author: Price, J.

text:
    The Circleville Light and Power Co. v. The Buckeye Gas Co., et al.

      Artificial gas company—Contract with municipality expires—Cannot' enjoin a natural gas company from supplying city with illuminating gas, when—Section 3551, Revised Statutes—Municipal law—Injunction.

    1 An artificial gas company, whose contract with the municipal authorities of a city -or village, for the furnishing oí gas for illuminating purposes to the corporation and its inhabitants, has expired by the lapse of time, is not entitled to an injunction against a natural gas company, furnishing natural gas to said, corporation and its inhabitants for the same purpose.

      2. A natural gas company having a right by franchise to furnish natural gas for fuel may go into operation in a city or village, under contract with the municipal authorities -thereof, for the furnishing of natural gas for illuminating purposes, to the municipality and its inhabitants, although there is already formed within such municipality, a company which manufacturas and furnishes artificial gas for the same purpose and the right to so go into operation does not require a vote of the qualified voters-of the municipality, as provided in section 3551, Revised Statutes.
    (No. 8297
    Decided December 8, 1903.)
    Error to the Circuit Court of Pickaway county.
    On October 4, 1901, the plaintiff in error filed, its petition in the lower court, against the defendants in error, The Buckeye Gas Co., and its general manager and secretary, asking an injunction to prevent them from furnishing, for á money consideration, to the city of Circleville and its inhabitants, natural gas for lighting purposes,.'and also to prevent them from inducing the plaintiff’s customers to use natural, gas for said purpose. The plaintiff claims the exclusive right to supply the city and its inhabitants with manufactured or artificial gas for illuminating purposes, •under an ordinance of said city, passed August 12, 1891. The plaintiff is the successor of the Circleville ■Gas Light and Coke Co., which in 1859, obtained a franchise for using the streets and other public ways in laying pipes to convey gas for lighting said city, .and thereunder erected its gas works and established its plant. The franchise was renewed and extended, ■September 2, .1891, and a contract was entered into between the city and the Gas Light and Coke Co., for the furnishing of gas for lighting purposes for the term of five years, or until March 2, 1896. The price for gas agreed upon in the latter franchise is $1.50 per 1.000 cubic feet for light for all amounts less than 10.000 cubic feet per month; and for all amounts .greater than 10,000 cubic feet per month shall make a lower rate. Gas for heat and power shall be furnished at $1.00 per 1,000 cubic feet, per month.
    On or about September 2, 1891, the plaintiff, the ■Circleville Light & Power Co., obtained from said city :a franchise to erect posts and wires, for the purpose of furnishing electricity for light, heat and power to the •city and its inhabitants ; and on the same day, by •ordinance, obtained the right to use the streets, alleys, and public grounds for such pipes as might be necessary to convey gas to the city and its inhabitants.
    On or about September 14, 1891, the plaintiff in error, plaintiff below, purchased of the said, the Circleville Gas Light and Coke Go., its gas works, plant, pipes, and all its property, franchises, rights and privileges, and, as the petition alleges, became the successor of, and succeeded to all its franchises, property, rights and privileges.
    The petition proceeds to aver, that the “plaintiff thereupon undertook to perform and has performed and carried out the said contract, duties and obligations of said, the Circleville Gas Light and Coke Go., and since the .expiration of the term fixed by said ordinance of August 12,1891, within which the said, the Circleville Gas Light and Coke Go., was to furnish gas at the prices therein named, the said plaintiff has, in good faith, continued, and is continuing to furnish gas to said city and its inhabitants, and said city and its inhabitants have continued and are continuing to receive gas so furnished by plaintiff, under and for the price named and fixed by said ordinance of August 12, 1891, and said plaintiff intends to so furnish gas to said city and its inhabitants at said price fixed by said ordinance of August 12, 1891, until said city shall again fix said price or some other reasonable price for another term to be accepted by said plaintiff.”
    It is also alleged that plaintiff accepted the terms of the aforesaid. electric lighting ordinance passed September 2, 1891, and constructed, and has maintained, a large electric light and power plant, at great expense, and is furnishing electric light under said ordinance to said city and its inhabitants.
    The plaintiff complains of the defendant in error,, The Buckeye Gas Go., a corporation under Ohio laws since December 31, 1894, in this: That on or about March 20,1895, the said city, by ordinance, gave the defendant the right and privilege to use the streets, commons, alleys, avenues, sidewalks, public grounds and bridges, for the purpose of laying and maintaining pipes to be used for carrying natural gas for public and private use for fuel in buildings, manufacturing establishments, “and otherwise,” in the city, together with'the right to lay pipes and erect necessary regulators and appliances required to convey said gas to consumers thereof in the city. Section 2 of this ordinance provides, that “The Buckeye Gas Co.', defendant, shall, for a period of ten years from August 1, 1895, be entitled to charge for such natural gas furnished to the citizens and public buildings not to exceed the sum of twenty-five cents per 1,000 cubic feet net, to consumers, and fixes the rental of meters, and that the mayor’s office, city prison, council chamber, city engine house, memorial hall, and public library building shall be supplied without charge.”
    It is further complained that, while the plaintiff has the exclusive right to furnish gas and electric light to said city and its inhabitants for illuminating purposes, the defendant has wrongfully and without authority, begun to furnish and is still so furnishing, natural gas to the city and its inhabitants, for illuminating purposes, and is advising and inducing the city and its inhabitants to use said natural gas for illuminating purposes, in violation of the rights of the plaintiff under its franchises, and without complying with the provisions of section 8551, Revised Statutes.
    To the petition containing the foregoing and other averments, the defendants demurred. The court overruled the demurrer, and the defendant answered, setting up its right to furnish natural gas for illuminating purposes, and contesting the right of plaintiff to an injunction. The plaintiff replied, and on the issues joined, the cause was heard by the court. The court found for the defendant and dismissed the petition. The plaintiff appealed to the circuit court, where the answer and reply were withdrawn, and a demurrer filed to the petition, which the circuit court sustained. No amendment being desired, the petition was dismissed.
    Error is prosecuted in this court to reverse the judgment of the circuit court.

      Messrs. DeWitt <& Hubbard and Mr. Percy A. Walling, for plaintiff in error, cited and commented upon the following authorities: '

      Emerson v. Commonwealth, 108 Pa. St., 111; Corwin v. Benham, 2 Ohio St., 36; Stetson v. City Bank, 2 Ohio St., 167; Lewis v. Bank of Kentucky, 12 Ohio, 132; Goshorn v. Purcell, 11 Ohio St., 649; Morris v. Williams, 39 Ohio St., 558; Railway v. Telegraph Assn., 48 Ohio St., 390; Endlich on Interp. of Stat., sec. 112, p. 147; Cline v. City of Springfield, 10 Dec., 389; 7 N. P., 626; Lima Cas Co. v. City of Lima, 2 Circ. Dec., 396; 4 C. C. R., 22; Findlay Gas Light Co. v. Village of Findlay, 1 Circ. Dec., 463; 2 C. C. R., 237; Stannard v. Case, 40 Ohio St., 214; Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 209; City of Toledo v. Nat. Gas Co,, 3 Circ. Dec., 273; 5 C. C. R., 571; act of May 1, 1852, 50 O. L., 289; act of May 7, 1869, 66 O. L., 219; act of 1867, 64 O. L., 255; S. & S., 157; act of 1874, 71 O. L., 93; secs. 2478-2491f, 2497, 3235, 3236, 3237, 3238, 3239, 3550-3561a, Rev. Stat.

      Mr. Lawrence T. Neal, for defendant in error, cited and commented upon the following authorities:.

      Gas & Fuel Co. v. Chillicothe, 65 Ohio St., 186; Findlay Gas Light Co. v. Village of Findlay, 1 Circ. Dec., 463; 2 C. C. R., 237; Hunter v. Austin, 6 Circ. Dec., 480; 9 C. C. R., 587; Emerson v. Commonwealth, 108 Pa. St., 111; Gas Co. v. City of Parkersburg, 30 W. Va., 435; s. c., 4 S. E. Rep., 650; Gas Light Co. v. Pennsylvania Gas Co., 161 Pa. St., 510; s. c., 29 Atl. Rep., 101; Railroad Co. v. Cable Tramway Co., 30 Fed. Rep., 324; s. c., 1 Eddy on Combinations, 25, note; Bruner v. Briggs, 39 Ohio St., 484; McLeod v. Bourroughs, 9 Ga., 213; Perrine v. Canal Co., 9 How., 172; Turnpike Co. v. Illinois, 96 U. S., 63; Railway Co. v. Railway Co., 130 U. S., 126; Sutherland on Stat. Const., sec. 223, p. 297; Endlich on Interp. of Stat., sec. 186; Epps v. Epps, 17 Ill. App., 196; Bragg v. Clark, 50 Ala., 363; State ex rel. v. Gas Light & Coke Co., 18 Ohio St., 262; 2 High on Injunctions, sec. 911; Gas Light Co. v. Gas Co., 25 Conn., 19; Gaslight Co. v. Gas Co., 40 N. J. Eq., 427; Water Co. v. Water Co., 44 N. J. Eq., 427; 2 Pomeroy’s Eq., secs. 817, 934; Kuhn v. City of Detroit, 70 Mich., 534; Wynehamer v. People, 13 N. Y., 378; State v. Oil, Gas & Mining Co., 120 Ind., 575; Evans v. Perkins, 2 Dev. Eq. (N. C.), 39; Daughtry v. Warren, 85 N. C., 136; Kellogg v. Ely, 15 Ohio St., 64; Goodin v. Canal Co., 18 Ohio St., 169; Castalia Trout Club Co. v. Castalia Sporting Club, 8 Circ. Dec., 693; 8 C. C. R., 194; Kincaid v. Nat. Gas Co., 124 Ind., 577; Railroad Co. v. Strauss, 37 Md., 237; Planet Co. v. Railroad Co., 22 S. W. Rep., 616; Stevens v. Railway Co., 30 N. J. Eq., 126; Sheboygan v. Railway Co., 21 Wis., 667; Attorney General v. Utica Ins. Co., 2 Johns Ch., 371; Wood v. Pleasant Ridge (Vil.), 5 Circ. Dec., 516; 12 C. C. R., 177; Van Wert v. Webster, 31 Ohio St., 420; McCord v. Iker, 12 Ohio, 387; Goodall v. Crofton, 33 Ohio St., 371; Bank v. Bowman, 12 Re., 125; 1 Handy, 258; Bigelow v. Hartford Bridge Co., 14 Conn., 565; Dodge v. Railway Co., 43 N. J. Eq., 351; 1 High on Injunctions, secs. 618, 742; 1 Beach on Injunctions, sec. 42;; 1 Swan & Critch. Rev. Stat, 300; Swan & Sayler’s. Supp. to Rev. Stat, 158; 77 O. L., 109; 84 O. L., 39; 86 O. L., 62; secs. 1777, 1778, 1779, 2478, 2485, 2491, 3551, Rev. Stat.
   Price, J.

