author:
Davis, J.
      Price, J.,

text:
    The United Power Company v. Matheny.

      Action to recover damages for ejectment of passenger from street car — Evidence offered by company to show misconduct of passenger — Error for court to instruct jury to disregard such evidence, when — Question of malice or insult in ejectment — As bearing on nature of damages — Counsel fees to be allowed as part of compensatory damages, when.

    1. Where, in an action to recover damages for unlawfully and forcibly ejecting the plaintiff from a street car, evidence was offered by the defendant tending to show that passengers had left the car on account of the conduct of the plaintiff and his companions, and in doing so complained to the conductor, or within his hearing, in regard to such conduct, such evidence was com-: petent as part of the res gestae and as tending to explain the motive of the conductor, and it was error for the court to instruct the jury to disregard the same, unless they should find that what was said by the passengers to the conductor or in his hearing, was in the hearing of the plaintiff or so that he could have heard it.
    2. In such case, it was error for the court to' charge the jury that if they found that the ejectment of the plaintiff was not justified, but was without malice or insult, they could award compensasatory damages only, and as part thereof they might allow plaintiff a reasonable sum for the services of counsel in his behalf.
    (No. 11129
    Decided November 30, 1909.)
    Error to the Circuit Court of Columbiana county.
    The defendant in error sued the plaintiff in error to recover damages for an alleged unlawful, wrongful and forcible expulsion from a street car belonging to and operated by the plaintiff in error. The plaintiff in error in its answer denied all the allegations contained in the petition, except that it was a corporation and engaged as a common carrier of passengers, and that the plaintiff was ejected from a car belonging to said company; and it alleged as follows: “The defendant says that the plaintiff was so ejected from said car for being disorderly and for using profane language in said car; that plaintiff was requested and warned by the employes of defendant in charge of said car, to desist from said disorderly conduct and to refrain from using said profane language; but plaintiff refused' and failed "so to desist and refrain, and the defendant's employes were thereupon obliged to and did eject the plaintiff from said car, but without violence and not in the manner set forth in the petition.” In reply the plaintiff below denied these allegations contained in the answer. On the trial of the issues, the plaintiff gave evidence tending to sustain the claims made in his petition and the defendant gave evidence tending "to support the foregoing allegations contained in its answer. The testimony tended to show that the plaintiff and his two companions were noisy and hilarious, perhaps to the extent of using coarse, profane and indecent language, to the annoyance of some of thy other passengers; and that the conductor' had at least once admonished them; that there were several white women and three colored women in the car, the 'latter sitting just in front of the plaintiff and his companions ; that something occurred between the colored women and the plaintiff and his company, which was not understood by the other passengers; that the colored women got up and went to the rear exit of the car and in doing so passed the plaintiff and his companions, and some words passed between them, which were not understood by the witnesses,, owing to the noise; and that as the women came out and got off the car, they said to the conductor in the hearing of witnesses, but not in the hearing of the plaintiff and his companions, “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” “If we can’t ride without being insulted we will get off,” which they did do; that thereafter the conductor went to the men and said, “I have told you twice now. You will have to cut it out or get off,” to which one of them replied, “God damn you, get back in the back end where you belong and tend to your own business;” and that thereupon the conductor stopped the car, tendered the men their fare, which they refused, arid with the assistance of the motorman ejected the men with no more force than was necessary; and that in .the case of the plaintiff no force was used except to take him by the arm and lead him out.
    The court charged the jury, in part, as follows: “The court admitted in evidence the statement of a witness as to what was said by some colored women in leaving the car. At that time the court said in your presence that that' evidence would not be proper or competent for your consideration unless it was said in the presence and hearing of the plaintiff. The plaintiff and- one or two other witnesses deny that they heard any such statement as was made by these colored women. The court instructs you that before you should consider what witnesses say they may have said in leaving the car you should determine whether or not it was said by them loud enough to be heard by the plaintiff in this case, for if it was not said in his hearing, then that evidence would be entirely incompetent in this case; and if you should find from all the evidence that the plaintiff did not, or could not have heard this language or this statement by these colored women who left the car, then I instruct you to entirely disregard such testimony. If, however, you should find that it was spoken in a way that the plaintiff could have heard it, or did hear it, then the court instructs you that you would have a right to consider it along with the other evidence in the case in determining the issue which has been submitted to you. * * * You should also, if you should determine that this ejectment was not justified, and should further determine that the employes who ejected him acted with actual malice and ill-will, and with a deliberate intention of insulting the passenger in ejecting him, I say, if you should so find, then you would be entitled, not only to allow him compensatory damages, but should also allow him an additional amount by way of punitive damages. That is, as a punishment for this defendant for having in its service employes who would thus disregard the rights of others. This is a matter, however, which you are not called upon to determine unless you should, as I say, find that this ejectment was done not only without justification, but in a malicious and insulting manner. Otherwise you should only allow such an amount as would fairly compensate him in the respects to which I have called your attention. And as a matter of compensation you would have a right to allow him a reasonable amount for the services of his counsel in bringing and maintaining this action against the company.”
    There was a verdict and judgment in favor of the plaintiff in the court of common pleas, and this judgment was affirmed by the circuit court.

      Messrs. Brookes & Thompson, for plaintiff in error, cited and commented .upon the following ■authorities:
    2 Fetter on Carriers, Section 542; Watson on Damages for Personal Injuries, 726, 738, 883; Railway Co. v. Hall, 13 S. W. Rep., 138; Railroad Co. v. McGinnis, 46 Kans., 109; Railway Co. v. Taylor, 104 Pa. St., 306; Railroad Co. v. Scurr, 59 Miss., 456; Chicago v. Martin, 49 Ill., 241; Heil v. Glanding, 42 Pa. St., 493; Railroad Co. v. Arms, 91 U. S., 489; Railroad Co. v. Slusser, 19 Ohio St., 157; Railway Co. v. Dunn, 19 Ohio St., 170; Lyles v. Perrin, 119 Cal., 264, 51 Pac. Rep., 332; Tramway Co. v. Cloud, 40 Pac. Rep., 779; Inman v. Ball, 65 Ia., 543; 2 Sutherland on Damages, Section 392; Schneider v. Hosier, 21 Ohio St., 98; Morely v. Dunbar, 24 Wis., 183; Roberts v. Mason, 10 Ohio St., 277; Finney v. Smith, 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; Iron Co. v. Harper, 41 Ohio St., 100; Railroad Co. v. Bartram, 11 Ohio St., 469.

      Mr. Hollis E. Grosshans and Mr. C. S. Speaker, for defendant in error, cited and commented upon the following authorities:

      Hoffman v. Gordon, 15 Ohio St., 214; Railroad Co. v. Young, 21 Ohio St., 518; Railway Co. v.
      De Pascale, 70 Ohio St., 179; Haskins v. Railway Co., 7 Dec. R., 679; Kinkead’s Code ' Pleading, 204, 205.
   Davis, J.

The testimony clearly shows that the plaintiff below, defendant in error here, was one of a party of men who were creating some disturbance in a street car. Whether or not it would be regarded in that locality as “disorderly conduct” is not for us to say, for there seems to be some dispute about it; but it is certain that the conduct of the party was such as was likely to mar the comfort of peaceable and well behaved passengers in a public conveyance, especially of ladies. There were some white women and also three colored women in the car, the latter sitting in front of and near to the plaintiff and his friends. The testimony tends to prove that something passed between the plaintiff and his party and the colored women which caused the latter to get up and leave the car by the rear door, in a manner indicating displeasure ; and that as they left the car they said to the conductor: “If we can’t ride without being insulted we will get off” and “It is a pity a person can’t ride on these cars without being insulted by somebody that is drunk.” There is testimony tending to prove that at the time this occurred, the conductor had already warned the men once, and perhaps twice. Under these circumstances, the court instructed the jury, as to what was said by the colored women when leaving the car. that if'these words were not spoken in the hearing of the plaintiff, or loud enough to be heard by him, they should entirely disregard what was said.

We do not understand that this evidence was offered for the purpose of proving that the plaintiff and his companions were intoxicated and had insulted the women. In other words it was not offered as an admission by reason of he failure of the plaintiff to deny the statement. If that were the sole purpose of the introduction of the evidence and the sole effect of it,- there would be nothing objectionable in the instruction to the jury. We are all of the opinion, however, that this evidence was competent as part of the res gestee whether the words were, or could have been, heard by the plaintiff or not; but it was also in issue in the case, whether the plaintiff had been unlawfully ejected from the car, and it was also a question whether the defendant’s servants acted with malice or insult towards the plaintiff. To maintain the issues on its part the defendant was not only entitled to show the actual conduct of the plaintiff but the effect of it on the passengers and the complaints of the latter in regard to it, in order to show that its servants acted justifiably and without malice. It cannot, with any reason, be said that such complaints must be made in the presence or hearing of the offender. In this aspect of the case we regard the charge of the court as erroneous and highly prejudicial.

