author: Williams, J.

text:
    Trust Company v. Floyd et al.

      Agency — Personal liability of agent — Corporations—Board of directors— When may be chosen — When directors liable personally for obligar tions contracted in corporate name,

    1. A person who contracts as agent, without having in fact authority to do so, is personally responsible to those, who, in ignorance of his want of authority contract with him, though he acts in good faith, believing that he is invested with such authority.
    2. This liability is founded upon the implied promise of the person so contracting as agent, that he has authority to hind the principal; and the measure of damages, is the loss sustained by the other contracting party by reason of his not having the valid contract which the agent assumed to make.
    3. The corporate powers, business, and property, of corporations formed for profit, must be exercised, conducted, and controlled, by a board of directors, who cannot be chosen until ten per cent, of the capital stock specified in the articles of incorporation has been subscribed. Persons contracting as directors, when less than that amount of stock has been subscribed, are without authority to create any corporate obligation, and become personally liable, though they believe in good faith that they are contracting in behalf of a legally constituted corporation, and that they have authority to bind it by the contract.
    (Decided Oct. 28, 1890.)
    Error to tbe Circuit Court of Jefferson county.
    Tbe original action was commenced in tbe Court of Common Pleas of Jefferson county on tbe 3rd day of January, 1885, by Tbe Farmers’ Co-operative Trust Company, tbe plaintiff in error, against John Floyd, Davidson S. Gault, John Medill, A. C. Ault, and John F. Hartshorn, who are tbe defendants in error here, and William M. Lee, J. D. Whitham, Benjamin Griffith, R. C. Yance, S. N. Orr, John Farris, John Coad, Nathaniel Wells and Yirginius P. Duvall.
    Summons was duly served upon those, who are defendants in error in this court, but no service was obtained upon the other defendants in the action below.
    On the 8th of May, 1885, the plaintiff filed an amended petition, which (omitting the caption), is as follows:
    “ The said plaintiff complains of the said defendants and says, that it is a corporation duly organized under the laws of, and doing business in, the state of Pennsylvania; that the said defendants, from the 6th day of May, 1878, until the 11th day of April, 1883, were associated together in the buying and selling of wool, and doing a general merchandizing business in wool, under the name and style of “The Wool Growers’ Exchange; ” that the places of business of said association were at Steubenville, Jefferson county, Ohio, and the city of Philadelphia, state of Pennsylvania; that in the formation of said association the said defendants, John F. Hartshorn, Nathaniel Wells, S. N. Orr, Benjamin Griffith, William M. Lee, J. D. Whitham, A. C. Ault, Davidson S. Gault, Virginius P. Duvall and John Floyd, undertook in their names as incorporators to organize a corporation for said association under the laws of the state of Ohio, under the name of “The Wool Growers’ Exchange,” and did obtain a pretended certificate of incorporation from the secretary of state of the state of Ohio, for that purpose, but said plaintiff avers that said defendants, or either of them, or any person for them or on their behalf, never had or procured said association to be properly or legally incorporated under the laws of the state of Ohio, or of any other state. Said plaintiff avers that said pretended incorporators set forth in their said pretended certificate, filed with the secretary of state, that the capital stock of said organization shall be fifty thousand dollars ($50,000), and yettlmp, said pretended incorporators, gave notice to the pretended stockholders to meet for the purpose of choosing directors, when less than $3,000 of the capital stock had been subscribed, and less than $2,000 of the capital stock paid in, and said pretended stockholders, including said incorporators, did meet on the 19th day of June, 1878, and held an election under said notice and elected said defendants, William M. Lee, president; John Floyd, vice-president; J. D. Whitham, treasurer; Benjamin Griffith, secretary, and Davidson S. Gault, R. C. Vance, S. N. Orr, John Medill, John Farris and John Coad, directorsuf said pretended corporation. Plaintiff says that afterwards, to wit: March 16,1881, the said defendant, A. C. Ault, was added to said pretended board of. directors.
    Plaintiff says that at no time has there been more than $3,000 of the pretended capital stock of $50,000 of said pretended corporation subscribed, nor more than $2,000 paid in, and that all of said defendants, incorporators, officers and directors, knew during all the time they conducted the business of said association, that not more than $3,000 of the capital stock had been subscribed, and not more than $2,000 paid in. Said plaintiff further says that said incorporators, nor any of them, nor any person for them, gave any notice by publication of the opening of the books of said corporation for subscription to the capital stock; neither were the books ordered opened, nor in fact opened for subscription to the capital stock. Said plaintiff further says that from the time of the organization of said pretended corporation or association, until its close by assignment on the 11th day of April, 1883, said defendants had control of the affairs of said association and did a large business in the buying and selling of wool, amounting to thousands of dollars annually, borrowed large sums of money, contracting a large indebtedness. Plaintiff further says that on or about April 1, 1881, said defendants removed the business of the said association to Philadelphia, state of Pennsylvania, contrary to the provisions of the pretended charter of said association. Plaintiff says that between the 1st day of August and the 1st day of December, A. r>. 1882, it sold to said defendants, doing-business under the name of “ The Wool Growers’ Exchange,” as aforesaid, 31,840 pounds of wool, which was delivered to said defendants at the city of Philadelphia, state of Pennsylvania, and that on the 8th day of January, 1883, there was a balance due said plaintiff from said defendants, on account of said wool so sold and delivered to them, the sum of $3,195. Plaintiff says that the said pretended charter obtained by said defendants was under the act of the general assembly of the state of Ohio, entitled an act supplementary to an act entitled an act to provide for the creation and regulation of incorporated companies in the state of Ohio, passed May 1,1852, passed April 13,1867, as amended April 20, 1874, as amended April 11, 1876, as amended March 12, 1877, as amended March 28, 1878, and that said pretended charter sets forth the object of said Association as follows: “That we have associated ourselves together for the purpose of forming an organization to establish a wool house and handle wool, merchandise, produce, and furnishing supplies to wool growers and others on commission and purchase or sale, or in such other manner as will be for the best interest of the stockholders herein, and to do a general commission business in the articles above enumerated, and also for the purpose of disseminating through bureaus or journals useful knowledge and information pertaining to the improvement and protection of wool growing interests.” Plaintiff says that under said pretended charter and said act of the general assembly of the state of Ohio under which the said pretended charter was obtained, said defendants had no authority or power as a corporation to buy or sell wool, and that therefore all of said acts of said defendants in a pretended corporate capacity in the buying and selling of wool, and in the buying of said wool from said plaintiff were ultra vires and invalid. Plaintiff says that said defendants on the 8th day of January, 1888, through said defendant, J. D. Whitham, their agent, executed and delivered to plaintiff, as evidence of said indebtedness, a promissory note, of which the following is a true copy:
    “ Cochrantown, Pa., Jan. 8, 1883.
    “ March 20th after date, for value received, we jointly and severally promise to pay to The Farmers’ Co-operative Trust Company, or order, thirty-one hundred and ninety-five dollars, with interest, and in case of default of payment at maturity, an additional five per cent, for the collection of the same. And we jointly and severally empower any attorney of record in this commonwealth, or elsewhere, to appear for us, or either of us, and confess judgment against us, or either of us, for the same and accrued interest, together with said five per cent, attorney’s fees, with costs of suit, release of errors, and without stay of execution; and for value received we jointly and severally do waive the right and benefit severally of any law of this or any state exempting property, real or personal, from sale, and if levy is made on land, we do also jointly and severally waive the right of inquisition, and consent to the condemnation thereof, with full liberty to sell the same on fi. fa. with release of errors thereon.
    “ J. D. Whitham, Treas.