The plaintiff in error claims the exclusive right to furnish the city of Circleville and its inhabitants with gas for illuminating purposes, and pleads an ordinance passed by the council of said city, and the plaintiff’s acceptance thereof, as the contract upon which it rests the claim. This ordinance was; passed on August 12, 1891, and was to be in force as. a contract until March 2, 1896.

It also pleads, for some purpose no doubt, that by another ordinance, passed about the same time, it obtained the right and privilege of furnishing the said city and its inhabitants with electric light, for public and private buildings, the streets and other public ways. The petition is silent as to the price to be charged for such light, and also as to the duration of the contract.

But it is plainly disclosed in the petition that its contract with the city for the furnishing of gas, is the accepted ordinance of August 12,1891, which fixed the charges for light at $1.50 per 1,000 cubic feet, per month, for all amounts less than 10,000 cubic feet; and for heat and power at $1.00 per 1,000 cubic feet per month. It is expressly provided in this ordinance so plead that its obligation extends to March 2, 1896. The second section provides, “that upon the filing by the said gas company in the. office of the clerk of the corporation, of its written acceptance of the terms of this ordinance within ten days of the taking effect of this ordinance, the same sháll then be and become a binding contract between the said gas company and the •said city for the period aforesaid, and said company shall not be required to furnish gas at a less price during said period of time so agreed upon.”

It seems, therefore, that while the plaintiff had a franchise ordinance authorizing it to use the streets •and other public ways and places, for the laying and maintaining pipes for the purpose of supplying the •city and its inhabitants with gas for light and heat, the contract as to the terms upon which it could operate the plant and furnish the gas expired on March :2, 1896, over five years prior to the filing of plaintiff’s petition in this case.

As found in the statement of the case, the petition •discloses this fact, but it alleges that the plaintiff •company complied with the terms of said ordinance ■during the term prescribed, and has ever since continued to furnish gas according to the same charges, ¡and that the city and its inhabitants have continued to use and pay for the gas according to the terms of ¡said ordinance.

There has been no renewal or extension of the ordinance of August 12,1891, in the manner and under the form prescribed by law, or at all, and while the city and the citizens may be liable to pay for what it receives from the plaintiff, its right to enjoin another •company from furnishing even the same kind of gas, is a very different question. To entitle it to this extraordinary remedy, the standing of the plaintiff ¡should be unequivocal, and disclose vested rights of •contract about to be invaded to its special injury, and. upon which it can appeal to a court of equity for protection.

Under what obligation is either the city or its inhabitants to continue taking and paying for plaintiff’s gas? May not either cease to patronize the plaintiff .at the end of any month? And if there is not a conitinuing obligation or contract between the parties, why may not some other company or person, solicit ■.the former customers of the plaintiff and furnish ithem with gas for illuminating purposes? Will a ¡court of equity forbid it? The plaintiff has no contract with the city. Its rights are, at best, but transitory, and yet, it seeks a perpetual injunction against the defendant to exclude- it from lighting the city. These are threshold questions and closely involve the plaintiff’s standing in court.

The demurrer challenges the- petition in which the foregoing facts clearly appear, and where is the subsisting contract with the plaintiff, that should be protected by the provisions of section 3551, Revised Statutes? There is none, and the plaintiff in error fails to show a right to the relief prayed for.

We now come to the controversy presented in the briefs. The plaintiff furnishes manufactured gas, and the defendant company obtained, by ordinance duly accepted, the right to pipe streets and other public ways of the city of Circleville for the purpose of supplying natural gas for fuel, to the city and its inhabitants. This ordinance was passed on March 20, 1895, and the term of its operation is fixed at ten years from the taking effect of the ordinance. ■ In addition to furnishing natural gás for fuel, it is alleged, that the defendant is furnishing that gas for illuminating ■purposes to the city and its inhabitants, without having obtained the right to do so by a vote of the qualified voters of the city as required by section 3551, Revised Statutes. That Section provides:

“The municipal authority of any city or village, or the trustees of any township, in which, any gas or: water company is organized, may contract with any such company for lighting or supplying with water the streets, lands, lanes, squares, and public places in such city, village, town, or township; but ho such company shall go into operation in any city or village' where such a corporation has been already formed, or is hereafter formed, until after the question of authorizing such operation has been submitted to the qualified voters of such city or village, and authorized by ordinance.”

It is alleged that' defendant company did not obtain the right to go into operation for furnishing-natural gas for lighting purposes by a vote of the people, and therefore its proceedings in that respect are in violation of the above statute, because there is an established existing company—the plaintiff—already formed in the city, for the purpose of supplying it and its people with gas lighting.

Does the word “gas” as used in the section, embrace natural gas? Or, does it mean the artificial or manufactured gas which alone was then in use for illuminating purposes? The plaintiff asserts that the word, as there used, is generic, and not confined to any species of gas, but includes any “gas.” Therefore it maintains that a natural gas company cannot go into operation as a competitor with plaintiff, without being authorized by a vote of the citizens. On the contrary the ■ defendant contends, that the legislature, when it made the provision involved, had in mind and intent the “gas” which was then known and in commercial use.

The original section, as found in Swan & Critchfield’s Statutes, vol. 1, p. 800, sec. 54, contained no. provision requiring a vote of the people, to authorize a second gas or water company to go into operation. The section was amended April 18,1874, and the present restriction was thereby made. See Ohio Laws, vol, 71, p. 93. The original section was adopted more than a half century ago, when natural gas for commercial use was unknown in this state. As a matter of common knowledge, it was not. known as an article of commercial use in Ohio when the above amendment, was adopted in 1874, and could not have been in contemplation when the legislation now found in section 3551,’ Revised Statutes, was enacted. The existing subject-matter of a statute is as important and proper in its construction as it is in construing contracts between parties.

This view is strengthened by reference to section 2491, Revised Statutes, as found in the revision of 1880. It is there provided that “a municipal corporation in which any incorporated gas company is properly organized under the laws of the state, shall have power to contract with such company—a gas company—for supplying with gas the streets, squares, and other public places in the corporate limits; but this section shall be subject to the proviso in section seventy-five hundred and fifty-one” (3551). Examination demonstrates that in making the revision the word seventy is a clerical mistake, and that thirty-ftve hundred.and fifty-one was clearly intended.

In the year 1887, after the discovery and production of natural gas for commercial purposes within this state, our legislature amended section 2491, so that it read: “A municipal corporation may contract with such company for supplying wifh natural or artificial gas for the purpose of lighting or heating, the streets, squares and other, public places and buildings in the corporate limits; but this section shall be subject to the restrictions in the last clause of section thirty-five hundred and fifty-one.”

In 1889, the section was again amended to include electric light companies. Hence, we think that “gas”' as mentioned in section 3551, means artificial and not natural gas, and that the defendant being a natural gas company, may go into operation as against the contract of the'plaintiff, without being authorized to> do so by a vote of the people. The rule would be otherwise if the plaintiff were a natural gas company,, the.purpose being to restrain a second company from going into operation in the use of the same kind of' gas that is being used by an already established company, without obtaining popular consent. We find a. well considered case on that subject in Warren GasLight Co. v. Pennsylvania Gas Co. et al., 161 Pa. St., 510, where the court held the following proposition: “A company organized under the special act of March 8,1869, P. L. of 1872,1217, with the exclusive right to* furnish manufactured gas for light to the citizens of Warren by the terms of its charter, has no exclusive right as against a corporation delivering natural gas to the citizens of Warren for illuminating or lighting purposes, under the act of May 29, 1885, P. L., 29.” The question we are considering is fully discussed in that case.

While the word “gas” may be in one sense a generic term, it is quite plain, that as used in the statute, it does not embrace every species of gas discovered or manufactured in modern times. There are numerous gases, manufactured or generated, which are used in art and manufacturing, none of which was contemplated in the enactment of section 3551. The manufactured gas then in use and now furnished , by the plaintiff is a substance produced by human skill and art. Natural gas comes from the great laboratory of nature, all ready for the immediate use of man when, let to the surface of the earth.

If we were in doubt about our construction of section 3551, there is another rule or canon of construction which may well be employed here. The plaintiff claims the exclusive right to furnish gas for lighting; the city and its people. In other phrase, it claims a monopoly in supplying that article unless it shall be-qualified by a vote of the people. This may be true as to supplying manufactured gas, if it has a subsisting-contract for that purpose. But we think not so as to natural gas. If there is doubt about the extent of plaintiff’s monopoly, it must be resolved against the-monopoly.

As said by Justice Gordon in the case of the Appeal of the Scranton Electric Light & Heating Co., 122 Pa. St., 154: “Monopolies operate in restraint of competition and are detrimental to the public welfare, and. are not to be allowed at all except where the resultant, advantage is in favor of the public. Public grants, are to be so strictly construed as to operate as a surrender by them of the sovereignty no further than expressly declared by the language employed. The grantee takes nothing by inference and except so far-as the exclusive privilege can be found from the grant itself, it is not conferred * *

The doctrine is tersely stated by Justice Brewer in Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. Rep., 324-328, as follows: “He who says that the state has given him a franchise, a right to do that which without that franchise he could not do, will be-compelled to show that the franchise, the right. ■claimed, is within' the terms of his grant Much more strenuous must be the demand upon him for clear and •explicit language in his grant when he claims that a part of it is not merely the franchise, the right to do, but also the right to exclude all others of the public from exercising the same right, and the state, as the representative of the public, from according the same right to another.”

For other authorities on the subject see cases cited by Justice Brewer in his opinion.

Here we have the plaintiff holding a contract by ordinance which seems to be in full force, whereby it is authorized to furnish electric light to the city of Cir-' •cleville and its citizens; and by its side, and on which the plaintiff stands, is an expired contract for furnishing manufactured gas to the same takers for the same purpose.