Again, the court proceeded to correctly define the circumstances under which, if found by the jury, they might award to the plaintiff not only compensatory damages, but in addition thereto exemplary or punitive damages. The court even cautioned the jury that they should not award exemplary damages, unless they should find that the expulsion of the plaintiff from the car “was done not* only without justification, but in a malicious and insulting manner.” The court then proceeded to say: “Otherwise you should only allow such an amount as would fairly compensate him * * * . And as a matter of compensation you would have a right to alloy him a reasonable amount for the services of his counsel in bringing arid maintaining this action against the company.” In this last sentence, we think that the court fell into a serious error.

Although the doctrine announced in Roberts v. Mason, 10 Ohio St., 277, has never been universally accepted in the other states, yet from that time to the present it has been the settled law of Ohio, that in cases involving the elements of fraud, malice or insult, the jurv may award exemplary or punitive damages in addition to damages merely compensatory; and that “in such a case” the jury may include reasonable counsel fees in their estimate of compensatory damages. Roberts v. Mason, ut supra; Atlantic & Great Western Ry. Co. v. Dunn, 19 Ohio St., 162; Finney v. Smith 31 Ohio St., 529; Stevenson v. Morris, 37 Ohio St., 10; Peckham Iron Co. v. Harper, 41 Ohio St., 100; Railroad Co. v. Scott, 56 Ohio St., 736. Contra, Kelly v. Rogers, 21 Minn., 146.

But, although we have made a somewhat extended search, we are not aware of anv well considered case in which it was held that, in the absence of statute or express agreement, attorney’s fees might be included ■ as part of the damages where compensatory damages only could be allowed. There are, however, numerous cases in which the contrary doctrine has been distinctly announced and applied. We cite a few of them. Burruss v. Hines, 94 Va., 413, 420; St. Peter’s Church v. Beach, 26 Conn., 355; Eatman v. Railway Co., 35 La. An., 1018; Welch v. Railroad Co., 12 S. Car., 290; Lincoln v. Railroad Co., 23 Wend. (N. Y.), 425; Day v. Woodworth, 13 How. (U. S.), 363; Flanders v. Tweed, 15 Wallace, 450; Joslin v. Teats, 5 Colo. App., 531; Spencer v. Murphy, 6 Colo. App., 453.

Finney v. Smith, 31 Ohio St., 529, is chiefly relied upon to support the rule of damages given to the jury in this case. Finney v. Smith was an action for libel and, in interpreting the language of the court, it should not be forgotten that, when an alleged libel is shown to be false, malice is presumed. In such a case, evidence in mitigation only tends to rebut malice, but it cannot amount to a complete defense or justification. Therefore, so long as the presumption of malice is not entirely overcome the rule of damages laid down in Roberts v. Mason applies; that is compensatory damages, including counsel fees and, in addition if the jury see fit, exemplary damages. In Finney v. Smith the court notes the fact (p. 535) that the record contains evidence tending to establish the charge made in the petition and also evidence tending to show that the defendants may have acted under a misapprehension and so the court say, “The clause of the charge excepted to, is not drawn with accuracy and fullness of expression m itself, but, when taken in connection with the whole charge, which is set out, we do not find it erroneous; and we see no reason to apprehend that the jury could have been misled by it to the prejudice of defendants.” In our view of the case, the few lines of opinion by Boynton, J., ring clear and true. and meet our approval.

Indeed, it is difficult to understand how the rule of damages given to the iury in this case, can be worked out in harmonv with Roberts v. Mason, 10 Ohio St., 278, in which it was said that, “the better opinion now seems to be, that in actions ex contractu, arid in cases nominally in tort, but where no wrong in the moral sense of the term is comnlained of, the fees of counsel ought not to be included in the estimate of damages;” and, as it was said by Mr. Justice Grier, in Day v. Woodworth, ut supra, “it is a moral offense of no higher order, to refuse to pay the * * * damages for a tresoass. which is not wilful or malicious, than to refuse the payment of a just debt.”

The court below properly said to the jury that if they should find that the ejectment of plaintiff from the car was not justified, but was not done with malice or in an insulting manner, they could award compensatory damages only; but the court erred in instructing the jury, in that connection, that, in case they should so find, as a matter of compensation they might allow to the plaintiff a reasonable amount for services of his counsel.

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

Reversed.

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

Price, J.,

dissenting. I am satisfied with' the reversal of the case on the first ground stated in the syllabus and in the opinion, but the second ground, in my opinion, should not be declared to be the law in Ohio.

The plaintiff in the court of common pleas sued to recover damages resulting from an assault made on him by the servants of the defendant company, and it is alleged that the plaintiff was violently seized and tightly grasped by the servant, and forcibly pushed along the aisle of the car, and ejected therefrom, whereby the plaintiff not only suffered mental and physical pain, but was humiliated by the acts and violence of the servant.

The defendant pleaded facts — disorderly conduct, etc. — in justification of the acts of its servants in eiecting the plaintiff. The issues made a case in which it was entirely proper and necessary that the court instruct the jury as to the rule of compensatory and that of exemplary damages, for there was evidence introduced which tended to support plaintiff’s charge. As I understand the majority opinion and the second branch of the syllabus, the right of the jury to allow counsel fees as an element of comnensatory damages, is contingent upon a finding by the jury that a case was made out for exemplary damages; and if a case for exemplary damages is not made out, counsel fees cannot be considered in awarding compensatory damages. This contingency seems unwarranted by the well settled law of this state. Compensatory damages in such actions sounding in tort — assault and battery, and similar acts of personal violence — are to be awarded as compensation for the wrong inflicted, and the compensation should be adequate in so far as the law will afford it.

As often said in the books and decisions, exemplary damages or punitive damages are awarded to make an example of the offending party so that others may be deterred from committing similar wrongs; or, if not as a deterrent, then as punishment of the wrongdoer.- These are not awarded as compensation to the injured party, but for the purpose already stated, and why, after the jury has concluded that there should be exemplary damages awarded,' shall it then go back and again take up the subject of compensatory damages and add the fees of counsel? The trial court could not anticipate what the verdict would be — whether it would include exemplary damages or not, and it attempted, and I think correctly; to lay down the measure as to each kind of damage.

There ought not to be any misunderstanding of what this court has decided upon this question. Commencing with Stevens v. Handly, Wright, 121, and Sexton v. Todd, Wright, 316, we find the rule of damages stated. In Stevens v. Handly, supra, which was a slander case, the court lays down the rule on page. 122, as follows: “But if the words were uttered under circumstances merely mitigating, without justification or excuse, the damages should be compensatory; that they should be sufficient to cover all the expenses and costs of the plaintiffs in litigating the matter, including their loss of time — such as will make them whole. Where the words are spoken without justification, excuse ¡or other mitigating circumstances, the damages should be exemplary, to express the estimation in which the jury hold a good character in society, and their reprehension of the habit of wantonly attacking it.” We have .in that case an instance where, there were circumstances in mitigation, and not of wantonness, and yet a right of the injured party to compensatory damages, including all expenses, distinctly recognized.

Sexton v. Todd, supra, is on the same line. These two cases were reviewed and approved in Roberts v. Mason, 10 Ohio St., 277. Some language in the opinion of the court might be clearer and less confusing, but the syllabus, which is the law of the case, seems entirely plain. It is: “(1) In an action to recover damages for a tort (not merely a slander or libel) which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved, and award exemplary or punitive damages; and this they mav do although the defendant may have been punished criminally for the same wrong. (2) In such a case the jury mav, in their estimate of compensatory damages, take into consideration and include reasonable fees of counsel employed by the plaintiff in the prosecution of the action.”

The counsel fees are classed with compensatory damages and they form no part of the exemplary damages, and are not to be awarded as part of the same. . In Finney- v. Smith, 31 Ohio St., 529, and cited in the majority opinion in this case, this court reviews the cases in Wright’s Report already cited and Roberts v. Mason, and points out the difference between the syllabus and some language of the judge writing the opinion in Roberts v. Mason, supra, which was a ft assault and battery case. The syllabus in Finney v. Smith, supra, is: “In an action for libel, the jury may, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action, although there may be circumstances of mitigation, not amounting to a justification.” The questions presented to the court in that case called for just such a clear statement of the law, and while Boynton, J., was not willing to place his concurrence on that proposition, he does not controvert it, nor endeavor to show its weakness.

We have not space to quote from the case at greater length. The opinion refers to and approves other authorities which support the doctrine.

Therefore the trial court did not err in that part of the charge relating to compensatory damages. This, like Roberts v. Mason, was an assault and battery case, leading to ejectment from a car. It is a case sounding in tort, in which both compensatory and exemplary damages might be awarded, and it seems to me the trial judge correctly stated the law to the jury on that subject.

