his assignee in bankruptcy became his “ legal representative,” and as such was entitled to bring the action. Crocker, Assignee, v. Bank of Chetopa, 4 Dillon, 358; Monongahela Nat. Bank v. Overholt, 96 Penn. St., 327; Gray v. Bennett, 3 Met., 522.

Judgment affirmed.


text:
    Hardman v. Wilson.

      J. M. Kennedy, McCloud and Converse, for plaintiff in error.
    Error to the District Court of Madison County.
   By the Court.

1. W. sued upon a note. The answer set up payments of usurious interest. The reply stated that the original loan was made upon a note for $1,500; that it was renewed several times. That after said payments of usury it was agreed by and between the payee and principal maker “that there should then be a final settlement and payment of said loan and interest, and that said loan should not be continued longer.” But the said principal debtor “not then being ready to pay,” a new note for $1,500 (made by and payable to same parties as the original note) was delivered and accepted “ in payment of said former notes and not in renewal thereof.” This was the note sued on. The common pleas overruled a demurrer to this reply.

Held: The reply did not describe “a complete settlement and liquidation between the parties and voluntary payment of interest ” (12 Ohio, 159) such as bars inquiry for and deduction of legal interest. As stated it represented a plain attempt to evade the usury laws of the State, and the demurrer should have been sustained.

2. The common pleas rendered a judgment in January, 1879. The district court dismissed a petition in error in March, 1880. A second petition in error was filed in the same court. The dismissal of 1880 was pleaded in bar, and in March, 1881, this plea was sustained by a judgment of dismissal. In September, 1881, a petition in error was filed in the supreme court, asking the reversal, first, of the judgment of 1880, and second, of that of 1881.

Held: In tlie absence of any motion to this petition, all of it relating to the judgment of 1881 is treated as surplus-age. The judgment of 1881 ceases to operate except as to its own costs, after the judgment of 1880 is reversed.

Judgment of district court and common pleas reversed.


author: Bv the Court.

text:
    Eisenberg v. Albert.

      J. H. Collins, for plaintiff in error.
    • L. Banford and Wm. Olcey, for defendant in error.
    Error to the District Court of Belmont Countjr.
   Bv the Court.

T. E., a wife, joined her husband in a mortgage of her Separate real estate to secure a note made by the husband for his own debt. Without her consent the payee, for a valuable consideration, agreed to extend the time for the payment of the note for a year.

Held: The wife’s property occupied the place of a surety, and was released by said extension.

Judgment affirmed.


text:
    Kuhn v. Nieberg.

      B. B. Marshall, for plaintiff in error.

      Isaiah Pillars, with whom were F. C. Layton and S. B. Mott, for defendant in error.
    Error to the District Court of Auglaize County.
   By the Court.

On the twenty-first day of March, 1877, Theodore Nieberg, assigned in trust, for the benefit of his creditors, under the insolvent laws of Ohio, all his property, both • real and personal, saving and reserving all property to which he might be entitled under the homestead and exemption laws of this State. The appraisers appointed by the probate court set off to the assignor the tools and implements necessary for carrying on his business as a photographer, but set off to him no homestead, or anything in lieu of a homestead. Before the sale of any of the real estate assigned, the assignor, a resident of Ohio, the head of a family, and not the owner of a homestead, notified the assignee of his selection of certain lands in lieu of a homestead, under the act of February 27, 1873 (70 Ohio L., 51), and asked that the same be set off to him. This notice, by the assignor, making his selection, was disregarded by the assignee, who proceeded and sold said lands. A motion was made in the probate court that there be allowed to the assignor, out of the proceeds of the sale of said lands, the sum of five hundred dollars, in lieu of a homestead or set-off. The motion was sustained, and the probate court ordered the allowance to be made. From this order, the assignee appealed to the court of common pleas, which affirmed the judgment of the probate court; and the district court, on petition in error, affirmed the judgment of the common pleas.

Held: That the probate court had jurisdiction over the subject matter, and had legal power to order the sum of five hundred dollars to be paid to the assignor out of the proceeds of the sale of said lands, in lieu of a homestead or set-off, under the exemption laws of Ohio.

Judgment of the district court affirmed.


author: Nash, J.

text:
    Clements v. Doerner.
    A mortgage, corrected by a decree of court, under authority conferred by the act of April 17, 1857 (S. & C., 694), as between the mortgagee and a subsequent vendee, who has taken the property, bona ficle, in payment of a pre-existing debt, will take effect only from the time of correction.

      Eiirob. to the District Court of Cuyahoga County.
    Henry and Maria B. Nieberding, on the 3d day of April, 1877, executed and delivered to F. Doerner their promissory note for the sum of $575 due in two years after date. On the same day Doerner sold and conveyed to Maria B. Nieberding, wife of Henry, a certain parcel of real estate, and this note was given in lieu of a part of the purchase money. This note was secured by a mortgage, executed by. Henry and Maria B. Nieberding, bearing the same date and duly recorded, but the certificate of acknowledgment attached by the notary to the mortgage failed to state that he examined Maria B. Nieberding separate and apart from her husband. The petition in the court below alleged the fact to be that such separate examination did occur, and that the wife then declared the signing and sealing of the mortgage to be her free act and deed, and under the act of April 17, 1857 (S. & C., 694) asked to have the certificate of the notary corrected so as to set forth these facts.
    On the 16th of August, 1877, Maria B. and Henry Nieberding conveyed the mortgaged premises by deed to Robert J. Clements.
    The courts below ordered the certificate attached to the mortgage to be corrected as prayed for in the petition of Doerner, and held that, as to the deed to .Clements, the mortgage should take effect from the time of its delivery to the recorder.