It cannot complain of the lighting by electricity, because that is its own enterprise. Nor can it complain that the furnishing of natural gas for lighting, trespasses upon the plaintiff’s right to furnish electric light, because that is not within the provision in section 3551.

The asserted monopoly of furnishing gas, manufactured gas, for illuminating purposes, is at a price fixed by the expired contract, while the price charged by the defendant for light by natural gas is much cheaper to the city and its people. The people are not complaining of defendant’s operations, for they are greatly benefited and relieved by them, and in their interest, the exclusive privilege of plaintiff, must he denied.

It is our opinion that the demurrer was properly sustained by the circuit court, and its judgment is affirmed.

Judgment affirmed.-

Burket, C. J., Spear, Davis, Shauck and Crew, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Boughman et al. v. Boughman et al.

      Deed of trust in lands—Equity requires that terms of trust and beneficiaries be clearly designated—By parol evidence, when.

    Equity requires that parol evidence to ingraft an express trust in lands upon a deed absolute shall clearly and convincingly show, that contemporaneously with the execution of the deed the terms of the trust were declared and the beneficiaries designated.
    (No. 8113
    Decided December 8, 1903.)
    Error to the Circuit Court of Stark county.
    The defendants in error brought suit in the court of cbmmon pleas to establish a trust in certain described lands which had been conveyed to Malcolm Boughman by a deed absolute. In their petition they alleged that Edward Boughman, by a last will and testament, had devised to Elizabeth, his widow, a life estate in his interest in said lands, and the remainder to Bertha May Boughman, who is an only child. The allegations of their petition with respect to the trust in favor of Edward, which they sought to charge upon the land, are as follows:
    “That on the-day of February, 1893, said decedent, Edward Boughman, together with the defendant, Malcolm Boughman and one Marquis L. Boughman, purchased from one Christian J. Harrold, as administrator of the estate of Wesley Harrold, deceased, the following described premises: Situated in the township of Sugar Creek, Stark county, and state of Ohio, and described as follows: Being the southeast quarter of section number five, township number eleven and range number ten, containing 160 acres, more or less.
    “That by agreement between said Edward Bough-man, Malcolm Boughman and Marquis Boughman, they being brothers, the title to said premises and the deed therefor, was executed and delivered to the defendant, Malcolm Boughman, to hold in trust for the said Edward Boughman, Malcolm Boughman and Marquis L. Boughman. That the said Edward Boughman and the defendant, Malcolm Boughman, own the south half of the above described premises, and the said Marquis L. Boughman the north half thereof. That Edward Boughman in his lifetime paid his part of the purchase money therefor, and ever since the purchase thereof was the owner of the undivided one-half of the south half of said premises, and that the defendant, Malcolm Boughman, held the title thereto as trustee for the said Edward Bough-man. That Edward Boughman died on or about March 29, 1900, leaving the plaintiffs his only heirs, who are the owners of said south half of said premises as aforesaid.
    “That said Malcolm Boughman, in accordance with said agreement as such trustee has, since the execution of said deed as aforesaid, conveyed to said Marquis L. Boughman the north half of said premises, less ten acres theretofore sold out of the north half by said Marquis L. Boughman. That ever since the purchasing of said premises, and from that time during the entire lifetime of Edward Boughman, he, the said Edward Boughman, received his share of the rents and profits of said south half of said premises, and he paid his one-half of the repairs, taxes and improvements thereon.”
    The answer of Malcolm denies all the allegations of the petition with respect to a trust in favor of Edward. In the court of common pleas the cause was tried upon these issues, and a judgment was rendered in favor of Malcolm. On appeal the cause was tried de novo in the circuit court, and a decree was entered, charging the lands with a trust according to the allegations and prayer of the petition. In the latter court the facts were separately found, the material findings being:
    “Third. That on or about February 15, A. D. 1893, the said defendant, Malcolm Boughman, the said decedent, Edward Boughman, and one Marquis L. Boughman, who were brothers, entered into a contract and agreement with each other for the purchase together of the lands described in the plaintiffs’ petition, and .that the title to said premises was to» be taken by said defendant, Malcolm Boughman, in trust for himself, the said Edward Boughman and Marquis L. Boughman; that in pursuance of said agreement, the said Malcolm Boughman, Edward Boughman and Marquis L. Boughman, did purchase the lands set forth and described in the petition and in pursuance of their said agreement, the deed for said premises was executecf to the said Malcolm Boughman. That said deed was absolute upon its face, but that the same was taken by the said Malcolm Boughman in pursuance of said agreement between said brothers, to be held by the said Malcolm Boughman in trust for the benefit and use of himself, the said EdAvard Boughman and the said Marquis L. Boughman, and that the said Malcolm Boughman, Edward Boughman and Marquis L. Boughman, each paid the one equal third part of the purchase price of said premises.
    “Fourth. That the said Malcolm Boughman accepted said deed absolute on its face for and on behalf of himself, EdAvard Boughman and the said Marquis L. Boughman, but in trust and for the use and benefit of himself, EdAvard Boughman and Marquis L. Boughman.
    “Fifth.' That after the purchase of the said real estate as hereinbefore set forth, the said defendant, Malcolm Boughman, Edward Boughman and Marquis L. Boughman agreed with each other upon a division of the said lands so purchased by them, the deed to which was held by the said Malcolm Boughman in trust for himself and the said Edward Boughman -and Marquis L. Boughman in the following manner, to-wit:
    “1. That the said Marquis L. Boughman was to have the north half of said premises.
    “2. The said defendant, Malcolm Boughman and the said decedent, Edward Boughman, were to have the south half of said premises, each to own the undivided one-half thereof, as tenants in common.
    “Sixth. That in pursuance of said agreement for the division of said premises, between the said Marquis L. Boughman and the said Edward Boughman and Malcolm Boughman, the said line of division was ascertained and fixed by a survey, and the said defendant, Malcolm Boughman, in pursuance of said agreement, and with the consent and agreement of all the said parties interested, made, executed and delivered to said Marquis L. Boughman, his said wife joining him in said deed of conveyance, a deed conveying to him, the said Marqnis L. Boughman, all of said north half of said premises, excepting that which had been sold to other parties by him, before the execution and delivery of said deed.
    “Seventh. That before the execution and delivery of said deed, and after said division of said premises had been agreed upon as aforesaid, said Marquis L. Boughman sold two tracts of .said land included in the premises purchased by them as aforesaid, and received the entire consideration therefor; one containing ten (10) acres, more or less, and the other containing two (2) acres, more or less; and that in pursuance of said sales by the said Marquis L. Boughman, and upon his request and demand, the said Malcolm Boughman in pursuance of said agreement of said division of said premises, executed to the purchasers of said tracts, deeds for such parts of said north half as were sold by the said Marquis L. Boughman.
    - “Eighth. That the said defendant, Malcolm Boughman, entered into the possession of the said south half of said premises in his own right as- the owner of the one-half thereof, in common with the said Edward Boughman, and as the tenant of the said Edward Boughman, who was the owner of the other said undivided one-half of said south half of said premises, and from that time until the death of the said Edward Boughman, the said defendant, Malcolm Boughman accounted for and delivered to the said Edward Boughman, the full one-half of the rents, profits and products of the said south half of said premises.
    “Ninth. That the said Edward Boughman, deceased, during his lifetime, paid for the one-half of all the repairs, taxes and improvements of every kind and character which was put upon said south half-of said premises.
    “Tenth. That the said Edward Boughman died on March 29, 1900, and that his last will and testament was duly admitted to probate in the probate court' of Stark county, Ohio.
    “Eleventh. That since the death of the said Edward Boughman, the said Malcolm Boughman has failed and refused to account to the legal representatives of the said Edward Boughman, deceased, or to his heirs or devisees for the rents, profits and products of said undivided one-half of said south half of said premises, and since the death of the said Edward Boughman, the said defendant, Malcolm Boughman has denied said trust, and has refused to convey, upon demand having been duly made, the undivided one-half of said premises which belonged to the said Edward Boughman in his lifetime, and which now belongs to his said widow, Elizabeth Boughman, and his said daughter, Bertha May Boughman, and has denied that the said Edward Boughman, in his lifetime, or his heirs, widow or devisees have any interest in said premises whatever. And as' conclusions of law, the court finds as follows:
    “First. Said deed so executed and delivered to the said Malcolm Boughman absolute on its face, for the premises set forth and described in the plaintiff’s petition was and is a trust deed and is held by the said Malcolm Boughman in trust for the use and “benefit of the said defendant, Malcolm Boughman, Edward Boughman and Marquis L. Boughman.
    “Second. That said amicable partition between said Marquis L. Boughman, on the one part, and said Edward Boughman and Malcolm Boughman on the other part, as tenants in common in said premises, divested the said Marquis L. Boughman of all the interest of every kind and character which he had in the said south half of said premises described in the petition and divested said Edward Boughman and Malcolm Boughman of all the interest of every kind and character which they had in the north half of said premises.
    “Third. That the said defendant, Malcolm Bough-man and Edward Boughman during the lifetime of the said Edward Boughman, after said partition of said premises were tenants in common in said south half of said premises each owning the undivided one-half thereof.”
    The controversy here is with respect to the sufficiency of the evidence upon which these findings were made in the circuit court. Sufficient statement of the evidence will be found in the opinion.

      Mr. D. W. Bhetler; Messrs. Grane & Snyder and Mr. M. L. Smyser, for plaintiffs in error.

      Messrs. Welty & Alba-ugh, for defendants in error.
   Shauck, J.

