author: Dickman, J.

text:
    Wewell v. City of Cincinnati. Anderson v. City of Cincinnati.

      Mmnicipal corporations — Sewer improvements — Assessments—Regularity of proceedings — Rev. Stats., secs. 2289, 2327, 2380.
    1. The curative provisions of section 2289 and section 2327 of the Eevised Statutes, extend to irregularities or defects in the estimate of cost and expenses, which the council may direct to be made, after a plan of sewerage for the corporation, or any part thereof, has been approved.
    2. In a city of the first grade of the first class, a plan of sewerage for a sewer district was prepared by the assistant engineer in charge of sewers, who, in submitting the plan to the chief engineer, embodied with it an estimate in gross, of the cost and expenses of the improvement, and officially reported that the proposed sewers could be constructed without cost to the city. The plan, with the included estimate, was approved by the chief engineer, was submitted by him to the board of public works, and that body adopted and placed the same on file. The board of city commissioners transmitted to the council and recommended for adoption, a resolution to improve by sewerage certain designated streets, according to the plan on file, the expenses to be assessed per front foot on the abutting property, and certified to the contractor in payment for the work. In transmitting the resolution, the board of city commissioners reported to the council that, in making the improvement, there would be no expense to the city. Held: That the estimate which accompanied the plan, was not of such a character, as to render void an assessment to pay the cost and expenses of the improvement.
    3. An assessment to pay for a sewer improvement, will not be made void by omitting, prior to the assessment, to construct a sewer in a street embraced in the plan, when it is found that such sewer cannot be constructed without grading the street to the established grade, for which no provision is made by ordinance, and when the omitted sewer would he a lateral, into which no other sewer would drain, or which would in no way affect the drainage of any other street.
    4. The exemption, under section 2380 of the Eevised Statutes, from assessment for the cost of a sewer improvement, is not limited to lots supplied with local drainage under a regular system of city sewerage; but lots that are completely drained by an extensive sewer which discharges into a river, which was constructed partly by the city and partly by private persons, which has been frequently repaired by the city, and into which the city has caused certain streets and the adjacent territory to be drained, are provided with local drainage within the meaning of the statute, and are thereby exempt from assessment.
    (Decided November 22, 1887.)

      Error to the Superior Court of Cincinnati.
    The original actions were brought in the superior court of Cincinnati; by the city of Cincinnati, for the use of Frank Enrchner and Alfred B. Ashman, to enforce an assessment for the improvement, by sewering, of Eggelston Avenue and other streets in Sewerage Division No. 8, of the city of Cincinnati. At special term, the superior court held the assessment void, on the ground that no proposal or bid had been advertised or received for board sheeting. This decision was affirmed by the district court of Hamilton county, but was reversed by this court — see 43 Ohio St. 243 — and the causes were all remanded for further proceedings. Upon the new trial, the superior court gave judgment for the city of Cincinnati, for the amount of the assessment, with interest and penalty, against all the lots, except a few which were held exempt on the ground that they were provided with local drainage. The decrees of the superior court in special term were affirmed by that court in general term.
    To reverse such judgment of affirmance, "William P. Anderson, of whose lands two lots were charged with the assessment and two exempted therefrom, filed his petition in error in this court; and in the same proceeding — consolidated therewith under No. 534 — and to reverse the same judgment, a cross-petition was filed by the city of Cincinnati as against the Anchor White Lead Company, William P. Anderson, Catherine L. Anderson, and Thomas B. Paxton as assignee of Thomas B. Richards and others, whose lands were decreed to be exempt from the assessment; and also by Augustus Darr and Francis Darr, executor, et al., against whose lands the assessment was held to be valid and binding.
    And to reverse the judgment so rendered at general term, Joseph Wewell and others also filed their petition in error in this court, with which were consolidated, under No. 535, the petitions in error of Sarah E. Gay and others, and of The Little Miami Railroad Company, whose lands were held liable to the assessment; and in this proceeding, and consolidated therewith, was filed the cross-petition of the city of Cincinnati as against J. C. Eiedeldey, Joseph J. Gest,-John F. Hazcn, Augustus S. Winslow, Walter Smith, Charles H. Kilgour, Frank A. Sudbeck and others, whose lands, it was adjudged, were not liable to the assessment.
    The superior court in special term, in cases City of. Cincinnati v. Anderson et al.} and City of Cincinnati v. Wewell et al., being requested to state separately its conclusions of fact and of law, among other facts, found as follows :
    • “Prior to May 29, 1879, the proper authorities of the city of Cincinnati had duly declared it necessary to provide a systém of sewerage and drainage for said city; said city had been duly divided into sower districts; and all the property described in said petitions is within Sewerage Division No. 8, as thus districted. The city of Cincinnati caused said sewers to be constructed, and the work contracted for was completed and accepted, and the assessment sued on was levied under proceedings as hereinafter found and set forth.
    “A plan of sewerage for Sewer Division No. 8 was approved by the city authorities April 11, 1878, and finally adopted April 28, 1878. Prior to said date, the assistant engineer in charge of sewers had made an estimate of the cost and expenses of improving said division in accordance with said plan ; and in submitting the plan the said engineer stated the gross amount of the estimate as thus made by him at about $80,000; and also stated that on such estimate the improvement could be made without expense to the city. No other estimate of the cost of such improvement was ever submitted to the board of public works or board of city commissioners.
    ■ “On May 29th, 1879, the board of city commissioners of said city, transmitted to council the following report:
    “ Office of Board of City Commissioners, Cincinnati, May 29, 1879.
    “ We report that it is necessary to improve Fifth, Sixth, Seventh, Eighth, Ninth, Court, Race, Vine, Walnut, Main, and Sycamore streets, Broadway, Eggleston avenue, and other streets and alleys of Sewerage Division No. 8, by sewering in accordance with the following resolution, the adoption of which we therefore recommend.
    “By order of the Board of City Commissioners,
    John I). Banks, Clerk,

      “ Expense to city, none.
    A. L. Anderson, Chief Engineer.

    “ Attached to said report was the resolution therein referred to, being a resolution to improve said streets and alleys by con-? structing sewers and drains, with the necessary appurtenances therein, according to the plan of said Division No. 8 on file in the office of the board of city commissioners, in accordance with the plans, profiles and specifications on file in the office of said board, the expenses to be assessed per front foot, on the property abutting thereon, and certified to the contractor in payment for the work. Said board of city commissioners did not transmit with said resolution any estimate of the cost and and expenses of such improvement, unless what is found above is such an estimate.
    “ And on June 20th, 1879, said resolution thus recommended was adopted by council.
    “On October 3, 1879, said common council, on the recommendation of said board of city commissioners adopted an ordinance to improve said streets and alleys by constructing sewers and drains therein according to the plan of said Sewerage Division No. 8, and said resolution was adopted by council on June 20,1879; which ordinance was approved by the Mayor of said city.
    “ No other papers were transmitted to council by said board of city commissioners in connection with said resolution and ordinance than those above referred to.
    “ The plan of said sewerage division referred to in said resolution and ordinance, had been adopted by the board of public works of said city on April 28, 1878, and from that time remained on file in the office of said board and its successors. The same showed the locations of said proposed sewers and drains through said streets, being drawn to a scale, and the sizes, inclinations and material, whether brick or pipe, of the same, and the depth thereof below the surface.
    “ Among the bids for the work received and opened, the bid of Kirchncr & Ashman was accepted, and a contract made with them. The work was done thereunder, and the cost thereof at, the rates fixed by said contracts was $79,468.84. . At fair and reasonable prices for labor and material, said improvement ought to have cost $90,000.
    “ Of the sewers constructed under said resolution, ordinance and contract, some are main or principal sewers; the rest are branch or local sewers, and all drain streets as well as abutting property.
    “An ordinance of assessment, passed July 28, 1881. An assessment for said entire sum of $79,468.84 was levied by the city upon the property abutting the streets sewered, other than the street intersections, at the rate of $2 per foot front, and assigned to Kirchner & Ashman; the assessment being payable on August 17, 1881.
    “That the respective pieces of property of the following named defendants, namely: Parcel 33, belonging to Joseph J. Gest and David Sinton, parcel 37, belonging to John F. Hazen and A. S. Winslow and Walter Smith, parcels 40 and 41, belonging to Charles PI. Kilgour, and parcel No. 71, belonging to Frank A. Sudbeck, described in the petition, were at the time and now are provided with pipes or drains discharging into a sewer, known as the Deer Creek Sewer, which discharges into the Ohio River, but that said various pieces of property were never assessed for the cost and expense of said pipes or drains by said city, nor for the cost and expense of said Deer Creek Sewer, and that said pipes and drains and said Deer Creek Sewer neither of them form any part of the regular sewerage plan of said city, nor have they ever been adopted as part of the sewerage plan of said, city; that said Deer Creek Sewer was constructed more than forty years since from a point north of Sewerage Division No. 8, to the Ohio River, in place of a natural watercourse, known as Deer Creek, and partly in the bed thereof, and thirty to forty feet below the present grade of the streets crossing the same; that it was constructed in parts, portions by the city, where the same crossed or passed under streets, and at other places, and other portions by private persons through their own property; that it has been' frequently repaired by the city under streets and alleys, and at other places, and frequently repaired by private persons on private property; that said city did cause sewer-pipes leading from Lock, Fifth, Harrison, Eighth and other streets to be connected with it, and thereby drained said streets and the adjacent territory into the same, and that most of said pipes were removed or otherwise disconnected when the sewers were laid in said eighth division; that" said Deer Creek sewer is still used as such, and that no assessment was ever levied by the city on any property for such parts of said sewer under streets and alleys as the city did build, and that said Deer Creek sewer is under private property nearly its entire length, except in those places where it crosses or runs along under particular streets and alleys, to-wit; at the intersection of Eighth street and Eggleston avenue. Said sewer crosses from the east side of Eggleston avenue for the distance of about one hundred and fifty feet to the intersection of Eighth and Culvert streets; thence it turns into private property, and runs southerly through private property crossing Sixth street to about the north line of the property of Sudbeck, being parcel 71 in the petition; thence it turns wcstwardly to a point on Culvert street east of the center of Culvert street opposite said Sudbeck’s property; thence it turns southwardly approaching the east side of Culvert street touching the northeast corner of Fifth and Culvert streets, crossing Fifth street into private property; thence it runs into a southerly direction crossing Fourth street; thence through parcels 40 and 41 in the petition, belonging to C. H. Kilgour; thence crossing Third street near Eggleston avenue and running southerly to the Ohio River, and in that manner each of said parcels. Nos. 33, 37, 40, 41 and 71 was supplied with local drainage.
    “Prior to the 30th day of June, 1874, to-wit: on the 16th day of May, 1868, one J. C. Fiedeldey was the owner of all the land described as parcel 19 in case 37,466; and of the tract adjoining the same on the east, fronting 19.67-100 feet on Fifth street, and 38.20-100 feet on Eggleston avenue; during the year 1868 he built six separate buildings in one block upon said land; each of said buildings was at the time said improvement was ordered, which is herein sued for, occupied as a separate ,building; during the construction of said buildings, to-wit, on the 16th day of May, 1868, said J. C. Fiedeldey applied to said city of Cincinnati to tap a large trunk sewer in Eggleston avenue, for which his property had never been assessed, for the purpose of draining his premises on the northwest corner of Eggleston avenue and Fifth street. With said application he filed a plat certifying that said plat represented correctly the necessary drain required for his premises on Eggleston, avenue at Fifth street. Said plat showed said premises as having a frontage of 38 feet on Eggleston avenue, but did not show the frontage of said lot on Fifth street or the size of said lot; said plat showed a ten inch drain in Eggleston avenue by solid lines extending from the trunk sewer in said avenue to the east line of said lot, and also dotted lines extending from said stone' pipe into said lot, said dotted lines not being explained by any figures or words ; and thereupon said city granted said application on his paying it $2 per front foot on said Eggleston avenue frontage, being $76, and $10 for plat and survey; he then tapped said trunk sewer in Eggleston avenue and made a connection therefrom to the corner building or lot of said parcel 19, said corner lot being 19. 67-100 feet in front on Fifth street and 38.20-100 feet on the west side of Eggleston avenue; he built a private drain extending from the drain on said corner lot westwardly through the cellars of his other five separate buildings; all the house .and surface drainage and the drainage from the water-closets from each of said houses west of said corner house, runs into said private drain extended: June 30, 1874, said J. C. Fiedeldey sold and conveyed to one D. Sturla the corner lot and building from said parcel 19, fronting 19.57-106 feet on the north side of Fifth street and 38.20-100 • feet on the west side of Eggleston avenue; at the time of said sale said J. C. Fiedeldey reserved in his deed to said Sturla the right of drainage for each and all of his said houses on the west through said lot of.said I). Sturla into the main trunk sewer in Eggleston avenue; each of the separate buildings belonging to said defendants interested in said parcel 19 front upon the north side of Fifth street; the said first'building west of Sturla’s lot being 16.24-100 feet front, the next east 16.39-100 feet front, the next 16.25-100 feet front, the next 16.46-100 feet front, and the next 18.46-100 feet front.
    ******** *

