text:
    Kent v. The State.
    1. Where a witness has been cross-examined as to matters which are merely collateral and immaterial to the issue and such as have no tendency to show bias or interest in favor of or against a party, his answer is, in general, conclusive upon the party making the inquiry; but where the cross-examination is with respect to matters involved in the subject under consideration, or is with the view of showing the feeling, bias or interest of the witness with respect to the parties or either of them, the party cross-examining may, in a proper case, call witnesses to contradict the testimony so elicited on cross-examination.
    2. While it is the rule that a judgment will not be reversed for the exclusion of evidence, unless every material part of it is competent for the purpose stated by the party offering the same, it is equally well settled that where evidence is admitted against a general objection, the judgment will not bo reversed on the ground that the evidence was incompetent, unless no material part of such evidence was admissible for any purpose.
    5. K. was convicted of arson. On his trial, evidence was offered tending to show that G. induced him to commit the offense to obtain money on policies of insurance upon the property, though proof of such conspiracy was not essential, to K.’s conviction. K. offered G. as a witness, who denied such conspiracy, and gave evidence in other respects tending to K.’s acquittal. On cross-examination of G., to which K. ex- . cepted,G. denied that he had stated that “K. was costing him too much, because he, K., had burned his, G.’s, store-house.” Held, that the state might call witnesses to prove that G. so stated; and, the objection being general, the fact that the matter elicited by such cross-examination and contradiction may not have been in all its parts competent, will afford no ground for reversing the judgment.
    4. Where a juror in a criminal case makes no statement with respect to the matter on trial until the jury retires to deliberate on their verdict, and then makes to his fellow-jurors a statement of matters alleged to be within his own knowledge, contradicting in an important particular the testimony of one of the defendant’s witnesses, and the defendant is convicted, ground is afforded by such misconduct for a new trial, where the fact is properly made to appear ; but the affidavits of jurors will not be regarded for the purpose of setting aside the verdict, until misconduct of the jury is shown aliunde.

    EkeoR to the Court of Common Pleas of Wayne county.