It has long been established in this state, and counsel for the plaintiffs in error concede, that a parol trust may be ingrafted upon a deed absolute. ■ But wherever this doctrine prevails it is required that the parol evidence by which it is sought to establish the trust must be clear and convincing. This is conformable to the general rule of equity that it will not, by any form of decree, upon mere suspicion or conjecture, abate the legal conclusiveness of a written instrument. Not only does the doctrine which plaintiffs below invoked make this requirement as to the probative character of the evidence to be by them produced, but it dispenses with none of the elements of a valid trust. To the creation of an express trust in lands in any mode it is indispensable that contemporaneously with the execution .of the deed the beneficiary be designated and the terms and conditions of the trust declared. These doctrines are elementary, and they have been frequently explained and applied by this court. Fleming v. Donahoe, 5 Ohio, 255; Miller v. Stokely, 5 Ohio St., 194; Stall v. Cincinnati, 16 Ohio St., 169; Russell et al v. Bruer et al., 64 Ohio St., 1. In order that we may determine whether the judgment of the circuit court is in conformity with these views, it is necessary to analyze, though not to state at leuglh, the evidence which was presented for its consideration. It was admitted that the property was purchased about the time alleged in the petition, and a deed absolute executed by the vendor to Malcolm; that the cash payment was made by Malcolm, his mother, and his brother Marquis; and that a mortgage for the unpaid balance was executed by Malcolm. It was both admitted, and overwhelmingly proved, that Malcolm afterward conveyed to Marquis a portion of the land, in recognition of an obligation arising out of the circumstances of its purchase and the payment therefor, and that until he died Edward had received a portion of the proceeds of the land and had contributed to* the payment of taxes and making of repairs, and had delivered to' the holder of the mortgage given on the purchase some smali sums of money, toward its discharge, including the ultimate payment. Numerous witnesses testified to admissions by Malcolm, some of them being distinct as to Edward’s interest in the proceeds of - the land, and some of them vague as to his interest in the land ■ itself. But of the numerous persons who were present when the purchase of the land was arranged for,, none was called by the plaintiffs below. There was. no evidence tending to show that Edward had contributed to the payment of the purchase money except, by delivering the concluding payments upon the mortgage. In short, the evidence offered in support of' the claim of the plaintiffs below left an express trust, to mere conjecture. It wholly failed to show a resulting trust, for it did not tend to show any payment, by Edward of purchase money at the time of the transaction, nor the assumption by him of any obligation with respect thereto.

The several persons who were present when the purchase was agreed upon were called by the defendants. Their testimony clearly established the purchase by Malcolm, his mother, and his brother Marquis, the-payment by them of the entire purchase price; and that’ the money which Edward had delivered to the-holder of the mortgage was furnished by the mother, and delivered by him as her messenger. After the-purchase the mother had consented that Edward should have her share of the proceeds of the land,, and with her consent he continued to receive them while he lived. In view of this fact the testimony with respect to the admissions of Malcolm, which occupied so much of the time of the trial court and exercised so much influence upon its decision, loses its. significance, for it is quite immaterial whether Malcolm misunderstood the arrangement between his. mother and Edward, or the witnesses misunderstood the import of Malcolm’s alleged admissions.

It is urged by counsel for defendants in error that, it being admitted that Malcolm held an undivided two-thirds of the land in trust, only a preponderance of' the evidence was required to establish the right of.' .Edward as a beneficiary; and that this requirement was met by the evidence offered upon the trial, or, at least, that it cannot be said here that it was not. Obviously this position ignores both the rule and the evidence. There can be no express trust without the •contemporaneous designation of the beneficiary, that is, of the person who claims as beneficiary. Nor could there be the claimed preponderance of the evidence ■since all the clear and convincing evidence with respect to the contemporanous arrangement, the designation of the beneficiaries and the declaration of the terms of the trust, showed affirmatively that Edward was not a beneficiary.

It seems clear that the circuit court did not properly ■apply the rules which govern in cases of this character.

Judgment reversed, and judgment for plaintiff in •error.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: By the Court.

text:
    The State of Ohio ex rel. Barker v. Philbrick, Director Public Safety, etc.

      Final judgment by common pleas court in mandamus—May be appealed to circuit court.

    From the final judgment rendered by'the court of common pleas in mandamus, an appeal may be taken to the circuit court.
    (No. 8312
    Decided December 8, 1903.)
    Error to the Circuit Court of Franklin county.
    Suit in mandamus was brought in the court of common pleas by plaintiff in error for a peremptory writ to compel the defendant in error to approve a voucher for money alleged to be due the relator as compensation for his services as a sanitary policeman in the city of Columbus. The defendant having answered, and the relator having replied to the answer, the cause was tried in the court of common pleas and a judgment rendered in favor of the defendant. The relator thereupon took an appeal to the circuit court, where a motion to dismiss the appeal was interposed, and the motion was sustained upon the sole ground that the cause is not appealable. To reverse the order of dismissal this petition in error is prosecuted.

      Mr. James M. Butler and Mr. W. L. Merwine, for plaintiff in error, cited and commented upon the following authorities:

      State ex rel. v. Smiley, 8 Circ. Dec., 117; 14 C. C. R., 660; State ex rel. v. Commissioners, 8 Circ. Dec., 244; 15 C. C. R., 40; Bouv. Law Dic., 329; Bliss on Code Pleading, sec. 1; State ex rel. v. Crites, 48 Ohio St., 169; State ex rel. v. Commissioners, 49 Ohio St., 301; State ex rel. v. Carpenter, 51 Ohio St., 86; Karb

      et al. v. State ex rel., 54 Ohio St., 384; Dutton v. Village of Hanover, 42 Ohio St., 215; State ex rel. v. Bowersock, 1 Circ. Dec., 75; 1 C. C. R., 129; secs. 526, 6748, 6749, 6750, 6751, 6752, Rev. Stat.

      Messrs. Jones, Addison & Williams, for defendant in error, submitted no brief.
   By the Court.

Section 5226, Revised Statutes, fixes the traits of an action which may be appealed to the circuit court after a final judgment in the court of common pleas. It must be a civil action, an action of which the common pleas court had original jurisdiction, and an action in which the right to demand a jury did not exist It is not questioned that the court of common pleas had original jurisdiction of this action, nor that the right to demand a jury upon the trial of the issues of fact did not exist. The circuit court appears to have been of the opinion that the action was not appealable because it is not a civil action. In Chinn v. Trustees, 32 Ohio St., 236, it was determined that there was no statutory limitation as to the time within which a writ of mandamus might be obtained, because it is not a civil action within the contemplation of the code of civil procedure. In Dutten v. Village of Hanover, 42 Ohio St., 215, the-right to appeal in a case of this character appears to have been denied by counsel upon the ground that either party might demand a jury upon the trial of', the issues of fact. The conclusion which the court, reached with reference tq that question was that neither party could demand a jury, and it thereupon decided comprehensively that either party might appeal from the judgment of the court of common pleas. It is quite true that the , report of the case pays no attention to the previous decision, nor does it appear that any consideration was given to the particular question whether mandamus has become, by virtue of subsequent legislation, a civil action. In the later case of The State v. Crites, 48 Ohio St., 143, this particular subject- was considered by the court in the light of the changes in legislation, particularly that made by the revision of .1878, the conclusion being that: “In view of these express provisions of the •statute it is difficult to say wherein a proceeding in mandamus differs in any material respect from a civil -action, or even in any respect except in name.”

The reports of the circuit court and of this court show that the case of Dutten v. Hanover has been generally accepted as conclusive in favor of the right ■of appeal in cases of this character. Indeed, we are not- aware that since the decision in that case the appealability of a mandamus case has been denied anywhere in the state except in the second circuit, and in that circuit the case cited was, for a time, accepted as conclusive in favor of the right of appeal.

In view of the expressions of this court upon the subject, its express holding in Dutten v. Hanover, -and the general acceptance of that conclusion throughout the state, we think the question should be regarded as settled.

Judgment reversed.

Burket, C. J., Spear, Davis, Shauck, Price and 'Crew, JJ., concur.


author: Davis, J.

text:
    The City of Fremont v. Dunlap.

      Billboard in alley blown upon street—Plaintiff damaged—Failure to-show actual notice to city—Accident improbable from municipal conditions—Error to refuse request of defendant for verdict— Municipal law—Personal injury—Court procedure.

    Where the plaintiff in an action against a municipal corporation for an injury which the plaintiff received from a billboard which was blown out of an alley upon the street by wind, fail’s to-show that actual notice to the corporation of the existence and position of the billboard and its dangerous character, and when it appears that under ordinary circumstances such an accident was improbable and could not with reasonable care have been foreseen, and where it also appears that the street upon which the-plaintiff was injured was open, in repair and free from nuisance,, the material facts in the case not being in dispute, it is error to-refuse a request by the defendant to instruct the jury to bring,in a verdict for the defendant.
    (No. 8288
    Decided December 8, 1903.)
    Error to the Circuit Court of Sandusky county.
    Defendant in error instituted tbis action by filing' a petition in the court of common pleas, setting forth that the plaintiff in error is a municipal corporation duly organized under the laws of the state of Ohio;, that about ten months before the injury complained of occurred, certain persons, whose names are unknown to the defendant in error, erected a billboard for posting notices and advertisements, on the west, side of a certain alley leading from Front street to Arch street, and near to the west line of Front street where the alley intersects with Front street; that the' street and sidewalk along the west side of Front street is much traveled upon; that the billboard so erected was about seven feet high and eight feet wide, and was so constructed as to be a nuisance and hindrance-in and to the alley, and dangerous to persons passing; along the sidewalk on the west side of Front street;, that said billboard was not fastened, being negligently carelessly, and insufficiently set up, and not properly fastened or stayed; that the officers and councilmen. of the city knew that the billboard was so wrongfully placed, and negligently suffered and permitted it, as aforesaid, to remain for a long space of time, to-wit,,for ten months or more; and that by the exercise of ordinary care they should have known and, in fact,, did know, all of the facts aforesaid. It is further-averred in the petition that on September 24, 1899, in the night of said day, the defendant in error was passing along said sidewalk on Front street when he came to the point where said alley intersects with' Front street, and while using due care on his part, the billboard fell upon the plaintiff crushing him to' the stone, pavement and sidewalk, and injured him. For all of which he claims a judgment against the city in the sum of $15,000.
    There was a demurrer to the petition, which was overruled in the court of common pleas. The city answered, denying each and every allegation in the petition except that it is a municipal corporation as alleged, and that the sidewalk on the west side of Front street is much traveled upon.
    At the close of plaintiff’s evidence the defendant’s counsel moved the court to arrest the testimony from the jury and to instruct the jury to return a verdict for the defendant, which motion was overruled and defendant excepted. The motion was renewed at the close of all of the evidence, and was again overruled and the same exception taken. Verdict was rendered in favor of the defendant in error, and judgment was entered thereon after overruling a motion for a new trial in the court of common pleas. On petition in ■error in the circuit court the judgment was affirmed.