      “ J. D. Whitham.”
    Plaintiff further says that no part of said sum has been paid.
    Plaintiff says that at the time of the sale of said wool, and the acceptance of said promissory note, it had no knowledge of the manner in which said defendants were conducting said business, but relied upon all the members of said Association, jointly and severally, for tbe payment of their said claim. Said plaintiff further says, that said Wool Growers’ Exchange, as a corporation or association, is wholly insolvent, having no property whatever, out of which it can make its said claim, and that the debts against said Wool Growers’ Exchange are more than $40,000. Plaintiff says that at the time of the selling of said wool and the issuing of said promissory note as aforesaid, all of said defendants were the active business managers of said association and had full knowledge of the failure of said association as aforesaid to obtain and carry into effect a complete charter, and had also full knowledge that the buying or selling of wool was beyond the scope and authority of said pretended corporation as aforesaid. Plaintiff avers that said defendants, J. D. Whitham, R. C. Yance, S. N. Orr and A. C. Ault, did business under their initials and that plaintiff does not know and cannot ascertain their full name. Plaintiff therefore says that said defendants are jointly and severally indebted to said plaintiff, in the sum of $3,195, with interest from the 8th day of January, A. D. 1883. Wherefore plaintiff prays judgment against said defendants, and each of .them, for said sum of $3,195, with interest upon the same from the 8th day of January, 1883, and costs of suit.”
    Hartshorn made default; the other defendants who were served with process, demurred generally to the amended petition, and after the demurrers were overruled, filed a joint answer, controverting all the allegations of the petition except the averment of the plaintiff’s incorporation.
    The plaintiff, upon the trial, obtained a verdict for the full amount claimed in the petition.
    The court overruled the motion filed by the answering defendants for a new trial, and rendered judgment against them on the verdict, and also rendered judgment against Hartshorn on default, for the same amount.
    A bill of exceptions was duly taken by the defendants, from which it appears, that at the trial, the parties gave evidence tending to prove, on their respective parts, the issues joined by the pleadings. To enable the plaintiff to recover, under the instructions given by the court to the jury, it was necessary for them to find, that there had not been subscribed to the capital stock of “ The Wool Growers’ Exchange,” an amount equal to ten per cent, thereof; that the plaintiff was ignorant of this defect in the incorporation; and, that the defendants themselves, or through an agent appointed by them, actually participated in the transaction with the plaintiff, set forth in the petition.
    The burden of establishing these facts, the jury were instructed, was on the plaintiff.
    The defendants requested that certain instructions be given to the jury, which, together with the action of the court with respect to them, are set out in the bill of exceptions, as follows.:
    “ I am requested by counsel to charge the following propositions :
    “ Proposition I. If the said Medill, Eloyd, Ault and Gault, who have filed a joint answer herein, under all the circumstances of the case, without negligence on their part, believed, and had a good right to believe, that the condition as to the subscription of $5,000 of the capital stock of The Wool Growers’ Exchange, had been complied with prior to the election of officers, then they are not liable to plaintiff, if the articles of incorporation were duly filed with the secretary of the state of Ohio, and said Wool Growers’ Exchange did proceed to carry on, and did carry on the business for which they were incorporated.”
    This, gentlemen, I refuse to charge — mere belief is not sufficient.
    I am also requested by defendants to charge as follows:
    “ Proposition II. If you are satisfied, from the evidence in this case, that the defendants answering in this case, knowingly and with the design to defraud the public generally, combined together and held forth false and deceptive colors, and did acts which are wrong and have thereby injured the plaintiff, they must make him whole by responding to the full extent of that injury, and the act of incorporation in such case, when the same is defective, and the organization thereunder was effected without the requisite amount of .•stock subscribed, will not protect the defendants from such liability. But if, on the contrary, you are satisfied from the .evidence that the said defendants, in good faith and without ¡negligence, proceeded to the organization of the corporation and thereafter carried on business as a corporation in good faith, believing and having cause to believe that the requisite amount of stock had been subscribed, and that the corporation was otherwise regularly organized, then, and in such case, the act of incorporation will protect them from personal liability in this action to the plaintiff, although in fact it should now turn out that the organization was effected when less than the requisite amount of stock had been subscribed.”
    “ This I refuse. Actual fraud on the part of the defendants is not essential to the case of the plaintiff, nor will good faith and sincere belief alone afford a shield.”
    The defendants excepted to the refusal of the court to instruct the jury as requested by them, and also excepted generally to the charge given; and those of them,against whom judgment was rendered, (except Hartshorn, who, refusing to join as a plaintiff in error, was made a party defendant,) prosecuted error to the circuit court, where the judgment was reversed, upon the following grounds as stated in the journal entry
    “ First. — The court of common pleas erred in overruling the separate demurrers of plaintiffs in error to the amended petition of defendant in error, The Farmers’ Co-operative Trust Company.
    “ Second. — The court of common pleas erred in refusing to give the propositions numbered one and two of the requests of the plaintiffs in error to the jury as requested by plaintiffs in error, and in the charge as given by the court to the jury so far as inconsistent with said requests.”
    It is sought by the present proceeding in error, to reverse the judgment of the circuit court, and have that of the common pleas affirmed.

      John M. Oook, Estep $ Fstep, and A. H. Battin, for plaint- • iff in error.

      1. The claim of plaintiff in error is that the subscribing of the ten per cent, of the capital stock was a condition precedent to the commencement of the business by the association, and that if ten per cent, was not subscribed, these parties, defendants in error, who conducted the business, made themselves individually responsible for all liabilities incurred, and that the question of fraud had nothing to do with it; that if ten per cent, was not subscribed before directors and officers were elected, it was the duty of defendants in error to have known it, and their simple belief could not effect the matter. If there was a corporation by the issuing of the certificate, it was a lifeless thing until the ten per cent, was subscribed. Sections 10 and 44, Act of March 21, 1851; Swan & Critchfield, 168; Medill v. Collier, et al. 16 Ohio St. 599; Bank v. Hall, 35 Ohio St. 158; Navigation Company v. Eagle, 29 Ohio St. 238.
    2. That it was necssary to have ten per cent, capital stock, bona fide, subscribed, seems to us to be settled in Ohio. Chamberlain v. Railroad Company, 15 Ohio St. 225; Railroad Company v. Smith, 15 Ohio St. 328; Swan & Critchfield Statutes, vol. 1, page 276, sections 5, 6 and 9; Jewett v. Railroad Company, 34 Ohio St. 601; Powers v. Railroad Company, 33 Ohio St. 429; Fay et al. v. Noble et al., 7 Cush. 194; Fuller v. Rowe, 57 N. Y. 23; Coppin v. Greenlee, 38 Ohio St. 279, 280.
    3. Directors and Managers of a corporation are agents, and governed by the rules of law respecting agency. Thompson on Liability of Officers and Agents of Corporations, sections 77, 78 and 79, and 351, 352, 353, 395 and 401; Field on Corporations, sections 156 and 178; also 79, 80 and 81; Story on Agency, section 264.
    4. When can a corporation commence business ? Morawetz, Vol. 1, section 29-57, 137 and 408, and vol. 2, section 738.
    5. These directors had no authority to act for the corporation. Morawetz, section 583; they were not officers defaeto. Morawetz, vol. 2, section 640.
    6. If the corporation or its agents would be estopped from denying its or their authority, yet there is nothing to estop plaintiff in error from claiming that defendant in error had no principal behind them. The law provides that directors shall not be elected until ten per cent, of the capital stock is subscribed. Hence the attempt to elect officers was void, not voidable, and all acts of the agents were equally void. Morawetz, vol. 2, sections 654, 655, 656, 657, 658, 659 and 661.
    7. It is the settled law of corporations- in other states, that the subscription of the amount of the capital stock required by the charter, must be made before any calls can be made upon the stock for the general purposes of the corporation, or before the corporation commences business. This is absolutely a condition precedent. Cases cited supra. Also Salem Mill Dam Company v. Ropes, 6 Pick. 23; 9 Pick. 187; Stoneham Branch R. R. Co. v. Gould, 2 Gray, 277; Redfield on Railways, section 18 on pages 1 and 2 and notes.
    8. The plea of de facto corporation almost always implies the doctrine of estoppel. These parties, to shield themselves, are seeking to get behind a charter which they procured and then violated. A stranger contracting with the corporation might plead it was a de facto corporation, but these parties are estopped from taking advantage of their own wrong. It would be a fraud to permit them to do so. Lawler et al. v. Walker et al., 18 Ohio, 156 and 157; Bartholomew v. Bently et al., 1 Ohio St. 37; Straus & Bro v. Insurance Company, 5 Ohio St. 60; Bank of Chillicothe v. Swain, 8 Ohio, 287; Kaiser v. Savings Bank, 41 American, 85; Railroad Co. v. Stout, 26 Ohio St. 241.
    9. If defendants in error did not know that the ten per cent, of the capital stock was not subscribed, they might have known; it was their business to know, hence they are responsible. Seale v. Bank, 20 Law Bulletin, 50; Cole v. Cassidy, 138 Mass. 437; Jewett v. Railway, 34 Ohio St. 601, supra; Bray v. Farwell, 81 N. Y. 600; Morawetz, vol. 1, sections 408, 410, 57, 137, 140 ; Vol. 2, sections 738, 823; Chamberlain v. Railway, 15 Ohio St. 225, supra; Revised Statutes, 3235; Coppin v. Greenless, 38 Ohio St. 279 and 280.
    10. The powers of a corporation after it receives its certificate, fall into two classes, such as may be exercised before, and such as cannot be until-after the election of directors.
      Powers v. Railway Co., 88 Ohio St. 432; Railway Co. v. Smith, 15 Ohio St. 328.
    11. Persons who carry on the business of a corporation before it is legally authorized to transact business, are personally liable for debts contracted by them. Medill v. Collier, 16 Ohio St. 599, supra; Kaiser v. Lawrence Savings Bank, 41 American, 85.
    12. There being in law no corporation authorized to transact business, there is no principal, and the agent is personally bound on the general doctrine of agency. Story on Agency, section 264; Angelí & Ames on Corporations, section 303. 13. The doctrine of estoppel has no application to a case like this. It is not a case where one has dealt with a corporation, and received its property or money, and then refused to pay because it was not legally incorporated. Lucas v. Savings Institute, 22 Ohio St. 339; Goodwin et al. v. Evans, 18 Ohio St. 150 and 168; Warner v. Collender et al., 20 Ohio St. 197; Newburg Petroleum Co. v. Weare et al., 27 Ohio St. 354; Callender et al. v. Railway. Co., 11 Ohio St. 526; Morawetz on Corporations, sections 743, 781 and 631; 22 N. Y. 494; Hays v. Galion Gas Light Co., 29 Ohio St. 330 and 340; Morawetz, vol. 2, 610 and 923; Thomas v. Railroad Co., 101 United States, 71.