      J. K. Hord, for plaintiff in error.
    Clements was a purchaser for value and entitled to such protection against a prior lien as is afforded in equity to a bona fide purchaser without notice of such lien. Roxborough v. Messiah, 6 Ohio St., 448; Carlisle v. Wishart, 11 Ohio, 178.

      Peter Zueher, and Wilson and Syhora, for defendant in error,
    cited Smith v. Norman, 19 Ohio St., 150; Copeland v. Mantón, 22 Ohio St., 402; Roxborough v. Messiah, 6 Ohio St., 448; Lewis v. Anderson, 20 Ohio St., 281; Dickerson v. Tillinghast, 4 Paige, 215; Padgett v. Lawrence, 10 Paige, 180; Willard’s Equity, 256.
   Nash, J.

The district court found that Mrs. Nieberding, at the time she executed the mortgage to Doerner, was examined by the notary, who took the acknowledgment separate and apart from her husband, and ordered the acknowledgment to be corrected so as to show this fact. We cannot interfere with this finding of fact, as it is not manifestly against the weight of the evidence.

After the execution of this mortgage, and before the correction thereof by the court, Mrs. Nieberding and her husband conveyed the mortgage premises to Clements, the plaintiff in error. All the witnesses, speaking upon this point, concur in saying that Mrs. Nieberding conveyed the land to Clements in payment of a pre-existing debt, and that Clements acted in good faith, and without knowledge of the mortgage. The court below held that the lien created by-the corrected mortgage took effect prior to the deed to Clements, and seemed to base this conclusion upon the idea that the creditor had “in no manner altered his condition by reason of the conveyance.”

This argument is fallacious, for the creditor’s condition was changed the moment he accepted the conveyance in payment of his debt. From that time he ceased to be a creditor, and had no right to maintain an action upon his former claim. This is a radical change of condition.

We think that Clements, having taken the conveyance in payment of a pre-existing debt, occupies in this transaction the position of a bona fide purchaser for value.

In the cases Carlisle v. Wishart, 11 Ohio, 173; Roxborough v. Messick, 6 Ohio St., 448; Lewis v. Anderson, 20 Ohio St., 281, we find nothing that conflicts with our conclusion, but, on the other hand, there is much said in them which supports us.

Judgment reversed.


text:
    Dietrich v. Folk.

      Boltin and Shanck, for, plaintiff in error.

      Craighead and Craighead, for defendant in error.
    Error to tire District Court of Montgomery County.
   By the Court.

D., owner of a certificate entitling liirn to a deed for land from tire State on payment of a remainder of purchase-money, assigned it to S., who agreed to pay the State, and also to pay D. $3,072.63 on April 1, 1876. For this last payment, B. was surety for S. to D. 5., with D.’s knowledge, agreed to sell the certificate to B., and to deliver it so soon as B. should pay D. B. assigned this agreement and his interest in the land to F. and W. on February 28, 1877, retaining possession of the land, and a right to repurchase within twelve months by refunding the purchase-money and interest. D. then sued S. and B. on the original contract with him, recovered judgment for $909.94, the balance due him, and levied on the land on June 6,1877. In September, 1877, the land was liable to sale by the auditor, unless over $800 should be paid to the State. F. and W. agreed to pay this if B. would surrender to them his right to repurchase, and S. would assign and deliver to them the certificate. All this was then done. Afterwards D. sued on his levy, making 5., B. and F. and W. defendants, claimed a prior lien on the land, and prayed for sale and payment. The superior court decided in his favor. The district court reversed said judgment.

Held: 1. As D. took B. as security, he held no lien “in the nature of a vendor’s lien.” Is there such a lien? Quaere.

2. The levy held nothing but B.’s interest as it was when the levy was made; this was possession with a right to buy before March 1, 1878.

3. As no tender of the purchase-money and interest was made to F. and W. within the year, B.’s rights ended on March 1, 1878, if not already lost by the surrender in September, 1877.

Judgment of district court affirmed.


author: By the Coukt.

text:
    Core v. Oil and Oil Land Co.

      Durlin Ward, for plaintiff in error.

      Alfred Yaple, for defendant in error.
    Ekkok to the District Court of Warren County.
   By the Coukt.

In an attachment suit against a nonresident defendant, the notice was first published on November 8, in a weekly newspaper. It appeared in each successive weekly issue of the paper until December 13, the last publication being in the paper of that day, which was Friday. The notice contained a summary statement of the object and prayer of the petition, and added: “And that an attachment has been issued in said case, and that said defendant is required to answer on or before December 28, 1878.” A copy was duly mailed to the defendant.

A farm was seized under the writ, and the debtor having sold it, the purchaser, who still owed the purchase-money, was duly served as garnishee under the same writ, and paid the money into court. The court, by order, released the farm and held the money.

Held: 1. The service was complete on December 13. § 5051 Rev. Stat.

2. The notice was sufficient. No description of attached property was necessary.

3. The release of the farm did not deprive the court of jurisdiction.

Judgment affirmed.


text:
    Coffin v. Secor.

      J. M. Ritchey, for plaintiff in error.
    Lee, Brown, <f* Nee, for defendants in error.
    Error to the District Court of Lucas County.
   By the Court.

On April 25, 1868, C. was indebted to S. & Co. on account, $405.46. On May 15, 1876, lie signed and transmitted to them a letter, acknowledging said debt as then existing, reciting his difficulties, and stating his intention to pay the debt as soon as he recovered his health and had satisfied a mortgage. On May 12, 1877, S. & Co. sued on the original account, also averring said acknowledgment. C. demurred.

Held: Under section 24, Code of Civil Procedure, S & C., 951, the petition was good and the action rightly brought.

Judgment affirmed.