      “ The property assessed as the property of the defendant, The Anchor White Lead Company, extends from Eggleston avenue on the east to Culver street on the west. Said property is all improved and used for business purposes as one lot; a sewer was constructed under said proceedings in Eggleston avenue in front of said premises. The Deer Creek sewer aforesaid runs under said property of said Anchor White Lead Company, on a line drawn north and south through said property nearer to Culvert street than to Eggleston avenue, and on said premises there was, prior to June, 1879, and still is, a large pipe connecting with said Deer Creek sewer with a capacity to furnish drainage for a much larger tract of land than that owned by said defendants; said connection with said Deer Creek sewer furnishes said premises with good and complete drainage, except as to a portion of the roof water, which is carried into the gutters and thence into the new sewer now assessed for, and in that manner said premises were supplied with local drainage.
    “All the property of the defendants, W. 3?. Anderson and Catherine L. Anderson set out in the original petition, excepting that lot lying on the east side of Culvert street, is improved and used as one lot for business purposes. The Deer Creek sewer above described runs under the lands of these defendants on the east side of Culvert street, which lands are not improved. The other lands of said defendants herein assessed, except those described in the supplemental petition, are connected with said Deer Creek sewer by a pipe eighteen inches in diameter, which extends from the cellar of the buildings on said lands across and under said Culvert street into said land on the east side of Culvert street. Said pipe was laid there some thirty years ago, and has been continually used, and is now used for draining said premises except as to a portion of the surface and roof water which is to run into the street, and thence into the new sewers now assesed for. Said pipe is sufficient in size to furnish drainage for a much larger area than said premises of said defendants, and at the time said improvement and assessment were made, and at the present time, furnished said premises with good and complete drainage, except as to a portion of the surface and roof water aforesaid. And in that manner said premises were supplied with local drainage.

      “ Said lot described in the supplemental petition was purchased by said defendant, W. P. Anderson, since the assessment sued for herein was levied, and has since been improved in connection with the improvements on his own property on the west side of Culvert street. •

      “ Thomas B. Paxton and the other defendants named in the petition in case 37,605 consolidated herewith, own a tract of land described as follows: Beginning at the south-east corner of Eighth and Culvert streets; running thence south on Culvert street 343J- feet; thence east 200 feet to Eggleston Avenue; thence north on Eggleston avenue 154 feet to a lot owned by Schmutte; thence west with Schmutte’s south line about 30 feet; thence north parallel with Eggleston avenue on Schmutte’s west line to Eighth street, striking the same at a point 30 feet west of Eggleston avenue measured on Eighth street, and thence west on Eighth street 42 feet to the place of beginning. The premises described in said petition in case No. 37,605 as four lots are parts of said tract; but the descriptions as there given are not in accordance with any conveyances of said tract, or use of said premises; and the alley mentioned in said petition does not exist. In 1845 the south 132 feet of said tract was subdivided by an executed and recorded plat of subdivision into twelve lots, of 22 feet front each, six fronting on Culvert street and six fronting on Eggleston avenue, and divided in the rear so far as said plat i's concerned by a line equally distant from Culvert street and Eggleston avenue. But since the date of said plat several conveyances of said tract have been made, and all of them have described it as one lot substantially as by the first description above given, without reference to said subdivision; and since 1850 said premises have been occupied as a cooperage establishment as one lot, never having been divided or separated in the use made of the same. Said Deer Creek sewer, from Eighth streer southwardly, runs along Culvert street about 50 feet; it then strikes into said premises, and runs through the same near Culvert street southwardly towards the river. For the past thirty years said premises and the buildings thereon, have been and still are connected with said Deer Creek sewer by pipes, through which the water falling 'upon and also the water brought on and used on said premises and buildings and all sewerage matter from said premises and buildings have been drained and carried into said Deer Creek sewer; and in that manner said premises were supplied with local drainage.
    “All the streets and alleys shown on said plan, were sewered according to said plan, excepting Butler street from Third street to Fifth street, and Seventh street from Scott alley .to Culvert street; said Butler street and Seventh street were not included in the contract with said Kirchner and Ashman ■ said two streets never have been improved by sewering; the sewers contemplated in said two streets, were laterals draining only the property abutting thereon; at the time said contract was made said two streets were not graded to the established grade; the property abutting thereon has not been assessed for any part of the cost of sewering said division; the cost of building said laterals in said two streets, including the grading of said streets which would have been necessary to support said sewers, would have increased the cost one per centum over and above the assessment made on the property in said division •, and if said two streets had been, previously graded to the established grade and said sewers in said two streets had been built under said contract, and the property abutting been included in the assessment made, the rate of assessment on the entire division would have been three and one-half per centum less than the assessment made.

      “ None of the property of any of the defendants was ever assessed by said city for the construction of any part of said Deer Creek sewer.”
    And among other findings of law, the court found the law to be as follows:

      “ Said assessment is valid and ought to be enforced against all the property of all the defendants herein, except that the following lots were exempt, because they and each of them on the facts found were provided with local drainage at the time said improvement was ordered and assessment made, to-wit: Parcel number one in the petition belonging to the Anchor White Lead Company, parcels Nos. 3 and 4 in the petition belonging to Wm. P. Anderson and others, parcels Nos. 1, 2, 3 and 4 in the petition in case No. 37,605 consolidated herein belonging to Thomas B. Paxton, assignee, and others. The following lots as described in the original petition, to-wit, lots Nos. 19, 33, 37, 40, 41 and 71 are exempt from said assessment because they and each of them upon the facts found were provided with local drainage at the time said improvement was ordered and said assessment made.”

      James H. Perkins, Paxton & Warrington, Goss & Cohen, IT. P. Lloyd, Pamsey, Maxwell & Matthews, and W. C. Fiedeldey, for plaintiff in error.

      JD. Widsin and William Worthington, for defendant in error.
   Dickman, J.