      W. P. Hays and I. E. Baton, for defendants in error.
    1. We claim that before the defendants can be held responsible, they must have been guilty of fraud. 9 W. Va. 580; Bartholomew v. Bently, 15 Ohio, 659; Thompson on Liability of Officers, 401; 12 Gray, Mass. 203; Taylor on Corporations, section 623; Spearing’s Appeal, 71 Penn. 11; 38 Ohio St. 270.
    2. And we contend that the subscription of ten per cent, stock, is not a prerequisite to corporate existence or to the right to carry on business. State ex rel. Pugh v. Robinson et al., 12 O. L. Bulletin, 269; Eaton v. Aspinwall, 19 N. Y. 119; Bank v. Hall, 35 Ohio St. 159.
    3. The Wool-Growers’ Exchange, having assumed, by entering into the contract with plaintiff, to have requisite power, and plaintiff having dealt with the corporation as a corporation, both parties are estopped to deny it. Stout v. Fulick, Central Reporter No. 5, page 335; 2 Blackford Ind. 367; Worcester Med. Inst. v. Harding, 11 Cush. 285; 31 Ind. 268; 6 N. H. 164; 27 Ohio St. 343; Taylor on Corporations, section 739; Angell & Ames on Corporations, section 635; Whitney v. Wyman, 101 U. S. 392.
    4. Defendants contend also that they are protected in the absence of fraud from the debts of the corporation, because it, The Wool-Growers’ Exchange, was a defacto corporation. 43 Ohio St; 481; 38 Ohio St. 269.
    5. We claim that the authorities teach that there are only four classes of cases where corporate officers can be liable for the debts of the corporation, where injury results: 1. Where their acts are malum in se; 2. Where their acts are prohibited by law; 3. Where the statute under which the corporation is organized, provides for a liability against the officers; 4. Where their acts are fraudulent. Medill v. Collier et al., 16 Ohio St. 599; Angell & Ames on Corporations, 591, 595, 596, 599, 605, 606 and 607; Whitney v. Wyman, 101 U. S. 392; Humphreys v. Mooney, 5 Colo. 283; Stout et al. v. Fulick et al., Central Reporter No. 5, 333; Gartside Coal Co. v. Maxwell, The Reporter, vol. 19, page 106.
   Williams, J.

The circuit court, it appears from the record, reversed the judgment of the court of common pleas, because of alleged errors in overruling the demurrers to the amended petition, and refusing the instructions which the defendants requested to be given to the jury. It sufficiently appears from the petition, that in 1878, the defendants attempted to form, under the laws of this state, a corporation called “ The Wool Growers’ Exchange,” for the purpose, as declared in the articles of incorporation, of dealing in “ wool, merchandise, produce, and furnishing supplies to wool growers and others, on commission, and purchase or sale, and to do a general commission business in the articles above enumerated; and, also for the purpose of disseminating, through bureaus or journals, useful knowledge and information pertaining to the improvement and protection of wool growing interests.” The amount of the capital stock was fixed at fifty thousand dollars, in shares of ten dollars each. When less than three thousand dollars of stock had been subscribed, and less than two thousand dollars paid in, an election was held by the defendants and others, at which the defendants were chosen as directors of the concern. These directors organized, by selecting from their number, the customary officers of a corporation. Thereafter, in 1882, while the defendants against whom the judgment in the case was rendered, were acting as such directors, controlling and managing the business of “The Wool Growers’ Exchange,” wool was purchased in its name, from the plaintiff, to the amount averred in the petition; and the balance of $3,195 of the purchase-price, for which, with interest, the plaintiff recovered judgment, remains unpaid. The defendants had knowledge that ten per cent, of the stock of the corporation had not been, and never was subscribed or paid in, but the plaintiff was ignorant of that fact. There is no allegation in the petition that the defendants were actuated by any fraudulent purpose, or had any design to cheat or defraud the plaintiff. Without such purpose or design, it is claimed, that the defendants could not be made liable, and therefore the lack of such averment is a fatal defect in the petition. Whether it be so, or not, is the question raised by the demurrers. The instructions refused, present a question somewhat different in form, though much of the same nature, which is, whether a personal liability was incurred by the defendants, if, in the transaction with the plaintiff, they acted in good faith, believing that the requisite amount of stock to authorize the organization of the corporation had been subscribed.

Upon both questions, the circuit court held with the defendants, and if its holding upon either was correct, its judgment must be affirmed.

A somewhat extended examination has satisfied us, however, that upon neither, is the decision in harmony with the great weight of authority. The courts of this country, and of England, with few exceptions, adhere to the doctrine so clearly laid down by Mr. Justice Story in his commentaries on the Law of agency, where it is said: “ wherever a party undertakes to do any act, as the agent of another, if he does not possess any authority from the principal therefor, or if he exceeds the authority delegated to him, he will be personally responsible therefor to the person with whom he is dealing for or on account of his principal. There can be no doubt, that this is, and ought to be, the rule of law in the case of a fraudulent representation made by the agent, that he has due authority to act for the principal; for it is an intentional deceit. The same rule may justly apply, where the agent has no such authority, and he knows it, and he nevertheless undertakes to act for the principal, although he intends no fraud. But another case may be put, which may seem to admit of more doubt; and that is, where the party undertakes to act, as an agent, for the principal, Iona fide, believing that he has due authority; but, in point of fact, he has no authority, and, therefore, he acts under an innocent mistake. In this last case, however, the agent is held by law to be equally as responsible, as he is in the two former cases, although he is guilty of no intentional fraud or moral turpitude. This whole doctrine proceeds upon a plain principle of justice; for- every person, so acting for another, by a natural, if not by a necessary, implication, holds himself out, as having competent authority to do the act; and he thereby draws the other party into a reciprocal engagement.....If he has no such authority, and acts Iona fide, still he does a wrong to the other party; and if that wrong produces an injury to the latter, owing to his confidence in the truth of an express or implied assertion of authority by the agent, it is perfectly just, that he who makes such an assertion, should be personally responsible for the consequences, rather than that the injury should be borne by the other party, who has been misled by it. Indeed, it is a plain principle of equity, as well as of law, that where one of two innocent persons must suffer a loss, he ought to bear it, who has been the sole means of producing it, by inducing the other to place a false confidence in his acts, and to repose upon the truth of his statements.” Story on Agency, section 264. In the note to this section, many cases which sustain the text are cited. And in the notes to Thompson v. Davenport, in Smith’s Leading Cases, vol. 2, pt. 1, commencing on page 408 of the eighth edition, a number of cases on the same subject are collected. In addition to those, others might be referred to, among them the following: Walker v. The Bank of the State of New York, 9 N. Y. 582; White v. Madison, 26 N. Y. 117; Weave v. Gore, 44 N. H. 196.

In the last case cited above, it is held, that “ although no fraud or wrongful motive can be imputed to the agent, still his act is an affirmation that he has authority to make the contract, and he may justly be held responsible for the truth of it; and it is no more than reasonable that he should suffer the consequences of his mistake, rather than the party who is misled by it, because, before holding himself out as such agent, it is his duty to ascertain whether his claim so to act is well founded or not; and he surely cannot be heard complain that others have confided in his assertion of authority, and upon the strength of it have entered into reciprocal engagements with him. Even if wholly innocent of any wrongful purpose, his case falls within the familiar principle, that when one of two innocent persons must suffer a loss, it ought to be borne by him who has been the means of causing it, by inducing the other to confide in the truth of his representations.”

While, however, the authorities generally agree that a person, who, without having in fact authority to make a contract as agent, yet does so under the bona fide belief that such authority is vested in him, is nevertheless personally reponsible to those who "contract with him in ignorance of his want of authority, a diversity of opinion is found in the cases in regard to the exact nature of the liability, and the character of the action by which it may be enforced. In Jenkins v. Hutcheson, 13 Ad. & E. 746, it is intimated by Eble, J., that an action of deceit would lie in such cases, notwithstanding the good faith of the agent, and some authorities may be found to that effect. Another class of cases hold that the liability is upon the contract; but, it is believed that whether the agent is so liable, depends upon the intention of the parties as discovered from the contract itself; and on this question, the form of the agreement, and the mode of signature maybe quite conclusive. The rule, on this subject, as stated in Story on Agency, is, that an agent cannot be sued on the very instrument itself, as a contracting party; unless there be apt words to charge him. Section 264a. Still another class of eases establish the rule, which we are inclined to adopt, that in cases like the one we are considering, the agent is liable upon his implied promise that he possesses the authority he assumes to have. Smith’s Leading Cases, vol. 2, pt. 1, 408, (eighth ed.,) and. cases there cited. Lewis v. Nicholson, 88 Eng. C. L. 512.

In White v. Madison, supra, in learned opinion it is held, that the liability of the agent in such cases, rests upon the ground that he warrants his authority, and not that the contract is to be deemed his own.,

Bartholomew v. Bently, 15 Ohio 659, is referred to, as establishing, both that the liability of the agent in cases of this kind,is founded on fraud, and, that the petition should charge a fraudulent intent in direct terms. That was an action in case, for deceit, under the practice which prevailed before the adoption of the code of civil procedure. The questions arising upon the demurrer,related to the form of the remedy, and the sufficiency of the declaration in such an action. They are stated by Bie.char.3d, J., to be: “ First — Can a special action on the case for fraud, which has resulted in damage of the plaintiffs, be maintained in a ease like this, upon sufficient declaration ? Second — Is this declaration good upon demurrer ? ” The court answers the first question in the affirmative, and in speaking of the declaration says: “ The objection taken by counsel is a want of certainty. The action is founded on a fraudulent combination, and for holding out false colors at the commencement of the banking operations, and at various subsequent periods. The only direct charge of a fraudulent intention is in the withdrawal of the funds, and this, for aught that appears, may have been long since the bills in plaintiff’s hands were issued.....It is thought that the averment of a fraudulent design should have been made in positive terms, as to each specific act relied upon to sustain the action.” Under the practice then in force, pleadings were subject to demurrer, unless they were appropriate in their form and allegations to the particular action pursued; and we do not understand it to be there decided, that no other action, could be maintained on the facts of that case. A different action was maintained in Medill v. Collier, 16 Ohio St. 599, which, so far as the grounds upon which the liability of the bank directors was placed, is not greatly dissimilar to the case before us.