      Theodore Kent was convicted in the court of common pleas of Wayne county, at the February term, 1884, of the crime of arson by burning the storehouse of Frances A.. Geitgey, on January 28, 1881, the indictment having been found at August term, 1883; in accordance with the conviction, he was sentenced to the penitentiary. Having filed, on leave, in this court, a petition in error in which several alleged errors were assigned, as grounds for the reversal of the conviction, the case was fully and ably argued.
    _ On the trial, evidence was offered tending -to show that Kent was guilty. There was also evidence to show that for several years previous to the burning and down to and during the trial of Kent, he had been on very intimate terms with Samuel Geitgey, husband of Frances A. Geitgey; that the intimacy was quite noticeable about the time of the fire, and for a considerable period before and after that occurrence; that during that time, he, Geitgey, had frequently loaned Kent money, and had sometimes indorsed for him and paid the amount of the indorsements ; and there was also evidence tending in some degree to show that Geitgey had procured Kent to burn the building, in order that he, Geitgey, might obtain the amount of certain policies of insurance on the building and contents, though proof of such conspiracy was in no way directly involved in the issue as to the guilt or innocence of Kent, or essential to Kent’s conviction. It also appeared that there was a separate indictment against Geitgey, charging him with burning the same building, but whether he had been tried thereon before the trial of Kent, did not appear. The proof was clear, and in fact it was admitted by the parties, that Samuel Geitgey was in Pittsburgh, Pa.,when the property was burned, and consequently had no actual, direct knowledge as to the person who burnt the building, assuming it to have been purposely destroyed.
    After the state had rested, Kent offered himself and others as witnesses in his own behalf, and he also called as a witness in his behalf, Samuel Geitgey, who denied that there had been any such conspiracy, and gave evidence tending in other respects to the acquittal of Kent. On cross-examination, the prosecuting attorney asked Geitgey the following question: “ Hid you not, on one occasion while you were at Jennie Coleman’s shortly after she had started her bar, say that you were going to get good and drunk, and did she not ask you what for, and did you not say, because you had seen in the papers that Kent was dead ; and did she not ask you why you were going to get drunk and rejoice over the death of a friend, and did you not then say, it was because Kent had cost you lots of money and had burned your building?” Kent objected to the question, but his objection was overruled and the witness was required to answer, aud Kent excepted ; and thereupon the witness denied that he had so stated.
    On the further trial of the case, after the defendant had rested, the state called Jennie Coleman, and asked her the same question embraced in the question of Geitgey. Kent objected, but the court overruled the objection, and he excepted ; and thereupon the witness answered the question as follows: “ I had a talk, when he said he had heard of Kent’s death, at my house. He said he was going to get full. I asked him what for. He said because Kent was dead. I said, is it common to get drunk over a dead friend ? He said that Kent was costing him lots of money. I asked him what for? Geitgey said, because Kent had burnt his building.” Defendant then moved the court to strike from the evidence that answer of the witness, for the reason that the same was incom-petént, but the court overruled the motion and permitted the evidence to go to the jury, and Kent excepted. Other evidence, especially that of Dr. Schafer, was offered and admitted, contradicting Geitgey, which evidence was in part competent and in part incompetent; but the objection of Kent was general to the whole evidence and not to any part.
    Kent, on the trial, relied not only on the assumed fact that the evidence showing guilt was neither clear nor cogent, but also on the alleged fact that he had established an alibi. The most important witnesses which he called to prove such alibi, were Mary Powers and Laura Powers. Indeed, if the testimony of these two witnesses had been believed by the jury to be in all respects true, it would have been the duty of the jury to have returned a verdict of not guilty; for, according to that testimony, Kent was several miles from the storehouse mentioned in the indictment, at the time the building was set on fire and burned. These witnesses were not directly contradicted by any witness called on the trial, but their uncle, Ellis B. Franks, was one of the jurors, and although he made no statement as to their evidence until the jury retired to consider of their verdict, he then made a statement, it is said, which induced the jury to believe that the two witnesses named had been mistaken as to the time when they had seen Kent. This statement of Franks is shown by affidavits of jurors read on the motion for a new trial, and no other evidence of the fact was offered. In this way, it is claimed, the alibi, which would otherwise have prevailed, was wholly defeated. Herein, it is urged, there was gross misbehavior of the jury, and it is insisted that the court erred in refusing to grant a new trial upon that ground.

      R. 8. Dowell, for plaintiff in error.

      J. Lawrence, attorney general, and J. McSweeney, Jr., prosecuting attorney, for the state.
   Okey, J.

There was no error in permitting the cross-examination of Geitgey. Ordinarily the extent to which a witness may be cross-examined as to matters merely collateral, rests largely in the discretion of the court. But here, aside from the question as to the right to contradict, cross-examination, to the extent shown by the record, appears to have been rather a matter of right in the cross-examining party, than of discretion in the court. Martin v. Elden, 32 Ohio St. 382; Hanoff v. State, 37 Ohio St. 178, 187; Dresback v. State, 38 Ohio St. 365; Tullis v. State, 39 Ohio St. 200. Besides, in this state and most — not all — other states, and in England, it is necessary, in cases of impeachment or attempted impeachment by contradictions, that a foundation should be laid, by stating to the witness sought to be contradicted the time, place, and persons involved in the alleged contradictions. King v. Wicks, 20 Ohio, 87; Runyan v. Price, 15 Ohio St. 1.

The testimony of Jennie Coleman was not offered upon tlio theory that the declarations of Geitgey were those of a co-conspirator of Rent; nor was the testimony admissible upon any such theory, for the declarations were not made in furtherance of a conspiracy. Patton v. State, 6 Ohio St. 467; Fonts v. State, 7 Ohio St. 471; Rufer v. State, 25 Ohio St. 464, Sharpe v. State, 29 Ohio St. 263; Dilcher v. State, ante, 173. Although the purpose for which her testimony was offered is not stated in the record, we may well say the object was .to contradict the testimony of Geitgey, and in that way destroy or weaken the force of his testimony in chief [Burt v. State, 23 Ohio St. 394), and the question is whether her testimony was admissible for such purpose.