In resisting the enforcement of the assessment in dispute, it is urged by the owners of the abutting property, that no estimate of the cost of the improvement, such as the law contemplates, was made and transmitted to the city council with the resolution or ordinance to improve ; and that consequently the municipality did not acquire jurisdiction to prosecute the work. The facts connected with this branch of the case seem not to be contested. A plan of sewerage for the district known and designated as Sewer Division No. 8, was approved by the city outhorities, and afterwards finally adopted April 28, 1878. The plan had previously been prepared by the assistant engineer in charge of sewers, who, in submitting it to the chief engineer, embodied with it an estimate, as he regarded it, of the cost and expenses of the improvement. The assistant engineer estimated the total cost of the proposed sewers at the gross sum of about $80,000; and on the basis of such estimate, officially reported that the sewers could be constructed without cost to the city. The plan with the included estimate being approved by the chief engineer, it was by him submitted to the board of public works, which body adopted the same, and placed it on file — the estimate being thus explanatory of, and virtually a component part of the plan. The plan of sewerage being determined on, the board of city commissioners, the successor of the board of public works, in May, 1879, transmitted to the council and recommended for adoption, a resolution to- improve the designated streets and alleys according to the> plan on file ; and as set forth in the estimate accompanying the plan, reported to the council that the expense to the city would be none. The resolution, and an ordinance to construct the proposed sewers in accordance with the plan of the Eighth Sewerage Division, were thereupon properly adopted, and the improvement was made.

It is provided that in the building of sewers, the council may direct an estimate of the cost and expenses of constructing the work to be made. The special and controlling provision for such an estimate is found in section 2377, under the the subdivision of the Revised Statutes relating to sewers and assessments therefor, and reads as follows; After the plan of sewerage for the corporation, or any part thereof, has been approved by the board, and filed in the manner above pi'Ovided, the council may direct the engineer of the corporation, or sewerage engineer, as the case may be, to make an estimate of the cost and expenses of constructing the work, according to such plan, and report to the council what portion of the same will be required for main sewerage, and what portion for local sewerage, for any lots and lands to which any portion of such main sewer may serve as local sewer.”

The board referred to in this section, is, by a subsequent section, made to embrace the board of city commissioners in Cincinnati, or cities of the first grade of. the first class; and the question arises, whether in the case at bar, there has been a failure to fully meet the requirement of the statute as to making an estimate, whereby the assessment under consideration became necessarily void. The council did not direct the engineer of the corporation or sewerage engineer to submit an estimate; but through the estimate that accompanied the plan of sewerage, the council was put in possession of the required information. For the purpose in hand, the object of an estimate was attained. The cost of the work was not, it is true, estimated in detail, and was furnished only in gross; but the council was informed that the city would be put to no expense by the improvement that the entire cost would be about a certain specified sum, and would not exceed the amount that might be collected by assessment, or $2 per foot front of the abutting land. The rates fixed by the contract awarded showed the estimate to be accurate and within bounds, and based upon prices of labor and material unusually fair and reasonable. The estimate at the time it was prepared and submitted, was no doubt deemed adequate under the law; and although not sufficiently full and complete to be unexceptionable, we do not think it was so defective as to invalidate the assessment. The defect was not of that substantial character as to place it beyond the curative provisions of the Revised Statutes as embodied in section 2289 and section 2327. Those sections provide as follows :

“ Section 2289. In every such action (to enforce an assessment lien) the court shall disregard any technical irregularity or defect, whether in the proceedings of the board of improvements, or of the council, or of any officer of the corporation, or in the plans or estimates; and the acceptance of the work by the council on the certificate of the engineer, shall be presumptive evidence that the contract has been complied with, but a substantial defect in the construction of the improvement shall be a complete defense.

Section 2327. Proceedings with respect to improvements, shall be liberally construed by the councils and courts, to secure a speedy completion of the work at reasonable cost, and the speedy collectioon of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded; but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of” private property, and compensation for damages sustained.”

The evident intent of these two sections is, that where the contract has been complied with, and the work accepted by the council; where there is no defect in the construction of the improvement; where the work has been completed at reasonable cost; where strict regard has been paid to the limitation on assessments on private property, any technical irregularity or defect in the plans or estimates, shall not avail to prevent the speedy collection of the assessment when due. Not only are merely formal objections to be disregarded, but the proceedings with respect to public improvements are to be liberally construed by the courts, and when the property-owner has received no injury from the improvement, but has been specially benefited thereby, he shall not be permitted, because of an unsubstantial defect, to evade payment of his proportion of the assessment.

It is furthermore contended that the assessment was premature and unauthorized, because all the streets had not been underlaid with sewers prior to the assessment; that Butler street from Third to Fifth street, and Seventh street from Scott alley to Culvert street, although included in the declaratory resolution, and in the ordinance ordering the improvement, were not provided with sewers, and that therefore the assessment was illegal and void. These two streets had never been graded to the established grade, and grading was necessary to support the sewers to be constructed therein; but the ordinance, which could not by law contain more than one subject clearly expressed, related solely to the construction of the sewers. Under that ordinance, no contract could be entered into except for the improvement according to the plan adopted. The streets, accordingly, in which grading was necessary before sewers could be built therein, were not included ki the contract with Kirchner & Ashman; and the property abutting thereon, was not assessed for any part of the cost of the improvement. But as far practicable, and as far as authorized by law, the plan of sewerage was fully executed. Under the circumstances, we are not prepared to hold that the assessment was void, because the two streets were not improved by sewers.

The sewers designed for the two streets were laterals, draining only the streets in which they were to be laid. No other laterals or other sewers would drain into them; and their omission on those streets would not affect the drainage or construction of other laterals, or other drains or sewers embraced in the plan. The full benefit of the public improvement would inure to those property owners in the district who were assessed, independently of what might be done or omitted to be done as to the sewers in Butler and Seventh streets. The case of City of Cincinnati v. Cincinnati and Spring Grove Avenue Co., 26 Ohio St. 345, is not in conflict with these views. In that case, for the purpose of connecting two public thoroughfares, a street improvement was ordered, which was to be paid for by assessment on the owners of abutting property. After the work had been completed part of the way, it was suspended or abandoned, leaving part of the proposed street wholly unopened. The assessment for the work already done was deemed premature, because the stopping the work resulted in a failure to accomplish the substantial purposes intended by the improvement as ordered. But the opening of a street, in which all the owners of abutting property are inter-rested for purposes of travel and convenient access to their premises, is materially different from a sewer improvement, from which there is an omission of a lateral sewer which drains only abutting lots, and does not benefit or affect the drainage of other property in the same district.

But while the objections to which we have referred, may be insufficient to invalidate or prevent the enforcement of the assessment in controversy, the lots which, as it appears from the finding of facts, were provided with local drainage at the time the improvement was ordered and the assessment made, should, we think, be exempt from the assessment. The claim for exemption is based upon a prohibitory clause of section 2380 of the Revised Statutes, which section is in the words following:

Section 2380. The assessment shall not exceed the sum that would, in the opinion of the council, be required to construct an ordinary street sewer, or drain, of sufficient capacity to drain or sewer such lots or lands’; nor shall any lots or lands be assessed that do not need local drainage, or which are then provided therewith; and the excess of the cost, over the assessment herein authorized, shall be paid out of the sewer fund of the corporation.”

The question for determination under the statute, is one of fact between the municipality and the owners of abutting property, viz.: whether certain lots or lands are so provided with proper local drainage, in the statutory sense, as to be exempt from the special assessment. The local drainage provided, which can be effective to exempt the property drained, must, of course, be of such a character as to satisfy the statute. An ordinary surface drainage will not be sufficient. The dimensions, the mode of construction, the material used, the location, the outlet, the sanitary conditions, and other considerations should be such, as would belong to a sewer or drain built substantially in conformity to the requirements of the statute. As illustrated in several of the cases growing out of this public improvement, lots drained by a wooden box drain, placed as a temporary expedient in anticipation of regular sewerage, or drained simply by flowage over the surface, are not supplied with local drainage as to be exempt from assessment.

The record discloses that nearly all the lots exempted from assessment, are connected by pipes or drains with a large sewer called Deer Creek Sewer,” built between thirty and forty feet below the surface of the ground, constructed more than forty years ago in the natural water course known as Deer Creek, and extending from a point north of the eighth sewerage division, and discharging into the Ohio River. The various pieces of property so connected, were never assessed by the city for the cost and expense of the pipes or drains, nor for the construction of any part of Deer Creek sewer. Neither the pipes or drains, nor the sewer itself, have ever been adopted as part of the regular sewerage plan of the city; but Deer Creek sewer was constructed in parts, portions by the city, and portions by private persons, through their own property. It has been frequently repaired by the city, and frequently by private persons on private property. Certain streets and the adjacent territory have been drained into it, by means of sewer pipes which the city caused to be connected with it. It appears from the finding, that the lands connected with this well-known sewer, and certain other lands having connection with a trunk sewer in Eggleston avenue, were furnished with local drainage adequate to all the requirements of the statute. Indeed it is contended that the Deer Creek sewer is as permanent and efficient for drainage as the Eggleston avenue sewer, into which empty the sewers that are made the subject of the disputed assessment.

The exempted lots are part and parcel of lands which originally needed local drainage, but were provided therewith by utilizing the natural water course for sewerage purposes. That it was thus rendered available for such purposes, is a sufficient indication, that local drainage was needed by the lots connecting therewith. The statute manifestly contemplates two classes of lots or lands: 1st. Those which are so situated topographically, as to drain themselves by natural outlets into rivers or streams, or other receptacles; 2d. Those which, though from any cause they once required artificial local drainage, have been sufficiently provided therewith. 'Whén so provided, and the fact is so found, the statute in prohibitory language exempts the lots or lands from special assessment.

In order however to be provided with local drainage, within' the meaning of section 2380, we do not deem it essential, that the drainage must have been furnished, in all cases, under a regular sewerage system ordered by the city, and that abutting property must have been assessed for the cost and expenses, and the assessment paid by the owner. The language of the statute, that no lots or lands shall be assessed, that do not need local drainage or which are then provided therewith is general, and cannot be so restricted as to make the exemption or prohibition applicable only to drainage already paid for under a plan established by the municipality. Through what instrumentality the drainage must have been supplied, the statute is silent; but such drainage as would come up to a proper standard, must have been provided. To enact that lots shall be exempt from a special sewer assessment, after they have been in all respects provided with drainage and assessed for the same, and have paid the assessment under a regular system of sewerage established by ordinance, would seem to be an unnecessary statutory provision. And to give the language of the statute its due force and effect, it should not be limited, in its construction, to such local drainage only as had its origin in a system so established.