Under our present system of pleading, it is not important what was formerly the most appropriate remedy. Upon the facts stated in the petition, the law, we think, implied a promise on the part of the defendants, that in making the contract with the plaintiff, they had authority to bind the corporation they assumed to represent; and if they had not, they are answerable for the consequences. That they were without such authority seems clear. It was held by this court in Bartholomew v. Bently, 1 Ohio St. 37, that while mere irregularities in organizing a corporation would not subject the officers to private liability, to protect them from such liability, the provisions of the act of incorporation must be substantially pursued. By our statutes, under which the proceedings were taken for the formation of the corporation referred to in the petition, the corporate powers, business, and property of corporations formed for profit, must be exercised, conducted, and controlled by a board of directors, all of whom must be stockholders; the articles of association must state the amount of the capital stock, and the number of shares into which it is divided; and at least ten per cent, of that amount must be subscribed, before directors can be chosen. So that, the subscription of the necessary amount of the capital stock to authorize the election of directors, is not only a matter of substance, but is essential to the organization of the corporation, and necessary to the transaction of business by it. It is the security which the law requires shall be provided, before the corporation enters upon its business, for the protection of those who may deal with it. The statutory liability of the stock subscribers, is an additional security. In the effort to form the corporation in question, neither of these securities was provided. Counsel contend, that it is, nevertheless, a corporation de facto, and estopped to deny its liability to the plaintiff. If it were, it is not readily perceived how this would aid the defendants. Until there were stock subscriptions to an amount warranting the organization, the subscribers could not be compelled to pay beyond the sum required at the time of the subscription; nor would the statutory liability attach, unlessn there were some ground of estoppel, not appearing in this case. The implied undertaking of the defendants, was, that they represented a corporation with the capital stock required by law; while the one to which they insist the plaintiff shall be compelled to resort, was, if a de facto corporation, so only in name, without substance or capacity ; and if the doctrine of estoppel could be brought to the aid of the plaintiff against it, the defendants are not in a position to require a resort to that remedy, to relieve them from the liability they have incurred.

The case appears to have proceeded in the trial court, upon the theory, that if the defendants were liable at all, the amount which the plaintiff was entitled to recover, was the balance due on the contract. This was not necessarily the measure of recovery. As we have already seen, the action in such cases is not founded on the contract made for the supposed principal, but on the implied promise of the agent that he had authority to bind the principal; and the damages which may be recovered for its breach, is the loss sustained by the plaintiff by reason of his not having the valid contract which the agent undertook that he should have. The damages may sometimes exceed the amount due on the contract made in the name of the principal, for it is held,they may include the costs and expenses of an unsuccessful action against the principal to enforce the contract. White v. Madison, supra ; Simons v. Patchett, 7 E. & B. 568; Collen v. Wright, Id. 301; 2 Smith’s Leading Cases, 410.

In Morawetz on Corporations, it is said, that the measure of damages, in an action against the directors or officers of a corporation, who induce a person to deal with it, before the capital indicated in its charter has in fact been provided, is the loss sustained “by reason of the difference between the capital which he actually received, and that which he was entitled to expect.” Under this rule, we think, the plaintiff might properly recover the balance remaining unpaid on the purchase-price of the wool sold. Prima facie, that is the amount of the plaintiff’s loss, and it does not exceed the amount of the capital which the corporation was required by law to have before it could be represented by directors, and which the defendants, by assuming to act for it, undertook that it did have. It is true the petition alleges that the corporation is insolvent, with an indebtedness exceeding ten per cent, of the capital stock; but whether the claims of other creditors stand upon a like footing with that of the plaintiff, or can, or will be enforced against the defendants, does not appear. Besides, if the proper stock subscriptions had been obtained, the corporation might not have become insolvent; or before it did, the plaintiff’s claim might have been paid or secured. If, in such case, the plaintiff could recover no more than a sum equal to the proportion of the capital which should have been provided, that his claim bears to the whole indebtedness contracted in the corporate name, it would be. necessary to take an account of the assets and liabilities, to determine the amount of the recovery. That rule applied to this case, would require that the defendants be charged with an amount equal to the necessary stock subscriptions, and the statutory liability of the subscribers, and that all the creditors be brought in to have their claims adjusted, before the amount of the verdict could be arrived at. The plaintiff has not sought to compel the defendants to provide a fund for the payment of other creditors who are not themselves asserting their claims, nor have the defendants complained because they were not compelled to do so.' Whether the defendants could, in the trial court, if they had deemed it to their advantage, have had the claims of all the creditors adjusted, the aggregate liabilities ascertained, and the total amount the defendants could be called upon to pay, determined, and apportioned among the creditors, we need not decide. They did not make that claim in the court below, nor do they make it here.

In our opinion, the court of common pleas committed no error in overruling the demurrers to the petition,-nor in refusing the instructions requested by the defendants.

The judgment of the circuit court is reversed and that of the court of common pleas affirmed.


source: Caselaw Access Project

author: Speab, J.

license: Public Domain

text:
    Herron v. Herron.

      Growing crops — When pass to wife, by decree for divorce and alimony.

    A growing crop, the annual result of agricultural labor, sown by a husband on his land pending a suit for divorce and alimony, brought by his wife, passes by a decree which gives the land to the wife as alimony, although such crop is not, in terms described or referred to in the decree.
    (Decided Oct. 28, 1890.)
    Erbob to the Circuit Court of Vinton county.
    The defendant in error brought her action before a magistrate against plaintiff in error, in trespass • for cutting and hauling away a crop of wheat upon lands that had been assigned to her as alimony, in an action brought by her against plaintiff in error (her then husband), for divorce and alimony, in the Court of Common Pleas of Vinton county. The crop in controversy, was sown after the suit was brought, and before decree, and was not mentioned or described therein. The cause was appealed to the Common Pleas Court of Vinton county, where defendant in error had judgment; taken on error to the circuit court and affirmed, and this proceeding is instituted to reverse the judgment of said courts.

      McGillivary Ooultrap, for plaintiff in error.
    Nothing should be held to have passed by the decree as realty, except what is in law and fact always realty; at least nothing should be held to have passed as realty that is generally personalty. In other words, the decree should be strictly construed, and nothing should be held to have passed by it that is not expressly named, unless it be such incidents of the realty as are always a part thereof.
    A growing crop of corn or wheat is not such an incident of realty. It may be part of the realty for some purposes, but it is generally to be considered as personalty. Baker v. Jordan, 3 Ohio St. 438, 444; Cassily v. Rhoades, 12 Ohio 88, 96; Houts v. Showalter, 10 Ohio St. 125; Gwynn on Sheriffs,, 220, 221; Revised Statutes, Sec. 5699; Petersine v. Thomas, 28 Ohio St. 599; Jenny et al. v. Gray, 5 Ohio St. 46.

      Rannells §• Darby, for defendants in error.
    1. We think that the court must have contemplated and judicially intended the growing crop of wheat to pass as a. part of the realty to the defendant in error, as much as. it intended that houses, trees, fences, etc'., on the land should pass, thereby; otherwise, while there would be a dissolution of the-marriage relation, there would not be that separation of property rights that public policy demands should take place in every case where the marriage relation is no longer conducive to the purpose for -which it was intended, andi is dissolved by the interposition of a court of equity. Petersine v. Thomas, 28 Ohio St. 599. The judicial mind could not have intended the substitution of the relation of landlord and tenant for that of husband and wife for the same reason of public policy; and further, for the reason that the relation of landlord and tenant is always the result of a contract, expressed or implied. Bouv. Law Die., title* “Landlord and Tenant;” Wash, on Real Prop., 468 ; Gear on Landlord and Tenant, section 1.

      2. If the relation of landlord and tenant did not exist (and we think it could not) between the parties after the divorce and alimony decree, then the entire growing crop belonged either to defendant in error or plaintiff in error. Wash, on Real Prop., 4; Galliher v. Fleury, 36 Ohio St. 590; Broadwell v. Broadwell, 21 Ohio St. 657; Swan’s Treatise, 163; Cassily v. Rhodes, 12 Ohio 88; Baker v. Jordan, 3 Ohio St. 438; Youmans v. Caldwell, 4 Ohio St. 72; 3 Wash, on Real Prop., 391; 1 Wash, on Real Prop., 9-10; American Law Register, Vol. 20, 618; Powell v. Rich, 41 Ill. 466; Tripp v. Hasceig, 20 Mich. 254; Backenstoss v. Stahler, 33 Penn. Sc. 254; Terhune v. Elderson, 3 N. J. Law, 726; Gibbons v. Dillingham, 10 Ark. 9; Bull v. Griswold, 19 Ill. 631; Talbot v. Hill, 78 Ill. 106; Bludworth v. Hunter, 9 Rob. 256; Bear v. Bitzer, 16 Penn. St. 175; Pitts v. Hendrix, 6 Ga. 452; Aldrich v. Reynolds, 1 Barb. Ch. 613; Lane v. King, 8 Wend. 584; Crews v. Pendleton, 1 Leigh. 297; Gillett v. Balcom, 6 Barb. 370; Bittenger v. Baker, 29 Penn. St. 68; Jones v. Thomas, 8 Blackf. 428; Shepard v. Philbrick, 2 Den. 174; Sherman v. Willett, 42 N. Y. 150; Murfree on Sheriffs, section 992; Bailey v. Bailey, Wright’s R.; Bascom v. Bascom, Wright’s R. 632; Amsdem v. Amsdem, Wright’s R. 66; Revised Statutes of Ohio, section 5703; Jenny v. Gray, 5 Ohio St. 46.
   Speab, J.

The question in this case is, whether a crop of wheat, sown on land by a husband after the commencement by his wife of a suit for divorce and alimony, passes to the wife by a decree which gives her the land as alimony, but which does not, in terms, describe or refer to the wheat?

Our statute relating to alimony, provides that where divorce is granted for the aggressions of the husband, the wife •shall be allowed such alimony out of her husband’s real and personal property, as the court shall deem reasonable, having •due regard to the property which came to him by the marriage, and the value of his personal estate at the time of the •divorce. -It was, therefore, competent for the court to adjudge this land to the wife as alimony, with the growing crop or without.