Tüat error will not be presumed, is a familiar ánd well settled general rule in appellate courts. Whoever seeks the reversal of a judgment or order, whether in a civil or criminal case, must come prepared to show by the record, not only that error has intervened, but that it has been to his predjudice. McHugh v. State, ante, 154. , So strict is this rule, that while it is settled that a judgment will not be reversed for the exclusion of evidence, unless every material part of it was competent for the purpose stated by the party offering the same (Gandolfo v. State, 11 Ohio St. 114; Bolen v. State, 26 Ohio 371; Hamilton v. State, 34 Ohio St. 82; Gregory v. Walker, Crutcher v Memphis, 38 Ala. 26, 579), it is equally well settled that where evidence is admitted against a general objection, the judgment will not be reversed for that cause, if any material part of such evidence was competent for any purpose (Nutwell v. Tongue, 22 Md. 219; King v. Faber, 51 Pa. St. 387; Dreux v. Domec, Nightingale v. Scannell, 18 Cal. 82, 315; Sneed v. Osborn, 25 Cal. 619; Requa v. Holmes, 16 N. Y. 193; Day v. Roth, 18 N. Y. 448; Fountain v. Brown, 38 Ala. 72; David v. David, Kiepatrick v. Pickens, 56 Ala. 140, 422; Hayes v. Woods, 72 Ala. 92); and the principle is further illustrated by the rule, that where specific objections are made to the introduction of evidence, this, on error, is a waiver of all other objections in that respect. Massey v. Smith, 73 Ala. 173; Gaines v. Com., 50 Pa. St. 319, 326.

It is said in a multitude of cases, and may be regarded as well settled, that where a party cross-examining a witness, desires to call a witness to contradict him, the right to do so will, in general, be determined by the answer to the question, whether the matter offered in contradiction is in any way relevant to the issue, or such as tends to show prejudice or interest, with respect to the cause or the parties, on the part of the witness sought to be contradicted. If an affirmative answer can be given to the question, the contradiction will be permitted, and, ordinarily, otherwise not. While this rule is plain, embarrassing questions frequently arise in determining whaf relation the evidence offered in contradiction must bear to the issue, or in what manner it must disclose prejudice or interest, in order to be admissible. In England an effort was made to remedy this evil just referred to, as to civil cases, by the Law Procedure Act of 1854, which provision, in 1865, was extended to criminal cases; but the effort has, it seems, not been entirely successful.