      Mr. A. E. Culbert, city solicitor, and Mr. James Hunt, for plaintiff in error.
    First. We claim that granting all that is charged, and proven by plaintiff below, there is no liability upon the part of the city. It is well settled that the municipality is a part of the state, and as such is not liable in damages in actions of this character unless expressly made so by statute, or unless the injury or damage arises from negligence of the municipality in connection with the exercise by it of some proprietary interest or control over the thing or object causing the injury.
    It is true that section 2640, Revised Statutes, provides that: “The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.”
    It will be noticed that this statute contains no provision that a failure to exercise any of this authority or to perform any of these duties shall make the municipality liable in damages to a person injured.
    There is a distinction between the powers of a municipality, which are exercised by virtue of its proprietary rights and powers and those which it exercises by virtue of its governmental authority. Cincinnati v. Cameron, 33 Ohio St., 336.
    The city had no proprietary interest in, or control over, this signboard, or the building to which it was attached. It did not authorize the placing of the signboard where it was at the time of the injury, and it had no actual knowledge of its existence or condition. If the character and condition of this signboard was such as to make it an object of danger, and a nuisance, which in the exercise of ordinary care the city was bound to take notice of and abate, then by not doing so the city failed merely to exercise a governmental power or duty, and for such failure it is not liable. Frederick v. Columbus, 58 Ohio St., 538; Robinson v. Greenville, 42 Ohio St., 625; Wheeler v. Cincinnati, 19 Ohio St., 19; Western College v. Cleveland, 12 Ohio St., 375; City of Dayton v. Taylor, 62 Ohio St., 11; Custer v. New Philadelphia, 11 Circ. Dec., 9; 20 C. C. R., 177; Elliott on Roads and Streets (2 ed.), sec. 658, It will be noticed from its opinion that the circuit court lays some stress upon the case of Newark v. Fry, not reported, but referred to in Robinson v. Greenville, 42 Ohio St., 625. We think that this court have fully disposed of the case of Newark v. Fry in Frederick v. City of Columbus, 58 Ohio St., 538,
    Second. We contend further that aside from the question of the responsibility of the municipality for failure to take notice of nuisances and abate them that there is no liability in this case for the reason that failure to take notice of the condition and existence of this, particular signboard did not amount to culpable negligence.
    Now we understand, of course, that negligence is a mixed question of law and fact, and it may be claimed that the question, as to whether or not the existence of this board in this alley was negligence, was a question for the jury. We claim not.
    It is not a* case where there is any dispute as to the facts, and it is not a case about which reasonable' minds might differ as to the proper inference to be drawn. We think that the facts disclosed by the evidence call for a legal as distinct from the logical deduction, and the court erred in refusing to instruct the jury to return a verdict for the defendant
    We think it was clearly a question for the, court Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co., v. Crawford, 24 Ohio St., 631; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Grant v. Railway Co., 6 Circ. Dec., 516; 10 C. C. R., 362; Street Railway Co. v. Isaacs, 10 Circ. Dec., 49; 18 C. C. R., 177.

      Messrs. Garver, Garver & Garver and Messrs. Fine-frock & Garver, for defendant in error.
    The judgment of the court below, we strenuously insist, is fully sustained by the following authorities: City of Circleville v. Bohn, 59 Ohio St., 285; Village of Oak Harbor v. Kallagher, 52 Ohio St., 183; Clark v. Fry, 8 Ohio St., 358; White v. Kent, 11 Ohio St., 553; Deering on Neg., 153, 154; Brogand v. Broadway Foundry Co., 87 Mo., 321; Boone on Corp., sec. 293, n. 12, p. 456; Greene v. Portland, 32 Me., 431; Smith v. Leavenworth, 15 Kan., 87; Moak’s Underhill on Torts, 712; Requa v. City of Rochester, 45 N. Y., 129 and cases there cited; Angell on Highways, 267; Elliott on Roads and Streets, 447; Yates v. Warrenton, 84 Vt., 337; Cohen v. New York, 113 N. Y., 532; 10 Am. St. Rep., 506; Callanan v. Gilman, 107 N. Y., 360; 1 Am. St. Rep., 831, and notes; Wood on Nuisance, sec. 250;, Harrower v. Ritson, 37 Barb., 303; People v. Vanderbilt, 28 N. Y., 396; City of Richmond v. Smith, 43 S. E. Rep., 345; City of Louisville v. Breuss, Admr., 72 S. W. Rep., 9; Twist v. City of Rochester et al., 1 Munic. Corp. Cases Anno., 20; Chase v. City of Lowell, 31 Am. & Eng. Corp. Cas., 78; Jones v. New Haven, 34 Conn., 1; Vosper v. New York, 49 N. Y. Supp., 296.

      We call especial attention of the case of the City of Circleville v. Bohn, 59 Ohio St., 285, for we believe that this case solves many of the doubts heretofore existing as to the law of these cases and fully and conclusively answers the contention urged by the plaintiff in its brief.
    We contend that the billboard was a nuisance, according to the provision of section 2640, Revised Statutes, that it remained in a dangerous condition for nearly a year; that being there so long the city was bound to take notice thereof, and their failure to abate the nuisance was negligence. Moore v. Townsend, 78 N. W. Rep., 880; Kunz v. City of Troy, 10 N. E. Rep., 442; Langan v. City of Atchison, 57 Am. Rep., 165; Duffey v. Dubuque, 63 Ia., 171; 50 Am. Rep., 743.
    It would only require the foresight of an ordinary school boy to know that a board with a surface of fifty-six square feet, weighing fifty or sixty pounds, standing against a building in an alley where the wind has a clean sweep, with buildings on either side of the alley for a number of feet, forming a funnel or passageway for the wind, would do just what was. done on this occasion.
   Davis, J.

In this case the question is raised on the record and argued, that the cityj if it failed at all in its duty, merely failed to exercise a governmental power or duty, and that for such failure it is not liable under any circumstances. But assuming for the purposes of this case that the city might be liable for an injury resulting from the alleged nonfeasancé, still it could not be held liable before reasonable notice of the unsafe condition of the street had been brought home to the corporation. Circleville v. Sohn, 59 Ohio St., 285. It does not appear that actual notice was given to this corporation or its officers; but it is claimed that under the circumstances the city ought to have known that the billboard was dangerous and threatening to people passing along the street, and therefore that the city is chargeable with constructive notice of the alleged nuisance. In those jurisdictions where municipal corporations are held liable to individuals for negligence in respect to keeping its streets open, in repair and free from nuisance, it is held that while the corporation is not an insurer of the safety of its streets, alleys and sidewalks, it will be held liable for injuries to persons resulting from neglect of the corporation to keep its ways in a reasonably safe condition for travel in the ordinary modes under ordinary circumstances. In Chase v. Cleveland, 44 Ohio St., 505, it is said in the opinion: “We do not understand that a city is bound at all hazards to have knowledge of defects in sidewalks. Municipal corporations are not insurers of the safety of their public ways, or of the lives and limbs of pedestrians. The law provides that such corporations shall have the care, supervision and control of the streets, and shall cause them to be kept open and in repair, and free from nuisance. This requires a reasonable vigilance, in view of all the surroundings,, and does not exact that which is impracticable. When the authorities have done that which is reasonable in this regal’d they have discharged the entire obligation imposed by the law. They are not bound to use all possible vigilance in inspection or in obtaining information.” Also in Village v. Kallagher, 52 Ohio St., 183, it is held that a municipal corporation “is not bound to anticipate improbable or unprecedented events, and provide against their possible results.”

Under the law as thus stated, and upon the undisputed facts of this case, we do not think that the defendant in error has shown a right to recover against the plaintiff in error. It is not claimed that the city had actual knowledge of the existence of the billboard and of the danger to the public therefrom. Constructive notice is claimed from the fact that it was loose and stood leaning against a building, in an alley and near to the street. If it stood there six or eight months, as claimed by the defendant in error, it does not appear to have been such a permanent, inconvenience or obstruction, or that it was such a threatening danger as to have attracted much, if any, attention, or to have caused any alarm, or to have induced any complaint to the officers of the city. It is perfectly plain that under ordinary circumstances it was not dangerous, nor in any serious sense an obstruction. If the billboard was as large and heavy as the plaintiff claims, it could not have been expected to be thrown out into the street with the force and violence claimed, by a light breeze or any ordinary wind. The city was not bound to interfere with private rights to prevent an “improbable” result, or one which in ordinary experience might not have been foreseen. In short, upon the undisputed facts, it is palpable that the city was not guilty of want of ordinary care.

The judgment of the circuit court and that of the court of common pleas are

Reversed and judgment for plaintiff in error.

Bürket, C. J., Shauck and Crew, JJ., concur.


author: Spear, J.

text:
    The Manhattan Life Insurance Co. v. Burke.

      Contract of life insurance—Dispute as to amount of liability—Amount less than claimed paid to claimant in settlement—Action at law on the policy cannot be maintained without a tender of amount received, when—Contract of settlement pleaded in defense—A reply that settlement was fraudulent not sufficient in la/Hu, when.

    1. Where at the time of a compromise of a claim founded on a contract of life insurance, a dispute exists between the parties as to .the liability of the company in any sum whatever, it denying that anything is owing, and an amount less than the claim is paid to the claimant in settlement of the controversy, and he executes a full acquittance and release, and surrenders the policy, an action at law on the policy cannot be maintained without a return or a tender .of the amount received, even though the party’s assent to the settlement was obtained by the fraudulent representations of the other party, and the amount received as the settlement is in the petition credited as a payment on the policy.
    2. Where in such case the contract of settlement is pleaded as a defense, a reply which simply alleges that the settlement was induced by fraud, but does not allege a payment or tender of the amount received, is not responsive to the answer, and is insufficient in law. Insurance Co. v. Hull, 51 Ohio St., 270, distinguished.
    (No. 7720
    Decided December 8, 1903.)
    Error to tbe Circuit Court of Fairfield county.
    The action below was upon a policy of life insurance issued October 25, 1897, by the Manhattan Life Insurance Co., plaintiff in error, upon the life of one George Messmore, for five thousand dollars, which policy was assigned, November 24,1897, by said Mess-more, to the defendant in error, plaintiff below, Joseph Burke. It was alleged in the petition that Messmore had deceased, that two thousand dollars had been paid plaintiff by the Company on the policy May 31, 1899, and that three thousand dollars, with interest, remained due, for which judgment was prayed.
    Two defenses were interposed by the Company. One that the procuring of the policy and its assignment to plaintiff wére a mere scheme, devised to cover a gambling transaction, the plaintiff having no insurable interest in the life of Messmore, and that a controversy having arisen the same was compromised for the amount credited. The second defense set up that after the death of Messmore, plaintiff, claiming to be the owner of the policy, demanded of the defendant that it pay to him the sum of five thousand dollars, which payment, the defendant, having been advised by its counsel that it was not liable therefor, refused to make, upon the ground as then stated by it to the plaintiff> that the policy having been taken out by him for his own sole use and benefit on the life of Mess-more, in which he had no insurable interest, was a gambling policy, and that the plaintiff was not entitled to be paid or recover from the defendant any sum whatever under said policy. Thereupon the plaintiff and the defendant, the latter having been advised by counsel learned in the law that it was not liable to the plaintiff in any sum whatever on account of said policy, agreed to compromise and settle said disputed claim for the sum of two thousand dollars, which sum the defendant, in pursuance of said agreement of compromise and settlement, paid to the plaintiff, which the plaintiff ever since has and still retains. In consideration of said payment and of the compromise and settlement of said disputed claim, the plaintiff then and there delivered the policy to the defendant to be canceled, and also duly executed and delivered to the defendant the release, a copy of which is as follows:

