text:
    Needham v. Pratt.
    In an action founded on contract, the defendant may by answer set up as a set-off any cause of action he may have against-the plaintiff, arising upon contract, whether the same be a liquidated demand, or for unliquidated damages. P,ev. Stats., § 5015.
    Ebbob to District Court of Lake County.

      Alvord and Alvord, for plaintiffs in error.
    I. The Claim for damages was not a valid counter-claim. Rev. Stats., § 5072; Evans v. Hall, 1 Handy, 434, 437; Cleveland Rubber Co. v. Bradford, 8 Cin. Law Bulletin, 35.
    II. It was not a valid set-off. It was founded in tort. Pierce v. Carey, 37 Wis., 232; Cooley bn Torts, 432; 2 Addison on Torts, 1012, 1013, and so could not be the subject of set-off. Pierce v. Hoffman’, 4 Wis., 290; Anderson v. Case, 28 Wis., 505; Green & Kelly’s Code Pleading, sections 851 and 852; Hall’s Appeal, 40 Pa. St., 409; Harris v. Rivers, 53 Ind., 216; 7 Wait's Actions ánd Defenses, 483, et seq., and,cases there cited ; Robison v. Hibbs, 48 111., 408 ; 9 American Decisions, 339; Hawlcs v. Sands, 3 Gilman, 227; 2 Wharton on Contracts, § 1029, citing also, Zeigleniuller v. Seaman, 63 Ind., 489," and Smith v. Printup, 59 Gá., 610.

      2. But if the cause of action is founded upon a breach of contract of warranty, and not in tort, then we maintain that the claim is neither liquidated, nor capable of being ascertained by calculation, and therefore is not such an one as the statute permits to be the subject of set-off. Carter v. Joseph,, 48 Mich., 615; Sunt v. Middlesworth, 44 Id., 443 and 452; Smell v. Medler, 41 Id., 641: Smith v. Warner, 14 Id., 157; Sunt v. Gilmore, 59 Pa. St., 450; 2 Wharton on Contracts, § 1029, and cases there cited; Bliss on Code Pleading, § 380.
    At common law there could be no set-off except b3r the agreement of the parties, mutually indebted. 2 Wharton on Contracts, § 1010.
    In England, the right of set-off in eases of mutual"debts was established by the statute; 2 Geo. II., c. 22, § 13; and the statute was thereafter enlarged and extended by 8 Geo. II., c. 24, § 4; 2 Wharton on Contracts, § 1012.
    Statutes authorizing set-off exist in all the states, and from the date of the enactment of the .English statute down to the adoption of the code, the demands permitted to be set off had been interpreted b3< the courts to mean liquidated and certain demands. Indeed, the term “set-off” is a technical term, having a fixed and definite meaning, and as employed in the statutes, means a certain and. liquidated demand. Waterman on Set-off, p. 2; 1 Chitty’s Pleadings, 602; Cleveland Rubber Co. v. Bradford, 8 Cin. Law Bulletin, 35; 2 Wharton'on Contracts, § 1009, el seq.

    Now previous to the code this subject of set-off was regulated by statute in this state, and nothing could be set-off except a liquidated demand. 1 Chase’s Statutes, 647; 2 Id., 957; 12 Ohio St., 344 and 357 ; Statutes of Illinois, 254; § 19; 3 Gilman, 227 ; 5 Id., 273; 42 111., 500 ; 48 Id., 408.
    The code has not changed the rule. MeCullough v. Lewis, 1 Disney, 564; Evans v. Sail, 1 Handy, 434; 14 Ohio St., 344, 357; Neil v. Greenleaf, 26 Ohio St., 567; Beyer v. Ciarle, 3 Neb., 161; Shropshire v. Conrad, 2 Met. (Ky.), 143.

      Burrows and Bosworth, for defendants in error, filed no brief.
   Martin, J.

Needham & Son, the plaintiffs in error, were plaintiffs below. The action in the common pleas was on an account to recover from defendant’s intestate the price of two organs sold him on the 2d day of October, 1875. The defendant, admitting the claim made in the petition, set up in his answer a cause of action for a sum greater than the plaintiff’s demand, arising upon an alleged breach of warranty made in the sale of two other organs, by them, to said intestate, on the 1st day of July, 1875. The warranty, it is alleged» was that the organs were of good quality and workmanship, and would in use remain in good condition for five years. It was also averred in the answer that the plaintiffs knew that said representations, when made, were false, and that they were made to defraud the defendant, who relied upon them, and was deceived and defrauded thereby. To this answer the plaintiff interposed a general demurrer, which was overruled by the court, and an exception noted. On error to the district court, the judgment was affirmed.

The question for our decision is, Did the court of common pleas err in overruling the demurrer?

We think the court did not err. The claim of the plaintiffs is that the cause of action stated in the answer is not a counter-claim, for the reason that it does not arise out of the contract named in the petition, nor is it connected therewith. To this we assent. Their further claim is that it is not a set-off, because it sounds in tort; and, if that be untenable, that it is upon contract for unliquidated damages. The allegations of fraud and deceit are sufficient, without the warranty, to constitute a cause of action in tort. And the averments of warranty and breach, separately taken, would constitute a good cause ea'.-contractu. These statements were blended in a single count, and in fact are not inconsistent. That is to say, fraud may, and frequently does, accompany a warranty.

As a set-off, the pleading was good only on the theory that it was founded on a contract. No motion'to strike out, or to separately state and number, or to elect, was made. Plaintiffs relied solely on a general demurrer. If the evidence on the trial showed a mere case of tort, there was a total failure of proof. If, however, it made out the case of warranty and breach, the set-off was maintained. The testimony is not exhibited in the record, and we must presume that it authorized the judgment.

Is the set-off of our statute limited to’liquidated demands?

On this subject there is a diversity of opinion.

In Kentucky, Nebraska and Kansas the code definition is identical with ours. In Kentucky and Nebraska it is authoritatively settled that it is limited to liquidated demands ; whilst in Kansas, it is held to include claims for unliquidated damages. Shropshire v. Conrad, 2 Met., 143; Beyer v. Clark, 3 Neb., 161; Stevens v. Able, 15 Kan., 584. In Fuller v. Steigley, 27 Ohio St., 355, Johnson, J. remarks, obiter: “ The set-off allowed by the code, instead of being limited as formerly to liquidated demands, extends to any cause of action founded on contract or ascertained by the decision of the court.” To the same effect is the opinion of Judge Swan — an authority on such subjects. Swan’s Treatise, 801 note.

Our statutory definition is this:

See. 5075. “A set-off'can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of a court.”

The former act (Feb. 19th, 1824, Swan’s St., ed. 1841, p. 850), which was repealed by our code, defined a set-off as “ any debt, contract, book account, or other liquidated demand ” — clearly limiting it to liquidated demands. No express limitation is found in the section of our statute above quoted. The.simple requisite is, that it be “a cause of action arising upon-contract.” The difference between the two acts is significant and intended. The intention, it seems to us, was to make the set-off as comprehensive as the causes in the petition to which it may bs plead; — to embrace .every right of action on contract, express or implied, and whether it be a liquidated demand or for unliquidated. damages. The scope of the counter-claim, and the liberal provisions for joinder of actions, and indeed, the entire spirit of the practice act, show that one of its great objects was to enable and require parties, as far as practicable, to submit all their controversies for adjustment in a single action. It cannot be said that the position we have taken is impolitic and inconvenient in practice, for a plaintiff may, in bis petition, join as many actions on contracts as he may have, whether the3r be liquidated or not.

Judgment affirmed.


source: Caselaw Access Project

author: Granger, C. J.

license: Public Domain

text:
    Yeoman v. Lasley.
    1. If two or more persons agree to jointly buy a tract of land, for the purpose of jointly selling it and sharing the profit, they are partners for that transaction, and, as between themselves, hold the rights and owe the duties of that relation.
    2. If the vendor, having knowledge of such agreement between the persons negotiating for the purchase of his land, aid one of them in fraudulently inducing his associates to buy, and they, on discovering the fraud, promptly elect to rescind and tender a re-conveyance (the vendor having retained possession of the laud), a decree for rescission should bo granted.
    3. If, before the discovery of the fraud, the purchasers had sold a part of the land to a third party, and forthwith after notice of the fraud they re-purchased the part so sold, for the purpose of tendering a re-conveyance of tlie wliolo to their vendor and completing a rescission of the first contract, such re-purchase was not a ratification of the first contract, and does not estop them from claiming its rescission.
    4. To complete such rescission they must return to their vendor all that they got from him, to wit: the title to the land; but he has no concern or interest in the settlement between them and their vendee.
    5. Having elected to rescind the original contract, the defrauded purchasers arc entitled to a return of the purchase money paid by them, with interest, ordinarily, from the time of payment, hut as no expenditure ■ by them added value to the land, they cannot recover more.