The foundation of special assessments for public improvements, is the special benefit derived by the owners of property, over and above the rest of the community. If the assessment-imposed is in excess of advantage received, to that extent, there is a contribution to the public use without compensation. As said by the court in Stewart v. Palmer, 74 N. Y. 189, “Assessments for local improvements can be justified only upon the theory that the lands upon which they are laid are specially benefitted by the improvements for which they are laid, and hence ought to bear the burden rather than property generally ; and if a law should authorize such assessments to be laid without reference to benefits, it would either take property for public good without compensation, or it would take property from one person for the benefit of another.” And in Chamberlain v. Cleveland, 34 Ohio St. 562, it is stated as a fundamental principle that, “ If a sum is exacted in any instance in excess of the value of the special benefits conferred, it is, as to such excess, in that instance, private property unjustly taken for public use without compensation to the owner.”

To prevent inequality and injustice in distributing the burdens of assessment, the constitution and statutes have provided limitations and safeguards. Nor in imposing those burdens, is a line of' separation to be drawn between sewers and surface improvements, whereby in the one case no reference shall be had to benefits received, though in the other case.they may be considered. The statute enjoins, in general terms, that so far as practicable, regard must be had, in making special assessments, to the probable benefits to the property assessed” (sec-2283 of the Revised Statutes.) Section 2379 and Section 2381 of the Revised Statutes provide for an assessment of the cost of main sewers and of local sewerage, by the feet front, or according to valuation upon the the tax list, or in proportion to benefits, thus implying the existence of the benefits as a necessary antecedent to a choice of modes in making the assessment. And in construing the statutory provisions with respect to improvements, it is enacted in language cited supra, “ the proceedings shall be strictly construed in favor of the owner of the property assessed as to the limitations on assessment of private property.”

Applying these rules and principles to the case under consideration, it may well be inquired, how far are the lots or lands connected with the Deer Creek sewer or the trunk sewer in Eggleston avenue, specially benefitted by the sewers that are the subject of the disputed assessment. If those lots are so provided with local drainage, that they receive no special benefits from the improvement, shall they, notwithstanding, be assessed because such drainage was not supplied under a regular plan of sewerage, originated and perfected by the city authorities ? The mere levying of an assessment for the sewers, cannot be held as conclusive evidence of benefit received by property owners. When it is settled as a fact, that lands are already provided with local drainage as contemplated by the statute, it becomes evident that the property will derive no special benefit from the improvement, and should not be subjected to the burden of assessment. If, however, the property cannot be brought within the purview of the statutory exemption or prohibition, by having been provided with the requisite local drainage, it may be presumed that it is specially benefited by the new improvement, and the assessment may be levied according to the rule prescribed by statute.

Judgments affirmed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Irwin v. Wilson.

      Contracts — Rescission—Mutual mistake.

    The plaintiff owned a house and lot in Kenton, Hardin County, this state, of the value of $1,700, and the defendant owned 80 acres in the state of Iowa, supposed to be good, dry, tillable land near a county seat, worth at least $10 an acre, but in fact worth not more than $3 an acre, being wet, marshy and unfitforcultivation. The defendant by his agent proposed to exchange with the plaintiff; and, as neither was acquainted with the land in Iowa, the defendant by his agent furnished a conveyance and, at his suggestion, both went to see one Pugh residing in Hardin county, though a stranger to both of them, for the purpose of getting information as to the land, the agent saying he understood that P. had seen the land and knew its character. P. informed them that he had seen the land the year before, that it was good, dry, tillable land near a county seat, and worth, when he saw it, $10 an acre, and would then be worth more. Both parties believed the information given by P. in regard to the land of the defendant to be accurate; and, in a few days thereafter, acting upon the information so obtained, entered into an agreement for an exchange, which was executed by the mutual delivery of deeds, the defendant in addition, executing and delivering two notes amounting to $700, secured by mortgage on the house and lot conveyed to him, as the equivalent of the supposed difference in the value of the lands exchanged by the parties. It turned out that P. was mistaken in his statement, the land he saw, though of the character and value of the land described by him, was not the land of the defendant; It was of the character and value before stated and had not been seen by P. In a few months after the exchange the plaintiff learned of the mistake as to the character of the land in Iowa; and at once re-executed a deed for it, and offered to deliver it, and return the notes and mortgage he had received, to the defendant, and demanded a reconveyance of his house and lot, which was refused. Held: That there was a mutual mistake as to a material part of the subject of the exchange; that, under the circumstances, a want of reasonable care cannot be imputed to the plaintiff in relying on the statements of P. as to the character and value of the land in Iowa, and that he is entitled to a rescission of the exchange. Crist v. Dice, 18 Ohio St. 536, distinguished.
    (Decided November 22, 1887.)
    Error to tbe Circuit Court of Hardin County.
    Tbe original suit was begun in tbe common pleas to obtain tbe rescission of an exchange of lands tbat bad been made between tbe parties, on tbe ground tbat tbe defendant bad made fraudulent representations as to the location, character and value of the lands given by him in exchange for those of the plaintiff. Judgment was rendered in favor of the defendant on the issue as to fraud, and the plaintiff appealed to the district court, then in existence. The plaintiff, by leave of court, then amended his petition, so as to aver that there was a mutual mistake as to the location, character and value of the lands exchanged by the defendant for those of the plaintiff. On the issues made as to this, the case was subsequently heard and determined by the circuit court as the successor of the district court. It made, at the request of the plaintiff, a special finding of facts, and rendered judgment thereon in favor of the defendant, dismissing the action of the plaintiff. The plaintiff moved the court to set aside its finding and judgment as not supported by the evidence, and, also, as not supported by law. The motion was overruled; and the rulings of the court in this, regard are assigned for error here. The facts as found by the court are as follows:

      “ 1. That on the 14th day of December, 1881, the plaintiff, "William S. Irwin, was the owner of the house and lot in Kenton, Ohio, in the petition described, which was worth $1700. 2. That the defendant, Joseph H. Wilson, was at said date, the owner of the land described in the petition, being 80 acres of land situate in the county of Monona, in the state of Iowa. 3. That-on the said date one Isaac H. Wilson, who was the father and agent of the defendant, proposed to sell and exchange said 80 acres of land in Iowa, to, and with plaintiff, for said house and lot of plaintiff, which said 80 acres of land, said Isaac H. Wilson then stated had been taken by defendant in a trade of lands at $1200; that he had never been in Iowa, and had not seen the land, and knew nothing of it, but that one Henry Pugh, he was informed, had been to see the land, and Pugh, he was informed, said it was good, dry land, and within three or four miles of the county seat of said county of Monona, in the state of Iowa, and that said Henry Pugh lived near Ada, in said Hardin county; that on the 17th day of December, 1881, said agent proposed to said plaintiff to go and see and inquire of said Henry Pugh as to the location and quality of said land in Monona county, Iowa, and said Isaac H. Wilson, did, on the 19th day of December, 1881, furnish a conveyance for that purpose, and he and plaintiff did go to the house of said Henry Pugh and said plaintiff did then, in the presence of said Isaac H. Wilson, make inquiries of and concerning said land in Monona county, Iowa, and on said day the said Henry Pugh stated to the said plaintiff in the presence and hearing of said Isaac H. Wilson, that he had seen and been upon the said lands of defendant in Monona county, Iowa, in the month of October, 1879; that the same were about four miles from the county seat of Monona county, Iowa; that the said lands were good, dry, tillable lands; that there was improved land, and corn growing within thirty rods of the same; that the said land was worth $10 per acre and would be worth more now; that he had gone to see said lands for Nicholas High, who was a former owner of a tract of which this was a part, and he had never seen the plaintiff and had never spoken to said agent, Isaac H. Wilson, previous to the interview; that said plaintiff relied upon the statements made by Pugh; that the said plaintiff, the said defendant and the said Isaac H. Wilson, agent, were entire strangers to the said Henry Pugh. 4. That neither said plaintiff, said defendant, nor said Isaac H. Wilson, ever saw said lands in Monona county, Iowa, prior to the date of said exchange, and never since that date except that said plaintiff went to see the same in May, 1882, after the commencement of this suit. 5. That on the 21st day of December, 1881, the said plaintiff and defendant entered into a contract in writing for the exchange of said lands, of which contract the following is a copy.
    “ ‘’December 21st, 1881. Article of agreement between W. 5. Irwin, of the first part, and J. H. Wilson, of the second part, wherein said Irwin of the first part agrees to sell and has sold to J. H. Wilson, of the second part, the property lie now lives in, being the east half of a part of out lot number six, in the eastern addition to the town of Kenton, Ohio, for, and in the consideration of nineteen hundred dollars ($1900) paid as follows, to-wit; Twelve hundred in hand, in 80 acres of land in Iowa, and three hundred and fifty dollars ($350) payable April 1, 1883, with one year’s interest at six per cent., and three hundred and fifty dollars ($350) payable April 1, 1884, with two years’ interest at six per cent. Said Wilson to have possession of said property on or before the 1st day of April, 1882, said property to be left in good condition.
    Wm. S. Irwin,
    J. H. Wilson,
    Isaac H. Wilson, Agent.’