Spear, J., concurs in the dissenting opinion.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The State, ex rel., v. The Board of Public Service of Columbus.

      Public contracts for street improvements — Section 1536-679, Revised Statutes — Method of letting contracts — Meaning of lowest and best bidder — Discretion of board in rejecting any and all bids— Mandamus will not apply, when.

    1. By section 1536-679, Revised Statutes, pertaining to the letting of contracts for street improvements, discretion is given a board of public service to reject any and all bids, and this discretion will not be interfered with by mandamus where such discretion has not been abused and no vested right of any bidder is involved.
    2. Where, after proper advertisement .for bids, and bids have been received, a resolution has been duly adopted by such board finding a bidder therein named to be the lowest and best bidder and directing the clerk to notify the bidder of that fact, but before such notice has been given the resolution is, for reasons by the board deemed sufficient, rescinded and an order made to again advertise for bids, the bid' of such bidder being thereby rejected, such rescission and an order will not be treated as an abuse of discretion, and the board cannot in such case be required by mandamus to enter into a written contract with such bidder authorizing him to enter upon the work of the improve- ' ment.
    3. The proceedings of the hoard of public service in the advertising for bids and the adoption of a resolution defining who is the lowest and best bidder is not the making of a contract but is merely preliminary to the making of the written contract provided for by the statute, and such contract is the only one the board is by the statute authorized to make.
    (No. 11208
    Decided November 30, 1909.)
    Error to the Circuit Court of Franklin county.
    The relator in the court below is The Cleveland Trinidad Paving- Company. The defendant is the Board of Public Service of the City of Columbus, Ohio. The relator’s action was in mandamus to compel the execution by defendant of a paving contract with relator. In both courts below the case was determined upon a demurrer to the petition, which being sustained and relator not desiring to further plead, judgment was entered for defendant.
    In substance the averments of the petition are: On August 31, 1906, the council of the city of Columbus adopted a resolution declaring the necessity of improving Third avenue from High street to Dennison avenue, and on October 2, 1906, said council passed an ordinance determining to proceed with the improvement and directing the Board of Public Service to advertise for bids and enter into a contract for the grading and paving of Third avenue with the lowest and best bidder therefor according to law. The Board duly advertised for bids. The advertisement recited, among other things, that each bid should contain the full name of every person interested in the same, and should be accompanied by a certified bank check for five hundred dollars, or a bond for like amount conditioned that if the bid should be accepted the contract should be entered into within five days after notification of acceptance from the board. On January 29, 1907, relator duly complied with all the requirements of the advertisement. Relator was the lowest and best bidder for the improvement, and said Board, on February 16, 1907, upon canvassing the bids, by resolution duly adopted, found and decided that the bid of relator was the lowest and best bid, and ordered that a contract he entered into with relator for the improvement on relator giving a satisfactory bond in an amount required within five days from that date, and the clerk was ordered to transmit a copy of the resolution to relator, but defendant did not cause said clerk to transmit a copy of the resolution to relator and did not give to relator any notice, that relator’s bid was accepted, and, on April 10, 1907, defendant, by resolution then adopted, wrongfully and unlawfully set aside said award of said contract with relator, and ordered that the work be again advertised for bids. Defendant did not at any time notify relator that relator’s bid had been accepted and that relator had been awarded the contract, and relator had no information that said contract had been awarded' to it until shortly prior to said date; whereupon relator demanded that defendant execute a contract with relator, offering to give a proper bond to the satisfaction of defendant, and to enter into such contract. But defendant refused and still refuses to perform its part of said contract, and to perform its duty in the premises according to law, and will not permit relator to make said improvement, although relator has been at all times and now is, ready, willing and able to perform its part of said contract, and herewith' tenders its bond in the proper sum therefor.
    The prayer is that a writ of mandamus issue commanding defendant to enter into a contract with relator for the improvement, and to permit relator to enter. upon the performance of said contract.

      Messrs. Marriott, Belcher & Connor, for plaintiff in error.

      Mr. Geo. S. Marshall, city solicitor; Mr. E. L. Weinland, and Mr. F. R. Hoover, for defendant in error.
   Spear, J.

The record presents a phase of the inquiry respecting the duty of municipal officers in the letting of contracts for the making of street improvements, and the rights of bidders for the opportunity to enter into contracts with the municipality for that purpose, which seems not to have been present in any reported case. A single question arises. It is: Can the municipal authorities, after determining to award a contract to one who has been, by resolution duly adopted, found to be the lowest and best bidder, lawfully rescind such action and refuse to notify such bidder of its resolution and to enter into a contract with him, the bidder having in all respects complied with the requirement of the advertisement for bids, and having shown that he is able, willing and ready upon his part to enter into such contract ?

The question would seem to be answered by ,a consideration of section 1536-679, Revised Statutes, (section 143, Municipal Code) which, among other things, provides that the directors of public service may make any contract for any work under the supervision of that department not involving more than five hundred dollars, but that when such expenditure will exceed that sum the expenditure shall first be authorized and directed by ordinance of council. Then follow directions as to advertising for bids, specifications, of what the bid shall contain, for check or bond to accompany the same, for the opening of bids, that the board shall make a written contract with the lowest and best bidder, but that the board may reject any and all bids, and that where there is reason to believe there, is collusion or combination among bidders the bids of those concerned therein shall be rejected.

The contention of plaintiff in error necessarily rests upon the claim, expressed in general terms in the petition, that the duly authorized offer' of the Board tendered to bidders a proposition which when duly accepted by the relator, as it was by its bid and check, such bid being the lowest and relator being the best bidder, became a contract between' the relator and the city; that a vested right was thereby conferred upon relator and it therefore became the plain mandatory duty of defendant to enter into the written contract provided for by the statute. There is apparent plausibility in this claim, but is it sound? It seems to us not. The weakness, fatal, as we think, lies in the assumption that the Board had done all that the statute requires in order to bind it, that its resolution implies an acceptance of the Company’s offer, and that there followed an acceptance by the Company of the Board’s resolution and implied offer. Neither condition existed. The act of the Board lacked one essential element contemplated by the statute and required by the advertisement to be done by the Board, viz.: notification to relator of the passage of the resolution finding relator to be the lowest and best bidder. To fairly make the question which the counsel argue the element of notification should be present. At least until notification had been made it could not be claimed with reason that there had been any acceptance by the Board of the Company’s proposition. In no just sense can it be said that the resolution was conclusive or binding on the Board. It was in effect a mere mental assent on the part of the Board unexpressed by any act which would conclude the negotiation or bind the party. Nor was there an acceptance by the Company, the attempt to do so having been made after the Board had rescinded the only action taken which it is claimed formed the basis of a contract. So there was in fact no tender. One cannot accept that which has not been tendered, and cannot bind another by such attempted acceptance. Unless, therefore, the act of making the bid and putting in the check amounted to an acceptance there clearly was no acceptance shown on the part of the Company and the bid and check cannot be treated as an acceptance because all this-was tentative and could have no potential effect until the Board had subsequently taken action in conformity with the statute. Necessarily, therefore, there could have been no contract. To accept a contract is to admit it and agree to it; to accede to it, to assent to it; the ordinary meaning embodies assent and agreement. 1 Am. & Eng. Ency. of Law & Prac., 224. And there can be no contract without such acceptance, for as Pothier says: “A contract includes a concurrence, of intention in two parties one of whom promises. something to the other, who on his part, accepts such promise.” So it follows that as there was no mutual promise, no meeting <3f the minds upon the same terms at the same time, there could be no contract. Whatever might have been the legal right of relator to insist upon a written contract had such notice been given we need not in this connection discuss, for no such situation has arisen.

But, aside from the foregoing, a further view of the statute would seem to conclusively determine the rights of the parties. Running all through the legislation is a plainly implied if not expressed purpose to clothe the Board of Public Service with a wide discretion in dealing with the making of contracts for street improvements, the various precautionary provisions being intended to safeguard the public in its dealing with contractors. The Board may reject any and all bids. If there be reason to believe there is collusion or combination among bidders, the bids of those concerned therein shall be rejected. True, the language is that the board shall make a written contract with the lowest and best bidder, (that is, no contract shall be made with any but the lowest and best bidder,) but the board is to determine who of all the bidders is the lowest and best, and no limit is placed respecting the time when the determination shall be made, nor is there any requirement refusing to the board the power, úsually accorded to all municipal bodies, to rescind their action in a proper case. In the absence of such provision the proposition is a fair one that' the usual' rule prevails. That rule, well settled by numerous adjudications, is to the effect that the action of such bodies respecting legislative or administrative matters is not always conclusive and beyond recall, but that they are possessed of inherent power to reconsider their action in matters of that nature, and adopt if need be the opposite course in all cases where no vested right of others has intervened, the power to thus act being a continuing power. The powers involved in this inquiry are administrative powers, and necessarily they must involve the right to reconsider action theretofore taken, and, in the absence of a showing that fraudulent intent existed to the injury of the complaining party, courts will not interfere. In this case, under the statute cited, it is quite clear that the real substantial object to be attained is the making of the written contract; it is the only contract authorized by the statute, and all that precedes is but preliminary to the efficient object, viz.: the written contract. Until that is executed the city is not bound. In the present case the Board was authorized to bind the city by the written contract specified in the statute, but was wholly unauthorized to bind the city by any other contract.