      Error to District Court of Jackson County.
    Lasley owned 665 acres of land in a region containing a -stratum of coal of special value, but having bored for it in two places and found no trace, believed that said stratum did not underlie his farm. His near neighbor Wells had experience in exploring for coal, and selling coal lands, and had sold an adjoining farm containing said stratum at a high price. Wells suggested an attempt to sell Lasley’s land. After conference, Lasley gave to Wells two options, one offering to sell to him at $70 per acre, and the other at $85, it being agreed between them that Wells should have all the proceeds of sale in excess of $70 per acre. -The $85 option was given to “ enable Wells to sell at a higher price.” Concealing the one, Wells exhibited the other to Yeoman, Milburn, John Welch and Johnson M. Welch and representing himself as a buyer willing to take the land at $85 per acre, but unable to pay for it, asked them to join him in the venture. He assured them that the said stratum of coal underlaid the larger part of the tract and that they could realize a large profit by a re-sale to be effected by their joint efforts. He professed to be active in their interest in making such examinations as opportunity permitted, succeeded in winning their confidence, and a joint contract for the purchase was made.
    Lasley knew of Wells’ proceedings, and to aid in the deceit received from Wells, in presence of the others, his share of the cash payment and the .joint notes of all said purchasers for the deferred payments, but secretly credited.on. the notes Wells’ full proportion as if paid by him, refunded to him the cash he had paid, and paid to, or for, him so much of the remainder of the sum called for by the contract of purchase as exceeded the price of the farm at $70 per acre. The contract price was $56,525.00. The cash paid as of February 14, 1874, was $18,841.66, and the deferred payment was evidenced by notes falling due in one and two j’ears each for the same sum, with interest. As his associates understood it, Wells paid $3,140.27 cash and was to pay one-sixth of each note. As actually arranged between Lasley and Wells, the latter paid nothing, was actually paid a considerable sum by Lasley, and yet held under the contract one undivided sixth part of the land. Ignorant of the fraud, they joined with Wells in efforts to sell the land according to the original joint purpose, and did sell one half of it to a Cleveland company at an advanced price. This company paid to them $9,000, and gave notes for the deferred payments. It failed to find the coal, failed to pay its first note, and Yeoman, with his associates, brought suit. The company answered, charging fraud, which was denied by reply and the issue was ready for trial. Then Wells confessed the fraud of Lasley and himself to Welch. Yeoman, Milburn and the Welches forthwith resolved to rescind the contract with Lasley. In order to tender him the entire title they settled with the Cleveland company, which agreed to rescind its contract of purchase without asking a return of the $9,000. Prior to the discovery' of the fraud, under a subsequent agreement Lasley had conveyed the land to Yeoman in trust for himself, Milburn, Wells and the Welches; each purchaser had given his separate note to Lasley for his share of the unpaid purchase money and the joint notes were given up. Yeoman as trustee mortgaged the land to Lasley to secure said notes. Wells also gave to Lasley his notes for the share, payable by him according to the arrangement as represented by him to his associates, but Lasley had before that time given to Wells cash and notes aggregating at least $9,975. The first year’s notes remaining unpaid, Lasley sued to foreclose the mortgage and also to recover judgment on the notes.
    Immediately after the discovery of the fraud, having got back the title to the part sold to the Cleveland company, Yeoman, Milburn and the Welches offered a re-conveyance of the land to Lasley, and demanded a rescission of the contract, a surrender of their notes and a return of their money with interest. They did this by a joint answer and cross petition duly filed in the foreclosure suit, and asked the court to decree a rescission of the contract, &c. Wells separately made a like offer and demand. The Common Pleas, on trial, decided in Lasley’s favor, and on error the District Court affirmed the judgment of the Common Pleas. The case is in this court upon a petition in error filed by Yeoman et al., asking a reversal of the judgment of the District Court. A bill of exceptions taken in the Common Pleas sets out all the testimony. A temporary injunction forbids prosecution by Lasley of his suits on the notes of the Welches.
    Other facts appear in the record, but are not material in the view of the case taken by the court.

      John Welch, for plaintiffs in error.
    The facts show that Wells practised gross fraud upon his co-purchasers, and that Lasley was privy to and aided in that fraud; that but for that fraud the plaintiffs in error never would have made the contract of purchase. This makes a perfect case for rescission. Wells was the agent of the plaintiffs in error, he was their partner or joint contractor with them, and on whom they relied almost exclusively. It was his duty to act for them, yet he acted against them. He ivas both vendor and purchaser. He practised a gross fraud. The plaintiffs in error are entitled to rescission of the contract. 1 Story’s Eq., §§ 218, et seq., 308, 309, 315, 316, 220, 223, 323 ; Horton on Agency, § 245; 40 Mass., 138; Chit, on Con., 226, et uq.; 28 E. R., 453 ; Ken-on Frauds, 151, 182, 183; 71 Pa. St., 256; 3 McMurry, 232; 2 Call, 218; 4 Moak’s Notes, 753; 14 N. Y., 91; 10 Ohio, 117; 11 Id., 57; 6 Ohio St., 189; 2 E. D. Smith, 95.
    Lasley was not only privy to the fraud and kept silent, but helped to contrive and carry it out. See Kerr on Frauds, 19 F., 194, 195, and cases cited. Undell v. Atherton, 7 H. & N., 172; Banh v. Addie, L. R. 1 Sc. App., 146; Emery v. Parrott, 107 Mass., 95; 12 Ind., 364; 125 Mass., 166; 1 Starkie, 20; 3 Taunt., 274 ; 5 B. M., 98; 2 B. & B., 369; 3 Bing., 349; 17 Mass., 182; 2 Ind., 457; 6 Met., 246 ; 1 Id., 278; 7 Id., 252; 2 Smith’s L. C., 182; 8 Black, 45; 6 Ind., 23; 13'Allen, 172; 11 Met., 356; 13 Ind., 277; 85 111., 264; 24 Ohio St., 28; Kerr on Frauds, 76, 92, 98, 225; 65 N. Y., 89; 30 Id., 655; Smith v. Kay, 8 H. L., 759; 3 Parsons on Cont.,'354; 39 Mich., 557; 27 Moak’s Notes, 123; 10 H. L., 26; 24 Moak’s Notes, 774; 3 H. L., 3 Ap. Ca., 1248; 3 Kay & Johnson, 230; Bagnal v. Oarlton, 23 Eng., R., 1; (23 Moak’s Notes, '6 Ch. Div., 371, 1877;) 11E. R., 456; 21 Id., 798; 8 Id., 180; 2 Moak’s Notes, 157; Havemeyer v. Havemeyer, N. Y. (1881;) 61 Pa. St., 222.
    The bringing the suit against the Cleveland party was no waiver of the right to h-escind. 12 Yes., 358; 116 Mass., 227; lOVes., 423; 2 H. L., 99; Kerr on Frauds, 399; 2 Story’s Eq., 345; 3 Yerg., 296; 44 Penn., 9; 67 N. Y., 304; 19 Barb., 226; 2 Duer, 59; 40 Barb., 648;. 10 K Y., 218; 9 Pet., 607; 27 Wis., 135; 5 Gray, 108; 18 Moak’s Notes, 318; and cases there cited; 72 N. Y., 279; 48 Vt., 83.
    The retention of the $9,000 was not an act of ratification. It was 'simply one of the terms of the settlement of a law suit. Instead of being a ratification, the settlement was an act of disaffirmance. It was the first step, and a necessary step, preparatory to rescission. It was the disclosure of the fraud that induced us to make the settlement. How can it then be said that the act of making the settlement was an “adoption” — that it is evidence of an “intention” to abide by the contract. It is, most clearlj-, evidence of an intention to disaffirm it. The suit with the Cleveland party, and its settlement, are purely and strictly res inter alias acta. They began and ended with us and the Cleveland party. The suit was a matter with which Lasley had nothing to do,, and it is none of his business how it was settled. Whether the Cleveland party gave us $9,000 or Ave gave them $9,000, is utterly immaterial- to him, equally as it is immaterial to him who paid the costs. The settlement of the case and the rescission of the contract Avith the Cleveland party, was merely the pulling down what they and we put-up. ' We took no pay on the contract after discovery of the fraud. We merely retained what we had received.
    * An act amounting to an affirmance of a fraudulent contract must be such as either shows an intention to affirm, or works an injury to the fraudulent party, such as prevents him from being restored fully to his former rights. To say that the act of retaining the $9,000 worked an injury to Lasley is equally absurd as it is to say that it manifests an intention to abide by the contract. Had we paid the $9,000 back to the Cleveland party it would have been of no benefit to Lasley. 15 Ohio, 200; 1 Met., 557; 8 Id., 552; 3 Pick., 495; 47 Barb., 276.

      Harrison, Olds f Marsh and H. A. Guthrie, also for plaintiffs in error.
    1. The acts of Lasley and Wells were fraudulent and the defendant parties are entitled to have them set aside. Lindsay Petroleum Co. v. Hurd, L. R. 5 P.' C., 243; 3 Story, 700 ; 21 Vt., 129; 23 Wend., 260.
    2. A partnership relation existed between the purchasers. Story on Part., § 75; Parson on Part., ch. IV.; HeBeshom v. Smith, 1 Esp., 29; Heyhoe v. Burge, 9 C. B., 431, 433; 4 Ohio St., 1; 1 Lindley on Part., 595.
    Every member of a firm is the agent of the partnership in the transaction of the business for which it was formed. (Lindley, Part., Vol. 1, p. 248; Harvey v. Childs f Potter, 28 Ohio St., 319.) So that Wells was an agent for himself and the plaintiffs in error from the time he made assignments to them of his apparent right to buy under the false document. Plaee v. Minster, 65 N. Y., 89, 97.
    3. It is well-settled that in making a contract requiring the exercise of judgment or discretion, a person cannot act as the agent of both parties; and where he undertakes to do so, a court of equity will avoid the contract on the application of either of the parties. N. Y. Cent. Ins. Co. v. Nat'l Pet. Co., 14 N. Y., 85, and the cases there cited.
    4. Another well-settled principle of law is by analogy also applicable. It is this: If when a party to a contract places a, known trust and confidence in the other party, and acts upon Ms opinion, any misrepresentation by the party confided in, in a material matter constituting an inducement or motive to the act of the. other party, and by which an undue advantage is taken of- him, is regarded as a fraud against which equity will, relieve; (Laidlaw v. Organ, 2 Wheat., 178, 195; Fvans v. Biehnell, 6 Yes., 174, 182; Phillips v. Luke of Buchs, 1 Vern., 227; 1 Fonb. Equity, b. 1. q. 2, s. 8;) a fortiori, will such a fraudulent abuse of a known trust and confidence as Lasley induced the plaintiffs in error to place.in Wells, be regarded, as a, fraud against which equity will relieve.
    Still another principle of law is, by analogy, applicable here, namely: A misrepresentation of. the price that a seller of land gave for it, is ground for avoiding it. (Kent v. Freehold Land Co., L. R. 4 Eq., 588; Sandford. v. Handy, 23 Wend., 260; Lindsay Petroleum Co. y. Hurd, supra:) A fortiori, & misrepresentation of the price by the seller, to enable one whom he arranges with to effect-a sale of the land, by inducing them to buy with him at such.misrepresentecband fictitious price, but no part of which such agent is to pay to the seller, is ground for avoiding such sale.
    5. The plaintiffs in error did not elect to waive the fraud and ratify the purchase of the land, see Lindsay Pet. Co. y. Hurd, L. R. 5 P. C.-, 221; Directors, ¿-e., v. Kirsh, Law R. 2 Eng, & I. App., 99; Cumberland- Coal f Iron. Co. y. Sherman, 20 Md., 117; Hopkins v. Landaker, 71 111., 449; Morse y. Boyal, 12 Yesey, jr., 371; Poggett-Y. Fmerson et al., 3 Story’s Rep., 7.00; Baker y. Lever, 6.7 N, Y., 304; Montgomery v. Pickering, 116 Mass., 227; Pierce v. Wilson, 34 Ala., 596 ; Steivart's Case, L. R. 1 Ch. App., 587 — 8 ; 4 W. Va., 571; 41 Me., 132; 64 N. Y., 169; 67 Mo., 221; 29 N. J. Eq., 311; 23 Me., 35.
    The compromise was strictly res inter alios acta. Frost y. Lowry, 15 Ohio, 200; Stevens v. Austin, 1 Met., 557.