Growing crops, the annual result of agricultural labor, are part of the land in some eases, and in some not. Some text writers say that they are in most cases part of the land. They appear to partake of the nature of realty, inasmuch as they have root in the soil itself, and take up and absorb the substance and strength of the land while growing. And, at the same time, of personalty, as the land must be prepared and the seed sown by the husbandman, and the seed is personalty.This' court has said (Baker v. Jordan, 3 Ohio St. 438,) that they are generally to be considered as personalty. And yet, in a later case, Youmans v. Caldwell, 4 Ohio St. 72, Ken-non, J., says “they are generally to be considered as part of the realty.” Such crops are subject to levy and sale on execution. They may be sold without writing, and the title will pass. On the death of the ancestor they go to the personal representative, and not to the heir; this because they are treated as the result of labor and outlay incurred at the expense of the ancestor’s personal estate. They will not, in this state, pass with the land at judicial sale, nor at partition sale. So, too, such crops may be reserved by parol by the grantee who conveys the land, and if the parties to the deed signify their understanding that, as between them, the crop is personalty, the law will so regard it. Baker v. Jordan, supra. But, in case of sale and conveyance by the owner of the land, such crops, where sown by him, as between vendor and vendee, pass with the land unless reserved. A reason given for this rule is that the deed is to be construed most strongly against the grantor, and if the crop be not reserved the grantor is presumed to have intended it to pass with the possession. A further reason is found in the fact that, if it were otherwise, the purchaser of land would be subject to the intrusion of the vendor to gather the crop. In the absence of a reservation of the right to do this, such intrusion would be a trespass, and the anomalous situation would be presented of the ownership by one of personal property upon the land of another without right in the owner to enter and take it.

In the case before us there can be no presumption against the husband of intent to pass title to the wheat, for he resisted the wife’s claim throughout. On the other hand the crop cannot be treated as an away-going crop, or emblements, and, for that reason, personalty, for no relation of landlord and tenant exists between the parties. On the contrary, every relation has been severed by the decree of divorce. Nor do the cases declaring the law as to judicial sales control this case. The reason given for excluding growing crops from judicial sales is that all lands before exposure to sale, are required to be appraised, and the sale to be made for a sum bearing some proportion to its appraised value. Annual crops are not included in such appraisal, and hence to include them in the sale would be to give to the purchaser property which liad not been subject to appraisal; and that the debtor’s rights can only be protected by regarding the annual crops as personalty requiring a separate levy. Cassilly v. Rhodes, 12 Ohio 96. This rule must be taken as an exception to the ordinary rule on the subject, for, in states where lands are sold at judicial sale without appraisal, growing crops are uniformly held to pass to the purchaser, and in Indiana, where the appraisal laws are similar to ours, they are, nevertheless, held to pass with the land. So it has been held in other states that, as between mortgagor and mortgagee, where the latter obtains the absolute estate in fee of the mortgaged premises by becoming the purchaser under a foreclosure and sale, he is entitled to the growing crops, and may maintain trespass against the mortgagor, or his lessee, for taking them away. Lane v. King, 8 Wend. 584; Shepard v. Philbrick, 2 Denio 174; Jones v. Thomas, 8 Blackf. 428. See also, 4 Kent. 157.

From the foregoing it may be concluded that, as a general proposition, where the title and possession of land is transferred from one to another in such way as to clothe that other with a full title, the annual growing crops will pass unless the circumstances indicate a purpose to reserve them.

In the light of this principle let us examine the case before us. The decree of the court granting the wife a divorce was absolute. Henceforth their ways parted, and, in law, they were strangers. Considerations of propriety and public policy required, therefore, that as their personal relations had been severed, their property rights should in the future be separate and distinct. In this spirit the decree for alimony was made absolute. The court might have limited the estate, or the possessory rights, of the wife in the laud, but it chose not to do so. The land was allowed to her as reasonable alimony without reservation or qualification. No appraisal was had, or was necessary. Presumably, the court heard proof as to the extent and value of the husband’s possessions, and as to their condition, and was made aware of every circumstance which would enhance the value of those possessions. At least it was the defendant’s privilege, not to say duty, to acquaint the court fully with all facts which would enable the court to act intelligently in rendering judgment, and if he neglected that opportunity it is too late now for him to seek to better his case. If a reservation of growing crops was desired, then was the time to speak, just as a vendor, when making conveyance and giving possession, must then speak.

The iegal effect upon the allowance was to grant to the wife the entire interest of the husband in the land. It was not necessary that a conveyance should be made, because the decree itself operated as a conveyance, and the title passed to the wife eo instanti. This transfer of title was not by any act of the husband, but by the fiat of the court. Hence it is to the purpose of the court we must look, and not to the purpose of the husband. The decree is not difficult of construction. It explains itself. The title received by the wife was as full and ample as though a conveyance from the husband had been made, and she took a title in fee simple. Grallagher v. Fleury, 36 Ohio St. 590. She took as a purchaser. “ There are two modes only, regarded as classes, of acquiring a title to land: namely, descent and purchase; purchase including every mode of acquisition known to the law except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law.” Washburn on Real Property, vol. 3, p. 4. Being thus clothed with the full title to the land, and being by the decree, put in immediate and unqualified possession of it, her control over it was absolute. She might allow the crop to remain undisturbed until ripened for the harvest, or she might plow it under for the enrichment of the land, or turn on stock to feed upon the young wheat. Any right in a stranger to interfere with this entire control would be inconsistent with the full title and possession which the decree gave her. Again, if the husband could rightfully sow a portion of the land in wheat after the divorce proceeding was commenced, and thus acquire a right to the crop, nothing would, where circumstances favored, prevent his sowing the entire farm in wheat, and thus delay the wife's possession from October — ■ the date of the decree in this case — until the following summer.

Nor is this view, as we think, open to the. objection that it discourages agriculture. The crop on the land enhances the value of it, and the greater the value of each acre the fewer in number of acres will the court, having due regard, among other things, to the value of the husband’s real and personal estate at the time of the divorce, deem reasonable to be allowed to the wife. At all events, in such case, the husband sows with full knowledge that the land is liable to be adjudged to the wife, and that, when the crop ripens, he may have no right of entry to gather it. He is in the situation of a tenant who has by his own act brought his right of occupancy to a termination. He cannot claim profits, for it is by his own folly that he has sowed that which he could not reap.

We are of opinion that the decree gives the wife title to the land as a purchaser, and that she stands in regard to the crop of wheat in the attitude of a vendee receiving title and possession from a vendor without reservation as to the growing crop, and hence the husband had no interest in the crop after the decree, and no right to. enter upon the land to gather it.

Judgment affirmed.


author: Minshall C. J.

text:
    Stephenson v. Repp.

      Contract — Action for breach of — When accrues — Measure of damages.

    Where goods are purchased upon an agreement to give a promissory note for the price, payable in one year with interest, on a refusal of the purchaser to make and deliver the note after the goods have been delivered, the vendor may, without waiting for the expiration of the credit, maintain an action at’once for the breach of the agreement, and the measure of damages will be the price of the goods sold and delivered.
    (Decided Oct. 28, 1890.)
    Error to the Circuit Court of Mercer county.

      Armstrong & Johnson, for plaintiff in error.
    1. The vendor may sue immediately for breach of promise to give the note, and recover the agreed price as the measure of his damage, and this without averment or proof of matter involving substantial loss by reason of the 11011-delivery of the note. The non-delivery of the note forfeits the vendee’s privilege to the credit and the vendor may sue at once and recover the agreed value of the goods sold. In action for breach of contract, unaccompanied by tortuous circumstance, the end to be attained is reparation for the actual damage sustained.
    Common law precedents and-writers recognize the right of two actions in the vendor: 1. Special action on the case for non-delivery of the note, in which the vendor was required to plead and prove his actual damages peculiar to the breach, as loss of interest: 2. At the expiration of the time for the maturity of the note he was entitled to recover the agreed value of the goods sold. Story on the Law of Sales, section 236; Dutton v. Solomon, 3 B. and P. 582; Loring v. Gurney, 5 Pick. 15; Mussen v. Price, 4 East’s R. 147; Hunneman v. Grafton, 10 Metcalf 454; Martin v. Tuller, 16 Vermont 108; Scott v. Montague, 16 Vt. 164; Eddy v. Stafford, 18 Vt. 235; Hilliard on Sales, 233, 247; Congar v.
      Galena, 17 Wis. 477; Parker v. Mitchell, N. H. 165; Whitewell v. Vincent, 4 Pick. 449; Solomon v. Hathaway, 126 Mass. 482.

      A. J). Marsh and John W. Loree, for defendant in error.
    The only question before this court is: Does the petition state facts sufficient to constitute a cause of action ? •
    That an agreement to pay $800 by executing and delivering a promissory note for $800, to be due in one year therefrom and to bear interest at the rate of six per cent, from date, may be and is discharged by the payment of that sum in money, and that that sum is the amount of recovery or measure of damages if the note be not executed and delivered, is we think the law both on reason and authority. Trowbridge v. Holcomb et al., 4 Ohio St. 38; Newman v. McGregor, 5 Ohio 349; Morris v. Edwards, 1 Ohio 189; Sperry v. Johnson, 11 Ohio 453; Chipman on Contracts, 35 ; Pothier on Obligations, 497; Perry v. Smith, 22 Vt. 301; Smith v. Smith, 2 Johns. 235; Pinney v. Gleason, 5 Wend. 393; Brooks v. Hubbard, 3 Conn. 58; Baber v. Mair, 12 Mass., Mettler v. Moore, 1 Black 342; Stone v. Nichols, 43 Mich. 16; Davis Sewing Machine Co. v. McGinnis, 45 Iowa 538; Childs v. Fisher, 52 Ill. 205; County of Jackson v. Hall, 53 Ill. 440; Bicknell v. Buck, 58 Ind. 354; Moore v. Kiff, 78 Penn. 96, 100; Wheeler’s adm’r v. Wilkinson, Wright’s Report, 365: Parsons on Contracts, 3d Yol. (6th edition), star page 211; Hanna v. Mills, 21 Wend. 90; Reinhart v. Olwine, 5 Watts & Sergeant, 157; Manton v. Gammon, 7 Brad. 201-208; Girard v. Taggart, 5 Serg. & R. 19; Brooks v. Hubbard, 3 Conn. 58.
   Minshall C. J.