It will be instructive to examine some of the cases on this subject. In Harris v. Tippett, 2 Campb. 627 (1811), a witness for the defendant having denied, on cross-examination, that he had attempted to dissuade a witness examined for the plaintiff from attending court, it was held that he could not be contradicted. So in R. v. Yewin, 2 Campb. 638, a witness for the crown having denied, on cross-examination, that he had been charged with robbing the prisoner, it was held that witnesses could not be called to contradict him. In Atty. Gen. v. Hitchcock, 1 Welsby, H. G. 91 (1847), the leading case, inquiry was mude of a witness for the crown, on cross-examination, whether he had not said that the crown officers had offered him a bribe to testify, as in fact he did testify in his examination in chief. The witness denied that he had so stated, and Pollock, C. B., refused to permit the witness to be contradicted. A rule was' obtained for a new trial, but after argument by distinguished counsel, the court was unanimous in holding that the chief baron did not err. In R. v. Burke, 8 Cox C. C. 44 (1858), it appeared that Thornton, a witness called bj the prisoner, gave evidence tending to his acquittal. The witness testified in Irish, and on cross-examination denied that he had conversed in English with witnesses then in court, or that he could speak English. The judge presiding permitted the crown to call witnesses to show that Thornton could speak English and had conversed with them in that language. This is a carefully considered case in the court of criminal appeal, Ireland, the majority of the court- holding that there was error in permitting such contradiction. In R. v. Holmes, L. R. 1 C. C. 334 (1871), the prosecutrix in a prosecution for that which was equivalent to an attempt at rape, having denied previous connection with another man, it was held that this was collateral, and that she could not be contradicted. In Harrington v. Lincoln, 2 Gray, 133, the court below permitted the contradiction of a witness, who, on cross-examination, denied that immediately after another witness had left the stand, he had said to the retiring witness that if he had been cross-examined as he, the retiring witness, had been, he would have said something, even if it had been untrue. This was held to be error. The court said it was not only collateral, but failed to show bias or prejudice, and at most could only show that the witness so contradicted was a man of incorrect moral veiws. The People v. Stackhouse, 49 Mich. 76, indictment-for arsan, was a case in which a witness who had given important evidence tending to the prisoner’s acquittal, denied, on cross-examination, that she had said, on the night of the prisoner’s arrest, that she “always did suspect Jerry (the prisoner) burned the mill.” The court below permitted witnesses to be called, who testified she had so stated, and this was held to be error.' We do not find any other case which has gone so far in excluding such evidence in contradiction, and perhaps the case ought to be placed on the ground that the words alleged to have been spoken by the witness were the idle expressions of a person who, it appeared, had no actual knowledge of the matter. And see further, in support of the exclusion of such evidence in impeachment, R. v. Watson, 2 Stark. 149; U. S. v. Dickerson, 2 McLean, 325; State v. Patterson, 2 Ired. L. 346; State v. Patterson, 74 N. C. 157; Hildeburn v. Curran, 65 Pa. St. 63; Munshower v. State, 55 Md. 11; and see Webb v. State, 29 Ohio St. 351; Dilcher v. State, supra.

The case before us is clearly distinguishable from the cases I have mentioned. Parts of the evidence of Dr. Shafer may have been, and probably were, incompetent, but other parts are substantially like the testimony of Jennie Coleman, and the objection in both cases having been general, the question whether there was error in permitting evidence to be introduced may fairly be determined by the answer tó this inquiry: Was Jennie Coleman’s testimony, or any material part of it, competent for any purpose ? We unite in holding that the question must be answered in the affirmative. In the evidence offered by the state to convict Kent, there was testimony tending to show that Geitgey, with the intent to obtain the amount of policies of insurance on the store-house and contents, hired Kent to burn the property, while he, Geitgey, was absent from the state. This alleged fact was not charged in the indictment, nor was it legally essential to Kent’s conviction, and lienee its truth or falsity was not directly in issue in the case. But the evidence supporting that view was so blended with evidence directly tending to Kent’s guilt, that it was difficult, if not impossible, to separate it; and the evidence tending to show such conspiracy was so strong that Kent deemed it important to call Geitgey as a witness to deny the imputation. Obviously, Geitgey had a powerful motive to testify to that which would secure the acquittal of Kent, and no satisfactory reason can be given why, under the circumstances, it was not proper to show such motive by the cross-examination of Geitgey, and on his denying such motive, by calling witnesses to contradict him. It might well be argued, indeed, that Geitgey’s denial was, virtually, that he had said he was paying Kent money (blackmail), from time to time, because he had procured Kent to burn the property. True, there is always danger that such evidence in contradiction will be used for an improper purpose, that is, instead of using it for its only legitimate purpose, to wit, to lessen the credit which might otherwise be given to the testimony of the witness so contradicted, — the jury, in a case like this, will look to the contradiction as substantive evidence of the defendant’s guilt. But it is well settled that this is not a sufficient ground for excluding evidence. A similar danger is encountered where, on a charge of passing counterfeit coin, proof is offered of the possession of similar counterfeit coins by the prisoner, at or near the time he passed the coin in question, and yet such proof is constantly permitted. It is, however, the duty of the court, in all such cases, to state to the jury the only purpose for which such evidence can be regarded, and here we will presume, the record being silent, that the judge presiding at the trial perforated his duty, by saying the evidence in contradiction was solely with reference to the credit to be given Geitgey’s testimony.