      “ Thereafter on said 21st day of December 1881, said defendant, Joseph H. Wilson, executed and delivered to plaintiff a deed of conveyance in fee simple for said 80 acres of land in Monona county, Iowa, naming in said deed the sum of $1,200 as the consideration therefor, and also made and delivered to plaintiff his two notes for $350, each payable, respectively, April 1, 1883, and April 1, 1884, with interest thereon at six per cent, per annum, secured by mortgage on said Kenton property, and at the same time said plaintiff executed and delivered to said defendant a deed of conveyance for said house and lot in Kenton, the consideration named in said deed being $1,900.

      “ 6th. That said Henry Pugh did not see and was not on the lands so conveyed, by said defendant to plaintiff when in Monona county, Iowa, in 1879, or at any other time; that the land seen by said Pugh in said county of Monona, Iowa, was prairie, and dry, tillable land, and within 20 to 30 rods of growing corn in October, 1879, and that the land so conveyed by defendant to said plaintiff in Monona county, Iowa, was wet, marshy land unfit for cultivation and was not worth at said time to exceed three dollars per acre; that on the 25th day of March, 1882, the said plaintiff tendered to said defendant a deed of conveyance duly executed for said 80 acres of land-in Iowa, being the same real estate before that time conveyed to him by defendant; also tendered to defendant the said notes and mortgages so executed by defendant to plaintiff and demanded a deed of conveyance for said house and lot in Kenton, Ohio, so conveyed by plaintiff to defendant, which tender by said plaintiff and conveyance by said defendant were then refused by said defendant, to all of which the said plaintiff then and there excepted.”
    The answer of the defendant among other things contains the following denials:

      “ Defendant denies the averment of said amended petition that said Pugh by mistake or design had not seen the lands described in defendant’s deed. And denies that the description given by said Pugh was erroneous and untrue; and denies that there was any mistake as to the identity of said lands on the part of said Pugh.”

      William Lawrence, for plaintiff in error.
    I. A court of equity will rescind a contract when: (1) the parties thereto acted under a mutual mistake, (2) of a material fact, (3) when the party asking the rescission used reasonable care to avail himself of the means of information easily accessible, (4) has used reasonable diligence in discovering aud giving notice to the adverse party of the intention to rescind, and (5) when the parties can be put in statu quo, or (6) where a refusal to rescind would give such adverse party an unconscionable advantage:
    1. Material fact. M’Ferran v. Taylor, 3 Cranch, 279:
    2. Mutual mistake. Belief without knowledge is mistake. Kerr on Fraud & Mistake, 406; Colyer v. Clay, 7 Beav. 188; Hastie v. Couturier, 9 Exch. 102; 5 H. L. 673; Strickland v. Turner, 7 Exch. 208; Cochrane v. Willis, L. R., 1 Ch. App. 58; Story Eq. Jurisp. 140-143-151; Sufficient if purchaser believe, even though vendor have neither knowledge nor belief. 1 Story Eq. 151; Wheadon v. Olds, 20 Wend. 176; Mowatt v. Wriyht, 1 Wend. 360:
    3. Reasonable care to know facts; Grymes v. Sanders, 93 U. S. 62; exists if no “ culpable negligence.” Jenks v. Fritz, 7 Watts & Serg. 201:
    4. Reasonable diligence as to notice of rescission. Grymes v. Sanders, 93 U. S. 62; Parmlee v. Adolph, 28 Ohio St. 17; Champlin v. Layton, 18 Wend. 408:
    5. Parties put in statu quo. Grymes v. Sanders, 93 U. S. 64.

      6. Unconscionable advantage. 1 Story Eq., 147, 151; Wheadon v. Olds, 20 Wend. 176; Kerr on Fraud and Mistake, 53, 54, 57, 409; 1 Fonbl. Eq. B., 1 C. 2; Warner v. Daniels, 1 Wood. & Minot, 90; McCobb v. Richardson, 24 Maine, 82; Crowder v. Langdon, 3 Ired. Eq. 476; Smout v. Ilbery, 10 M. & W. 10; Bennett v. Judson, 21 N. Y. 238; Harding v. Randall, 15 Maine, 332; Stone v. Denny, 4 Metc. 151; Buford v. Caldwell, 3 Mo. 477.
    II. If an owner of land pending, negotiation for its purchase, refers the purchaser for information as to its character and value to a third person, who erroneously, but in good faith, informs the purchaser that the land is good and valuable, and the purchaser, relying on this, buys the land, the vendor knowing that the purchaser received and acted on such information, he is estopped from denying that - he also believed, and acted on, the same representation, although he had no knowledge as to the character or value of the land. Wharton Agency, §§ 177, 584, 673; Smith v. Richards, 13 Pet. 26; Herman Estoppel, § 323; Broom’s Legal Max. 266; Pickard v. Sears, 6 Ad. & El. 464; Freeman v. Cooke, 2 Exch. 663; Bigelow Estoppel (3d ed.) 492, 542; Niven v. Belknap, 2 John. 589; Dickerson v. Colgrove, 100 U. S. 578.
    III. Equity will rescind a contract for the sale of property, the enforcement of which would secure to one party an unconscionable advantage, whether it was entered into by reason of (1) mutual mistake, or (2) mutual ignorance of material facts, (which may exist without any belief on the subject), where the party asking rescission has been guilty of no laches, unless, as held in Ohio, the parties have expressly and distinctly agreed that the purchaser shall take all risks, and that the vendor shall, in no event, be liable for unknown or unexpected defects:
    1. Mutual mistake : Authorities passim.

    2. Mutual ignorance: Authorities ante.

    3. Express agreement that buyer take all risks. Crist
      v. Dice, 18 Ohio St. 536. This case elsewhere in principle not adopted. Wheadon v. Olds, 20 Wendell, 176.
    IV. When a party has been induced to purchase land on a representation, even made in good faith, that it was located in one place, when in fact it is in another materially variant, equity will rescind the contract of purchase, if the purchaser is guilty of no laches. Such a rescission is required, both on the ground, (1) that the purchaser is bound to make his representation good, and (2) that in legal contemplation there is in such ease no contract.

    1. Purchaser bound to make representation good. M’Ferran v. Taylor, 3 Cranch, 270; Allen v. Hammond, 11 Pet. 72; Hitchcock v. Giddings, Daniel’s Exchequer, R. 1; s. c., 4 Price Exch. 55.
    2. In such case no contract. 1 Fonblank Eq. 114; Puffendorff’s Law of Nature & Nations, b 1, ch. 3, sec. 12; 1 Parsons Cont. 475; Sheldon v. Capron, 3 R. I. 171; Shirley v. Davis, cited 6 Ves. Jr. 678.

      Howenstine & Sweet, for defendant in error.-
    It clearly appears that the defendant knew nothing about the land conveyed to plaintiff; he made no representation in regard to it and he did not procure any one to make any representations. There is no fraud charged against the defendant, and he was not laboring under any mistake in regard to the land in any particular. Without one ortho other of these elements, the relief cannot be granted. 1 Story Eq. Jur. secs. 147, 148, 149.
    Mere mistake of one party, in reference to a contract reduced to writing, is not sufficient to avoid it. State v. Perry, Wright, 662-669.
    There was no confidential relation existing between the parties. They dealt as strangers; the facts were equally known to both parties; and they had equal and adequate means of information. There was no bad faith. Under such circumstances equity will not interfere. 1 Story Eq. Jur., secs. 150, 151; Grymes v. Sanders, 93 U. S. 55.

      The plaintiff was actually upon inquiry as to the value, location and quality of the land. By reasonable diligence he could have obtained true information. He was guilty of negligence. 1 Story Eq. Jur., secs. 146, 149, 150; Warner v. Daniels, 1 Woodb. & M. 90, 101; Ferson v. Sanger, 1 Woodb. & M., 138; Grymes v. Sanders, supra; Crist v. Dice, 18 Ohio St. 536.
    The original contract was in writing and must be presumed to embody the real intention and full understanding of the parties.
    “ In such case, courts ought not to proceed on the ground of mistake without very clear and satisfactory proof of its existence.” Davenport v. Sovil, 6 Ohio St. 459; Potter v. Potter, 27 Ohio St. 84.
   Minshall, J.

The exchange in this case was conducted on behalf of the defendant by his father acting as his agent. But this can make no difference as to the rights of the plaintiff, if the knowledge and acts of the agent were such that the plaintiff would be entitled to a rescission had the party acting as agent been the owner of the land, and acted for himself in effecting the exchange, instead of an agent. For in such case the agent personates the principal, and, as to third persons, his knowledge and acts must be regarded as those of the principal. Dunl. Paley Ag. 259, and eases cited in note 4. Any other rule would make it utterly unsafe to deal with one acting as the agent of another.