      W. A. Hutchins, for defendants in error.
    Plaintiffs in error are not entitled to rescind, because of a waiver of the alleged fraud.

      1. —Because they derived an important benefit under the contract, which they claim in their own right, and which they in no way tender to Easley.
    This $9,000 was received after it is admitted they had full hnowledge .of tfie alleged fraud, and more than á month before they filed their answer, and for the first time asked to rescind.
    Now it must be admitted that a party cannot rescind a contract, and at the same time hold benefits derived from it, or profits growing out of it.
    Kerr on Frauds, 334, 335, 336; Addison on Contracts, §§ 311, 312; 2 Parsons on Contracts, 279; Kirby v. Harrison, 2 Ohio 'St., 326.
    2. —There have been other acts in affirmance of the contract, and of acquiescence and delay that cut off. the remedy asked.
    The option was given in December, 1873, and became binding by election to take under it February 14, 1874, and no claim for rescission was made until October 12,1876, a period of two years and eight months, and six months after Lasley had sued to collect the money.
    Parties who complain of fraud, are required to act when their suspicions are aroused, and if they have the means of ascertaining the facts, they are required to do so at once. They cannot lie by to speculate upon chances, and if they do so, or continue to deal with the property, they thereby waive the fraud. 2 Parsons on Contracts, 279; Kerr on Frauds, 299.
    But there has been no such fraud on thé part of Lasley as to justify a rescission, even if action had been taken at the proper time.
    There can be no rescission, because Lasley has not been, and cannot be placed in statu quo.

    That there can be no decree of rescission where the transaction cannot be rescinded in toto, and so as to restore the parties to their original position, is well settled law. In all such cases the party complaining must resort to other remedies. These parties occupy this situation towards Lasley. They purchase from his vendee, Wells, separate interests in the property, and procure a deed from Lasley conveying to each his separate interest. They also execute their separate notes 'secured by mortgage on the property, which Lasley, at their request, accepts’ in payment of the amount due from Wells to him. So that when the transactions as between Lasley and Wells, and as between Wells and the other parties are closed up they stand in this position : The title to the land is vested' in the parties through a trustee in the separate proportions of one-sixth each to Wells, Yeoman, Milburn and John Welch, and two-sixths to Johnson M. Welch, and Lasley holds the separate notes of the parties in the same proportions, secured by mortgage on the property, except as to the two Welches, who join in one .note.
    Now as far as Wells is concerned it, of course, is no.t claimed - that he has any right to rescind the contract. There is a judgment against him on his notes, and an order of sale standing in full force. By paying at any time this amount the mortgage as to him is satisfied, and he stands as owner of one-sixth, interest of the property, subject, however, to the mortgage being also a security for the-whole indebtedness.
    In any event, therefore, Wells holds a separate title to his onC-sixth interest in the property, which cannot be restored to Lasley by any decree that can be made in the case. Lasley can only obtain this interest by a sale under the mortgage. The' plaintiffs in error as we have seen are in no position to have the contract rescinded as to Wells, because they did not make him á party to their cross-petition, and asked no relief against him whatever.
    8. — These parties retained possession of this property for two years and eight months before they filed their answer and offered to rescind, and thereby prevented Lasley from making sale of it to others, and by their acts and the acts of those claiming under them, so disparaged its value as mineral property, find such a change had taken place as to the market value of such property, that a rescission of the contract would not at all restore the parties to the situation they occupied when it was made.

      Clark McDougal and C. A. Atkinson, also for defendants in error.
    There is no misrepresentation or concealment on the part of Lasley, as to the character or kind of the property, that constitutes fraud or will avoid the transaction on that ground. There is no fraud in fact. 2 Kent’s Com. (sixth ed.), 490; 2 Brown’s Chancery, 333-4, top paging (420, marginal), Fox v. Maekreth’, Turner v. Ilarvey, Jacob’s Rep., 178 • 1 Parsons on Contracts (fifth ed.), 577-8; Harris v. Tyson, 24 Penn. St., 347; Wilkinson v. Boot, Wright’s Ohio Rep., 68(3; Adams’ Equity (sixth American ed.), 363 to 369, top paging, (176 to 179 marginal) and notes; Taylor v. Meath, 26 Ohio St., 428 ; Parmelee, Adm'r v. Adolph, 28 Id., 10.
    In the next place the defendants below were not damaged. The property was at the time1 worth all they agreed to pay for it. The only trouble was that in their greed to make a speculation they overreached themselves and assumed a liability they were, after the financial crash of 1873, unable to meet. Fraud without damage does not give a cause of action. 2 Kent, 489-90; 3 Term R., 51; 2 Disney, 304; Pothill v. Walter, 3 B. & Adol., 114; Taylor v. Ashton, 11 Mees & Welsh., 401; Collins v. Hvans, 48 E. C. L., 820.
    There was no actual fraud, and the contract being- executed, the courts below did not err. Adams’' Equity, 6th American ed., 367-8 (marginal 178), citing Turner v. Harvey, Jac., 169, 178; Dykes v. Blake-, 4 B. N. C., 463';. Gribson v. D’ Fste, 2 N. C. C., .542; and Harris v. Tyson, 24 Penn. St., 369; Lord Thurlow, in Fox v. Mackreth, (2 Bro. C. C., 420); Adams’ Eq., 366 (margin 177), citing 1 Sug., V. & P., 3, 4; White v. Cuddon, 8 Cl. & F., 766;, Vernon v. Keys, 12 East., 632.
   Granger, C. J.

At least two parties are necessary to a contract.» A vendee cannot be his own vendor. So vital is this principle that the same person cannot be in one transaction, the agent of both vendor and vendee unless both know the fact and consent thereto. If a vendor secretly bribe the agent of the vendee, and induce him to deceive his principal in a matter material to the sale, the vendee’s right, on discovery of the fraud, to a rescission is undoubted.

Persons may be partners in a single transaction as well as in a business. In either case their rights and duties, as between themselves, are the same. Neither, without the knowledge and consent of his partners, can act as agent for a third party in a contract with the firm. All have a right to share in all that each one knows material to the transaction in which they are partners. Each has a right to expect that his co-partners will act for and not against the joint interest in all affairs of the firm. If a third party corrupts one of them so that he plays the part of a stool pigeon to beguile hjs fellows into a contract damaging to their interests, and thejr, on discovery, elect to rescind it, and ask aid of a court of equity, it will unhesitatingly compel the fraudulent contractor to restore, all that he received from the defrauded parties. Fraud is ever assuming new forms. But, happily, equity principles are so capable of varied application, that our courts are able to furnish relief against cheats of the newest invention. The act of Lasley in giving the two options to Wells needs no interpreter. Its purpose was to enable Wells to deceive persons whom, as he told Lasley, he desired to induce to form a partnership with him in the purchase and sale of the farm. The contract of purchase, when written, was notice to Lasley that such partnership had been formed. He knew substantially what Wells had represented about the land to his co-purchasers. He in their presence acted as if Wells was really the active partner of Yeoman and the others, but, in secret, he paid Wells as his own agent in effecting the sale. So great was his interest and zeal in concealing Wells’ real position from the others, that instead of contenting himself with taking Wells’ notes for his share of the first and second year’s payments, and then privately returning them to Wells (as he could easily have done), he gave Wells his (Lasley’s) own notes for similar amounts, which Wells sold to others to whom Lasley made payment. This in effect was paying to Wells the difference between the price of the land at $70 and at $85 per acre before Lasley had been paid his share of the price. It was consistent with the theory of the plaintiffs in error, and inconsistent with Lasley’s claims. It was treating Wells as Lasley’s agent entitled to his commission as soon as he had effected the sale. These acts, like the giving of the two options, tell their own story. They can have but one meaning. Hence Lasley’s testimony that he did not intend to deceive; — nor that the $70 option should be kept secret; —and that the secret credit and refunding, and the exchange of notes with Wells, were not intended to conceal Wells’ real position in the matter, was manifestly false. The fraud was successful. Yeoman, Milbur'n and the Welches were induced to believe that the valuable stratum of coal underlaid the larger part of the land and in that belief to join in the purchase. It matters not what name we give to the part played by Wells. Lasley knowingly aided him in playing that part for the purpose of fraudulently inducing the other parties to buy, and accomplished his purpose. Lasley, by counsel, claims that the settlement with the Cleveland Comjjany was either a ratification of the purchase from him, or estops Yeoman and his associates from asking a rescission. Neither claim is valid. Before they could demand of Lasley a return of their money an offer by them to reconvey the entire title to the land was necessary. This could not be effectively made until the rights of the Cleveland Company in the lands were extinguished. Hence to obtain a reconveyance, or relinquishment, of those rights was the first step in the direction of a rescission of the contract with Lasley, and did not tend at, all in the direction of a ratification of that contract.

Lasley did nothing, and had no right to do anything, because of the adjustment with the Cleveland Company that could work an estoppel against the purchasers from him. He- could have no possible concern with that adjustment unless in an inquiry of damages under a suit by his purchasers to recover for his fraud, when, perhaps, the pi'ofit, if any, realized by them from this transaction with the Cleveland Company could be computed as a credit item to him lessening the amount of damages that they could recover’.

. On Lasley’s behalf it is urged that a decree for Yeoman et al., leaving in their hands the $9,000 paid by the Cleveland Company, would be so contrary to equitable principles that it should be denied. A statement of the facts, as shown by this record, sufficiently shows that this claim is. unsound.