      “In consideration of two thousand dollars, this day paid and for good and valuable consideration thereto moving, the receipt whereof is hereby acknowledged, the annexed policy No. 108540 on the life of George Messmore of or near Commercial Point, Ohio, heretofore issued by the Manhattan Life Insurance Co., of New York, is hereby surrendered, canceled and annulled, and all right, title and interest therein of any nature whatsoever is hereby absolutely and forever relinquished; and the undersigned for themselves and their personal representatives hereby guarantee the validity and sufficiency of this instrument, and that no claim will ever be made against said company under or by reason of said policy. Witness my hand and seal this twenty-third day of May, 1899.
    “Joseph Burke, Assignee (Seal).”
    For reply to the first defense plaintiff pleaded a general denial, and as reply to the second defense he averred that the writing of the release was'obtained from him by the fraud of the defendant, its officers and agents; also by their false and fraudulent representations made to the plaintiff that the said policy had never in fact been issued and was not a legal and binding contract; that the same had not in fact been assigned to plaintiff; that the Company had not in fact ever assented to such assignment and transfer; that a mistake had been made by the agents of the Company in the writing of the policy and in the assignment thereof which rendered the same worthless and void, which were made to the plaintiff by the agents of defendant and others in its employ who were neighbors of plaintiff and professed to be his friends, which employment was then unknown to plaintiff, and were aiding defendant to cheat and defraud plaintiff out of the policy and the money due him thereon. They also urged and advised plaintiff that he should not. consult lawyers respecting the policy and the assignment and other matters connected therewith; and they thus overcame and overreached plaintiff and prerented him from consulting counsel, he being unskilled in business affairs Avholly unfamiliar and unacquainted Avith such matters and the law. And! plaintiff relying on such false and fradnlant representations, and believing them to be true, was overreached and an unfair and unlawful advantage gained over him and his signature obtained to a paper professing to surrender and cancel said policy.
    The cause coming on for trial, the defendant, before the impaneling of a jury, moved the court for judgment upon the pleadings, both upon the ground of departure in the reply and that they disclosed the fact that the matter in controversy had been settled. This motion was overruled.
    Testimony was then given to the jury by the plaintiff, over the objection of the defendant, tending to maintain the allegations of his petition. Testimony was then given by defendant tending to maintain its claim of settlement. Rebutting testimony was then given by plaintiff tending to establish the allegations of fraud in the reply.
    At the conclusion of the testimony the defendant moved the court to arrest the case from the jury,, which was overruled. Counsel for defendant then made this statement: “I want the record to show that the defense has refrained from offering testimony upon any issue except as to the fact of a settlement for the reason that the plaintiff is not entitled to recover or maintain the present litigation, in the event of a settlement having been effected, without- a tender back of the amount paid.”
    Counsel for defendant then requested the court to charge the jury that: “If you find that there was a settlement of the Messmore policy by the payment and acceptance of two thousand dollars in full of all •claims under it, your verdict must be for the defendant, ' whether it was a settlement procured by fraud •or not; for the reason that Burke makes no offer to restore the money so received.” This was refused; and the substance of it was not given in the charge. Exceptions were noted to that refusal and to the -charge. A verdict was then rendered for the plaintiff for the amount claimed, and, motion for a new trial being overruled, judgment was rendered on the verdict. That judgment was affirmed by the circuit •court, and the Company brings error.

      Messrs. Maxwell é Ramsey and Mr. Robert Ramsey, for plaintiff in error, cited and commented upon the following authorities:

      Brown v. Kroh, 31 Ohio St., 492; McCoy v. Jones, 61 Ohio St., 119; Durbin v. Fisk, 16 Ohio St., 533; Bowman, Trustee, v. Railroad Co., 1 Circ. Dec., 39; 1 C. C. R., 64; Newcomb & Co. v. Weber, 13 Re., 386; 1 C. S. C., 12; State ex rel. v. Walnut Hills, etc. Rd. Co., 1 Circ. Dec., 453; 13 C. C. R., 375; Building Assn. v. O’Conner, 29 Ohio St., 651; Citizens’ Bank v. Closson, 29 Ohio St., 78; Serviss v. Stockstill, 30 Ohio St., 418; Mehurin v. Stone, 37 Ohio St., 49; Insurance Co. v. Baldwin, 62 Ohio St., 368; 1 Beach on Mod. L. Con., secs. 454, 456, 469, 494; Could v. Bank, 86 N. Y., 75; Lee v. Oil Co., 27 N. E. Rep., 1018; Insurance Co. v. Howard, 111 Ind., 544; Brown v. Insurance Co.,
      117 Mass., 479; Vandervelden v. Railway Co., 61 Fed. Rep., 54; Riggs v. Home, etc., Assn., 39 S. E. Rep., 614; Strodder v. Granite Co., 94 Ga., 626; Bisbee v. Ham, 47 Me., 543; Potter v. Insurance Co., 63 Me., 440; Pangborn v. Insurance Co., 67 Mich., 683; Bensen v. Perry, 17 Hun, 16; Willis v. Bateman, 54 Ohio St., 662; 37 Bull., 150; Insurance Co. v. Hull, 51 Ohio St., 270; Crooks & Co. v. Eldridge & Higgins Co., 64 Ohio St., 195; Railroad Co. v. Steinfield, 42 Ohio St, 449; Doyle v. Railway Co., 72 N. Y. S., 936; Jarrett v. Morton, 44 Mo., 275; Alexander v. Railway Co., 54 Mo. App., 66; Lyons v. Allen, 11 App. D. C., 543; Railway Co. v. Hayes, 10 S. E. Rep., 350; Levister v. Railway Co., 35 S. E. Rep., 207; Railway Co. v. McElroy, 37 S. W. Rep., 844; Home Ben. Boc. v. Muehl, 59 S. W. Rep., 520; Niederhauser v. Street Ry. Co., 91 N. W. Rep., 1028; Hill v. Railway Co., 113 Fed. Rep., 914; Electric Ry. Co. v. County, 42 S. E. Rep., 45; DeMars v. Land & Mfg. Co., 35 N. W. Rep., 1; Railway Co. v. Buckstaff, 91 N. W. Rep., 426; Insurance Co. v. Villeneuve, 68 S. W. Rep., 203; Grandine v. Grandin, 9 Atl. Rep., 756; 1 Parsons on Con., 438; 1 Bouv., Rawle’s Rev., “Compromise” citing: 6 Burf., 406; 1 Bibb, 168; Fisher v. May, 2 Bibb, 448; 4 Hawks, 178; 6 Watts, 321; 14 Conn., 12; 4 Metc. (Mass.), 270; Hart v. Gould, 62 Mich., 262; 21 Eng. L. & Eq., 199; 6 T. B. Mon., 91; 2 Rand. (Va.), 442; 5 Watts, 259; Jones v. Railway Co., 143 Pa. St., 374; Secs. 5078, 5328, Rev. Stat.

      Mr. M. A. Dougherty, for defendant in error, cited .and commented upon the following authorities;

      Insurance Co. v. Hull, 51 Ohio St., 271; Insurance Co. v. Leslie, 47 Ohio St., 409; Larimore v. Wells,

      Admr., 29 Ohio St., 13; Bebout v. Bodle, 38 Ohio St., 500; Citizens Bank v. Closson, 29 Ohio St., 78; Leeson v. Anderson, 99 Mich., 247; Leslie v. Keepers, 68 Wis., 123; Butler v. Richmond, 88 Ga., 594; Allerton v. Allerton, 50 N. Y., 670; Baird v. Howard, 51 Ohio St., 57; Willis v. Bateman, 54 Ohio St., 662; 37 Bull., 150; 1 Cyc. Law & Pro., 319-20; 1 Am. & Eng. Law, 413; Turnbull v. Brock, 31 Ohio St., 649; Fire Ins. Assn. v. Wickham, 141 U. S., 564; Bisbee v. Ham, 47 Me., 543; Manhattan Life Ins. Co. v. Burke, 13-23 O. C. C., 41; Eckel v. Renner, 41 Ohio St., 232; Neblett v. McFarland, 92 U. S., 105; Insurance Co. v. Howard, 111 Ind., 544; Railroad Co. v. Steinfield, 42 Ohio St., 449; Bank v. Wheelock, 52 Ohio St., 534; Miller v. Woods & Dunlap, 21 Ohio St., 485; Saunders v. Stotts, 6 Ohio, 380; Jones v. Proctor, 24 O. C. C., 80; Finch v. Finch, 10 Ohio St., 501; Railway Co. v. Adams, 180 U. S., 28; Jordan v. James, 5 Ohio, 88; Hiltz v. Scully, 13 Re., 718; 1 C. S. C., 555; Benson v. Stein, 34 Ohio St., 294; Fanning v. Insurance Co., 37 Ohio St., 344; Bank v. Lloyd, 18 Ohio St., 353; Jones v. Booth, 38 Ohio St., 405; Kezartee v. Cartmell, 31 Ohio St., 522; Sec. 3643, Rev. Stat.
   Spear, J.

The judgment of affirmance announced’ after the first hearing of this case (68 Ohio St., 681), was not the unanimous decision of the court, three judges only concurring therein. The case having been more fully argued on the rehearing, and further considered by the court, is now for disposition as upon the original submission.