As conclusion, we regard the rule, entirely settled as we think, that where authority is given by statute to a board to let a contract to the lowest and best bidder, discretion is thus conferred and courts will not undertake tó control such discretion by mandamus applied to this case. Ex parte Black, 1 Ohio St., 30; The State v. Commissioners, 36 Ohio St., 326; The State v. Commissioners, 63 Ohio St., 440. Among many authorities cited by the vigilant counsel for defendant in error. special attention is directed to the following: Coppin v. Herman, 6 N. P., 452; Ross v. Stackhouse, 114 Ind., 200; Red v. Augusta, 25 Ga., 386; Water Commrs. v. Brown, 32 N. J. L., 504; McClain v. McKisson, 15 C. C., 517; Braman v. Elyria, 5 C. C. (N. S.), 387, aff. in 73 Ohio St., 346; Yaryan v. Toledo, 8 C. C. (N. S.), 1; Page on Contracts, sections 43, 54; Edge Moor Bridge Wks. v. Bristol, 170 Mass., 528; Benton v. Springfield Y. M. C. A., Id., 534; Dunham v. City of Boston, 12 Allen, 375; People’s Railroad v. Memphis Railroad, 10 Wall., 38; Stoddart v. Galman, 22 Vt., 568; Cox v. Mount Tabor, 41 Vt., 28; Estey v. Starr, 56 Vt., 690; Capital Ptg. Co. v. Hoey, 124 N. C., 767.

It may be added that persons dealing with municipal corporations must at their peril take notice of all grants of power and of all limitations of authority on the part of municipal agents, and that in the present case the relator must be held to have had notice of the scope of the powers of the Board and the prescribed manner of their exercise.

The judgment of the circuit court will be

Affirmed.

Crew, C. J., Summers, Davis, Si-iauck and Price, JJ., concur.


author: Summers, J.

text:
    Stockton v. Frazier et al.

      Order of descent of ancestral real estate — Section 4158, Revised Statutes — Rights of brothers and sisters of half blood of ancestor — Interpretation of statutes.

    The half-brothers and haif-sisters of the ancestor are included in the words, “brothers and sisters of such ancestors,” in the fifth subdivision of Section 4158, Revised Statutes, prescribing the order of descent of ancestral real estate. (Cliver v. Sanders, 8 Ohio St., 501, approved and followed.)
    (No. 11214
    Decided November 30, 1909.)
    Error to the Circuit Court of Clermont county.
    The facts are stated in the opinion.

      Mr. /. R. Moore, for plaintiffs in error.

      Messrs. Nichols & Nichols; Messrs. Nichols & Griffith, and Mr. W. C. Bishop, for defendants in error.
   Summers, J.

The contest is between the legal representatives of brothers of the whole blood and legal representatives of brothers of the half blood of the ancestor from whom the lands descended to an intestate who died unmarried, without issue and leaving no brothers or sisters of the whole or half blood, or their legal representatives, or mother surviving him, over the partitioning of a town lot in Clermont county and 182 acres of land in Brown county.

B. N. Stockton acquired title to the lands by purchase. He died seized of them, and they passed by descent to his only child, Charles Stockton, who never married and died, in June, 1907, • intestate and without issue, leaving no brothers or sisters, either of the whole or the half blood, or their legal representatives, surviving him, and his mother died before him.

At the time of the death of Charles Stockton there were living legal representatives of two brothers of B. N. Stockton, of the whole blood, and legal representatives of two brothers and of two sisters of B. N. Stockton, of the half blood. The court of common pleas partitioned the lands between the leg'al representatives of both the whole and the half blood, and on appeal, the circuit court did the same.

The judgments below were based upon Oliver v. Sanders, 8 Ohio St., 501, where it is held, that in a statute relating to descents of ancestral estates, the half-brothers and sisters of the ancestor are included in the words “brothers and sisters of such ancestor” and are preferred to the brothers and sisters of the intestate, of the half blood, who are not of the blood of the ancestor from whom the estate came. But it is contended that that case is distinguishable from this, that this is not a contest between the half-brothers and sisters of the intestate who are not of the blood of the ancestor from whom the estate came, and the half-brothers and sisters of the ancestor, but between the legal representatives of the brothers of the whole blood of the ancestor and the legal representatives of the brothers and sisters of the half blood of the ancestor; and that since that decision the statute has been supplemented, and that in Stembel et al. v. Martin et al., 50 Ohio St., 495, where the supplemental act is construed, it is held, that brothers and sisters of the whole blood are preferred to brothers and sisters of the half blood, although the words of the statute are “brothers and sisters” without limitation.

The statutes are as follows: Ancestral Estates. Section 4158, Revised Statutes, “When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred in the following course:

“First. To the children of such intestate or their legal representatives.
“Second. If there are no children nor their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life.
“Third. If such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who are of the blood of the ancestor from whom the estate came, or of their legal r'epresentatives, whether such brothers be of the whole blood or of the half blood of the intestate.
“Fourth. If there are no brothers and sisters of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and the estate came by deed of gift from an ancestor who is living, the estate shall ascend to such ancestor.
“Fifth. If the ancestor from whom the estate came is deceased, the estate shall pass to and vest in the children of the ancestor from whom the estate came, or their legal representatives; if there are no children of the ancestor from whom the estate came, or their legal representatives, the estate shall pass to and vest in the husband or wife, relict of such ancestor, if a parent of the decedent, during the life of such relict; and on the death of such husband or wife, the estate shall pass to and vest in the brothers and sisters of such ancestors or their, legal representatives; and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the half blood of the intestate, or their legal representatives, though such brothers and sisters are not of the blood of the ancestors from whom the estate came:
“Sixth. If there are no such half-brothers and sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestors from whom the estate came, or their legal representatives.”

Nor-arcestral Estates, Section 4159, Revised Statutes. If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows :

“First. To the children of the intestate and their legal representatives;
“Second. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate;
“Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and' their legal representatives;
“Fourth. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half blood, and their legal representatives ;
“Fifth. If there are no brothers or sisters of the intestate of the half blood, or their legal representatives, the estate shall ascend to the father; if the father is dead, then to the mother;
“Sixth. If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate.”

Section 4160, Revised Statutes, provides when real estate shall pass to hus'band or wife; and when to next of kin of intestate. Section 4161 provides when real estate shall pass to the children of the former husband or wife. Section 4162, Revised Statutes, provides for the descent of an estate which came by a former husband or wife, and Section 4163, Revised Statutes, provides for the distribution of personal estates.

Cliver v. Sanders, supra, does not decide merely that a brother of the half blood of the ancestor is preferred to half-brothers and sisters of the intestate, but also that when, in the statute relating to ancestral estates, the words “brothers and , sisters” are used without qualification they include the half-brothers and half-sisters of the ancestor. The opinion of the learned chief justice is a demonstration of the correctness of that conclusion; but for the conclusion that the words included half-brothers and sisters, the half-brother would not have inherited, and the question of preference would have disappeared.

About the only substantial difference between Section 4158, Revised Statutes, and the statute then under consideration is in the addition of the second subdivision, and in the addition of the provision for the husband or wife in the fifth subdivision, which was the fourth subdivision of that act. In the opinion Swan, C. J., says: “Under the decisions above referred to, half-brothers of an ancestor are included in and designated by brothers, wherever that term is used without limitation. We do not perceive anything, in the terms or context of the statute under consideration, to control, or limit this general meaning.

“Half-brothers of the ancestor of the intestate are of the blood of such ancestor, but not of the whole blood. Half-brothers of the intestate may not have one particle of blood of the ancestor of the intestate in their veins. Now, the statute in cases where an estate came by gift, devise, or descent, from an ancestor to an intestate, undertook to provide for the descent of the estate to the relatives of the intestate, and to the relatives of his ancestor, from whom the estate came; and in so doing, had to deal with half-brothers and sisters of the ancestor, and with half-brothers and sisters of the intestate who were, and who were not, of the blood of such ancestor. The general assembly have used the words brothers and sisters, of the whole or the half-blood, more frequently than was necessary to give meaning to their words, in the second subdivision of the section of the law under consideration, inasmuch as the words ‘brothers and sisters of the blood of the ancestor-,’ in that subdivision, would include brothers and sisters of the half-blood. But this was, no doubt, to explain what they meant by the words, ‘brothers and sisters who may be of the blood of the ancestor;’ knowing that, under the English law, half-brothers could not inherit real estate, and, for all practical purposes of descent, were not deemed the kindred of thé ancestor. This probably being the reason why half-brothers and sisters are unnecessarily mentioned in the second subdivision of the section, it affords no ground for treating the words, ‘brothers and sisters of the ancestor,’ in the fourth subdivision, as being limited to brothers and sisters of the whole blood. Indeed, in the third and fifth subdivisions of the section, the words, ‘brothers and sisters,’ are used to mean brothers and sisters of the whole and half-blood.”