Unless Yeoman et al. had by fraud induced the Cleveland Company to buy, that company was indebted to them in the sum of over $25,000. Yeoman et al. surrendered all claim to this indebtedness and assxxmed the cost and risk of litigation with Lasley. The bixrden was on the Cleveland Company to prove such fraud as would defeat their vendors in the suit then ready for trial. Knowing what evidence was at their command, the company offered to surrender the land and the $9,000, ixx order to make a sure escape from all danger of a judgment against them for more than $25,000, and their offer was accepted. The company could not have availed itself of the fraud of Lasley and Wells in the sale to Yeoman et al. But by the arrangement actually made it received a benefit equal to the difference between the actual valúe of 333 acres of land unsuitable for their use and the $25,000. The settlement was substantially a re-sale of their half of the land at over $75 per acre. The contract of settlement was made by parties fully competent to take care of themselves and we have no evidence that any deceit was used ixx securing the consent of either party.

Be that as it may, a fraudulent vendor will not be permitted to show that his vendees have committed a fraud upon some third party. If they have done no wrong to him he cannot rightfully complain.

Wells’ complicity in the fraud is urged as good reason for refusing a decree of rescission. But equity will not refuse to aid his innocent co-purchasers because of a fraud committed on them by him. If their rights cannot be secured without to some extent relieving him, the innocent, must not suffer.

We reverse the judgments of the district court and common pleas .and render a decree for Yeoman, Milburn, John Welch and Johnson M. Welch rescinding the contract with Lasley, directing them and Wells to reconvey the land to Lasley, upon a return by him to them of the purchase money (paid by them) with interest from the time or times when paid; enjoining Lasley’s suits against all except Wells;— placing all costs on Lasley and providing for proper orders of sale or for executions to enforce payment by him.


text:
    Capener v. Hogan.
    Error to the District Court of Cuyahoga County.

      Arnold Green, for plaintiff in error.

      B. M. Brown, for defendant in error.
   H. recovered a judgment against C. for commissions on an exchange of land between C. and D., wherein H., with the consent of C., acted as agent for both parties: but it did not appear that D. knew that H. was agent for C.

Held: H. could not recover from either principal unless both assented to his double agency; Bell v. McConnell, 37 Ohio St., 396, followed and approved.

Judgments of district court and common pleas reversed.


author: McCauley, J.

text:
    Bell v. McGinness.
    In an action of slander, for words which imputed to the plaintiff the crime of stealing a horse, the defendant, as a defense, pleaded the truth of the defamatory words.

      Held: That to maintain this defense, it was not necessary that it be proved beyond a reasonable doubt.
    Ekrob to the Court of Common Pleas of Columbiana County, reserved in the District Court.

      Wallace tf Billingsley, Jones Murray and E. 8. Holloway, for plaintiff in error, cited :

      Jones v. Greaves, 26 Ohio St., 2; Lyon v. Fleahman, 34 Id., 151; Shaul v. Norman, 34 Id., 151; Scott v. Home Ins. Co., 1st Dillon, C. C., 105; Hunchberger v. Merchant's Fire Ins. Co., 4th Bissil, C. C., 265; Washington Ins. Co. y. Wilson, 7th Wis., 169; Blazer v. M. M. M. Ins. Co., 37 Id., 31; Rothschild v. Amr¡ Cul. Ins. Co., 62 Mo., 356; JEtna Ins. Co. y. Johnson, 11 Bush, 587; Hoffman y. W. M. F. Ins. Co., 1 La. Ann., 216; Wrightman v. Same, 8 Rob., 442; Kane v. Hibernia Ins. Co., 10 Vroom, 697, 23 Am. Dec., 239; Schmidt v. .N V. N. M. Ins. Co:, 1st Gray, 529; Vaughton v. L. tf W. R. R. Co., L. B,., 9 Ed., 93; Becker v. Somerset Ins. Co., 66 Me., 406, 58 Iowa, 26; Ellis v. Buzzell, 60 Me., 209; Kincade v. Bradshaw, 3 Hawks, ñ. c., 63; Spruill v. Cooper, 16 Ala., 791; Matthews v. Huntley, 9 N. H., 150; Folsom v. Broiun, 25 Id., 114, 43 Mo., 586; Briggs v. Cooper, 35 Vt., 329; Barfield y. Britt, 2 Jones L., 41; 47 Md., 403; 12 Bush, 51; 15 Gray, 416 ; 19 Mich., 77; 57 Me., 495; 37 Wis., 31; 56 Iowa, 11; 58 Id., 26; 10 Vroom, 697.

      J. A. Ambler, for defendant in error,
    cited Ins. Co. y. Paver, 16 Ohio, 324; Strader v. Mulane, 17 Ohio St., 624; 2 Greenleaf on Evidence, 10 ed., § 426; Landis v. Shanklin, 1 Ind., 92; Shoulty v. Miller, Id., 544; Gantz v. Vinard,
      Id., 476; Clark v. Dibble, 16 Wend, 601; Woodbeck v. Keller, 6 Cowen, 118; Clayton v. Wardell, 5 Barb., 216; Berelcmans v. Berekmans, 17 N. J. Eq., 458; Polston v. See, 54 Mo., 291; Tucker v. Call, 45 Ind., 31; Merle v. Gelzhaeuser, 50 Cal., 631; Corbley v. Wilson, 71 111., 209; Townshend on Libel and Slander, 2d ed., § 404; and claimed that many of the cases cited by counsel for plaintiff in error did not involve infamous crime.
   McCauley, J.

The original action in the common pleas was for slander. The slanderous words alleged in the petition were, “ He stole the horse without a doubt; there is so much evidence against him that it will convict him.”

The defendant, as a defense, alleged the truth of the defamatory words, and on the trial offered evidence tending to prove his defense.

Upon the trial the court charged the jury that to maintain this defense it must be proved beyond a reasonable doubt.

This instruction to the jury is assigned for error.

The cases in Ohio, bearing upon the correctness of this instruction, are Lexington Ins. Co. v. Paver, 16 Ohio, 324; Strader v. Mullane et al., 17 Ohio St., 624; Jones v. Greaves, 26 Id., 2; Lyon v. Fleahmann, 34 Id., 151; and Shaul v. Norman, 34 Id., 157.

The defamatory words, alleged in the petition, amount to a charge of felony.

Only one of the cases above referred to, 16 Ohio, 324, sustains the charge given in the common pleas. The other cases, while the rule of preponderance of evidence was held applicable in each of them, were all for misdemeanors or for fraudulent acts not amounting to criminal offenses.

The plain tendency of these cases, however, is to apply the rule of “preponderance of proof in all issues in civil cases.

A finding for the government against the citizen may be followed by deprivation of life or liberty, and hence the propriety of the rule that no such finding should be made without the strong and clear proof required by tbe rule, beyond a reasonable doubt. But in a controversy between man and man, affecting nothing but a claim, or a defense to damages, and involving nothing but pecuniary or property interests, the reason of the rule wholly fails, and the parties should be on an equality as to the quantum of proof required to establish any material fact. The tendency of modern decisions in other states is to the view we have here taken. Kane v. Hibernia Ins. Co., 10 Vroom, 697; Welsh v. Jugenheimer, 56 Iowa, 11; Behrens v. Ins. Co., 58 Id., 26; Blazer v. Ins. Co., 37 Wis., 31; Thayer v. Boyle, 30 Me., 475; Elliott v. Van Buren, 33 Mich., 51; Cordon v. Parmelee, 15 Gray, 416; Folsom v. Brown, 25 N. H., 114; Bradish v. Bliss, 35 Vt., 326; Prather v. Mich. Mut. Life Ins. Co., The Reporter, vol. 7, 293.

The view we have taken of the question presented in the charge of the court, in the common pleas, requires a reversal of the judgment of that court, and we therefore take no notice of the error assigned, that the court erred in overruling a motion for á new trial, on the ground that the verdict was not supported by sufficient evidence.

Judgment reversed.


author: Dickman, J.

text:
    Railway Company v. Allen.
    1. The obligation to construct and keep in repair fences to turn stock, resting upon railroad companies under the act of April 18, 1874 (71 Ohio L., 85), is not limited to the protection and benefit of the owners and occupiers of abutting lands.
    2. A railway company having sold aiportion of its right of way on its south side, to a second company — which had bought additional right of way from the land owners on the same side — for the purpose of constructing thereon a parallel railroad, and the maintenance of a fence between the two roads becoming impracticable, a contract was entered into between the two companies, by which the second company agreed to keep up and maintain lawful fences on the south side of the dividing line between the two railroads; and the second company entered into a contract with the owner of an abutting field, whereby he bound himself to erect and maintain a sufficient fence between said field and said parallel road.

      Held: That the second company and the owner of said field having neglected to keep up a sufficient fence to turn stock, between said field and the railroad, the first company was not relieved from liability for injury by one of its passing trains to animals whose owner was a stranger to said contracts, and which, without their owner’s fault, had strayed from an adjoining pasture into said field, and thence through said insufficient fence upon its track.
    Error to the District Court of Greene County.

      Charles Darlington, for plaintiff in error.

      Catch f Wilson, for defendant in error.
   Dickman, J.

The plaintiff below, John C. Allen, was the owner and occupier of a tract of pasture land adjoining the field of one John Lucas, and separated by it from the railroad of the Pittsburg, Cincinnati & St. Louis Railway Company, upon which the Lucas field' abutted prior to the sale of a portion of said company’s right of way on the south of its track, as hereinafter mentioned. On the evening of November 5th, 1877, a large number o'f horses and other stock, belonging to Allen, escaped from said pasture, crossed the Little Miami river, and recrossing the same entered the Lucas field, whence, by reason of the fence along the line of the railroad being broken down and nut of repair, they strayed upon the railway track where one of them was killed, and others were more or less injured, by the railway company’s locomotive and cars. Allen filed his petition in the Court of Common Pleas of Greene county, against the railway company, claiming damages because of the defendant’s failure to construct and keep up a sufficient fence as required by statute, and because the defendant through its agents carelessly and negligently operated the train to the injury of the stock. The plaintiff recovered judgment in the common pleas, which was affirmed by the district court, and to reverse the judgment of the district court, the case comes into this court on the petition in error of the railway company.

A fence sufficient to turn stock, had been erected and maintained between the P. C. & St. L. Railway and the adjoining field of Lucas, until the construction of the Dayton & South-eastern Railroad, which runs parallel with and south of the former road — the boundary line between the two railroads being at a point eight feet south of the center of the P. C. & St. L. Railway. The Dayton & South-eastern Railroad Company', for the purposes of its proposed road, purchased a portion of the right of way of the P. C. & St. L. Railway, along the south side thereof; and before such purchase, also bought, for the same purposes, additional right of way from the adjoining land owners, lying south of the right of way of the P. C. & St. L. Railway.