In Attorney-General v. Hitchcock, supra, and Hildeburn v. Curran, supra, it is stated that the test whether, in cases other than those involving bias or interest; a fact inquired about in cross-examination is collateral, found in the correct answer to the inquiry, whether, the cross-examining party would be entitled to prove it as part of 1ns case, tending to establish his plea. Whether this supposed test is really a test, may, it is said, be doubtful; but ordinarily it is a test, though it is unnecessary to discuss the question in this case, for here the evidence offered in contradiction tended strongly to show the bias, feeling and interest of Geitgey, with respect to the cause and the parties, and clearly, as will appear from cases hereinafter cited, the fact that the expressions of Geitgey, detailed by Jennie Coleman, tended to show bias against rather than in favor of Kent, can, under the circumstances, have no effect upon the right to offer the evidence in contradiction.

The cases supporting the admissibility of the testimony of Jennie Coleman, as contradicting Geitgey with respect to his bias and interest concerning the cause and parties, are numerous and in are opinion impregnable. We will take space to state the points decided or views expressed in a few of them. In R. v. Yewin, supra, a witness for the crown, denying on cross-examination that he had said that he would be revenged on tbe prisoner and soon fix him in jail, it was held that witnesses might be called to contradict him. So, in Atty. Gen. v. Hitchcock, supra, Parke, B., said: “ We cannot enter into a collateral question as to the man’s having committed a crime on some former occasion, one reason being, that it would lead to complicated issues, and long inquiries; and another that a party cannot be expected to be prepared to defend the whole of the actions of his life. Neither of these cases applies to the case of receiving a bribe, nor to a man’s having a direct influence in giving his evidence in a cause. It may be shown that he acted through motives of malice, as every man who comes into the witness box must come' prepared to show that he gives his evidence from pure motives; and such as shows that he does not, would be admissible against him.”

In Newcomb v. State, 37 Miss. 383 (1859), Mrs. Newcomb, mother of the prisoner, was called by him and gave evidence strongly tending to his acquittal. Denying, on cross-examination, that she had said, previous to the homicide, that if the prisoner did not kill John Freeze (the person alleged to have been murdered), she would not own him as her son, the state was permitted to call a witness to contradict her in this respect, and this was held not to be error.

In Com. v. Gaines, supra (1865), which was an indictment against the defendant for the murder of his brother, evidence was given tending to show that the defendant was guilty, and there was also evidence tending to show that the homicide was committed by Absalom Smoke. Smoke, who was called for the commonwealth, gave evidence strongly tending to show the defendant’s guilt. Upon cross-examination he denied that he ever charged the deceased with criminal intimacy with his wife, or that he had said he was watching for an opportunity for revenge. A witness having been called to contradict him, the court rejected the evidence on the ground that the matter involved in the inquiry was collateral. But the supreme court reversed the judgment, upon the ground that “the motives which operate upon the mind of a witness when he testifies are never regarded as immaterial or collateral matters.”

In Scott v. State, 64 Ind. 400 (1878), in which there was a conviction for shooting with intent to murder, Weimer, who was called by the state, and gave material evidence tending to the defendant’s conviction, was asked the following question: “ Did you not say to Squire Fisher ” (alluding to a conversation between the witness and Fisher about the-difficulty, soon thereafter and at the place thereof), “ it is well you stopped it when you did for 1 had my knife out.” The witness answered, “ I did not.” The court having excluded the evidence called by defendant to contradict Weimer, the supreme court reversed the judgment upon the same ground as in Com. v. Gaines.

The ground on which these decisions are placed sustain the reception of the testimony of Jennie Coleman and Dr. Schafer — at least a material part of it, — for such evidence in contradiction of Geitgey tended to weaken the force, if not wholly destroy the effect of his testimony. Numerous cases equally in point might be cited, but most of them are collected in the. text books. See Whart. Ev. § 561; Whart. Cr. Ev. g 485 ; 1 Green. Ev. (14th ed.) § 450; Phillip’s Ev. (5th Am. ed.) 971* ; Starkie’s Ev. (10th Am. from 4th Lond. ed.) 203* ; Stephen’s Dig. Ev. Art. 130 (2); Roscoe’s Cr. Ev. (7th Am. from 8th Eng. ed.) 103.