In Brower et al. v. Hunt et al., 18 Ohio St., 311, it is held, under Section 2 of the act of 1857, relating to non-ancestral property, that property which had come from a deceased husband to his widow, descended upon her decease without issue and intestate, to her brothers and sisters, and not as ancestral property, as there contended, to the brothers and sisters of the deceased husband under Section 1 of that act. The supplemental act of 1877 (Section'4162, Revised Statutes), under consideration in Stembel et al. v. Martin et al., supra, was enacted to remove the apparent or supposed hardship and injustice resulting from the statute as so interpreted. . The supplemental act provides that in such event one-half of the estate shall descend to the brothers and sisters of the intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife, or their personal representatives. The question then arose whether the words “brothers and sisters,” in the supplemental act, included those of the half blood. Williams, J., says: (519) “All real property, under our statutes of descent, is embraced within the two classes, ancestral, and non-ancestral, and the distribution of personal estates is according to the course prescribed for the descent of non-ancestral real property. Section 1, of the act of 1857, .expressly provides, that when brothers and sisters succeed, under its provisions, to ancestral property, they shall so take it, whether they ‘be of the whole or half blood of the intestate.’ And by the express provisions of Section 2, non-ancestral property passes first to brothers and sisters of the whole blood, and only when there are none of that class, to those of the half'blood. The supplemental act, has not, in express terms, provided in which of these two ways brothers and sisters shall take the property descending under its provisions.” The conclusion was that the supplemental act was to be construed as; if it read shall descend, “as provided in said second section,” that is to brothers and sisters of the whole blood, and their legal representatives,, and if none, then to those of the half blood. There is nothing in the decision, or in the opinion, in that case that in any manner affects the decision in Cliver v. Sanders, supra. In addition to the cases cited, as holding that half-brothers of an ancestor are included in the word “brothers” wherever used without limitation, see the cases -cited by counsel for plaintiffs in error in Stembel et al. v. Martin et, al., 50 Ohio St., 495-496, and in 27 Am. & Eng. Ency. Law, 312, and in Woerner, The American Law of Administration, *145.

It is also said that if Charles Stockton never had been born, the estate would have descended to the brothers and sisters, or their legal representatives, of B. N. Stockton, of the whole blood in preference to those of the half blood. That is true, but in that event it would have been non-ancestral property and would have passed under Section 4159, Revised Statutes. It would have descended as the estate of B. N. Stockton. It did descend as his estate to Charles Stockton, who might have disposed of it, but he dying' seized of it, intestate, it now descends as his estate and not as that of his father. Freeman and wife v. Allen et al., 17 Ohio St., 527, was a contest between children of the first, second and third wife of the father, over the division of the lands that descended from the father to two of the children who died intestate, and it was held, “That, under the act regulating descents, so much of the estate as came to the intestate by descent, passed to his brothers and sisters of the blood of the ancestor from whom the estate came, whether they were of the whole- or half blood of the intestate; but the remaining part thereof, which came to him by purchase, passed to his brothers and sisters of the whole blood only.”

The Ordinance of 1787 provided, subject to alteration by the legislature of the district, for the descent of property and that 'there should in no case be a distinction between kindred of the whole and half blood, and yet the first act passed in this state, the act of 1805, 1 Chase’s Statutes, 515, made the distinction, substantially in the form it now exists. Speculation as to the reasons for the distinction might be very interesting, but could not change the settled construction of the statute in the present case. Blackstone Book 2, chapter 14, while attempting to justify the distinction says: “It is certainly a very fine-spun and subtle nicety;- but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before.” Of Blackstone’s effort, Sir Henry Maine in his Ancient Law, chapter 5, says: “In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood.” Maine suggests the following explanation, “In agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohibited brothers of the half blood from succeeding to one another’s lands. In the customs of Normandy, the rule applies to uterine brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the .English judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half blood, and extended it to consanguineous brothers, that is to sons of the same father by different wives.” In volume 4, Kent’s Commentaries, *406, • is an interesting note suggesting the source of the distinction between agnation and cognation. Pollock and Maitland in their History of English Law do not agree with Sir Henry Maine. They say, second volume, 303: “Our persuasion is that the absolute exclusion of the half blood, to which our law was in course of time committed, is neither a very ancient nor a very deep-seated phenomenon, that it tells us nothing of the original constitution of feuds nor of the agnatic family. In truth the problem that is put before us when there is talk of admitting the half blood is a difficult one and our solution of it is likely to be capricious. We can not say now-a-days that there is any obviously proper place for the half blood in a scheme of inheritance, especially in our ‘parentelic’ scheme. The lawyers of the thirteenth and fourteenth centuries had no ready solution, and we strongly suspect that the rule that was ultimately established had its origin in a few precedents. About such a matter it is desirable that there shall' be a clear rule; the import of the rule is of no great moment. Our rule was one eminently favourable to the king; it gave him escheats; we are not sure that any profounder explanation of it would be true.”

The laws of descent among the New England settlers were not those of the mother country, and there is an interesting discussion of the matter by Mr. Andrews in his essay on “The Influence of Colonial Conditions as Illustrated in the Connecticut Intestacy Law,” in Selected Essays in Anglo-American Legal History, Volume 1, page 431.

It may be the reason our statute does not distinguish between the brothers and sisters of the whole and half blood of the ancestor is the one already suggested that, although in the case of ancestral property the blood is looked to yet, the property descends as the estate of the intestate and not as the estate of the ancestor. But whatever the reason, we conclude with the observation of Chancellor Kent, 4 Kent’s Commentaries, *406, “The laws of all countries, and our own in particular, are so different from each other on the subject, that they seem to have been the result of accident or caprice, rather than the . dictate of principle. There seems to be no very strong general principle (though, no doubt, the feelings of nature might interpose some powerful appeals in particular, cases) why the half blood should be admitted equally to the inheritance of the ancestor, which he acquired by purchase, and excluded from that which he acquired by descent, devise, or gift,-from some remoter ancestor, in whose blood they do not equally partake. If the ancestor was lawfully seized in fee, why should the course of descent be varied according to the source from which his title proceeded, or the manner of his procuring it? If the rule of inheritance had required no' examination beyond the title of the intestate, and the proximity of the blood to him, there would have been more certainty and simplicity introduced into our law of descents.” The judgment is affirmed.

Judgment affirmed.

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


author: Crew, C. J.

text:
    Boyd v. The State of Ohio.

      Trial of defendant for carnal abuse — Of female under sixteen— Evidence of similar acts — Within two months of indictable charge — Admissible as corroborative of testimony of prosecutrix — Law of evidence.

    On the trial of an Indictment charging defendant with having carnally known and abused a. female person under sixteen years of age with her consent, evidence of similar prior acts of sexual intercourse between the accused and the prosecutrix within a period of two months immediately preceding the date laid in the indictment, is admissible for the purpose of showing the relation and intimacy of the parties, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction.
    (No. 6646
    Decided November 30, 1909.)
    Motion for leave to file petition in error to the Circuit Court of Hocking county.
    At the October term, 1908, of the court of common pleas of Hocking county, Francis Boyd was indicted, under favor of the provisions of Section 6816, Revised Statutes, for the crime of rape, alleged to have been committed by him upon the person of one P. S. with her consent, on the 10th day of August, 1908, she the said P. S. then and there being a female under the age of sixteen years, to-wit: of the age of thirteen years. Thereafter, and at the same term of said court of common pleas, said Francis Boyd .was tried and convicted of the offense charged against him in and by said indictment. This judgment of conviction was affirmed by the circuit court and said Francis Boyd now asks that leave be granted him to file a petition in error in this court to reverse the judgment of said circuit court.

      Mr. Edwin D. Ricketts and Mr. C. V. Wright, for the motion.

      Mr. H. E. Sparnon, prosecuting attorney, and Mr. O. W. H. Wright, for the state of Ohio.
   Crew, C. J.