By virtue of a contract between the two companies, the Dayton & South-eastern Railroad Company agreed to “ keep up and maintain lawful fences, crossings and cattle-guards, on the south side of the said dividing line ” between the two railroads; and the Dayton & South-eastern Railroad Company entered into a contract with Lucas, by which he bound himself to erect and maintain a fence between the railroad and his said field. In the construction of the Dayton & South-eastern Railroad, the fence erected by the P. C. & St. L. Railway Company along the south side of its track, was taken down from its original place, and located on the south side of the Dayton & South-eastern Railroad, but was only partly finished on the 5th of November, 1877. It was conceded by the parties, on the trial in the court below, that at the point where the stock of the plaintiff entered upon the railroad grounds, there was no good and sufficient fence, to turn stock, between the railroad and the adjoining field of Lucas.

In our view of this case, it becomes unnecessary to consider the question of negligence in the management of the defendant’s train, as we are of the opinion, that by reason of the insufficiency of the fence between said adjoining field and the railroad, the Pittsburgh, Cincinnati and St. Louis Railway Company became liable for the injury to the plaintiff’s stock.

It is not claimed that the plaintiff’s animals were at large with his knowledge or through his fault. The record does not disclose any contributory negligence on his part, in that respect, which would prevent his recovery from the railway company. It is contended however by the plaintiff in error, that the obligation to maintain fences imposed upon railroad companies by the act of April 18, 1874 (71 Ohio L., 85), is limited to the protection and benefit of the owners and occupiers of abutting lands, and does not extend to the public general]}'. It is said, that as the field of Lucas intervened, the plaintiff in error was not required to fence against Allen’s horses or other stock that might escape— though without his fault — from his pasture, into the intervening field, and thence upon its road. The design of the act of April 18, 1874, requiring railroad companies to fence their roads, was not only to protect the property of adjoining land-owners, and prevent cattle or other domestic animals from endangering themselves, but also to guard the lives of passengers that would be put in peril by animals getting upon the track. The safety of the public at large requires, that good and sufficient fences should be kept up along the whole line of the lands of railroads on both sides, and not merely that safe and sufficient crossings should be maintained, with the necessary cattle-guards. The idea, that the liability of railroad companies for failure to comply with the statutory requirement to fence, is limited to owners and occupiers of abutting lands, is negatived by the comprehensive provision of the statute, that “every such-railroad. company or party shall be liable for all damages sustained in person or property, in any manner, by reason of the want or insufficiency of any such fence, crossing or cattle-guard, or any carelessness or neglect of said company, their agent or agents, in constructing or keeping the same in repair.” -

It was held in Marietta & Cincinnati Railroad Co. v. Stephenson et al., 24 Ohio St., 48, that the obligation to construct and maintain fences upon both sides of railroads imposed by the act of March 25, 1859 (S. & C., 331), was not limited to owners and occupiers of adjoining lands, but extended to the public generally. Such obligation has not been changed by the act of April 18, 1874, nor do we, in comparing the provisions of the two statutes, discover any thing in the last statute which restricts such obligation to those who own lands that abut on railroads.

The railway company, among other things, set up ás a defense against the plaintiff’s claim, the contract it had entered into with the Dayton & South-eastern Railroad Company in reference to fencing on the south side of the dividing line between the two roads. Our attention has been called to the 4th section of the act of March 25, 1859, which provides, that “nothing contained in this act shall be held to affect in any manner any contract or agreement between any railroad company or other party having the control and management of a railroad, and the proprietors or occupiers of lands adjoining for the construction and maintenance of fences, cattle-guards and railroad crossings.” If under this section, the owner of adjoining lands elects, by contract, to assume an obligation to fence of which the law relieves him, he has not, in the absence of gross carelessness on the part of the railroad compan}1-, any ground of complaint if his cattle or oilier animals are killed upon thrailroad through his own breach of his contract. The C. H. & D. Railroad Company v. Waterson et al., 4 Ohio St., 424. But his neighbors, who are strangers to his contract with the railroad company, and whose stock without their knowledge or fault' stray upon his grounds and thence upon the track, are certainly not to be prejudiced in their legal rights by his laches or neglect in performing his agreement.

The competency of the railway company to enter into said contract with the Dayton & South-eastern Railroad Company will not be called in question, but, as its statutory duty was to keep its road properly fenced, it 'did not discharge that duty b}" contracting with another to perform it, if the performance itself was insufficient. Gill v. A. G. W. Railway Company, 27 Ohio St., 240. By selling a portion of its right of way for the purposes of a parallel road, the railway company rendered necessary a removal of the fence which it had previously built, and it became its duty 'to see that the Dayton & South-eastern Railroad Company, which it had made an agent in that behalf, kept up the “lawful fences” according to agreement. If the railway company failed to do so, it cannot be said to have discharged its plain statutory duty to fence its road, by procuring others to agree to keep up the proper fences.

We need not here inquire, how far or in what manner, its contract with the Dayton & South-eastern Railroad Company, or the contract between the last named company and Lucas, affected the liability of the railway company to either of said contracting parties. The plaintiff in error can claim no benefit from said contracts, as against Allen, the plaintiff below. Not being an assignee of Lucas, not being a party or privy to said contracts, or connected with them in fact or law in any manner, the rights of Allen are not to be prejudiced by their provisions. In view of the aforegoing considerations, and upon a careful examination of the record in this case, we discover no error assigned for which the judgment of the district court should be reversed.

The judgment of the district court must therefore be affirmed.

Judgment accordingly.


author: Nash, J.

text:
    Stannard v. Case.
    L. O. Jr., in 1880, died intestate, leaving an estate in land which came to him by descent from his father, L. C., Sr., who died inlS64. L. C., Jr., never married, and no brother, sister or legal representatives of either survived him. His mother, Mrs. L. C., Sr., died in 1857.

      Held: That under paragraph 5, section 4158, Rev. Stats., 1S80, said estate passed to and vested in the brothers and sisters of L. C., Sr., or their legal representatives.
    Error. Reserved in the District Court of Cuyahoga County. Facts stated in the opinion.

      Edward Roly, Caldwell & Sherwood, and Harrison, OZds Marsh, for plaintiff in error.
    P. P. Ranney and Samuel E. Williamson, for defendants in error.
   Nash, J.

January 6th, 1880, Leonard Case, Jr., died intestate, leaving an estate in land which came to him by descent from his father, Leonard Case, Sr. His father died in 1864 and his mother in 1857. Leonard Case, Jr., was never married, and no brother, sister, or legal representatives of either survived him. Both parents left brothers and sisters, or their legal representatives.

The plaintiff in error contends that this estate under the laws of Ohio, passes to and vests in the brothers and sisters of Mrs. Leonard Case, Sr., or their legal representatives, as well as to and in the brothers and sisters of Leonard Case, Sr., or their legal representatives.

The defendants in error claim that this estate passes to and vests in the brothers and sisters of Leonard Case, Sr., the ancestor from whom the estate came, or their legal representatives, and that the brothers and sisters of Mrs. Leonard Case, Sr., or their legal representatives, have no interest therein.

This controversy must be determined by the construction to be given to a part of paragraph 5, section 4158 of the Revised Statutes of Ohio, 1880. This section regulates the descent and distribution of any real estate or inheritance which came to a person bjr descent, devise or deed of gift from an ancestor and who dies intestate.

The fifth paragraph reads as follows:

“Fifth; If the ancestor from whom the estate came is deceased, the estate shall pass to and vest in the children of the ancestor from whom the estate came, or their legal representatives; if there are no children of the ancestor from whom the estate came, or their legal representatives, the estate shall pass to and vest in the husband or wife relict of such ancestor if a parent of the decedent, during the life of such relict, and on the death of such husband or wife, or if there is no such, husband or wife, the estate shall pass to and vest in the brothers and sisters of such ancestors, or their legal representatives; and for want ,of such brothers and sisters or their legal representatives, to the brothers and sisters of the half blood of the intestate or their legal representatives, though such brothers and sisters are not of the blood of the ancestor from whom the estate came.”

The words of said paragraph, important to this case, are these :

“ Or, if there is no such husband or wife, the estate shall pass to and vest in the brothers and sisters of such ancestors, or their legal representatives.”

Paragraph 5, of section 4158, Revised Statutes of Ohio, 1880, does not differ in substance from paragraph 5, section 1, of the act of March 4th, 1865. (62 Ohio Laws, 32.)

It is admitted that prior to 1865, under the acts of April 17, 1857 (54 Ohio Laws, 94), of March 14, 1853 (51 Ohio Laws, 499), of March 7, 1835 (33 Ohio Laws, 43), of Feibrnary 24,1831 (29 Ohio Laws, 252), of February 11, 1824 (22 Ohio Laws, 123), of December 30, 1815 (14 Ohio Laws, 36), and of December 19, 1814 (13 Ohio Laws, 1), this estate would have passed to and vested in the brothers and sisters of Leonard Case, Sr., or their legal representatives. If this estate, as is contended for by the plaintiff in error, now passes to and vests in the brothers and sisters of Mrs. Leonard Case, Sr., or their legal representatives, as well as to the brothers and sisters of Leonard Case, Sr., it is accomplished by the amended act of March 4, 1865, and by the use of the word “ ancestors ” in the 5th paragraph of section one, instead of the word “ ancestor.”

We are of the opinion that there was no intention upon the part of the General Assembly to make the change now claimed to have been made. By reading all the parts of this statute together, it becomes apparent that such an estate as the one involved in this action, passes to and vests in the brothers and sisters of the ancestor or ancestors from whom the estate came, or their legal representatives.

In the act of March, 1865, changes were made in the former manner of distributing estates, and were made by the use of clear and exact language. If the change contended for was also contemplated by the legislature it would have used the words following, or others equally capable of making the intent apparent :

“ Or if there is no such husband or wife, the estate shall pass to and vest in the brothers and sisters of such husband and wife or their legal representatives.”

Even the plaintiff in error must admit that the construction which she asks for is not free from doubt. It is the duty of the General Assembly when it attempts to change the distribution of ancestral estates, which has prevailed for more than fifty years, to do so by such a use of words that its intent will not be obscure, or a subject of conjecture. If it has not done so, the doubt should be resolved in favor of the old statute.