2. If we could regard the affidavits to prove misconduct of the jury as admissible, we would not hesitate to say — assuming that we have jurisdiction to say — that they presented a case which 'called upon the court of common pleas to grant a neAv trial; for the accused, in any criminal case, has the right to meet the Avitnesses face to face, and that includes the right to cross-examine all witnesses not' called by himself. Rut there was no evidence of misconduct, except that contained in the affidavits of jurors, and the statements in affidavits had relation alone to what took place in the jury room, and affected, in a sense, each and every juror. Hence, applying the ordinary rule, that the affidavits could not properly be considered until some evidence other than the testimony of jurors had been offered, no case for setting aside the verdict was shown. Farrar v. State, 2 Ohio St. 54; Thompson & Merriam on Juries, ch. XXI. If the law in this respect is wrong, the legislature alone should change it.

Judgment affirmed.


source: Caselaw Access Project

author: McIlvaine, J. Okey, J.

license: Public Domain

text:
    The State ex rel. v. Constantine.
    1. The election and the appointment of an officer, as authorized by section 27, article 2 of the constitution, are different and distinct modes of Ailing an office.
    2. Where an office is Ailed by an election, the election must conform to the requirements of the constitution, and each elector of the district is entitled to vote for a candidate for each office to be Ailed at the election.
    3. A statute authorizing the election of four members of the police board at the same election, but which denies to an elector the right to vote for more than two members is in conflict with article 5 of the constitution.
    IN quo wabRANto. .Reserved bj the District Court of Clark county.

      8. A. Bowman and 22. A. Harrison, for plaintiff:
    I. The act under consideration is in contravention of the last clause of section 1, art. Y. of the constitution, which vests in every elector the right to vote at all elections.
    No constitutional right of a voter can be abridged, added to, or altered by legislation. Monroe v. Collins, 17 Ohio St. 666, 686 ; Copin v. Foster, 12 Rick. 485, 488 ; Page v. Allen, 58 Pa. St. 338; Bills v. Kennedy, 49 Wis. 555.
    II. The provisions of section 27, art. 2, of the constitution, for the election and appointment of officers, simply authorizes the legislature to direct that any officers, which are not in terms provided for by the constitution, may be cither elected or appointed, and to direct the manner in which the election or appointment of such officers may be made. The mode or manner of conducting an election is one thing, — the election itself is another thing. State v. Adams, Erightly’s Leading Cases on Elections, 286.

      Ill: The entire act under consideration is unconstitutional and void so far as it relates to the city of Springfield. To strike ont any part of the act, which provides for the election, would make the act mean directly the contrary of its actual meaning, and defeat the manifest purpose of the legislature. If a part is void the whole is void. Kelly v. State, 6 Ohio St. 269.
    1Y. The act is in contravention of section 6, art. XIII. of the constitution for that so far as it applies to the city of Springfield it is a local act. It is also an act containing provisions concerning the organization of one of the cities of the state.
    V. The act is also in conflict with section 1, art. XIII. for that it confers corporate powers.

      Charles W. Constantine, for defendants :
    I. As to the point that the act is in conflict with section 1, art. 13, it is sufficient to say that the board provided for by the act is not a corporation, nor are its powers within the meaning of that section. Walicer v. Cincinnati, 21 Ohio St. 14; State v. Covington, 29 Ohio St. Ill; State v. Baughman, 38 Ohio St. 459.
    II. The objection that the act is in violation of section 6, art. 13, is answered by State v. Baughman, supra.
    HI. The framers of the constitution having provided for the election of county and township officers without having made any such provisions in relation to city or village officers raises an inference that the intention was to leave th.e manner of electing or appointing the latter to the wisdom and discretion of the legislature. State v. Covington, 29 Ohio St. 114.
    The word “ manner ” in section 2, art. 27 of the constitution authorizes the election by such authority or means as the law may prescribe, and'does not mean only that the mode of a popular election shall be prescribed. It may be by city council as in State v. Squire, 39 Ohio St. 199; in the election of a city clerk ; or the limitation may be territorial, or restrictions may be placed upon the exercise of the elective franchise, or qualification to hold office may be prescribed. 29 Ohio St. 102.
   McIlvaine, J.