The suit below was for the breach of a contract that had been entered into between the parties, whereby the plaintiff had sold and delivered to the defendant his half interest in a certain steam saw-mill, engine and boiler, and some other personal property, for the price of $800, which the defendant had agreed to pay by executing his note for that sum payable one year after date, with interest at the rate of '6 per cent. The breach consisted in the refusal of the defendant after the sale and delivery of the property to make and deliver the note. A demurrer to the petition was overruled, and the action of the court in this regard is assigned for error.

The petition is as follows:

“ The plaintiff says: That on or about the 15th day of September, A. d. 1886, the plaintiff, David W. Repp, sold and delivered to the defendant, Charles Stephenson, the following personal property, to wit:

“ A one-half interest in a certain steam saw-mill, engine and boiler, then situated on the farm of the said Charles Stephenson, also, a one-half interest in a lot of old iron, Avhich the plaintiff then had, and the said defendant agreed to pay therefor the sum of eight hundred dollars by then executing and delivering to plaintiff his promissory note for eight hundred dollars, to be due in one year from the said 15th day of September, 1886, and to bear interest at the rate of 6 per cent, per annum, which said note the said defendant refuses to execute and deliver to plaintiff, although often requested so to do. Plaintiff says that by reason of the premises, there is now due and payable from the defendant to plaintiff the sum of eight hundred dollars, with interest from the 15th day of September, A. D. 1886, and for which plaintiff asks judgment.”

After the demurrer was overruled, a trial was had upon the issues joined by a general denial, which resulted in a verdict and judgment for the plaintiff for the sum of $820. The ruling upon the demurrer presents the only question for review upon the record.

The plaintiff in error claims that the petition below does not state facts sufficient to constitute a cause of action, for the reason that the time of the credit on which the goods had been sold and delivered, had not expired at the bringing of the action, and that he was not, therefore, so indebted to the plaintiff as that an action could be maintained for the price of the property sold and delivered. It will be conceded that under the common law system of procedure a general assumpsit for goods sold and delivered could not have been maintained upon the facts stated in the petition — the time of the credit not having expired, there would have been no ground for averring an implied assumpsit. But this is not material under our system, where no particular form of action is recognized, and the plaintiff is entitled to recover, if it appears from the facts stated in his petition, that he is entitled to any relief.

And it seems well settled, that, upon the facts stated in the petition, the plaintiff might have maintained an action on the case in special assumpsit for the damages resulting from the breach of the defendant’s promise to make and deliver the the note. 3 Parsons on Contracts (7th ed.), *211. “ Not only,” as said by this author, “because it is a separate promise; but because by the practice of merchants, this note or bill might be made, by the vendors getting it disco unted, the means of present payment.” And, in such cases, the measure of damages has always been, the price of the goods. No other rule can be adopted, as the law, to discourage multiplicity of •suits, recognizes but one suit for the breach of an entire contract. James v. Allen County, 44 Ohio St. 226.

The law applicable to the case is well stated by Brown, J., in Hanna v. Mills, 21 Wend. 90 : “ When goods are sold to be paid for by a note or bill payable at a future day, and the note or bill is not given, the vendor cannot maintain assumpsit on the general count for goods sold and delivered, until the credit has expired; but he can sue immediately fora breach of the special agreement. 4 East, 147 ; 3 Bos. & Pul., 582; 9 East, 498; 8 Camp, 329. In such an action he will be entitled to recover as damages the whole value of the goods, unless, perhaps, there should be a rebate of interest during the stipulated credit. The cases referred to by the counsel for the plaintiff in error give no countenance to the argument in favor of a different rule of damages. The right of action is as perfect on a neglect or refusal to give the note or bill, as it can be after the credit has expired. The only difference between suing at one time or the other, relates to the form of the remedy ; in the one case the plaintiff must declare specially, in the other he may declare generally. The remedy itself is the same in both cases. The damages are the price of the goods. The party cannot have two actions for one breach of a single contract; and the contract is no more broken after the credit expires, than it was the moment the note or bill was wrongfully withheld.”

Here no “rebate ” for interest is required, as, by the agreement, the price, $800, was to bear interest for the period of the credit; so that the plaintiff was entitled to the present worth of the interest that had accrued to the time of the recovery.

We see no error in the judgment, and it is therefore affirmed.


author: By the Court.

text:
    Stewart, Adm’r, v. McLaughlin, Adm’r.

      Presentation of claims to administratoi — Disallowance of same — When statute begins to run against.

    (Decided October 28, 1890.)
    Error to the Circuit Court of Jefferson county.

      Wm. P. Hays, for plaintiff in error.

      J. M. Cook, for defendant in error.
   By the Court.

Where a claim is presented by a creditor to the administrator of an estate and is allowed, which is afterwards disallowed and rejected by a successor of the one that allowed it, the four-years statute of limitation provided by section 6113 Revised Statutes begins to run, in such case, only from the time of the rejection of claim.

Judgment of the circuit court dismissing action of the plaintiff below reversed, and cause remanded to the court of common pleas for further proceedings.


author: Dickman, J.

text:
    Mann v. The State.

      Blackmailing — Accusation of crime — Indictment—Guilt or innocence of person accused.

    1. In an indictment under section 6830 of the Revised Statutes, for verbally accusing another of a crime punishable by law, to wit: administering poison to and thereby killing two colts, the property of the defendant, with tlie intent to extort and gain from the accused certain chattel property and pecuniary advantage, tlie words “ punishable- by law” are not a sufficient averment of the crime, but the act of which the party was accused must be alleged as having been done maliciously, and W'ith intent to injure and destroy the animals, and without such allegation the indictment is insufficient.
    2. A demand made by the owner upon the offender, for a reasonable compensation for property criminally destroyed by the latter, the owner at the time accusing him of the crime, and threatening to prosecute him therefor if the demand is not complied with, does not come within the provision of section 6S30 of the Revised Statutes.
    3. Where one is indicted for accusing or threatening to accuse another of a crime punishable by law, with intent to extort or gain from him money or other valuable thing, the truth of the accusation may be material for the defense, in determining the intent with which the defendant made the accusation.
    (Decided December 9, 1890.)
    Error to the Circuit Court of Trumbull county.
    Tlie indictment in the Court of Common Pleas of Trumbull county, Ohio, charged as follows:
    “ That George W. Mann, late of said county, on the 28th day of September, in the year of our Lord one thousand eight hundred and eighty-nine, with force and arms, in said county of Trumbull, and state of Ohio, unlawfully and knowingly did verbally threaten and accuse William Brigham and Almyra Brigham, his wife, with having committed tlie crime punishable by law, of administering poison, to wit: parisgreen to, and killing two colts the property and domestic animals of the said George W. Mann, said colts being of the value of one hundred and seventy-five dollars, with intent to extort and gain from the said William Brigham and Almyra Brigham, his wife, certain chattel property, to wit: about seven and one half acres of growing corn of the value of one hundred dollars, and one acre of potatoes of the value of twenty-five dollars, and to gain from the said William Brigham and Almyra Brigham a pecuniary advantage, to wit: a warranty deed of seventeen and twenty-seven one hundredths acres of land in lot- in Howland township, Trumbull county, Ohio, then of the value of six hundred and fifty dollars, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”
    The defendant pleaded not guilty, and objected to the introduction of any evidence, on the ground, that there was no offense charged in the indictment, which objection was overruled, and exception was taken by the defendant.
    During the trial, evidence was admitted in behalf of the defendant tending to establish the truth of the accusation against William Brigham and Almyra Brigham as to the poisoning of the colts, but the court instructed the jury that it was immaterial, so far as the crime charged in the indictment was concerned, whether such accusations were true or false.
    The jury returned a verdict against the defendant of guilty as charged in the indictment, and within three days thereafter, the defendant filed amotion in arrest of judgment, on the ground, that the facts stated in the indictment did not constitute an offense or crime under the laws of Ohio, and also to set aside the verdict and for a new trial, which motions being overruled, the defendant excepted. Judgment was entered on the verdict, and the defendant was sentenced. Error was prosecuted to the circuit court, where the judgment of the court of common pleas was affirmed, and this proceeding in error is instituted to reverse .both those judgments.

      Greo. P. Hunter, for plaintiff in error.
    The court erred in refusing to charge as repeatedly requested.
    The words “ extort or gain ” mean “ extort gain,” and to demand with threats of prosecution, what is simple due, is not to extort gain, and is not blackmailing, which in the old statute, and in numerous cases, is classified as robbery. To extort is to get something not due or owing, (Blackstone 141.) But if that is not so, and to extort means simply to obtain something of value by compulsion, then why use the word gain ? Why not say “ with intent to obtain ? ” This construction prevails in Indiana where the statute is indents cal, (41 Am. R. 791,) and in New York (2 Barb. 427; 104 N. Y. 601 and others,) and in every state where the question has arisen, and in England, Ireland, and Upper Canada. In this case the claim grows out of the very crime of which prosecution was threatened.