Judgment affirmed.


text:
    O’Connor v. Smith.
    O’C. purchased and paid for certain lands, and had the same conveyed to S. to hold as his trustee. While S. held the legal title, he made advances and performed services for O’C., and, by agreement, S. was to hold the legal title to the lands until the advances and services were paid for.
    Afterwards the parties agreed upon the amount O’C. owed S. for advances and services, and at the request of O’C., S. conveyed the lands to him and received the check of a third person on a bank for the amount agreed upon.
    This check was not paid, but was immediately returned and surrendered to the drawer. The amount due S. for services and advances was not paid, and S. had no written agreement for its payment or acknowledgment of the indebtedness.

      Held: 1. That no vendor’s lien arose in favor of S. on the conveyance of the lands to O’C.
    2. That an action to enforce the claim of S. for services and advances was limited to six years.

      Error to the District Court- of Hamilton County;
    The defendant in error filed his petition in the superior court of Cincinnati, on the 11th day of October, 1879, against the plaintiff in error, in which -he alleged tlie following facts:
    That in the year 1858, the plaintiff and defendant had mutual dealings, and the defendant had paid the purchase price of certain lands described in the petition, and caused the persons having the legal title to said lands to convey the same to the plaintiff; that the plaintiff accepted said conveyance, and held said lands in trust for the defendant until the 5th day of September, 1871; that during the time the plaintiff held said lands in trust for the defendant, he made advances and performed services for the defendant; that it was agreed between the plaintiff and defendant that the plaintiff should hold said lands until the defendant should pay him for said advances and services, as trustee, and that he should have a lien on the lands for the same; that on the 5th day of September, 1871, the plaintiff and defendant agreed that the amount due to the plaintiff for said advances and services was the sum of fifteen hundred dollars, and the defendant then agreed to pay that sum to the plaintiff; that the plaintiff then, at the request of the defendant, conveyed said lands to him; that the business of settlement and payment was’conducted by and between the plaintiff and one A. Shouter, as the agent of the defendant y that said Shouter, on receiving the deed of the plaintiff conveying the lands to the defendant, gave to plaintiff his check on a bank for the fifteen hundred dollars agreed upon as the amount due the plaintiff from the defendant; that the plaintiff accepted the check,- and on the next day after its date presented it for payment. The check was not paid, whereupon the plaintiff returned it to said Shouter.
    Upon the facts above alleged the plaintiff asked for judgment against the defendant for fifteen hundred dollars, and asks also that the lands described in the petition be sold, and the amount due the plaintiff be paid out of the money raised by such sale. The defendant demurred to the petition, and the superior court sustained the demurrer. The plaintiff not wishing to amend his petition, the court gave judgment for the defendant.
    This judgment was reversed by the district court; and to reverse the judgment of the district court, a petition in error is filed here.

      T. A. O'Connor, Grlidden 8? Burgoyne, for plaintiff in error.

      Samuel T. Crawford, for defendant in error.
   McCauley, J.

Counsel for Smith, the plaintiff below, claim, upon the facts stated in the petition, that he was entitled to a vendor’s lien, and that such a lien between the parties is a continuing and subsisting trust, and not within the operation of the statute of limitations.

Smith held the title of the lands as trustee for O’Connor, and when he made his deed to O'Connor he merely executed the trust.

A vendor’s lien arises only upon a sale of lands, and results from the equity, that while the vendee holds the lands with the purchase money unpaid, he holds subject to a lien for its security and payment. No sale is alleged here, and no state of fact out of which a vendor’s lien could arise. Smith held the legal title as security for his advances and services, and when he eonvetyed to O’Connor, without receiving the money due him, O’Connor held the land discharged of any lien whatever. No lien could arise upon the agreement for a lien stated in the petition. Upon Ihe failure of O’Connor to pay Smith the amount agreed upon to be paid at the time of the conveyance of the land, Smith could have made this debt a charge or lien upon the lands, by a proper action against O'Connor for that purpose, and this was the only way in which the lands could have been charged with the debt due to Smith.

Smith not having a vendor’s lien, the question whether a vendor’s Hen is a continuing and subsisting trust, and so not within tbe operation of the statute of -limitations, becomes of no consequence.

Smith had only an equity in -the lands arising from tbe manner of their dealing in reference to them, to subject, them by action to the payment of the money due him.

There is no averment in the petition, that he had any agreement, contract, or promise in writing, for the amount due him from O’Connor. It was, then, money due upon a contract not in writing; and, as a claim for money was limited to six years, as a claim for relief against the constructive fraud of- O'Connor in failing to pay the amount due Smith at the time of the conveyance, it was probably limited to four years. The action below was not commenced until more than eight years after the conveyance to O’Con-nor and his failure to pay the amount owing to Smith ; and whether the claim was sought to be enforced as a claim for money, or for equitable relief, the remedy was not sought within the time limited to either of such actions.

Judgment of district court reversed, and that of superior court affirmed.


author: Martin, J. Granger, C. J., and Dlckman, J.,

text:
    Schultz v. Insurance Company.
    In an action which was upon a policy of life insurance containing a proviso that it should be null and void in case the insured “shall, under any circumstances, die by his own hand,” issue was joined as to whether his death was within the proviso. Held:

    1. Whilst it is competent for the parties by plain stipulation to qualify or restrict the popular meaning of words in a policy, yet a proper construction of the proviso requires that the words, “under any circum stances,” be disregarded as too general and Indefinite.
    2. Where, as in this case, there is no qualification to the expression, “ shall die by his own hand,” the popular and legal definition will obtain; and the death of the insured by his own act, is not within the proviso, if, at the time, he was under the controlling influence of insanity, although he intended to take his life and understood the physical nature and effect of his act.
    3. On the trial, the onus is upon the company to show that the death was within the proviso.

      á. Testimony having been given by the company tending to show that the insured committed self-destruction, it was competent for the plaintiff, in rebuttal, to give testimony tending to show the insanity of the insured at the time of committing the act.
    Error to the District Court of Hamilton County.

      A. C. Collins and C. H. Blackburn, for plaintiff in error.
    Did Schultz die by the act of his own hand? As to what is meant, in law, by “ die by his own hand,” see Ins. Co. v. 'Terry, 15 Wall, 580; 93 U. S., 286; 4 Hill, 73; 41 Ga., 338; 54 Me., 226 ; May on Ins., § 325; 47 N. Y., 52. The burden of proving it is on the insurers. Phillips v. Ins. Co., 26 La. Ann.; Jones v. Creaves, 26 Ohio St., 5.
    The words “under any circumstances” do not enlarge the term “die by his own hand.” Bigelow on Ins., 42; Phillips on Ins., § 894; 4 Seld., 299; 25 Iowa, 68; 54 Me., 224.

      McCuffey, Morrill $ Strunk, for defendant in error.
    As to the meaning of “ die by his own hand,” see Bean v. Ins. Co., 4 Allen, 96; Cooper v. Ins. Co., 102 Mass., 227; and the words “ under any circumstances ” qualify that phrase, see cases cited above.
    The policy was void. Bigelow v. Ins. Co., 96 U. S., 284; 34 Wis., 389.
    In regard to the presumption of sanity and the burden of proof on the question of insanity, see Breasted \. P. L. ¿fr T. Co., 4 Hill, 73; Terry v. Life Insurance Co., 15 Wall, 59; Moore v. Connecticut Mutual Ins. Co., 42 Met., 414 ; Knickerbocker Ins. Co. v. Peters, 5 Ins. Cases, 167 and 509; Parren v. State, 2 Ohio St., 54 and 77; Loeffner v. State, 10 Ohio St., 598. There may be a want of uniformity in the authorities on the point, arising in criminal cases, but none in civil cases. Commonwealth v. McKie, 1 Gray, 61; Commonwealth v. Pddy, 1 Id., 583»
   Martin, J.

The action below was upon a policy of life insurance issued by the defendant to the plaintiff on the life of her husband. The policy contained a proviso that it should be null and void if the insured “shall under any circumstances die by his own hand.” The petition was in the usual form. The answer denied t.he death of the insured, and averred that if he was dead, he died of his own hand. Reply was a general denial. Trial to a jury, resulting in verdict and judgment for defendant. District court on error gave judgment of affirmance. On the trial, amongst other things the death was proved, and plaintiff rested. Defendant introduced testimony tending to show that the insured had family troubles, was tired of life and contemplated, prepared for and committed suicide by taking poison.

In.rebuttal the plaintiff interrogated a witness as to the mental condition of the insured shortly before his death, with a view to show his insanity at the time of committing the act of suicide. Objection was made, but not to the form of the question. The court refused to allow the question to be answered, ruling the proposed testimony inadmissible. Exception was taken and the ruling was also assigned as a ground for a new trial, which was refused. It is also one of the assignments of- error here; and the only one we consider it important to notice. Was testis mony tending to show the insanity of the insured at the time of his death material to the issue? The majority of this court think it was material, and that the court below erred in excluding it. We have arrived at this conclusion from a construction of the proviso, and hold that insanity of the suicide might affect its operation. The policy is a contract between the parties to this suit. Its object was to provide indemnity against the premature death of the insured. The plaintiff, before she brought her action, had duly performed all the conditions .of the contract to be kept by her. Her claim upon the company could to no extent be impaired by any act or crime of the insured committed after the execution of the contract, unless it was so stipulated therein. Such stipulations are against the general intendment of the contract, and'can operate only by way of forfeiture. And therefore, whilst it is entirely competent for the parties to provide such conditions of forfeiture, yet to be valid they must be reasonably precise and particular, and not against public policy. The. condition of forfeiture in this policy is that if the insured “shall under any circumstances die by his own hand.”

The learned counsel for the company in their argument advance two positions:

The first is that the expression “ die by his own hand ” without any qualifying terms, means intentional self-destruction whether the party1' is sane or insane.