Counsel for the Company at the trial rested its case-upon two propositions, and they rest it upon the same propositions here. If their position is correct then the judgments below are erroneous and should be. reversed; if not then the judgments should be affirmed.

The propositions are that the reply is a departure not permissible under our rules of practice, and that under the facts as disclosed by the pleadings, there could be no recovery inasmuch as the plaintiff had failed to allege, as he had failed to prove, any return or tender back of the money received in‘the settlement.

The two may be treated together, and, put in legal* phrase, the proposition is: A compromise, although procured by fraud, is a bar to an action upon the original claim until rescinded by a tender back of the consideration paid.

On the other hand, as an answer to this, it is claimed that where fraud has induced the agreement, the settlement is not binding, since fraud vitiates all contracts, and no tender back or payment is necessary to authorize a suit on the original contract where the judgment asked for will attain that result,' which is this case.

In determining the vital legal question, however, it is important to keep in mind certain features of the controversy shown by the pleadings and the testimony. The plaintiff’s suit was upon the original contract; it was not a suit to rescind a contract, or to-reform it, nor ah action for damages on account of fraud. No mistake is shown in the paper itself; nor is it alleged in the pleadings that the plaintiff signed any paper which he did not understand and did not intend to sign; the claim is that he was induced to agree to sign, and to sign the contract, a contract of settlement otherwise lawful and valid, by the fraud and misrepresentation of the agents and employes of the Company. The presence of a controversy between the parties as to whether any liability at all existed on the part of the Company in favor of the plaintiff, is shown by the allegations of the answer and as clearly shown by the testimony introduced by the plaintiff himself. It is also clear that, to settle this disputed demand, the execution of the release and surrender of the policy by the plaintiff was had, and the payment of the two thousand dollars by the company made.

The real question then is this: Where, at the time of the compromise of a claim founded on contract, a dispute exists between the parties as to the liability of the alleged debtor in any sum whatever, he denying that anything is owing, and an amount less than the claim is paid to the claimant in settlement 'of the controversy, can the party claimant maintain an action at law on the original contract, without tendering back the sum received, even though his assent to the settlement was obtained by the fraudulent and false representation of the other party?

No dispute exists between counsel, and we presume' no doubt exists, of the soundness of the general proposition that where a party to a compromise desires tO' set aside or avoid the same and be remitted to his original rights, he must place the other party in statuo■ quo by returning or tendering the return of whatever' has been received by him under such compromise, if of any value, and so far as possible, any right lost by the -other party in consequence thereof. In an action to rescind, the petition should allege the fact of such return or tender, prior to, or at least contemporaneous with, the commencement of the suit. Further, as a general proposition, the rule obtains even though the contract of settlement was induced by the fraud or false representations of the other party; the ground being that by electing to retain the property, the party must be conclusively held to be bound by the settlement 8 Cyc. of Law & Pro., 531. .No further authorities seem necessary in support of these propositions..

Numerous exceptions have, however, been engrafted on this general rule. One is that restoration is not necessary where the money received by the party was. due him in any event and if returned could be recovered back. Bebout v. Bodle, 38 Ohio St., 500, may be referred to as illustrative. An action was brought, by Phoebe S. Bodle on a note signed by William Bebout as principal and Solomon Bebout as surety. Solomon pleaded his suretyship and an extension of time for payment by agreement to pay interest between the plaintiff and the principal maker without his consent. Plaintiff, by reply, admitted the agreement and receipt of the interest money, but alleged that the agreement to extend was procured by fraud. Solomon demurred to the reply, contending that as no. offer to pay back the interest money had been pleaded,, the reply was insufficient. But the district court, held, and this court held, that such payment back was not necessary, as, in any event, the principal maker owed the debt, and all of it. Of course the payment back would have been the doing of a vain thing, inasmuch as the plaintiff was admittedly entitled to the interest paid, whether by virtue of the settlement, or by the principal maker’s, original liability, which liability was in no way impaired. The law does not require an idle ceremony. A less obvious distinction, at least one more likely to. be misconstrued, is sought to be engrafted to the effect that an offer to return is unnecessary if the judgment, asked for will accomplish that result. If this be conceded as a naked proposition, yet its application to. the case before us is not clear, and the decisions cited .as illustrating it do not seem to closely resemble our case. The principal one is that of Allerton et al. v. Allerton, 50 N. Y., 670. The plaintiffs, the defendant, and one McPherson were partners. The defendant (who had managed the business), by fraudulent representations to plaintiffs as to the unprofitable character of the business, and that he (defendant) in conjunction with them would sell out to McPherson, induced plaintiffs to unite with him in such sale upon being refunded the amount invested by them, and thereafter defendant represented that he had sold out, .and paid to plaintiffs the money advanced by them, while in fact defendant did not sell but retained his interest, and subsequently acquired McPherson’s interest; the business was profitable, and defendant had received large gains and profits. They asked that the sale be declared void, that defendant account for .all moneys received by him, and that they have judgment for their portion of the profits less the amount •received. It is to be noted that this was a suit brought directly to set aside the alleged agreement. It was in chancery, tried by the court, and, as appears by the record, the plaintiffs were entitled to an accounting and to judgment, if the claim of fraud should be maintained. The court was appealed to as a court ■of equity by the injured parties, by a proper pleading, to rescind a contract induced by fraud and then for .an accounting. They did not, as in the present case, attempt themselves to rescind and ignore the contract. The case gives little, if any, aid in determining our ■question. And that it does not apply to a case like ours is distinctly held by the same court in Gould v. C. C. N. Bank, 86 N. Y., 75, where the Allerton case is referred to as an action in equity to rescind, in which the rights of the parties could be fully regarded and protected. The Gould case, as is the case at bar, was an action on the original claim, and it was there held that one who seeks to rescind a compromise of a disputed claim on the ground of fraud must restore or offer to restore whatever of value he has received; that in an action at law upon the original claim the plaintiff must show that he thus rescinded the fraudulent. compromise prior to the commencement of the suit; if no rescission is shown, a final determination of the court that plaintiff was entitled to more than the sum paid is no answer to the objection. A case involving a similar question is that of O’Brien v. C. M. & St. P. Ry. Co., 89 Iowa, 644. It is there held that where a settlement with an employe on account of damages sustained from a personal injury was procured by false representations that other witnesses to the accident were against him, and the promise that he would be given work as long as he behaved himself, which promise was broken, and that the employe wás in such condition mentally as not to understand the effect of the release which he signed, such settlement is not a bar to an action for damages for the injury, and that a tender of the amount received is not necessary before an action on the original liability. The record does not clearly show .what the company disputed its liability at the time of the settlement, and a fair inference is that it did not, for it does appear that the court rested its judgment on the proposition that “one who attempts to rescind a transaction on the ground of fraud is not required to restore that which in any event he would be entitled to retain either by virtue of the contract sought to be set aside, or of the original liability.” This proposition is taken from the opinion and syllabus in Kley v. Healy, 127 N. Y., 555, and that case is relied upon as authority .for the Iowa decision. That action was one brought to procure the cancellation of a satisfaction of a judgment upon the ground that it was obtained by fraud, and that the judgment be restored as a valid lien. The court held that the defendant would be entitled to what she had received whatever might be thé result of her action for a rescission. If the action failed she was entitled to what had been paid; if she .succeeded the sum was less than she was concededly entitled to by the original judgment. Hence an offer to return was not necessary. Here, too, was an appeal to a court of equity to procure a rescission. It, like the Allerton case, would seem to fall short of affording a solution of our case. The holding in the Kley case is consistent with earlier New York cases, notably Cobb v. Hartfield, 46 N. Y., 533, and McMichael v. Kilmer, 76 N. Y., 36, and with a host of other cases in that state and elsewhere in which the general rule herein-before given is maintained.

After very full consideration of the controversy in all its bearings, and an extensive examination of authorities, we are satisfied that the case at bar comes within the general rule and not within any of the exceptions sought to be engrafted upon it. The rule may be briefly stated: If at the time of the agreement there was, without dispute, an amount due equal to the amount paid, as in Bebout v. Bodle, supra, and in Kley v. Healy, supra, then no tender is necessary; but if, at the time of the settlement, it is denied by the alleged debtor that anything is owing, and a dispute as to that liability exists, and that is settled by payment and release, then a return or tender is necessary. There being in this case a controversy between the parties, a disputed claim which the parties, being sui juris at the time deliberately settled, the one executing a full and sufficient release, intending to do just what he did do, and the other paying a money consideration- therefor, the release, whether obtained by fraudulent representations or not, is binding until set-aside either by a tender or return of the money received, or by a direct proceeding in a court-of equity for that purpose, upon equitable terms, and the claim for rescission in such case on the ground of fraud cannot be made by a reply.

It is to be borne, in mind that the parties were settling a controversy. It was the settlement of this dispute that afforded the consideration for the compromise of the original claim. True it is that the amount received was discounted from the recovery.. But that is no answer. We say as the New York court said in the Gould case. Suppose the verdict had been .the other way, what would have been the position of the defendant in respect to the money paid under the re-, lease? Clearly there would be no recourse to recovery back from the plaintiff. The compromise agreement is binding upon the plaintiff in error, and could not be rescinded or set aside at its instance. If binding on one side it must be on the other so long as it exists. It did exist at the time this action was brought; it had not been rescinded, and consequently, while it bound one party it must equally bind the other. Lyons v. Allen, 11 App. D. C., 543; E. T. D. & G. Ry. Co. v. Hayes, 83 Ga., 558.

It is urged with much confidence that the face of this policy was a liquidated demand and that the payment of a less sum could not satisfy it, even though accepted as such, because there was no consideration for giving up the rest. The rule of law stated is good.. But it is uot correct to say that a policy of insurance is a liquidated demand. It is not identical with an instrument for the payment of money only, nor the judgment of a court. The every-day business of the courts shows to the contrary The original consideration may be sufficient, and there may be a legal delivery of the instrument, and yet, when the event insured against occurs, there may be and in a great many instances there are, good and sufficient defenses to a recovery. There was such defense pleaded in this casa To characterize such a contract as a liquidated demand is a consideration in terms. It is safe to say that a claim concerning which a defense may be made is not a liquidated claim, and if a defense is made it is a proper subject of compromise. One may buy his peaca The law favors the amicable settlement of disputes.