The indictment in this case alleges that the offense charged therein, upon which reliance was had for conviction, was committed on the 10th day of- August, 1908. On the trial of the case in the court of common pleas the prosecutrix being called as a witness on behalf of the state, was permitted, over the objection of defendant, to testify that on several occasions prior to said 10th day of August, 1908, she had had sexual intercourse with the accused. The prior acts of illicit intercourse thutf shown covered a period of about two months immediately preceding said 10th day of August, 1908. It is the claim of counsel represénting the motion for leave to file a petition in error in this case, that the admission of this testimony was improper and erroneous, because the testimony so given tended to prove the commission by defendant of separate and distinct crimes other than the one for which he had been indicted and for which he was being tried. In support of this claim reliance is had upon the general rule, that it is not competent in a prosecution for one offense, to show that the accused is guilty of another and different offense wholly unconnected with the offense charged. The rule thus invoked by counsel, while perhaps one uniformly observed and followed in proper cases, is wholly without application in cases where the act proved is a relevant fact or circumstance tending to show the commission by defendant of the particular crime charged against him. In all cases evidence should be excluded which tends only to the proof of a merely collateral fact; it should however be admitted if it is of such character that its reasonable and natural tendency is to establish the particular fact in controversy. There is, and can be, no rule of law which forbids' or excludes evidence of other crimes than that charged, if the evidence offered can be said to be relevant as tending to establish and prove the guilt of the accused. If relevant, the fact that the particular act which the evidence tends directly to prove is criminal in its nature, is wholly immaterial, for the competency and admissibility of such evidence does not depend upon the innocent character of the act or circumstance which it tends to prove, but upon the relevancy, of such act or circumstance to the issue involved. The rule upon this shbject is we think correctly-stated by Mason, J., in the comparatively recent case of State v. Borchert, 68 Kan., 361, where he says: “The true rule is that testimony which is otherwise admissible as tending to prove the defendant guilty of the very crime charged, is not rendered inadmissible by the fact that it also tends to show that he has committed some other crime.” The doctrine must now be considered as fairly well settled by the weight of authority, that in prosecutions for adultery, seduction, rape upon one under the age of consent, and incest, acts of sexual intercourse between the parties prior to the act charged in the indictment may be given in evidence as tending to sustain the principal charge, by showing the relations between the parties. The reason for this rule which applies alike to all such cases, is well stated in State v. Markins, 95 Ind., 464, a prosecution for incest, where it is said by Elliott, C. J.: “It is a rule of elementary logic, as well as of rudimentary law, that evidence which tends to establish facts rendering it antecedently probable that a given event will occur, is of material relevancy and strong probative force. It is more probable that incestuous intercourse will take place between persons who have conducted themselves with indecent familiarity than those whose behavior has been modest and decorous. It can not be doubted that it is competent to show the previous intimacy between the persons charged with the crime of incest, their behavior toward each other and their acts of impropriety and indecency. If it be proper to show acts of indecent and lascivious character, then, surely, it must be proper to show the act to which all such indecent and lascivious acts lead, and in which they will often culminate. It can not be held, upon any principal of law or logic, that the state may show acts of improper intimacy up to the very act of sexual intercourse, and then must stop, although the sexual intercourse is but the usual result of the previous lascivious conduct. If the course of conduct tends to show that the incestuous intercourse charged in the indictment did take place, then, surely, the culminating act of sexual commerce must be evidence' of a convincing character. It would be a singular rule that would admit evidence of lascivious' conduct, and yet exclude evidence of the act, which of all the series supplies the strongest evidence that the crime charged was one likely to be committed. If the rule were that the state might show previous lascivious conduct, but must not show an act of sexual intercourse, we should have the singular anomaly of a legal rule rejecting evidence simply because of its strength and importance. The usual rule of common sense, as of law, is, that the 'more material the evidence and the stronger its probative force the greater the reason for holding it to be competent.”

In the present case the evidence of acts of sexual intercourse between the accused and the prosecuting witness, prior to August 10, 1908, were not introduced or admitted for the purpose of proving substantive crimes, but to show the relation and familiarity of the parties, their disposition and antecedent conduct toward each other, and as corroborative of the testimony of the prosecuting witness touching the crime charged in the indictment; for this purpose the testimony was relevant and competent, and was therefore properly admitted. State v. Robinson, 32 Ore., 43; State v. Fetterly, 33 Wash., 599; People v. Castro, 133 Cal., 11; People v. Abbott, 97 Mich., 484; State v. Borchert, 68 Kans., 360; Mitchell v. The People, 24 Col., 532; Lanphere v. State, 114 Wis., 193; Woodruff v. State, 72 Neb., 815; State v. Lapage, 57 N. H., 245; State v. Gaston, 96 Ia., 505; Hamilton v. State, 36 Tex. Crim. Rep., 372; Abbott’s Crim. Trial Brief, 522; 4 Elliott on Evidence, Section 3105.

The purpose and office of the evidence permitted to be given in this case as to prior acts of sexual intercourse between the parties, was fully explained to the jury in the charge of the court, and they were cautioned and instructed that they could not convict the defendant for any act of sexual intercourse with the prosecuting witness except the one specifically alleged and charged against him in the indictment. Among other things, the court said to the jury: “And the reason that you were allowed to hear testimony concerning these other alleged acts of sexual intercourse was in order that you might thereby be the better able in hearing the other evidence, and comparing it with the other evidence, to say whether or not this alleged occurrence of August 10th did in fact take place, for that is the offense for which the defendant is upon trial, namely, the act alleged to have occurred on the 10th day of August, and if you find that the defendant did have intercourse with this girl before the 10th of August upon different times, and fail to find from the evidence, that he had this alleged sexual intercourse on the 10th of August, you must nevertheless acquit him, because that is the transaction which is under inquiry, and which is the basis or foundation for your verdict in the case. That is to say, if you find a verdict of guilty in this casé, it will mean, that you find from the evidence that the defendant on August 10, 1908, had sexual intercourse with this girl with her consent.” Upon a careful consideration of this record we are of the opinion that it discloses no prejudicial error, and leave to file the petition in error presented, is therefore refused.

heave to file petition in error refused.

Summers, Spear, Davis, Shauck and Price, JJ., concur.


author: Price, J.

text:
    McCormick v. The City of Niles.

      Liability'of municipal corporations — To pay for publication of ordinances, etc. — Authority of proper officer to contract for same— Section 1536-653, Revised Statutes — Question of implied contract.

    1. The liability of a municipal corporation to pay for the publication of ordinances, resolutions and legal notices required by law to be published, must rest on express contract, and not upon a mere account for the rendition of such services.
    2. Where the statute has not prescribed the person who shall execute such a contract in behalf of a municipal corporation, it is consistent with Section 1536-653, Revised Statutes, for the council, by ordinance or resolution, to authorize the clerk thereof to execute such contract according to the directions of the council.
    (No. 11085
    Decided December 21, 1909.)
    Error to the Circuit Court of Trumbull county.
    The plaintiff in error was plaintiff in the court of common pleas, where she brought her action to recover of the city of Niles the sum of $651.71, and interest thereon, for publication of certain ordinances, resolutions, notices, etc.
    In her last amended petition she avers that the city of Niles is a municipal corporation in.Ohio and that “she, the plaintiff, is the publisher of The Independent, a newspaper of general circulation, published in the city of Niles, Ohio, and distributed to its subscribers and patrons once each week; that it is a publication Democratic in politics, and is the onlv newspaper Democratic in politics published in said city. That on or about the 8th day of September, A. D. 1904, at the request of said city, by its auditor and clerk of council, and approved by its city solicitor, this plaintiff began the publication in said newspaper for and on behalf of said city certain ordinances, resolutions and legal notices furnished to her by and on behalf of said city, and ¿s were required by law to be published in two newspapers of opposite politics within said city; that during all the time since said date, she has continued to publish all such ordinances, resolutions and legal notices duly authorized by said city and so furnished her by said defendant city, in The Independent, up to and including February 16, 1906. An itemized statement of-her said account is hereto attached marked ‘A’ and is made a part of her said petition, showing the date of publication, times published, and whether the publication was an ordinance, resolution or legal notice, the number of squares in each publication and the price charged for each publication.” She avers there is due her from the city $651.71, which it refuses to pav although requested to do so, and for that sum with interest she prays judgment.
    The city answered, and admits its corporate capacity and that plaintiff is the publisher of The Independent, and that she has attached an exhibit to her petition marked “Exhibit A,” and that payment of her account has been refused, and denies each and every other allegation in the amended petition.
    The case was tried to a jury on the issues thus made up, and at the close of all the evidence introduced, the court directed the jury to return a verdict for the city, which was done. The plaintiff excepted. A bill of exceptions was prepared, containing the evidence introduced, including ordinances, resolutions and legal notices, alleged to have been published. This bill was allowed and signed, and with a petition in error, was filed in the circuit court where the judgment of the court of common pleas was affirmed. Error is prosecuted here to reverse both judgments.