This proceeding is prosecuted to oust defendants from the office of police commissioners of the city of Springfield, and wholly exclude them from the exercise of franchises, powers and authority, assumed to be conferred by the act of April 21, 1884, entitled: “An act to amend sections 1998, 2012, 2013, 2014, 2021 and 2022 of the Revised Statutes of Ohio.”

Defendant Constantine, as mayor of the city of Springfield, and defendants Kinnane, Schneider, Fried and Conklin, who were elected to the office of police commissioners by the electors of the city of Springfield, in accordance with the terms of said statute, rely on its provisions as their sole authority for assuming to act as such board of police commissioners.

Section 1998, as amended by said act, reads as follows : “ In cities of the first and second grades of the second class, and in cities of the third grade of the second class, having a population of nineteen thousand, and not exceeding twenty thousand, and in cities having a population of twenty thousand and not exceeding thirty thousand five hundred, by the last federal census, and that have not been advanced to a city of the second grade, second class, all powers and duties with respect to the appointment, regulation, government and control of the police shall be vested in and exercised by a board consisting of a mayor, who shall be president, and four commissioners, who shall be electors and freeholders of the city, and a majority shall constitute a quorum, and in cities of the third grade of the second class, having a population of nineteen thousand and not exceeding twenty thousand, and in cities having a population of twenty thousand and not exceeding thirty thousand five hundred, by the last federal census, and that have not been advanced to a city of the second grade, second class, said commissioners shall be elected by the people to serve for the term of two years, and until their successors are duly elected and qualified; the first election to be held wfithin twenty days after the passage of this act ; and thereafter said commissioners shall be elected at the annual municipal election, but no elector shall at any election vote for more tlian two persons for such commissioners, and any ballot containing ' the names of more then two persons for said office shall not be counted for any of the names thereon, and the four persons receiving the highest number of votes cast, shall be declared elected; provided, that in the case of said last named cities, the provisions of section nineteen hundred and ninety-nine of said revised statutes, which relate to the term of office of said commissioners shall not apply, and all vacancies occurring during the term of said commissioners shall be filled as provided by said section nineteen hundred and ninety-nine ; but in making such appointments the political complexion of the board shall not be changed, and in case any cities of the third grade of the second class, having a population of nineteen thousand and not exceeding twenty thousand, and any city having a population of twenty thousand and not exceeding thirty thousand five hundred by the last federal census, and that have not been advanced to a city of the second grade, second class, shall be changed in grade or class, the police board hereby provided for such cities and its powers and duties shall not be affected by such change. Provided, that in said last named cities the present police force shall continue in office only until a police force is appointed by said board and duly qualified.”

It is admitted that the city of Springfield is embraced in the terms of this statute, but it is contended by the relator that the provision of the section that “ no elector shall at any election vote for more than two persons for such commissioners, and any ballot containing the names of more than two persons for said office shall not be counted for any of the names thereon, and the four persons receiving the highest number of votes shall be declared elected,” is in conflict with the constitution of the state and an election held thereunder is therefore void.

Section 27, article 2 of the constitution provides: “ The election and appointment of all officers, and the filling of all vacancies not otherwise provided for by this constitution or the constitution of the United States, shall be made in such manner as may be directed by law; but no appointing power shall be exercised by the general assembly, except as prescribed in this constitution, and in election of United States senators; and in these cases the vote shall be taken “viva voce.”

That the defendants acting as a board of police commissioners, exercising the functions conferred by the act of April 21, 1884, are officers, within the meaning of this provision of the constitution, is not controverted in this case. That they are such officers is made clear by the decision in State v. Kennon, 7 Ohio St. 546, and is not in conflict with Warnick v. State, 25 Ohio St. 21. This board is created by the statute, and the mode of Ailing it not being provided for by the constitution of this state or of the United States, it follows that it must be filled by election or appointment in such manner as may be directed by law. Two modes of filling an office are indicated by this clause in the constitution. By election and by appointment. The general assembly may choose either, and having determined the mode, the manner of carrying it into execution is left to its discretion.