      Washington Hyde, for plaintiff in error.
    1. There are two elements in the offense, (a) the accusing a person of a crime, (5) with the intent, etc. The court, looking at the indictment, must be able to say that the acts with which the defendant is charged of accusing the prosecuting witnesses constitute a crime under the laws of this state. If they do not, the indictment is as void in law as a piece of blank paper.
    We do not claim that the crime with which it is said the defendant accused the prosecuting witness need be set out with all that detail and fulness that is essential in an indictment for the crime itself; but we do claim that the facts which constitute the essential elements of the crime should be stated. Every indictment should contain a plain but accurate statement of the facts constituting the offense charged. This is the defendant’s right as well as his protection. We insist that the indictments in this case should at least have alleged that defendant Maun accused the Brighams with having maliciously administered the poison for the purpose of injuring his colts. Anything short of that is insufficient. The state was bound to prove an accusation of such a crime and therefore was bound to allege in the indictment the acts constituting it. Dillingham v. State, 5 Ohio St. 280; Ellars
      v. State, 25 Ohio St. 385; Elliott v. State, 36 Ohio St. 318; Brabham v. The State, 18 Ohio St. 489.
    2. If this court shall hold the indictment sufficient, .we then insist that the court erred in charging the jury that the truth or falsity of the accusation was not an essential element of the crime charged in the indictment; and in refusing to charge, as in numerous requests by Mann, that the truth or falsity of the accusation was material as bearing on the intent with which the accusation was made. Fribly v. State, 42 Ohio St. 205; O. L., Vol. 76, pp. 167, 168; Moore v. Adams, 8 Ohio 372; Herbert v. Mans, 6 Bull 336.
    3. The evidence of the truth of the charge, in other words, the evidence going to show that the Brighams poisoned his colts being most material proof of Mann’s claim that he believed they had done so, and that he might rightfully demand compensation of them, it was error for the court to charge that the truth of the accusation was not material in the case. It was material, as bearing on the intent with which he made the accusation. Commonwealth v. Jones, 148 Mass; 57; Same v. Buckley, 122 Mass. 19; Wrightman v. People, 104, N. Y. 601; 12 Allen 449; 108 Mass. 15-307-488; 2 Bishop Crim. Law, section 1201; 24 Maine 71. We claim to show a cage clearly within the rule declared in Lytle v. Boyer, 33 Ohio St. 506.

      T. E. dimer, Prosecuting Attorney, for the state.
    1. The gravamen of the offense is the intent with which the accusation is made. It matters but little what the accusation may be, if the intent is to extort or cause the accused to do some act which he otherwise would not do, or to gain some pecuniary advantage. This being true, then the indictment need not set forth with great particularity what the accusation is. It is sufficient if it state that the accusa tion was of some offense punishable by law. As to what is sufficient in an indictment, see section 7215. It is safe to use the words of the statute. 13 Ohio, 401, 406; 2 Ohio St. 562; 3 Ohio St. 229; 36 Ohio St. 318; 12 Allen, 449; 108 Mass. 15, 307, 488.

      No negative averments were necessary in this indictment to show that the poisoning was done maliciously. See 17 Ohio St. 453, 461; 122 Mass. 19; 104 N. Y. 598, 601; 42 Ohio St. 154.
    2. The evidence of the poisoning tending to implicate the Brighams, if competent at all, (and some authorities hold that it is not) (see 24 Maine 71; 3 Foster & Fin, 316,) is competent only to show the intent of the accusation, (see 121 Mass. 57,) and with that authority and also 36 Ohio St. 318, the court charged the exact words of the law as laid down in the last authority, when it said it is immaterial whether the accusations are true or false.
    And I have in mind the Indiana case referred to in 41 American, 791, but I contend that the two cases in no way compare.
   Dickman, J.

The defendant was indicted under section 6830 of the Revised Statutes, which, among other provisions, contains the following:

“ Whoever verbally accuses any person of a crime punishable by law, with intent to extort or gain from such person airy chattel, money, or valuable security, or any pecuniary advantage whatsoever, shall be imprisoned in the penitentiary not more than five years nor less than one year, and may be fined not inore than one thousand dollars.”

The first question that claims our consideration is, whether the facts stated in the indictment constitute an offense under the statute. The section above cited designates several forms of extortion, and makes them each a substantive offense; but, the defendant is prosecuted under that specific part of the section, which makes it a penal offense to accuse another of a crime punishable by law, with intent to extort or gain. If the act of which the person is accused is not punishable by law, it is not the crime contemplated by the statute. Punishable by law are not words that describe a crime. They limit the subject-matter of the accusation to those acts that come within the penalties of the criminal laws of the state. To accuse one of administering poison to and killing a colt or other domestic animal, the property of another, without further imputation of criminal intent, is not to accuse one of a crime under the statute. The poison may have been administered accidentally, or through mistake. By section 6852 of the Revised Statutes, it is a crime punishable by fine or imprisonment to maliciously administer poison, of any sort whatever, to any foal, filly, or other domestic animal therein referred to, the property of another, with intent to injure or destroy the same. And section 6851 of the Revised Statutes, also subjects to fine or imprisonment any person who maliciously kills any such animal, the property of another. Such administration of poison and thereby killing, must be attended with the element of malice to constitute the statutory crime. It is charged in the indictment, that the defendant, with the intent to extort and gain from William Brigham and Almyra Brigham his wife, certain chattel property and a pecuniary advantage, unlawfully and knowingly did verbally threaten and accuse them of having committed the crime of administering poison to and . killing the two colts, but not of having done so maliciously, unlawfully, or knowingly. There is, indeed, no allegation in the indictment, that the defendant accused them of a crime of which they could be legally convicted and punished.

It is the ancient rule of our law, often reiterated, that penal statutes are to be construed strictly, and cannot be extended by implication to cases not falling within their terms. And although there is another rule equally well settled, that we are to interpret penal statutes according to the manifest import of their words, yet if legal words are used, we are to understand them in their well settled legal sense. The word crime is not of doubtful signification in the law. And where the statute distinctly provides that the offense shall consist in accusing another of a crime, with the intent to extort or gain, an indictment under the statute is not, we think, sufficient, that charges the doing, with such intent, of an act which is not wrong within the meaning of the criminal law.

It is urged in argument, that in alleging the offense in the indictment, it is safe to use the words of the statute; but, as said in Hagar v. The State, 35 Ohio St. 268, while in charging an offense in an indictment it is not good practice to omit the words of the statute, it is not to be inferred that an indictment which simply pursues the language of the statute is sufficient, for in many cases something more is required. If in the case at bar, the defendant had been charged only with having made accusation of a crime with intent to extort, without specifying the crime, the indictment would manifestly have been insufficient. It was requisite, therefore, to supplement the words of the statute with a description of the crime, as it may have been intended to do in the indictment, but in which the crime in fact is insufficiently alleged.

In the cases to which our attention has been called, there was a complete description of the crime of which there was a threatened accusation, with intent thereby to extort or gain.. In Commonwealth v. Moulton, 108 Mass. 307, the defendant was indicted under a law inflicting a penalty, for threatening to accuse another of any crime, with intent to extort money. The indictment charged that the defendant, maliciously and verbally, threatened one Killam to accuse him of having committed the crime of adultery, with a view and with the intent to extort money from him. The crime of which Killam was threatened to be accused, was evident on the face of the indictment, for adultery, ex vi termini, is made a crime in the chapter prescribing its punishment.

In Commonwealth v. Goodwin, 122 Mass. 19, which was a prosecution under the same law, for verbally threatening to accuse another of the crime of burning an insured building belonging to him, with the intent to extort, the indictment charged, that the defendant, with the intent to extort a certain sum of money from one Geldowski, verbally threatened to accuse him of having committed the crime of, “feloniously and wilfully burning a certain building of him the said G-eldowski, with the intent to injure the insurer.” The court did not deem it necessary to set forth the facts constituting the crime of which the accusation was threatened, with the particularity required in an indictment for the crime itself, as the criminality of the act of burning the building was alleged and shown, in adopting the words of the statute descriptive of the crime.

The facts stated in the indictment not constituting an offense under the statute, we might proceed no further; but, there is apparent on the record an error that merits our consideration, as it may have been an active element in producing the conviction of the plaintiff in error. At the trial in the court of common pleas, evidence was admitted tending to prove the truth of the accusation, that William Brigham and Almyra Brigham had killed the two colts by administering poison to them, but the court instructed the jury, that so far as the crime charged in the indictment was concerned, it was immaterial whether such accusation were true or false.

To constitute the offense described in the statute, there must be an intent to extort or gain the objects therein specified. Extortion is a wrongful exaction. It has been well defined, as the obtaining of money or other valuable thing, either by compulsion, by actual force, or by the force of motives applied to the will and often more overpowering and irresistible than physical force. And the word gain, when used in connection with the word extort, must be understood as referring to a mode of acquisition equally exceptionable. In the civil law, the term is regarded as so significant, that the expression lucri gratia — for the sake of gain — -is used to indicate the motive which evidences theft, as the criminal act of extortion, before the enactment into the Revised Statutes of section 6830, was denominated an attempt to rob.

An honest effort on the part of a creditor to collect a just debt, by accusing or threatening to accuse the debtor of a crime with which the debt is connected, or out of which it arose, does not, in our opinion, come within the purview of the statute. Nor should the statute be construed as covering the case of an owner who demands from the offender a reasonable compensation for property which he has maliciously and criminally destroyed, and accompanies his demand with a threat to accuse the offender of the crimed)

In State v. Hammond, 80 Ind. 80, there was an information against the defendant for sending, with the intent to extort, a written communication to one Wintroad, demanding from him the payment of a certain sum of money, and thereby accusing and threatening to accuse him of the crime of having obtained the money from the defendant through false pretenses. It was fairly inferable from the letter sent by the defendant to Wintroad, that the latter was indebted to him for the money mentioned, and that the object of the defendant was merely to obtain or secure the re-payment of it. The court was of opinion, that a threat to prosecute for an alleged or supposed offense connected with the creation of the debt, where the object of the threat was merely to secure the payment of the debt due from the person threatened to the person making the threat, did not come within the spirit or purpose of the statute.