In argument it is urged that the plaintiff below signed the contract of release without knowing its contents; that in accepting the check for two thousand dollars he supposed he was receiving payment on the policy, and hence the release is not binding upon him, and there was no settlement. The plaintiff does testify that he did not read the paper; that he couldn’t read writing although he could write his own name, and that the signatures on the release and on the check are his; that he signed them. He undertakes to say, further, that he received this money as a payment on the claim. It is true, also, that the jury, in addition, to the general verdict, returned answers to divers interrogatories in which it is found that the parties did not agree to settle; that the two thousand was not paid plaintiff in full settlement of the policy; that the release and check did not express the intention of the plaintiff, etc., etc., etc. ■ But the testi-mony of Burke himself leaves no sort of question but that he perfectly understood that the agents of the Company were there to settle the entire claim; that they had no other purpose, and that, by signing and delivering the release and surrendering the policy he was assenting to a settlement for the amount paid. He was mi juris, and in law able to look out for his own interests. The testimony respecting the alleged fraud would be potent in a suit properly brought, and the finding of the jury with respect to it might be conclusive of the facts in a suit involving them properly pending before a jury. But, over and against it all, there is the release and the surrender of the policy, and the retention of the money received, which are, while the contract of compromise remains unrescinded, controlling. In the words of another, restitution before absolution is as sound in law as in theology.

But it is insisted, finally, that the case is ruled by Insurance Co. v. Hull, 51 Ohio St., 270, and that to reverse the judgment below will be to overrule that case. We do not think so. The holding in that case involved the effect of a suppression of a criminal prosecution, and the decision is based on that fact. A contract attempted to be founded upon such consideration has no legal efficacy; it is against public policy, is void absolutely, and incapable of ratification. It is otherwise with a contract induced by fraud. Such contract is voidable only. We may not agree with all of the argument and all of the conclusions stated in the opinion by the learned judge who reported that case, but our case does not require any criticism upon the decision, much less an overruling of it. Indeed the opinion itself, in the concluding paragraph, emphasizes the distinction between that case and one where the contract sought to be rescinded has been induced by fraud. The distinction was also made by the learned trial judge in his charge wherein he said to the jury, among other things, that if there was a settlement as claimed and a promise that the plaintiff should not be prosecuted on the charge of burning the property formed no part of the consideration for such settlement, she could not recover; but if such promise was a part of the consideration, the contract was void and constituted no defense to the action.

We do not overlook the claim made in argument that the testimony of the plaintiff was that at the time of the settlement there were threats of imprisonment. He does so testify. But there is no claim made in the pleadings of the suppression of a criminal prosecution, nor was there any offer to amend the pleadings; and whether, if they had been amended and that charge made the testimony would have supported it, we need not inquire. Besides, all the evidence was subject to the objection made at the outset of the trial.

As conclusion we are of opinion that no right of recovery was shown on the part of plaintiff below and that the judgments in his favor are erroneous. The former entry of affirmance will be set aside, and judgment for plaintiff in error will be rendered in accordance with this opinion.

Reversed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


author: Bukket, O. J.

text:
    The Luhrig Coal Co. v. Ludlum.

      Affidavit for arrest—Section 5492, Revised Statutes—Rule as to certainty of intent—Affidavit to contain statement of facts—But not evidence—Purchase fraudulent when buyer does not intend to pay.

    1. In an affidavit for arrest under the fifth particular of section 5492, Revised Statutes, certainty to a certain intent in general, is sufficient.
    2. Such affidavit should contain a statement of the facts claimed to justify the belief in the existence of such particular, but it need not contain a statement of the evidence by which such facts are to be established.
    3. A debt is fraudulently contracted, where a purchase of property is made, with an intent on the part of the purchaser not to pay for the same.
    (No. 8223
    Decided December 8, 1903.)
    Error to the' Circuit Court of Hamilton county.
    ' On October 13,' 1899, The Luhrig Coal Co. began its action in the court of common pleas, for the recovery of the sum of $825.99, against said Aaron M. Ludlum, on an account for said sum, for coal before that time sold and delivered to said defendant' At the time of the filing of said petition, said coal company also filed an affidavit duly signed and verified under oath, before the clerk of the court, in the words and figures following:
    “State of Ohio, Hamilton County, ss.:
    “William Montgomery, being duly sworn, says he is the authorized agent of the plaintiff herein, The Luhrig Coal Co., and that the claim sued on in this action is on an account for coal sold and delivered to the defendant at his request, for which defendant promised to pay plaintiff what the same was reasonably worth, which is set forth in the account marked Exhibit A,’ attached to the petition, and all the averments of said petition are made part of this affidavit; that said claim is just, and its amount is $825.99, with interest from October 4, 1899.
    . “Affiant says that the defendant fraudulently contracted the debt and incurred the obligation on which this suit has been brought; and that at the time of each purchase of the coal set out in the petition and each item thereof, said defendant was indebted to an amount largely in excess of the value of all his propr erty and assets, had knowledge of such facts at each of said times, and that at each of said times he did not intend or expect to pay for the coal so purchased, and had no reasonable expectation of paying for the same.”
    Bond was duly given, the order of arrest was issued and delivered to the sheriff with a copy of the affidavit, and was duly served by the sheriff, and defendant taken into custody. , -
    Thereupon the defendant filed a motion for the vacation of the order of arrest on various grounds, among others, “Because the affidavit filed to procure the order of arrest does not state facts sufficient in law to warrant the issuance of an order of arrest.”
    Upon the hearing of said motion, the court made' the following final order: “This cause came on for hearing upon the motion of defendants to discharge the order of arrest herein issued, and discharge the' defendant from imprisonment and arrest, and the court being fully advised in the premises, finds that-the affidavit is not sufficient, and does grant said motion, and orders that the accused be released from the custody of.the sheriff.”
    The coal company duly excepted to said order, and filed its petition in error in the circuit court seeking its reversal, but the circuit court affirmed the same. Thereupon the coal company came here, seeking the reversal of the judgment of the circuit court, as well as the. reversal of said final order made by the court, of common pleas.

      Messrs. Burch & Johnson, for plaintiff in error,, cited and commented upon the following authorities:-.

      Sleet v. Williams, 21 Ohio St., 82; Wilmot v. Lyon, 49 Ohio St., 296; Talcott v. Henderson, 31 Ohio St., 162; People ex rel. Watson v. Detmer, 40 Mich., 729; Gillette v. Thiebold, 9 Kan., 427; sec. 5492, Rev. Stat.

      Messrs. Shay & Gogan, for defendant in error, filed, no brief.
   Bukket, O. J.

The only question in this case,, worthy of report, is as to whether the affidavit is sufficiently full and certain to meet the requirements, of the statute in such cases.

So much of section 5492, Revised Statutes, as applies to this case, is as follows:

“An order for the arrest of defendant shall be made-by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, stating the nature of the plaintiff’s claim; that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars:

“5. That he * * * fraudulently contracted the debt, or incurred the obligation for which suit is about to be or has been brought. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of such particulars.” . .

It will be-noticed that in the forepart of the section :an order of arrest is allowed when an affidavit is filed, stating the nature o!f the plaintiff’s claim, that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the six particulars for an arrest mentioned in the section. This word '“establishing,” standing alone, would seem to mean the same as proving by affidavit, but the latter part of the section, which provides that the affidavit shall ;also contain a statement of the facts claimed to justify the belief in the existence of one or more of such •particulars, seems to modify the meaning of the word •establishing, to the extent that when the plaintiff has ;a belief in the existence of one or more of said particulars, and sets out facts tending to justify such , belief, and makes positive affidavit thereto, he thereby •establishes such particular.

As this affidavit is a part of the plaintiff’s proceeding against the defendant for the recovery of his ■claim—a charge against him—certainty to a certain intent in general, is all that can be required. As to ■such certainty, it is held that it consists in such clearness and distinctness of statement of the facts constituting the cause of action, that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by‘the court who is to give judgment. Rex v. Horne, Cowp., 682; 6 Cyc. Law & Pro., 727; The King v. Lyme Regis, 1 Doug., 158. See also Crofton v. State, 25 Ohio St., 253.

The affidavit in question in this case fully meets the above requirements as to certainty. It charges in the words of the fifth particular of the statute, That the defendant fraudulently contracted’ the debt •and incurred the obligation on which the suit was brought, and then states the facts claimed to justify the belief in the existence of this particular, as follow’s : “And that at the time of each purchase of the coal set out in the petition and each item thereof, said defendant was indebted to an amount largely in excess of the. value of all his property and assets, had knowledge of such facts at each of said times, and that at each of said times he did not intend or expect to pay for the coal so purchased, and had no reasonable expectation of paying for the same.”

This fully and clearly informed the defendant, and he must have so understood it, that he would be required to answer the charge, that at the time of the several purchases of coal, he was indebted to an amount largely in excess of the value of his property and assets; that he had knowledge of such facts at the time of each purchase; that he did not intend or expect to pay for the coal so purchased; and that he had no reasonable expectation of paying for the same. This statement in the affidavit, as to the facts justifying the belief that the defendant fraudulently contracted the debt and incurred the obligation, is so clear and certain, that not only the defendant, who was to answer the charge, but also the court who was to ascertain the truth of the allegations and render judgment, could not fail to fully and clearly understand the facts upon -which the plaintiff relied. That being so, the affidavit is certain to a certain intent in general, and sufficient. The affidavit is required to contain a statement of the facts claimed to justify the belief, and not the evidence proving such facts. The rule as to the statement of such facts in -such an affidavit, is the same as the rule as to the statement of facts in a pleading. The facts claimed to justify the belief should be stated in the affidavit, and then upon the hearing the evidence tending to prove such facts, should he brought forward.

In the case at bar, the charge in the affidavit, that, at the times of the several purchases of coal, the indebtedness of the defendant largely exceeded the value of all his property and assets, that he had knowledge-of that fact, that he did not intend or expect, to pay for the coal, and had no reasonable expectation of paying for it, is a charge of facts clearly showing that the debt was fraudulently contracted; because he who-purchases property not intending to pay for the same,, is guilty of a fraud. Wilmot v. Lyon, 49 Ohio St., 296.

It is therefore clear, that the court of common pleas erred in sustaining the motion to vacate the order of arrest, and in discharging the defendant from custody, and that the circuit court erred in affirming the common pleas.

The orders and judgments of both courts will be reversed, and cause remanded to the court of common pleas for further proceedings according to law.

Judgments and orders reversed and, cause remanded.

Speak, Davis, Shauck, Price and Crew, JJ., concur.