The second is that, if the expression is restricted to mean criminal, suicide, then the effect of adding the qualifying phrase “under any circumstances,” is to enlarge the meaning so as to include every case of intentional suicide, whether criminal or not, or committed by a person sane or insane. If his first position be tenable no effect whatever can be given to the qualifying phrase, unless it be to extend the proviso to every case of unintentional self-destruction. Strictly'- taken, the proviso is susceptible of a reading that makes the qualifying words meaningless. But such a construction is presumably not within the contemplation of the parties, and is never admissible unless required by the context or the nature of the subject. Nor is the other reading admissible which would work a forfeiture in cases of accidental death, occasioned by the direct act of the party — a condition which if plainly stated in the policy, would, to say the least, be of very questionable validity. The phrase occurs in the printed part of the policy, and was inserted by the company, no doubt, for a lawful and commendable purpose.

The perplexing state of uncertainty'- and conflict in the judicial holdings in tliis country as to the meaning of the condition in the common form, and the difficulty of making proof to j¡he satisfaction of juries in cases of shameless frauds by suicides, present strong inducements to companies to seek protection in definite stipulations.

The object of'this company in inserting the phrase under consideration, was doubtless to secure such protection; and it was probably supposed that its effect would be merely to extend the proviso to cases of intentional self-destruction, whether the party was sane or insane. But whatever the purpose may have been, to have effect it must be expressed in suitable language and be lawful. The question is, did both parties so understand the phrase, or rather is the language such that they must be held to have so understood it. And in determining this question we are entitled to the aid of, and are probably bound on principle to apply, the rule of strict construction as against the company. In National Bank v. Insurance Company, 95 U. S., 673, this rule is indicated in the third proposition of the syllabus as follows: “The policy having been prepared by the company, should be construed most strongly against them.” Here the stipulation was not only prepared by the company, but is one of forfeiture.

However, it is sufficient to say that there is nothing in the phrase that carries an idea of any precise qualification, such as is now claimed by the defendant, or such as would be acceptable to either partjr or the court. Language more nearly expressive of the object could have been employed. Well-considered analogous cases lend support to the view we have expressed. In Bigelow v. Ins. Company, 93 U. S., 284, the question was as to the construction and validity of a proviso to the effect that it should be void if the insured died by suicide, sane or insane.

Justice Davis in pronouncing the opinion, says, “Nothing can be clearer than that the words sane or insane were intro-, duced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity. These words have a precise, definite and well-understood meaning. No one could be misled by them; nor could an expansion of this language more clearly express the intention of the parties.”

In Pierce v. Insurance Company, 34 Wis., 389, the same question arose on a similar proviso. The words were, “ die by suicide, felonious or otherwise, sane or insane.” The qualification was upheld, and in the very able opinion of the court great stress is laid on the fact that the qualification was restricted and particular, and that it was so precise and guarded as to clearly and expressly exclude a limitation to self-murder.

In Jacobs v. Life Ins. Company, 5 Big. Life, &c., Rep. 42, the condition was that the policy should be void if the insured shall “ die by his own hand or act, voluntary or otherwise.” It was held that the words “ or otherwise ” were of uncertain meaning and void. In the opinion of the court it is said, “ If the act is by his own hand, it is only necessary that it should be voluntary or otherwise in order to avoid the insurance. There is nothing in the ordinary or popular acceptation of the term which would limit its sense only to mean insanity. It is admitted that such was not the understanding o£ the company and that this'construction would defeat the intention of both parties; and probably no court in America would undertake to enforce a provision so dangerous and uncertain.”

A majority of the court are of opinion that the phrase “under any circumstances” must be disregarded as too general and uncertain to serve any purpose in the construction of. the proviso under consideration.

We must consider the condition of forfeiture as if it were simply “ if he die by his own hand.”

Do these words, as assumed, mean criminal self-destruction? The terms “die bj1- his own hands,” “suicide,” “self-.murder,” and the like, are -synonymous. In England they involve the element of criminality, and. the principle that an insane man is not responsible for the act is applied in all cases, except only in the construction given to such act when committed by the insured under a policy containing a condition of forfeiture therefor. The exception is as well established as the rule, and goes to the extent of holding- that the act is within the proviso if the insured had mind enough to intend the act and knew it would kill him, although he was unable to appreciate that it was Avrong or had not the power to resist an impulse to commit it. In other words, it. excludes any consideration of sanity.

" In this country the conflict between the authorities is utterly irreconcilable. The decided preponderance, however, favors the general rule and rejects the English doctrine.

It is unnecessary to refer to the authorities in detail. The state of the discussion is well known to the bar; and the argument was long since exhausted. A majority of the court reject the English doctrine, and adopt the view generally prevailing in this country, which is consistent with legal analogies. We adopt, as the law of this case, the rules laid down by the supreme court of the United States in Life Ins. Company v. Terry, 15 Wall., 584, as follows :

“ If the assured, being in possession of his ordinary reasoning faculties, from anger, pride, jealousy or a desire to escape from the ills of life, intentionally takes his own life, the proviso atttaehes and there can be no recovery.
“ If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when his reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable.”

The condition of forfeiture in that case was, “if the assured shall die by his own hand: ” — the same as we have found the condition in this case to be.

The onus of showing the requisite capacity of the insured as well as the act of self-destruction, to bring the case within the proviso, rests upon the company — the party who sets it up as a defense. Knickerbocker Ins. Co. v. Peters, 42 Md., 414; Insurance Company v. Gridley, 100 U. S., 614; Phillips v. Ins. Company, 26 La. Ann. Rep.

In maintaining this issue the defendant will have tire benefit of the presumption of sanity which obtains in a case of suicide, as in that of any other enormous crime, until it is overcome by competent testimony.

It follows from what has been said, that the testimony proposed in rebuttal was competent, and its exclusion by the trial court was error.

Judgment reversed and cause remanded.

Granger, C. J., and Dlckman, J.,

dissenting. Originally the expressions “die by his own hand” and “self-murder ” were not always, used as synonymous terms. The latter always included the element of crime, and therefore indicated that the decedent was sane when he did the act. The former sometimes included the crime: at other times its did not. The courts have in many cases construed them as technical terms, having precisely the same meaning. If their use must therefore be limited by the decisions of courts, our language is destitute of a word that describes the act of a man who kills himself, knowing that his act would cause his death, but does not indicate that the deed was criminal. Strictly", the phrase “ died by his own hand,” aptly described just such a death. In our judgment, notwithstanding the decisions referred to, parties may of right use the phrase in this sense; and whenever their contracts indicate that they so intended, effect should be given to that intent. It seems to us that the words “shall under any circumstances die by his own hand” do indicate that the phrase was not used in the technical sense. They evince a purpose to widen that which judicial construction had made narrow. As that narrowing consisted in always so construing the phrase as to include the idea that the decedent was criminal and therefore sane, it is evident that the widening intended consists in excluding that idea. Hence by a reasonable construction effect can be given to the new words “ under any circumstances.” If we are right in thus thinking, it is the duty of the court to so construe in this case.

We think the record shows that at the moment when counsel for the plaintiff offered to prove “insanity,” the evidence had presented a case in which mere “ insanity ” was immaterial. It was evident that counsel did not expect to show that Schultz did not know that he was taking arsenic and that it would cause his death. Hence we think the court did not err in refusing to admit the evidence offered, and that the refusal to charge the jury as the plaintiff desired, was right.


text:
    Krumm v. Jefferson Fire Insurance Company.
    1. The agent of an insurance company, who had full power in a large territory to receive proposals for insurance against loss by fire, to fix rates of premium, to receive moneys, to countersign, issue, renew and consent to the transfer of policies of insurance, signed by the president of the company and attested by the secretary, does not exceed his authority in appointing a sub-agent authorized to solicit and receive applications, fix rates of premiums and forward the applications, on which, if approved, he, the appointing agent, is to issue policies, insuring against loss from the date named in the application. .
    2. The person so appointed is the agent of the company for these purposes, and his acts in this capacity are the acts of the company.
    3. Where an application has been made to such sub-agent and such application has been sent to the office of the agent authorized to issue the policy, the company is liable for a loss occurring before the issuing of the policy and after the date named in the application for the commencement of the risk.
    Error to the District Court of Peny County.
    About the first of April, 1874, the Jefferson Fire Insurance Company of Steubenville, Ohio, commissioned Charles H. Towson of Lancaster, Ohio, as its agent. By the terms of the commission, he was clothed “ with full power to receive proposals for insurance against loss and damage by fire in Lancaster, and its vicinity, to fix rates of premium, to receive moneys, to countersign, issue, renew and consent to the transfer of policies of insurance, signed by the president and attested by the secretary of the said Jefferson Fire Insurance Company, subject to the rules and regulations of •said company and to such instructions, as may from time to ■ time be given by its officers.”
    From that time until after December 6th, 1876, Towson • continued to act as the agent of the Jefferson Fire Insurance Copipany at Lancaster, and during that time exercised all the powers herein spoken of. Soon after receiving his commission, Towson appointed Elias Gray as a sub-agent in Fairfield county, Freeman Daugherty in Licking county and Tim. Thompson in Peiry county. Towson furnished these men with blank applications for insurance in the Jefferson Fire Insurance Company, which had been printed by the company and were used by it in its business of 'insurance. Thej^ were authorized 'by Towson to solicit insurance for the Jefferson Fire Insurance Company, to .receive applications, to fix rates of premium, to receive moneys and to forward the applications to him at Lancaster. Sometimes these agents extended the time for the payment ’of premiums, thirty aud sixty dajm. Upon the applications being received at Lancaster, Towson filled out policies of •insurance, signed in blank by the president and secretary of the Jefferson Fire Insurance Company, and countersigned by himself as agent, and forwarded them to the solicitors to be delivered. In the case of Tim. Thompson, 'his name would sometimes be placed upon the applications and Towson would indorse his ñamé upon the policies issued on such applications. It frequently happened that Towson was absent from his office days at a time, and during such periods his clerk, a sister, upon the receipt of applications, would fill up and issue policies, signed by the president, attested by the secretary and counter-signed by Towson the agent, which had been left with her for that purpose by Towson. Whenever policies were issued they were at once reported to the company at Steubenville, in ivhat was termed the daily report. During this period, two years and eight' months, Towson was sometimes visited at his office in Lancaster by McCracken, the secretary of the company, and by Cussy and Scott, its general agents. Upon such visits, these officers of the company talked with Tow-son in regard to the business of the company.