      Mr. L. F. Hunter, for plaintiff in error.
    We do not claim that we have a right to recover on an implied contract, but we do claim, first, that the evidence was sufficient to show an express contract, second, that the law made it the duty of the city council to publish the matter that was published by the plaintiff in error. State, ex rel., v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Collins v. Hatch, 18 Ohio, 524.
    It is a presumption of law that a newspaper is a paper of general circulation. Town of Baynard v. Baker, 76 Ia 222; Larkin v. Railway Co., 85 Ia., 492.
    The acts of the clerk in having these ordinances published in this Democratic paper were known to the council as a council, and they not only ratified and approved them, but there was evidence tending to show, which should have been permitted to go to the jury upon the question whether or not there was a contract between the city of Niles and the plaintiff in error, which the court refused to permit, and that, we think, was-prejudicial to the plaintiff in error. City of Wellston v. Morgan, 65 Ohio St., 219; City of Lancaster v. Miller, 58 Ohio St., 558.

      It is held in State v. Carter, 67 Ohio St., 422, that the clerk is an officer of the city.
    The question whether The Independent is and was Democratic in politics and a paper of general circulation is purely a fact for the jury. By the ruling of the court the question of the politics of The Independent was taken from the jury.
    The law is mandatory that these ordinances shall be published in two newspapers of opposite politics if there are two such papers published within the municipal corporation and the ordinances are invalid unless so published, and the fact that they have not been so published affords a perfect defense to any suit based upon them. Section 1536-634, Revised Statutes; State, ex rel. v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Braman v. Elyria, 5 C. C., N. S., 391.
    The municipal law requires this publication in order that the ordinance shall be valid. If the council failed to designate the papers in which publication ‘should be made, does,, such condition relieve the clerk from the duty imposed upon him to publish the ordinances as required by law, and as required by these ordinances ? In re Durkin, 10 Hun, 269; In re Peugnet, 5 Hun, 434.
    There was no necessity, however, in the council doing more than to impose upon the clerk the duty of publishing ordinances, resolutions, etc., according to law, as the statute requires. State, ex rel., v. Council of Massillon, 2 C. C., N. S., 167; Wilson v. Cincinnati, 19 W. L. B., 10; Collins v. Hatch, 18 Ohio, 524; Braman v. Elyria, 5 C. C., N. S., 391; Pittinger v. Wellsville, 75 Ohio St., 508; Lancaster v. Miller, 58 Ohio St., 558.

      The power of council shall be legislative and legislative only. Council can perform no judicial act. The court says in Ohio State Journal Co. v. Brown, 19 C. C., 325, that the claim of a paper to be Democratic, or known to be Democratic, is the guide in determining its politics. How else could it be determined as a fact?

      Mr. G. P. Gillmer and Mr. T. H. Gillmer, for defendant in error.
    The plaintiff in error finally concedes that there must be a contract alleged, and if alleged, of course it must be supported by proof in order for a recovery. Is a contract alleged in the petition? The petition states that the auditor and the clerk of council requested the publication and that that request was approved by the city solicitor. Section 1536-645 authorizes an auditor for the city and prescribed his duties, but nowhere under said act or elsewhere is the auditor clothed with the power to make contracts for the city.
    Nowhere do we find that the clerk is clothed by statute or by ordinance to make contracts, hence we must infer that neither the auditor nor the clerk had authority to make contracts and that their request for publication made no contract, and that is true either with or without the approval of the city solicitor, whose whole duty seems to be in regard to contracts to see that contracts are in proper form: a contract to be binding upon a municipality must be an express one. City of Wellston v. Morgan, 65 Ohio St., 219.
    The petition, then, does not state an agreement made according to law, hence is defective and demurrable.

      We find it necessary first, that council authorized a contract; second, that the proper board, to make the contract, in this case is the board of public service, that they have the “necessary appropriation” and then council shall take no further action thereon; Thornton et al. v. Village of Sturgis, 38 Mich., 639.
   Price, J.

The only question we have to answer is — did the trial court err in directing a verdict for the defendant?

The plaintiff in error by her counsel early in the brief, states that she does not claim a right to recover on an implied contract, but does claim'that the evidence' was sufficient to show an express contract, and if that is not true, the law made it the duty of the city council to publish the matter published by plaintiff, and that “there is sufficient evidence in the case to show that the city council authorized its publications both before and after the ordinances, resolutions and notices were published.” The admission that plaintiff could not recover of the city on an implied contract is the recognition of what we have' repeatedly decided, when parties soug'ht to hold a municipal corporation liable on quantum memdt, or implied contract. See City of Wellston v. Morgan, 65 Ohio St., 219. The amended petition is somewhat barren of averment that there was an express contract upon which a right of recovery is predicated. We have set out in the statement of this case the body of the amended petition, except the exhibit called the account attached, and we find no allegation that the publications were made in pursuance of a contract for that purpose with anyone. The nearest approach to the declaration of an express contract is couched in the languáge, “at the request of said city, by its auditor and clerk, and approved by its city solicitor, this plaintiff began the publication in said newspaper for and on behalf of said city, certain ordinances, resolutions and legal notices furnished to her by and on behalf of said city, and as were required by law to be published in two newspapers of opposite politics within said city.” There is no averment that either of the above officers were duly authorized, and when we examine Section 1536-647, Revised Statutes, which prescribes the duties of the clerk, we find that it does not make it his duty to make contracts for such printing, and it is not alleged that there was any ordinance of .the city to that effect. The plaintiff then proceeds to allege that she continued to publish all such ordinances, resolutions and legal notices furnished her for that purpose by the city until and including February 16, 1906. While it is averred that these publications were made “at the request of said city by its auditor and clerk of council and approved by its city solicitor,” nothing more appears in the petition to constitute an express contract. These words are common in a petition on an account, and fall short of setting out an express contract. It might be that on such a petition, a court might permit evidence to be given of an express contract, but we are not deciding that question here, if the evidence in the record follows the averments of the petition and fails to make a case on express contract.

A careful consideration of the amended petition leads us to the conclusion that it makes nothing more .than a suit on an account. There is not an allegation that any officer of the city contracted with the plaintiff for the publication of the ordinances, etc.; and no price was named for the work —but merely that it was done at request of the city auditor and clerk of council. This amended petition was not tested by a demurrer, or by objection to the introduction of testimony under it, or perhaps the intervention of a jury might have been avoided.

In order to relieve the amended petition from objection on account of its lack of averments of contract, we are pressed with the statement, that the city or village council is required to publish ordinances, etc., in two newspapers of opposite politics published and of general circulation in the city. The following is part of Section 1536-619, which prescribes the duty: “All ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality, if such there be * * * .” It is claimed, therefore, that publication in that manner is mandatory, and for that reason no express contract is necessary. To this claim is added another, that Section 4366, Revised Statutes, fixes the rates per square for each publication which left mere clerical duty for the clerk to perform in calculating the cost of publication. But it must be observed that this statute fixes maximum rate, and no minimum rate. Hence it is practicable to contract for a much lower rate than the maximum and thereby make large savings for the city or village. The printing bills in the larger municipal corporations loom up to large proportions at times, and the legislature has not undertaken to prevent the obtaining-the publication or advertising at as low rate as may be agreed upon.

In the case at bar, it appears that the council took no action by ordinance or resolution to determine what, if any, publication should be made in plaintiff’s paper, and no ordinance or resolution is shown directing or authorizing the city clerk or anyone to contract with the plaintiff. It seems there was a contract made with the other paper in the city. At least that is conceded in the record and briefs.

If asked, as it was in argument, who can enter into such contracts on the part of the city, we can refer to Sections 1536-617 and 1536-618, Revised Statutes, as furnishing at least one mode of providing for the necessary legal printing. By virtue of the latter section, the powers of the city or village council are legislative only, and it shall perform no administrative duties whatever. “All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board of officers having charge of the matters to which they relate, and after authority to make such contracts has been given and the necessary appropriation made, the council shall take no further action thereon.”

It would seem that the council may authorize, by resolution or ordinance, the board or department of public service to contract for the public printing, and we see no valid objection to giving the clerk of council the authority to make such contracts. The council appears to be the source of authority to contract, and it is the authority to make the necessary appropriations. Conferring such authority on the clerk of council would be consistent with his duties under Section 1536-653, Revised Statutes. It reads: “In corporations in which there is no city auditor, the clerk shall perform the duties of auditor, under the direction of the council, and such other duties pertaining to his office as may be prescribed by the council; and he shall have the charge and custody of the laws and ordinances, and the books, records, and papers of the corporation, and shall carefully keep and preserve them in his office, and shall prepare and certify all transcripts that may be required of. any record or paper in his office, and shall be entitled to receive therefor the same fees as other officers for similar services.”

The court having directed a verdict for the city, it becamé our duty to read the' evidence in the record. We have performed that duty, and find there is no evidence tending to prove that any contract was made with plaintiff below for the publications detailed in her petition.