From the facts found by the court it appears that the defendant, being the owner of a tract of land in the state of Iowa, proposed by his agent to exchange it for the house and lot of the plaintiff in the town of Kenton. Both were well acquainted with the property of the plaintiff, but being uninformed as to the land in Iowa, the agent of the defendant procured a conveyance and, at his suggestion, he and the plaintiff went to see one Pugh, though a stranger to both of them, residing in the county where they did, the agent saying that he understood that Pugh was acquainted with the land. On arriving at Pugh’s he informed them that he had seen the land, that he had been on it the year before, and that it was good, dry, tillable land near the county seat, that it was worth $10 an acre when he saw it, and would then be worth more. In a few days afterward, the agreement for the exchange was made and executed, by the plaintiff conveying his house and lot to the defendant who conveyed to the plaintiff his land in Iowa containing 80 acres, and also made and delivered to the plaintiff two notes amounting to $700, secured by mortgage on "the house and lot convoyed by the plaintiff, as the equivalent of the supposed difference in the value of the lands exchanged.' In a few months afterward the plaintiff discovered that the land in Iowa was not such as it had been described by Pugh; that it was unfit for cultivation, being wet and marshy, and worth not more than $3 an acre. ' The error arose from the fact that Pugh was mistaken in the ownership of the land he had seen; the land he had seen and described to the plaintiff and the agent of the defendant, was such as he had described it to be, but was not the land of the defendant, though he thought it was. The mistake was in the identity of the land seen and'described-by Pugh. Thereupon the plaintiff offered to rescind which was refused by the defendant. The refusal is placed, not upon the ground that he cannot be restored to his former condition by the plaintiff, but that upon the facts as found, there is no ground for rescission, there being, as claimed, no mutual mistake, and no fraud found by the court. Whilst no fraud is found by the court, does i't not however clearly, if not necessarily, follow from the circumstances under which the exchange was made, that there was a mutual mistake of the parties as to the character and value of the lands'in Iowa? We think it does. Both parties were in ignorance as to the true character of the land of the defendant. If it had been otherwise the cou.rt could not have found that there was no fraud. It found that the plaintiff believed and relied on the information given by Pugh, and if the defendant by his agent was acting in good faith, he must have done the same thing; for it will hardly be affirmed by any one that, under the circumstances of this ease, he could without fraud have concluded the exchange, knowing that the land was not such as it had been described by Pugh, for he must have known, if he knew any thing, that the plaintiff believed what was said to him by the person to whom he had taken him for information. He knew it from the fact that the plaintiff concluded the agreement for an exchange on the basis of that information. So that under the circumstances, it would be perilous for the defendant to claim that neither he nor his agent believed the statements of Pugh as to the character of the Iowa land, for if that had been the fact, he could not have concluded the exchange on the basis of the information being true, without perpetrating a fraud on the plaintiff, whether he made any positive representations or not. Poll. Cont. (Wald’s Ed.) 429.

But his belief or disbelief as to this is not a matter of mere argument, for, while there is no specific finding on the question, it is made certain by the pleadings. In answering the averments of the petition the defendant affirms in his pleading that the description given of the land by Pugh was not untrue, and that there was no mistake in the identity of the land seen by him. Therefore, unless we may conclude that he had one belief as to the matter when he concluded the exchange and another when he filed his answer, a thing quite impossible if not absurd, we may safely conclude that as a fact apparent on the record, he had the same belief as to the accuracy of the statements made by Pugh that the plaintiff had. But the positive findings of the court are that Pugh was mistaken as to the identity of the land, and that that owned by the defendant was not of the description given by him. So that the only question that remains is, not whether there was a mutual mistake in regard to the land, but whether it is such a one as under the circumstances entitles the plaintiff to a rescission.

Here we must observe that the mistake arose not from a mistaken opinion of Pugh as to the character of the defendant’s lands; for if he had in fact seen the land and simply erred in his opinion as to its character and value, a different question might have been presented. It is a matter of common knowledge that opinions will differ in this regard, and the plaintiff in relying on the statements of Pugh as to the quality of the defendant’s land, might be held as assuming the possibility of a mistake in his judgment as to this. But Pugh did not see the land of the defendant; he was mistaken in its identity. Such errors are less frequent than the former; and a fault could hardly be imputed to any one in not anticipating an error of this kind. 2 Pom. Eq. § 852. It is against mistakes of this character that courts have been most prompt to relieve; and not only for the reason that they may happen where the greatest caution is observed, but, also, that as a matter of law, where they do occur, no real contract is formed. Thus in Wheadon v. Olds, 20 Wend. 174, a sale had been made of a quantity of oats in bulk, upon an estimate of the quantity, after a portion had been measured. The estimate of the quantity unmeasured was made by a comparison of the measured with the unmeasured pile, and the purchaser agreed to take them at the estimate, hit or miss ” as to quantity, and paid for them at the estimated quantity. The oats did not hold out within about 300 bushels of the quantity estimated and paid for. It was afterwards discovered that a mistake had been made in regard to the quantity measured, which formed the basis of the estimate, in counting the tallies as bushels, instead of half-bushels as they were in fact. Upon these facts the plaintiff was allowed to recover back the money paid for the entire quantity which he did not receive. The case was followed in Coon v. Smith, 29 N. Y. 392, where it was cited as showing the length courts will go in disregard of contracts founded in a mistake of material facts and in the protection of rights prejudiced thereby.” There an agreement between adjoining landowners by which a corner had been erroneously fixed by reason of a miscount of the chain-men, was held not to be binding, although it had been acted on by both parties before the mistake was discovered. The error of the chain-men being unknown to the parties invalidated the agreement fixing the corner.

So in Gardner v. Lane, 9 Allen 492, W. had agreed to sell G. 135 barrels of No. 1 mackerel. By mistake of the parties in making the delivery, some two months afterwards, part of the barrels marked to indicate delivery, were No. 3 mackerel and part were salt. In replevin by tbe purchaser against a creditor of the seller who had levied on the property, it was held that no property passed in the barrels so marked by mistake, even as to those containing No. 3 mackerel, the court saying, They are not included within the contract of sale; the vendor has not agreed to sell nor the vendee to purchase them; the subject-matter of the contract has been mistaken, and neither party can be held to an execution of the contract to which he has not given his assent. It is a case where, through mutual misapprehension, the contract of sale is incomplete.” See, also, the same case, 12 Allen, 39, where the ruling, when it was again brought before the court, was adhered to.

The principle of these cases is quite as applicable to contracts for the sale and conveyance of land, induced by the mutual mistake of the parties, as to contracts concerning personalty ; and the equitable relief of rescission will be granted, where such mistakes have intervened, quite as readily in the on ease as in the other, if not more so. Poll. Cont. (Wald’s Ed.) 430, and cases cited in the notes; Pom. Eq., § 869; Crowe v. Lewin, 95 N. Y. 426; Lawrence v. Staigg, 8 R. I. 256; Gilroy v. Alis, 22 Iowa. 174; Iric kv. Fulton, 3 Gratt. 193; Barfield v. Price, 40 Cal. 535; Knapp v. Fowler, 30 Hun. 513; Rhode Island v. Massachusetts, 13 Pet. 23; and Mulvey v. King 39 Ohio St. 491, Upson, J., 495.

In the case presented by the record before us, the mistake was in the identity of the land that had been seen and described by Pugh. He supposed it to be the land about which the parties were contracting and desired information; the error was in this and not in the description of the land he had seen; hence the parties, in acting upon his information, acted upon the same error of fact; and, upon principle, the case is not different from what it would have been, had they gone to see the land described by Pugh, supposing it to be the land of the defendant; and that such an error would, on the ground of mutual mistake, have avoided the contract, is, we think, too plain to admit of a question.

In treating of the subject of mistake, Mr. Pollock in his work on contracts, observes: It may happen that there does exist a common intention, which however is founded on an assumption made by both parties as to some matter of fact essential to the agreement. In this case the common intention must stand of fall with the assumption on which it is founded. If the assumption is wrong, the intention of the parties is from the outset incapable of taking effect. But for their common 'error it would never have been formed, and it is treated as non-existent. Here there is in some sense an agreement; but it is nullified in its inception by the nullity of the thing agreed upon. And it seems hardly too artificial to say that there is no real agreement. The result is the same as if the parties had made an agreement expressly conditional on the existence at the time of the supposed state of facts: which state of facts not existing, the agreement destroys itself.” Pol. Cont. 412; see, also, Fonbl. Eq. marg. 120; Kerr on Fraud and Mistake, 431.

The case of Crist v. Dice, 18 Ohio St. 536, on which much reliance is placed by counsel for defendant in error, is plainly distinguishable from this one. It was an action for rescission on the ground of fraud. The defendant claimed and introduced evidence, that, though he had exhibited to the plaintiff a letter from a stranger, representing the land as favorably situated and of good quality, and stated to the. plaintiff that he had bought the land on the strength of this description, he refused to vouch for its truth, and advised the plaintiff io go and see for himself. The plaintiff declined to take the trouble and agreed to make the exchange at his own risk. There was no finding of facts, and the case was disposed of on the assumption, that the court below may have believed the defendant’s version; and, adopting it, the plaintiff had of course no ground for relief. This sufficiently distinguishes the case from the one presented by this record.

We are unable to perceive upon what principle of justice the plaintiff should be denied the relief he asks. The information upon which he acted had not been obtained in a casual meeting with Mr. Pugh. The defendant by his agent having suggested that Pugh was acquainted with the land, and taken the plaintiff to inquire of him about it, is estopped from saying, that Pugh was a stranger and he had no right to rely on what he said. Moreover, the error did not occur from any bad faith in Pugh, but from a mistake that may happen to the most careful of men. As the mistake arose from an innocent error in all the parties, natural justice forbids that- the loss of one arising out of it, should be the gain of the other.

Judgment reversed, and judgment rendered for the plaintiff in error, rescinding the exchange made by the parties.


author: Owen, C. J.

text:
    Hauck v. The State.

      Oi-iminal law — Fraudulent claim — Accounting officer of municipal corporation— Reo. Slats., sec. 7075.
    The board of infirmary directors of a municipal corporation is an accounting officer in the sense in which that term is employed in section 7075 of the Revised Statutes, which provides that whoever knowingly presents a false and fraudulent claim to the auditor “ or other accounting officer” of .any municipal corporation, for the purpose of procuring the allowance of the same, is guilty of a crime.
    (Decided November 29, 1887.)
    Error to Court of Common Picas of Hamilton County.
    The plaintiff in error was indicted, tried and convicted for an offense alleged to have been committed against the prohibitions of section 7075 of the Revised Statutes.
    So much of that section as applies to the case, provides that: “ Whoever, knowing the same to be false and fraudulent, makes out, or presents for payment, or certifies to be correct * * * to the auditor or other accounting officer of any municipal corporation * * * any claim, * * * account, * * * or other evidence of indebtedness, false or fraudulent, in whole or in part, for the purpose of procuring the allowance of the same * * * shall be guilty of an offense punishable as therein provided.
    The indictment charges:

      1. That the defendant made out and presented to the board of infirmary directors a false and fraudulent bill, for the purpose of procuring the allowance of it by that board. ■
    2. That the defendant made out and presented the same bill to the same board for the purpose of procuring from the board an order for its payment.
    He was acquitted of the second charge.
    Before the trial, the defendant demurred to the indictment. The point of the demurrer was, that the board of directors of the city infirmary of Cincinnati, was not such an accounting officer as is designated by the statute, and hence that presenting a false bill to that board, or procuring its allowance, was not an offense within the statute.
    But the court held that it was, and overruled the demurrer.
    At the trial, the court charged the jury that it was; and that question is the one upon which this proceeding is reported, though others are assigned for error.