In The People v. Griffin, 2 Barb. 427, the defendant was indicted for having written letters to one Heath, threatening to burn and destroy his property, unless he would, within a certain time, send the defendant a given sum of money, claimed by the defendant to be due from Heath. It was not a case in which the debt claimed was connected with or grew out of the act of. injury threatened, and Welles, J., in the opinion said: ^‘The intent must be to extort or gain. Can it be truly said that a person extorts money which is justly his due ? The word gain, in the connection here used, I regard as synonymous with extort: at least, I think it must mean something more than merely to obtain, or get possession of-J In view of the well established rule, that penal statutes are to receive a strict construction, I must interpret this as intending to embrace only cases where the intent is to obtain that which in justice and equity the party is not entitled to receive.”

Whether the accusation against Brigham and his wife was true or false was not, in our judgment, immaterial as affecting the guilt or innocence of the plaintiff in error. In the absence of any intent to extort or gain, he would not be guilty of the offense charged. It is conceded that the animals poisoned and killed were his property, and if the minds of the jury had not been diverted from a consideration of the evidence — as immaterial — which tended to prove that the parties accused were guilty of the crime of administering the poison, it might have been made manifest to the jury, that the motive of the defendant was not to extort or gain, but only to obtain an equitable satisfaction for the loss of his property. In Reg. v. Richards, 11 Cox C. C. 43, it was lield, that whether the prosecutor was guilty or innocent of the threatened accusation, might be material in considering the question whether, under the circumstances of the case, the intention of the prisoner was to extort money or to compound a felony, — a distinct statutory offense. ( The intent to extort may indeed exist, notwithstanding the truth of the accusation, and yet, in the light of surrounding circum-! stances, the fact that the accusation is true may strongly aid in negativing such intent.)

In Elliott v. The State, 36 Ohio St. 318, the charge against Elliott was, that with the intent to extort and gain a certain .amount of money, and certain valuable securities, he accused W. of the crime of maliciously burning his own barn with the intent thereby to prejudice the insurer. On demurrer to the indictment it was held, that it was not defective for want of an averment that the accusation against W. was false. The legal presumption being that the accusation was false, such an averment became unnecessary. The allegation in an indictment of an intent to extort may be sustained, although the accusation threatened be true, hence, the propriety of the decision in that case, that the truth or falsity of the accusation made by the defendant was not an essential element of the crime. But, such decision does not militate with the position, that the truth of the accusation may become material, riot as in itself an adequate defense, but as having a tendency to establish that the intent of the defendant was not to extort, but only to secure a reasonable compensation for property destroyed, or the payment of a just debt.

It is assigned as error, that the jury were influenced in their verdict, by being detained an inordinate length of time until they should agree. Upon examination of the record, we do not think that the court unduly exercised its discretion, in the length of time it required the jury to deliberate upon the merits of the case before them, nor are we prepared to say, that the plaintiff in error was, in any way, prejudiced by such detention of the jury.

Judgments of the court of common pleas and circuit court reversed.


author: Spear, J.

text:
    State ex rel. v. Kearns et al.

      Municipal Corporations — Redistricting into wards — When election may be held in — Ouster of Members of council — Effect of — Tenure of office, of councilmen— What is not an abandonment of — Sections 8,1632 and 1673, Revised Statutes, construed — Pleading.
    1. Where a city council passes an ordinance redistricting the city into wards, no election can be held under it until the next ensuing annual election for corporation officers. An earlier election is specifically prohibited by section 1632 of the Revised Statutes. Hence, where a special election is attempted to be held for the selection of members of the council under such ordinance prior to the next ensuing annual election, such special election is inoperative, and persons holding seats in the council by virtue of certificates based upon such special election may be ousted by quo warranto.

    2. Where a judgment of ouster is pronounced against persons holding seats in a city council, and they are ousted therefrom on the ground that the wards from which they claimed to have been elected had no legal existence, such judgment of ouster does not create vacancies in the council which may be filled by a special election.
    3. Under section 1673 and section 8 of the Revised Statutes, a member of a city council is entitled to hold the office until his successor is elected and qualified.
    A The allegation in a pleading that a member of a council has wholly abandoned his seat as such councilman, does not state an issuable fact, and is bad on demurrer.
    5. The appointment by a city council of a member thereof to an office which the statute makes a member of council ineligible to fill, and his acceptance thereof, does not work an abandonment of his office as councilman. The appointment to the second office is absolutely void.
    (Decided December 9, 1890.)

      Qtro Warranto. Submitted on demurrer to answer.

      I). K. Watson, Attorney-General, R. A. Harrison and S. A. Bowman, for relator.

      John A. McMahon and John L. Zimmerman, for defendants.
   Spear, J.

The defendants, Michael Kearns, George Wis-singer, and Samuel Scott, seek to justify the holding of seats as councilmen from the fourth, seventh and eighth wards of the city of Springfield, by virtue of .a special election which occurred July 9, 1890, called by proclamation of the mayor, under the authority of an ordinance passed by the council May 27, 1890, redistricting the city into wards, of which the said fourth, seventh and eighth were portions.

In the case of The State ex rel. v. O’Brien et al., decided by this court June 27,1890, (24 Law Bulletin, 233,) O’Brien and his five co-defendants were ousted from seats in that body, on the ground that the wards from which they claimed to have been elected had no legal existence. These persons held seats in the council at the time of the passage of the ordinance above referred .to, «and voted for it, and the validity of the ordinance rests upon their votes in its favor. The judgment of ouster was assumed by the mayor to create vacancies in the council, and he assumed, farther, that he might call a special election under the ordinance of May 27, to fill them. Both assumptions were unwarranted. There being no such wards to be represented, there could be no member from such wards, and it is not possible for a vacancy to occur in the incumbency of an office which itself had no existence. It is not necessary to a decision of the present ease to pass upon the validity of the ordinance, and we do not decide that question. But, whatever view is taken of that, no such special election was authorized by law. The proclamation had no force, and the attempted election, at least so far as conferring title is concerned, was a nullity. Section 1632, Revised Statutes, specifically, in direct terms, forbade it. The defendants have no title, and judgment of ouster will be entered against them.

The relator seeks to have inducted as members of council of the city of Springfield, Erasmus T. Thomas, Lifford H. Purcell, Thomas J. Thomas, Albert Tuttle, Ephraim N. Tibbetts and Joseph D. Little, as members from the second, third, fourth, sixth, seventh and eighth wards. These gentlemen were elected at the April election, 1888, for two years, from these wards respectively, as the’same were constituted at that time. No successors from these wards have been elected, nor has any election been held for that purpose. Section 1673, Revised Statutes, provides that “ Members of the council in office shall, unless a vacancy sooner occurs, serve until the expiration of their respective terms; at each annual municipal election, one member of the council shall be elected in each ward to serve for two years,” etc. Section 8 provides that “ Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.” Membership in a municipal council is an office. It is not “ otherwise provided in the constitution or laws.” No successor having been elected, these gentlemen continued to be members of the council of Springfield.

It is alleged in the answer that these persons have wholly abandoned their seats as councilmen. This allegation does not state an issuable fact, and is bad on demurrer. It is further alleged that on the 22d day of July, 1890, Ephraim N. Tibbetts was elected by the council a member of the decennial board of equalization for the city, and accepted the office and took the oath. Also, that on the first day of June, 1890, E. T. Thomas was appointed by the mayor, and confirmed by the council, as one of the trustees of The Mitchell-Thomas Hospital, a public institution of the city, which office he accepted, and has acted. It is admitted in an agreed statement that Tibbetts took the oath before a notary sent to his house for the purpose; that he never otherwise qualified or assumed to act as such member, and that, on the first of July, he sent a written resignation to the council which was duly read. On several occasions between the organization of the council in April, and the filing of the petition herein, July 28, these six persons were present at meetings of the council and undertook to participate in the proceedings, but were not recognized by the presiding officer, or their names called by the clerk.

By section 1717, Revised Statutes, neither Tibbetts or Thomas, while a member of council, was eligible to the office to which he had been thus appointed. Not being eligible, he could not become such officer, and his attempted appointment was a nullity. It could not, therefore, in law have any effect whatever upon the office which he did hold. The acceptance and entering upon the duties of a member of the decennial board, by Tibbitts, might be evidence tending to show intent to abandon the office of councilman, but standing alone does not establish it. There was no abandonment on the part of either of these men. Vogel v. The State, 107 Ind. 374; Crawford v. Dunbar, 52 Cal. 36; In Re Corlis, 11 R. I. 638.

Acting on a like wrong assumption as to the existence of vacancies in the second, third and sixth wards, the mayor called an election in those wards for July 21, and on that day George Phelps, J. C. Holloway, and Jonathan Kitchen were chosen. These men took their seats on the 29th of July, the day after the petition was filed in this case.

An order of induction will be allowed in favor of Thomas J. Thomas, as member from the fourth ward, of Ephraim N. Tibbitts, as member from, the seventh ward, and of Joseph D. Little, as member from the eighth ward, as those wards were defined at the time of their election. Erasmus T. Thomas is entitled to his’ seat as member from the second ward, Lifford H. Purcell from the third ward, and Albert Tuttle from the sixth ward, but, inasmuch as the present occupants, who took seats in the council after the commencement of this action, are not parties, no order will be made as to them.

Judgment accordingly.