      On tlie first of December, 1876, Mrs. Cornelia Z. Krumm was the owner of furniture and other household goods in Shawnee, Perry county. During the afternoon of that day, Tim. Thompson called upon F.-Krumm, the husband and agent of Mrs. Krumm, for the purpose-of writing an application for insurance upon said goods in the Jefferson Fire Insurance Company. After some talk between Thompson and Krumm, Thompson filled up the application, and Krumm, as he was authorized to do, signed the name of his wife thereto. The amount of insurance agreed upon was $600, the amount of premium $10.50, and the length of time 12 months from December 2, 1876. All of this was set forth in the application. Thompson gave 60 days credit upon the premium. These goods were used by Mrs. Krumm in housekeeping upon the' upper floor of a two-story frame building in Shawnee. The lower story was occupied by Mrs. Krumm as a store, and the goods in this store had been previously insured in this company, to the extent of $1,000, in the same manner and through the same agencies as the insurance under consideration was attempted to be made. Thompson says that when he first met Krumm, he had his overcoat on, about to start for Columbus, and that he, Thompson, was anxious to get the application, as he knew that if he did not, Krumm would get the insurance in Columbus. The application was at once forwarded by mail to Towson, at Lancaster, and was duly repeived by his clerk, Towson being absent. The clerk states that she had blank policies, countersigned by Towson, and that her reason for not at once writing a policy upon the Krumm application, was that there were other applications received before this and it was laid away to await its turn. On the morning of the 5th’of December she was about to write the policy, when a telegram was received from Krumm announcing that the property had been destroyed by fire. The fire occurred early in the morning of December 5. She did not write the policy. Towson did not return until several days after the fire. The company refused to issue the policy and contend that they are not liable in the premises.

      In the prayer of her petition, Mrs. Krumm asked judgment against the company, that the contract be specifically performed; that said company be ordered to issue to her a policy of insurance under said agreement and for any other relief to which she was entitled. The court of common pleas and the district court, upon appeal, rendered judgment for the defendant.

      Butler Huffman, for plaintiff in error.
    A general agent has authority to appoint sub-agents and clerks, either or both, and the acts of such sub-agents and clerks, while effecting and perfecting insurance, are binding upon the company.
    May on Ins., 126, 158, 159; 40 Barb., 292; 43 Id., 351; Ins. Co. v. Bshelman, 80 Ohio St., 657; Wood on Ins., 656-662; Id., 634; Perkins v. Ins. Co., 4 Cow., 645; 19 How. (U. S.), 318; May on Ins., 136; 9 How., 390; 25 Barb., 189; 3 Am. Rep., 301; 44 N. Y., 538; 59 Id., 171; 25 Am. Rep., 93; 24 Ohio St., 345; 20 Ohio, 530.

      Perguson $ Noon, for defendant in error.
    This application, never acted upon by the company, and subject to withdrawal by the applicant, .was a mere proposition on the part of the plaintiff, and in no sense a contract.
    May on Insurance, 139; Bentley v. Columbia Insurance Company, 17 N. Y., 421; see also Insurance Company v. Johnson, 23 Penn. St., 72, and Myers v. Keystone Mutual Life Insurance Company, 27 Penn. St., 268; Wood on Insurance, pp. 38, 39.
    An agent has no authority to delegate his power. 1 Parsons on Contracts (6th ed.), 82, 44; Sheldon Corp., 221, 222, 223; 2 Kent’s Com., 879.
   Nash, J.

It is contended by the defendant in error that Thompson, who solicited from Mrs. Krumm’s agent the application of insurance, who wrote up the application, who fixed the amount of the premium and who extended the time.of its payment for sixty days, was not the agent of the Jefferson Eire Insurance Company and acted without its authority. Towson was its acknowledged agent, and from the facts it appears that he was fully authorized to receive proposals for insurance, to fix rates of premium, to receive .moneys, to countersign, issue, renew and consent to the transfer of policies of insurance, signed by the president of the company and attested by the secretary. In the business of issuing policies of insurance against loss by fire, this company delegated to Towson all the powers possessed by it, to be exercised in Lancaster and its vicinity. The extent of the territoiy in which Towson was to exercise his powers, is evident from what was done by him during the two years and eight months he acted as agent of the company, prior to the happening of the things complained of by the plaintiff in error. During all this time, with the knowledge of the officers of the company, he had received applications for insurance upon property situated in Fairfield, Perry and Licking counties, and issued the policies of the company thereon. By the acquiescence of the company and its officers in the acts of Towson, he was authorized to act as their agent in the three counties named.

It is evident that in this large extent of territory, Towson could not secure for the company its fair proportion of the business of insurance without the aid of solicitors or sub-agents. The interests of the large business committed to his care, required the assistance of sub-agents. He did not exceed his authority in appointing a sub-agent in each of the counties of Fairfield, Licking and Perry to solicit applications for insurance in the Jefferson Fire Insurance Company, to fix the rates of premium, to receive the premiums and to forward the applications to him at Lancaster. Such appointees would be the agents of the company even if its officers had no actual knowledge of their appointment. The officers of this company must have possessed extraordinary obtuseness if they did not know, long before Mrs. Krumm made application for the insurance of her household goods, just how its business was conducted by Towson. His daily reports made for two years and a half, and the visits of the secretary and two general agents to his office, must have given the officers of this company full information as to how their business was conducted.

The rules laid down by the Supreme court in the case of Palm, Adm., v. The Medina Co. Fire Insurance Company, 20 Ohio, 529, are applicable to and control in this ease. Towson possessed the same powers in regard to applications and in regard to issuing policies upon them as were reserved to the home office of the Medina County Fire Insurance Company. Thompson, the sub-agent in Perry county, was clothed with about the same authority as the Medina company gave to its agent, McConnell. In that case it was held that upon an application for insurance made to the agent and by the agent forwarded to the home office the company was liable, although the loss occurred before the arrival of the letter containing the application.

The fact that the premium was not paid by Krumm at the time the application was made, is urged as a reason why the claim of the plaintiff in error is not established. Thompson gave her a credit of sixty days, and at the proper time she tendered to the agents of the company the amount of the premium, and has ever since kept the tender good. On previous insurance effected in this companjr by Mrs. Krumm, the agents of the company had given the same time in which to pay the premium ; she had no notice that the company disapproved such action,and it seems to have been the custom of the agents to grant this extension to their customers. The company is now estopped from setting up the non-payment of the premium as a defense.

It is said that a rule of the company provided that no more than $1,500 of insurance could be placed upon goods situated in one building, and that the amount of the risk named in this application, when placed with that of the previous policy issued to Mrs. Krumm, would make the total risk upon the goods in one building $1,600. This was a rule'made by the company for the government of its officers and agents, but it was not made known to Mrs. Krunam. It does not excuse the company from liability under the circumstances of this case.

Judgment of district court reversed.


author: By the Court.

text:
    Pearson v. Pierce.
    Error to District Court of Miami County.

      M. B. Barnhart and Walter S. Thomas, for plaintiff in error.

      Byrlcett Wright, for defendant in error.
   By the Court.

On March 13, 1880, P. and others‘filed a petition in error in the supreme court, and duly caused a summons in error to be then issued to the sheriff of Miami county. No evidence of either service or return is furnished by the docket of the supreme court or of the sheriff. October 17, 1888, plaintiffs in error presented to the court an affidavit made by one Miller, who states that during the year 1880 he was deputy sheriff of Miami count}’', Ohio, and “ to the best of his knowledge and belief * * ■ * ” sometime in April or May of said year, as such deputy sheriff, he served a summons in error “by copy, on the attorneys of record of said defendant in error and due return of said service was made by him on said writ and deposited in the post-office at Troy, Ohio, directed to the clerk of the supreme court of Ohio.”

Held: Sucli affidavit does not give this court jurisdiction of the defendant in error.

Motion to dismiss sustained.


text:
    Ryan v. Miller.
    Tn an action of replevin by M. against R., a constable, for goods levied upon under an execution, which were claimed as exempt from levy and sale, where it appeared that the wife of M. owned a house ami lot which had been occupied as a family homestead, but from which M. and his family had removed before the levy.

      Held'. That M., after he had removed his family from the house and lot of his wife, and no longer occupied it as a homestead was entitled to the exemption provided for in section 3 of the act of April 9, 1SG9 (60 Ohio L., 50).
    Error to the District Court of Lucas County.

      O. -F. France and F. II. Fhoades, for plaintiff in error. FcJcerb Fckert, for defendant in error.
   McCauley, J.

The plaintiff in error as. constable levied upon a small stock of merchandise owned by defendant in' error. Defendant'in error brought suit in replevin for the goods, claiming them as exempt from levy and sale under section'3 of the act of April 9, 1875 (72 Ohio L., 50).

• On the trial below it appeared that the defendant in error was not the owner of a homestead; but that- his wife owned a house and lot which had been occupied by him and his. Jamilyas a homestead; but that he had removed from it some time before his goods were levied upon and had taken up his family residence in another place.

The claim of the plaintiff in error in the court below was,; that if the propertjr of the wife of defendant in error could llave been used and occupied by him and his family as a-homestead, and he had removed from this property to'enable him to claim his goods as exempt in case., they should be levied upon, lie was to be considered as-having a hoihestead, and not entitled to the exemption he claimed.

The court instructed the jury, “that if he, the defendant in error, or his wife Iras a homestead, or if she has property in which they might claim a homestead, then he cannot claim his exemption in this case.” And further, “If they had abandoned it, the. homestead, plaintiff had a right to these goods; if they had not abandoned it, then he had no right to the goods.”

In Dwinell v. Edwards, 23 Ohio St., 603, it was held that when real estate occupied as a family homestead, is owned either by the husband or the wife, neither can hold exempt from execution the personal property allowed by the act in lieu of a homestead.

In this case the real estate of the wife was not occupied as a family homestead. And the fact that it had been abandoned whether for temporary or fraudulent purposes was of no consequence in determining the rights of the husband to the exemption claimed. While it remained the property of, the wife, the husband could not control it. If he had owned it and could have controlled the occupancy of it, his abandonment might have been a question affecting his right to the exemption claimed.

The instructions to the jury attached the same consequences to the abandonment of the property of the wife as to the abandonment of the same property if the husband had owned it. In effect, that the removal from property over which the husband had no control was the same as the removal from property which, while he had abandoned it as a homestead, was yet.under his control and might be occupied by him as a homestead at bis will.

In this respect the instructions to the jury were wrong.

Judgment of district court affirmed.