      M. F. Wilson and Miller Outoault, for plaintiff' in error.

      Wm. F. Pugh, prosecuting attorney, for the state.
   Owen, C. J.

The contention of the plaintiff in er^or is, that the board of infirmary directors of the city of Cincinnati, does not come within the designation: “ other accounting officer of the corporation of Cincinnati, as employed in the statute under which the indictment was framed. What is an accounting officer in the sense in which that term is employed in the statute above cited ? Section 2690 of the Revised Statutes provides that:

“No claim against a municipal corporation shall be paid by the treasurer, except upon the warrant of the auditor, and in all municipal corporations where there is no auditor, on the warrant of the clerk; and all boards of trustees, directors or commissioners, having charge of the expenditure of city funds, shall certify claims against their respective departments to the auditor [in the city of Cincinnati, the comptroller] for payment, * * * * and it shall be the duty of the auditor, in addition to his other duties, to keep accurate and detailed accounts of the receipts and expenditures of the city in all its departments, and for all purposes.”

It is maintained by the plaintiff in error, that this duty to keep accurate and detailed accounts, etc., constitutes the auditor (comptroller) peculiarly an accounting officer; and that the expression other accounting officer,” is employed to meet the case of an officer by another name or designation, who, by law, is charged with the keeping of themccounts of the receipts and expenditures of a city.

Our statutes fail to furnish an express definition of an accounting officer, or of his duties. Ye find much aid, however, in the solution of this question in the case of McKnight v. United States, 13 Court of Claims, 299, 305. It is there said, by Richardson, J.: The Revised Statutes require that all claims and demands whatever by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the department of the treasury.’ The principal officers to whom this great responsibility is committed are called ‘ accounting officers,’ consisting of six auditors, each acting separately upon different classes of accounts, etc.”

The functions of many of these officers are similar to those of the board of infirmary directors, as distinguished from those of the city auditor (or comptroller), and none of them is charged with the disbursement of money.

After speaking of the various duties of these officers, the judge says : These different processes in the settlement of claims and demands upon the government from their receipt by the auditor, through the several stages of examination, certification, and drawing of warrants for the payment, up to the time when the treasurer issues his drafts, are all matters of accounting, to justify the treasurer in paying out the public money,” etc.

In the case at bar, pursuing the usual course of proceeding under the statute, the board of infirmary directors had made its contract with Hauck for the roofing of an infirmary building. Hauck presented an apcpunt of labor and materials to the board for its approval. It was approved by the board, and an order issued for its payment, directed to tbe comptroller, of the following tenor:

“Cincinnati, June 30, 1885.

City Comptroller: Pay to the order 'of Michael Hauck four hundred and ninety-nine and 40-100 dollars for improvement account — tin roofing.” Signed by the infirmary directors, and attested by the clerk. This was receipted for by Hauck, and is the only voucher or evidence of his claim which is required to be presented to the comptroller upon which he issues his warrant upon the treasurer. This is set forth here to illustrate the course of proceeding contemplated by the statutes. The comptroller is not required to look or inquire, back of the order of payment issued by the board, into the account or bill presented by the claimant to such board. As we have already seen, section 2690, of the Revised Statutes, provides that all directors “ or commissioners * * * having charge of the expenditure of city funds, shall certify claims against their respective departments to the auditor for payment.” Such a claim is supposed to have been audited and approved before its certification is presented to the auditor (or comptroller) for payment. This board, in considering and approving the accounts presented to it, is in the discharge, of functions similar to those of the auditors of the United States treasury — -which, ap we have seen, are designated “accounting officers” by the statutes of the United States.

It seems that at least some of the functions of accounting officers are vested in this board of infirmary directors. ¥c are not called upon, however to place our construction of the language “ other accounting officers ” solely upon the foregoing consideration.

It will be seen that the statute under which this indictment was framed, construed in the light of those provisions which relate to municipal infirmary directors, conclusively solves the question arising upon the words “ other accounting officer.”

There can be no question that the board of infirmary directors had ample power to bind the city by a contract for roofing the infirmary building, upon which the claim of the plaintiff in error was founded. There can be no question that this board was charged with the expenditure of so much of the city funds as was necessary to discharge any legal obligation incurred by the making and performance of such contract, and that it had power'to certify to the comptroller the claim so incurred against its department for payment, and that upon such certification the comptroller was authorized to draw his warrant on the treasurer for the amount so audited and allowed. Revised Statutes: sections 2168, 2170, 2171, 2173, 2157, 2158, 2165, and 2690 (cited supra).

In other words, it is conceded in this case that this board had exclusive authority to “ allow ” the claim of the plaintiff in error. Only upon such allowance could the comptroller have been authorized to issue his warrant on the treasurer for the amount allowed.

• By section 7075 of the Revised Statutes, whoever knowingly presents a false and fraudulent claim to the auditor (comptroller) or other, accounting officer of a municipal corporation for the purpose of procuring the allowance of the same, is guilty of a crime.

It is the presenting a false and fraudulent claim (for the purpose of procuring its allowance) to some board or officer authorized to allow it, which constitutes the offense.

•It seems too. clear for serious discussion that the words other accounting officer” imply such an officer as may lawfully pass upon and allow a claim or account against a municipal corporation, upon the authority of which allowance the comptroller may issue his warrant upon the treasurer; and even if these words were not chosen with a view to their prior technical signification, the fact of their' employment in the connection in which we here find them, is sufficient in itself to enlarge or qualify the sense in which they had theretofore been used. Looking to the mischief which this statute was designed to remedy, the approved canons of construction permit us to construe it as if it provided that whoever knowingly presents a false or fraudulent claim against a municipal corporation to an officer thereof having power to allow it, for the purpose of procuring the allowance of the same, shall be guilty of a crime,” etc.

When the false and fraudulent claim of the plaintiff in error was presented by him to this board for the purpose of procuring its allowance, the crime for which he was indicted was consummated.

There was no error in holding this indictment good. There are other assignments of error, all of which have been fully considered by the court, but none of them are lound to be well taken.

Judgment affirmed.


author: By the Court.

text:
    John F. Burke v. Norman Taylor et al.

      Practice — Proceeding in error — IAmiiation within which must he commenced.

    (Decided November 22, 1887.)
    Error to the Circuit Court of Ashtabula County.

      W. P. Howland and Theo. Hall, for plaintiff in error.

      Puggles & Belts, for defendants in error.
   By the Court.

Statutes authorizing proceedings in error should be strictly pursued; and such a proceeding brought to reverse a judgment for or against two or more parties should be commenced against all of them within the two years’ limitation prescribed by statute in order to confer upon the reviewing court jurisdiction to reverse or modify such judgment or any part of it as to either of such parties. Smetters v. Rainey, 14 Ohio St. 287, and Jones v. Marsh, 30 Ohio St. 20, approved and followed.

Judgment affirmed.


author: Williams, J.

text:
    Doll v. The State.

      Criminal law — Officer interested in rmmioipal contract.

    1. A person duly elected to, and holding the office of member of the hoard of public works of the city of Cincinnati, is “ an officer elected to an office of trust or profit in this state,” within the meaning of section 6969 of the Devised Statutes, which makes it a crime for such officer to become “ directly or indirectly interested in any contract for the purchase of any property or fire insurance, for the use of the state, county, township, city, town or village,” and is amenable to the provisions of that section, if, while acting as such officer, he becomes interested in a contract for the purchase of property for the use of the city.
    2. To become so interested in the contract, it is not necessary that he make profits on the same. But it is sufficient, if while acting as such officer, he sell the property to the city for its use, or is personally interested in the proceeds of the contract of sale, and receives the same or part thereof, or has some pecuniary interest or share in the contract.
    3. In a prosecution against such member of the board of public works, for having become so interested in a contract for the purchase of property for the use of the city, while acting as such officer, it is no defense that, when the contract was made, the proper officer had not certified that the money required for the contract was in the treasury to the credit of the proper fund, or specifically set apart to meet such expenditure.
    (Decided December 13, 1887.)
    Error to tbe Court of Common Pleas of Hamilton County.
    Tbe case is stated in the opinion.

      M. F. Wilson, Campbell & JBettman and Paxton & Warring-ton, for plaintiff in error.

      Wm. PE. Pugh, prosecuting attorney for tbe state.
   Williams, J.

At tbe November term, 1886, of tbe court of common pleas of Hamilton county, tbe plaintiff in error was indicted under section 6969 of tbe Revised Statutes, for tbe crime of having become interested in a contract for the purchase of property for the use of tbe city of Cincinnati, while acting as a member of the board of public works of that city, that being an office of trust and profit in this state. He was convicted at the'May term, 1887; and his motions for a new trial, and in arrest of judgment, having been overruled, and sentence pronounced, he filed his petition in error in this court, asking the reversal of the judgment.

1. It is first contended by the plaintiff in error, that the trial court erred in overruling his challenge to the juror Pfaflin. In regard to this assignment of error, it is sufficient to say, that the opinion of the juror was not formed from reading or hearing the testimony of witnesses, or conversations with them; but merely from newspaper reports. He testified on his voir dire, that he would, if selected, render an impartial verdict, and it appears that the court, by accepting him, was of the same opinion. He was a competent juror. McHugh v. State, 42 Ohio St. 154.