There was doubt entertained about the politics of plaintiff’s paper. The 'News was a Republican paper, and the plaintiff’s paper had been published as independent of or in politics, whatever that may be. After presentation of the first bills to council for allowance, the plaintiff was waited on by one .or more of the officials and inquiries made as to the political complexion of the paper. Although it had not changed its name, she asserted that it had recently become Democratic. The visitors could find but little in the files of the paper to support a conversion, and would not be satisfied with an affidavit of the publisher that the paper was of Democratic politics. They hesitated to believe that political complexion could be put on and off like an article of personal raiment. But this was not the only objection to payment, for it appears on page 90, and other pages of the record, that the principal ground of objection was the absence of authority to engage the plaintiff to make the publications. When asked about the circulation of her paper, the plaintiff declined to give the information, and there is little if anything to show that it was a paper of general circulation in that city.

As we read the record, the plaintiff at one time thought that an independent paper was opposite in politics to the Republican organ. When this was disputed, chameleon like, a change had come over it, and it was then Democratic. The interviews and other facts attending the presentation and discussion of these printing bills show that the plaintiff had no contract with anyone — certainly with no one authorized to represent the city.

It is to be feared, that when the oaoer acquired the prooer politics, she concluded that the law requiring oublication in two papers of opposite politics was her sole reliance and that she regarded the dutv of the city to be mandatory with reference to her newspaper, contract or no contract. In this she made a mistake, for it cannot be within the power of anyone to thus force his services upon the city and compel it to pay for what it never agreed to pay.

Taking the petition and the evidence, we are of opinion that the trial court correctly ruled, and that the circuit court did not err in affirming its judgment.

Judgment affirmed.

Crew, C. J., Summers, Davis and Shauck, JJ., concur.


author: Shauck, J.

text:
    Winters v. Ruff.

      Default judgment in favor of plaintiff — Before justice of peace— Action appealed to common pleas court — Cannot be appealed to circuit court, when — Section 5226, Revised Statutes — Rule of appeals — Jurisdiction of common pleas court.

    A judgment having been rendered by -default in favor of the plaintiff in an action before a justice of the peace to recover on account of the breach of written contract, and the action having been appealed to the court of common pleas and there determined, the cause cannot be appealed to the circuit court .for a trial de novo- under Section 5226, Revised Statutes, which authorizes such appeal only in an action within the original jurisdiction of the court of common pleas, although the only defense made in the court of common pleas was that of a mutual mistake in the instrument upon which the plaintiff counted.
    (No. 11195
    Decided December 21, 1909.)
    Error to the Circuit Court of Fairfield county.

      Ruff brought suit against Winters before a justice of the peace for the recovery of a sum of money within the jurisdiction of the justice. The defendant not appearing, the justice rendered judgment against him for the amount claimed. Winters appealed the cause to the court of common pleas.. Ruff’s petition in the court of common pleas set forth a cause of action for rent accruing under a lease for gas and oil on lands which Winters had conveyed to him, the sum sued for being the rent ending May 26, 1902, which had been paid to the defendant May 26, 1901, and which by the contract of sale, as it was expressed, was payable to Ruff.
    Winters answered alleging that by the contract by which he sold and conveyed the premises to Ruff he was to reserve and retain the rent for said year, but that by the mutual mistake of the parties, and the mistake of the scrivener who drew the deed embracing said contract, the reservation to him was of the rent for the year ending May 26, 1901. He therefore prayed for the reformation of the instrument and for the dismissal of the plaintiff’s petition. The plaintiff replying, denied the allegations of the answer respecting mistake. On a trial of the issues in the court of common pleas it was found that a mistake had not intervened, and- there being no other defense, judgment was rendered for the plaintiff. The defendant thereupon gave notice of his intention to appeal the cause to the circuit court and he gave the bond required for that purpose. In the circuit court the plaintiff’s motion to dismiss the appeal was sustained, and the order of dismissal is assigned here as error.

      Mr. C. W. McCleery, for plaintiff in error.
    The whole difficulty is in determining whether the common pleas court had original jurisdiction of the cause tried, within the meaning of the statute; or whether it had jurisdiction by appeal, and therefore not original, but appellate jurisdiction.
    In the one case the defendant had the right of appeal, and in the other case he had no such right. Publishing Co. v. Curtis, 7 N. P., 202; Woolever v. Stewart, 36 Ohio St., 146; Strauss v. Adams et al, 4 N. P., 109.
    Though the justice of the peace has no jurisdiction of the cause of action appealed from, if the subject-matter of the action was within the original jurisdiction of the appellate court, and the parties without objection to the jurisdiction, joined issues and went to trial, they waived the objection. Wood v. O’Farrall & Gabrielle, 19 Ohio St., 427; Thomas v. Pennrich, 28 Ohio St., 55; O’Neal v. Blessing, 34 Ohio St., 33; Van Dyke v. Rule, 49 Ohio St., 530; Harrington v. Heath, 15 Ohio, 483; Bisher v. Richards, 9 Ohio St., 495.
    Appeal lies where controversy arises upon cross-petition. Reformation of deed: Massie v. Stradford, 17 Ohio St., 597; Sheeful v. Murty, 30 Ohio St., 50. Accounting between partners: Black, Recr., v. Boyd, 50 Ohio St., 46; Barnd v. Albertson, 51 Ohio St., 569. Eciuitable claim made in the answer which extinguishes claim of plaintiff: Taylor v. Leith, 26 Ohio St., 427; Buckner v. Maer, 26 Ohio St., 514; Rankin v. Hannan, 37 Ohio St., 113.

      Mr. W. T. McClenaghan, for defendant in error, submitted no brief.
   Shauck, J.

On behalf of the plaintiff m error it is claimed that the right to appeal the cause to the circuit court from the judgment of the court of common pleas for a trial de novo is conferred by Section 5226, Revised Statutes, which, it is admitted, confers the right only in cases which were within the original .jurisdiction of the court of common pleas. The view presented on behalf of the plaintiff in error is that, although the cause in fact was taken into the court of. common pleas by appeal from the judgment of the justice of the peace, it was there tried and determined by consent of the plaintiff upon an issue which could not have been determined by the justice of the peace, because mistake is not cognizable at law, and the justice is without jurisdiction to award equitable relief. In that view of the case it would have been the right of Winters, when sued before a justice of the peace in an action .to which he had an equitable defense not available there, to institute a suit in the court of common pleas,for the reformation of the instrument, and to obtain an order of that court staying the prosecution of the suit before the justice, because of the inadequacy of his jurisdiction to the final determination of the rights of the parties. The granting of such relief would have been within the duty of the court of common pleas to exercise its equitable jurisdiction in all cases where legal remedies are inadequate to the protection of rights of a juridical character. Sloane v. Clauss, 64 Ohio St., 125. Winters did not choose that course. ITe elected to permit judgment to be taken against him before the justice and to resort to the court of common pleas by an appeal from that judgment and to malee his defense there under favor of Section 5067, Revised Statutes, which provides: “The defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as he may have, whether they are such as have been heretofore denominated legal or equitable, or both.” It is urged that a convincing analogy is presented in Wood v. O’Ferrall & Gabrielle, 19 Ohio St., 427. It was there decided that a judgment by default havipg been rendered against a defendant by a justice of the peace for a sum within his jurisdiction, and the defendant having appealed the cause to the court of common pleas, and having by his answer in that court expressly admitted the validity of the claim counted upon by the plaintiff and pleaded thereto a counter-claim on which he prayed judgment for an amount in excess of the jurisdiction of the justice, and the case having been by the court of common pleas tried upon the counter-claim, there attached to the judgment of the court of common pleas all the incidents of a judgment rendered by it in the exercise of its original jurisdiction, including the right to a second trial which our practice act then authorized. The suggested analogy will not survive a consideration of the essential differences between the cases. In the case cited the issues tendered before the justice of the peace wholly disappeared in the court of common pleas in consequence of the express admission of the defendant. By his allegations and the consent of the plaintiff, issues were joined and tried respecting an entirely independent and larger demand which the defendant asserted against the plaintiff, the ultimate question being, whether the defendant was entitled to recover against the plaintiff a judgment for the excess of the demand asserted over that admitted. In the case considered the inquiry has never exceeded the validity of the claim upon which the plaintiff brought suit before the justice of the peace, and which he set up in his petition in the court of common pleas. That claim was not admitted by the defendant. On the contrary his pleading was devoted wholly to alleging reasons why the plaintiff should not recover upon it. In no aspect of the case could there have been any judgment in the court of common pleas except for the plaintiff for the amount of the claim alleged in his petition or against him dismissing his petition.

We find no error in the conclusion of the circuit court that the case was not within the original jurisdiction of the court of common pleas, and therefore, not the subject of an appeal to the circuit court.

Judgment affirmed. "

Crew, C. J., Summers, Davis and Price, JJ., concur.