2. It is further contended, that section 6969 of the Eevised Statutes, has no application to officers of municipal corporations, but that it constitutes a crime for them to become interested in contracts, only when done in violation of section 6976. This is the proposition given most prominence in the argument, and apparently most relied upon, by plaintiff in error. The question is presented on the record in various forms ; first by the motion to instruct the jury to return a verdict for the defendant at the close of the testimony for the state; then by exceptions to the rejection of testimony offered by the defendant to prove the value of the property sold, and that he made no profits on the contract; again by exceptions to the charge of the court; ánd finally by the motion in arrest of judgment.

The two sections read as follows:

“ Section 6969. An officer elected or appointed to an office of trust or profit in this state, and an agent, clerk, servant, or employe of such officer, or of a board of such officers, who, while acting as such officer, agent, clerk, servant, or employe, shall become, directly or indirectly, interested in any contract for the purchase of any property or fire insurance for the use of the state, county, township, city, town, or village, shall be imprisoned in the penitentiary not more than ten years nor less than one year.

“Section 6976. An officer or member of the council of any municipal corporation who is interested, directly or indirectly, in the profits of any contract, job, work, or services for the corporation, or acts as commissioner, architect, superintendent, or engineer, in any work undertaken or prosecuted by the corporation during the term for which he was elected or appointed, or for one year thereafter, shall be fined not more than one thousand nor less than five hundred dollars, or imprisoned not more than six months nor less than thirt days, or both, and shall forfeit his office.”

These sections define different crimes and prescribe different penalties. The former applies in terms to any officer, elected or appointed to an office of trust or profit in this state; the latter to officers of municipal corporations only. Under the former section the crime consists in the officer, while acting as such, becoming interested in any contract for the purchase of property or fire insurance for the use of the state, county, township, city, town, or village; by the latter it is made to consist in the municipal officer becoming interested in the profits of any contract, job, work, or services for the corporation, or acting as commissioner, architect, superintendent, or engineer of any work undertaken or prosecuted by the corporation, during his term, or for one year thereafter. Allowing that the former includes municipal officers, the sections provide for distinct offences, and both may consistently stand, and be made operative.

It is not claimed for the plaintiff in error, that the office held by him was not one of trust or profit in this state, or that the contract in which he is charged to have been interested, was not for the purchase of property for the use of the city, and made while he was acting as such officer, within the exact terms of section 6969. His real contention is, that, because by the revision of the statutes, section 22 of the act “ to regulate the Ohio soldiers’ and sailors’ orphans’ home” (73 Ohio L. 31), section 21 of the act “to better provide for the organization of hospitals for the insane” (73 Ohio L. 86), and section 34 of the act “ to regulate and govern the Ohio penitentiary” (73 Ohio L. 43), were carried into section 6969, it must, by construction, be limited in its application to the officers and cases specified in those acts. By them, it was made criminal for any trustee, superintendent, physician, or matron of the soldiers’ home, or of any hospital for the insane, to be interested in any contract for the purchase of any building material, or for any building or improvement, or for any article of furniture supply, or provisions, for the use of their respective institutions; and for any officer or employe of the penitentiary to be interested in any contract of purchase made by the steward.

This court has repeatedly recognized and applied the rule relied on by counsel for the plaintiff in error, that “ where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction to conform to the manifest intent of the legislature.”

It would seem, however, that the legislature intended the section under discussion to have a more general application than the statutes referred to, from the fact that it is no longer part of the legislation relating to particular institutions, but is incorporated into the general crimes act; and its provisions are not, as were those statutes, confined to certain specified officers of those institutions, but in express terms embrace all officers, elected or appointed to any office of trust or profit in the state. By no construction of its language can it be limited to the officers of the institutions mentioned, or to the kinds of contracts specified in the former statutes. There is no rule of construction which authorizes the court to say that the language, “any contract for the purchase of property for the use of the state, county, township, city, town or village,” means simply contracts for the purchase of property for the use of the penitentiary, hospitals for the insane, or soldiers’ home; or that the language “an officer elected or appointed to an office of trust or profit in this state,” comprises none but trustees, physicians, matrons and stewards of the penal and benevolent institutions of the state.

It must be admitted that the provisions of section 6969 are more comprehensive than the statutes in force at the time of the revision, and this being conceded, the rule of construction contended for becomes inapplicable, and the scope of the section must be determined by giving effect to its language, which is plain and unambiguous. It is not difficult to see why the section was enacted in its present form, for if, to make it a grave crime for officers of the public institutions of the state to be interested in contracts pertaining to such institutions, be a wise measure, calculated to insure official integrity, and protect the state against frauds, sound policy would seem to require that a like provision be extended to all similarly situated. To permit those holding offices of trust or profit to become interested in contracts for the purchase of property for the use of the state, county, or municipality of which they are officers, might encourage favoritism, and fraudulent combinations and practices, not easily detected, and thus make such officers, charged with the duty of protecting those whose interests are confided to them, instruments of harm. The surest means of preventing this, was to prohibit all such contracts; and the legislature having employed language sufficiently clear and comprehensive for this purpose, there is no authority in the courts under the pretext of construction to render nugatory the positive provisions of the statute. We see no reason to doubt that section 6969 applies to officers of municipal corporations, and there was, therefore, no error in overruling the motion of the defendant below to instruct the jury to return a verdict of acquittal, nor in excluding the evidence offered by him to prove the value of the property, or that he made no profits on the contract, nor in the charge of the court on that question.

3. The court in its charge instructed the jury as follows: Defendant’s counsel claim that no valid contrast existed between the city and the defendant, at the time the horses were sold to the city, because the comptroller of the corporation did not first certify that the money required for the contract was in the city treasury, especially set apart to moot such expenditure. Upon this question I will say, that if the jury find upon the evidence in the case that the defendant sold and delivered the horses named in the indictment to the city, that the city had the horses in its actual possession, and that the city had appropriated the horses by using them in carts, upon its streets; and if the jury also find that at the time the horses were so appropriated, and used by the city of Cincinnati, there was money in the ■ city treasury, and that the defendant received a warrant upon the city treasury, for full payment of all horses so in the possession of said city, then I instruct you that the fact that the certificate of the comptroller is wanting, certifying that there was money in the city treasury, at the time of the sale of said horses to the city, by the defendant, can be no defense in this case.”

This was excepted to at the time, and is one of the errors assigned.

It is said that under sections 2699, 2702 (2690 j., vol. 3, p. 167) of the Revised Statutes, all contracts of such municipal corporations, involving the expenditure of money, are void, unless the proper officer shall first certify that the money required for the contract is in the treasury, to the credit of the proper fund; and such is the purport of those sections. The argument made is, that in order to convict, it was incumbent on the state to prove that the defendant became interested in a valid contract; one that could be enforced by either party, because from uo other could there be any danger to the city; and that proof by the state that the defendant became interested in a contract declared by the statute to be illegal and void, was equivalent to proving there was no contract. This proposition carried to its logical conclusion would render section 6969 wholly inoperative, by making a conviction thereunder impossible; for all contracts made by officers in violation of its provisions, and by the making of which they commit the crime it punishes, are necessarily illegal and void. Neither party could enforce them, because it is a crime to make tlmm. In every prosecution under the section, it being necessary for the state to prove tliat the accused became interested in a contract prohibited by it, proof of the crime, would establish the defense ; and the clearer the crime was made out, the clearer would be the defense. The mischief the statute was intended to remedy, may be done as readily under contracts made when the sections referred -to are disregarded, as under those made in conformity to them ; for officers who are willing to violate one statute, will find convenient methods of evading others. There was in our opinion no error in this charge.

4. The following portion of the charge of the court was excepted to : “ "What is it to become directly or indirectly interested in a contract, in the sense contemplated by the statute, upon which this indictment is founded ? To be interested in a contract, is to-have and to hold some pecuniary interest in it; to have and to hold a share, portion, or part of it or in it. If the jury find from all the evidence in this case that the defendant, Charles Doll, at or about the first day of October, 1885, at the time the bill for $3,010, was presented by him and allowed by the board of public works, and at the time of the payment of the same by the treasurer, was interested personally in the proceeds of'said contract, and' that he received* any part of the proceeds of the warrant made in payment of the said horses, from the said treasurer of the city of Cincinnati, while acting as such officer; or if you find from all the evidence in the case that he bought the horses named in the indictment at a certain sum, and afterwards, while acting as such officer, sold them to the city for another and larger sum than he paid for them; then, in either event, he would have an interest in the contract in the sense of the law.”

This is assigned for error; the claim being that on the trial the defendant gave evidence tending to show that he was not interested in the contract for the sale of the horses to the city of Cincinnati, but acted only in the capacity of an agent for the city in purchasing them for it;- and that under the charge excepted to, the jury may have convicted him, although they found he had no other connection with the contract than as such agent.

It is quite clear the charge will not admit of that construction. If the defendant bought the horses for one price, and sold them to the city for a greater, he would in no sense be merely an agent; nor would he if he had a personal interest in the proceeds of the contract of sale, and received part of the consideration paid for them. As a mere agent for the purchase of the horses, he could have no personal interest in the proceeds of their sale. The charge plainly forbids the conclusion drawn by the plaintiff in error. If he depired a more explicit instruction upon his theory of the case, it was easy for his counsel to have requested it. It is well-settled in this state that the omission of the court to charge the jury upon a particular question arising in a case, is not erroneous and cannot be made a ground of error unless an instruction be requested. Jones v. State, 20 Ohio, 34.

There are some other assignments of error, but they do not call for particular notice. We have carefully examined the whole record, and fail to find error justifying the reversal of the judgment.

Judgment affirmed.