In the case before us, the legislature having created the office in question, determined that it should be filled by an election. The city of Springfield was made the election district, and the “ electors ” of this district were authorized to vote at the election. The first election was to have been held within twenty days after the passage of the act, and thereafter at the annual municipal election.

The qualifications of electors are not defined by this statute, but undoubtedly the legislature meant such persons as had the qualifications required of electors by the constitution and general laws of the state, as we think it clear that the election for officers as authorized by this section of the constitution must be such an election as is held in conformity to the provisions of the constitution on that subject.

We have no doubt the filling of an office, not provided for under the constitution of the state or the United States, may be referred to a body or class of persons who may or may not have the qualifications of electors, and the manner of ascertaining the sense of such body or class may be by taking a vote ; but such mode of filling the office is not by an election as authorized by section 27, article 2, but by an appointment as therein authorized. Indeed the' manner of filling an office by appointment is unrestricted, save only that it can not be by “ an election,” which is pointed out by the constitution as a different mode of filling an office.

The constitution does not provide in detail the manner of holding elections, leaving that to legislative discretion, but it does provide that all elections shall be by ballot, and, having prescribed the qualifications of an elector, provides that each elector “ shall be entitled to vote at all elections.” See constitution, article 5. By this article we have no doubt that each elector is entitled to vote for each officer, whose election is submitted to the electors, as well as on each question that is submitted. This implication fairly arises from the language of the constitution itself, but is made absolutely certain when viewed in the light of circumstances existing at the time of its adoption. No such thing as “ minority representation” or “ cumulative voting ” was known in the policy of this state at the time of the adoption of this constitution in 1851. The right of each elector to vote for a candidate for each office to be filled at an election had never been doubted. No effort was made by the framers of the constitution to modify this right, and we think it was intended to continue and guarantee such right by the provision that each elector “shall be entitled to vote at all elections.” Such right is denied by this statute which provides for the election of four members of the board of police commissioners, but denies to any elector the right to vote for more than two persons for such commissioners.

The relator also claims that this statute is in conflict with section 1, article 13 of the constitution, which provides: “ The general assembly shall pass no special act conferring corporate powers.” In answer to this claim defendants rely on State v. Covington, 29 Ohio St. 111, which was ápproved in State v. Baughman, 39 Ohio St. 459.

This question has not been considered by this court, but in order to avoid misunderstanding, it is deemed proper to say tliat the case referred to is not conclusive on the point made. In Covington’s case, where the board of police commissioners was appointed by the governor, it was said that the board of commissioners upon whom powers were conferred was not a corporation, and therefore the statute, though special, was not unconstitutional.

In the case before us it is claimed the power to hold an election was conferred upon the city of- Springfield, a municipal corporation, and the act, being special, was prohibited. This is a very different question, but the solution of it is not deemed necessary by this court.

Judgment of ouster.

Okey, J.

I concur in the judgment of ouster, but find it necessary to state separately the ground upon which I concur. The case involves the constitutionality of the act of April 9, 1884 (81 Ohio L. 121), so far as the same relates to “ cities having a population of twenty thousand and not ex-, ceeding thirty-five thousand five hundred, by the last federal census, and that have not been advanced to a city of the second grade, second class.” The relator insists that the act, so far as it applies'to the cities above described, is invalid upon two grounds, first, that it violates the fifth article of the constitution, which relates to the elective franchise; and, secondly, that it violates the first section of the thirteenth article of the constitution, which provides, that “the general assembly shall pass no special act conferring corporate powers.” These questions were very fully and ably argued orally and on briefs, and after the briefs were read and authorities cited were examined, nothing remained to be done but for each judge to express his opinion. The court was unanimous in holding there should be judgment of ouster. I do not dissent from the view expressed in the opinion of Mcllvaine, J., but I prefer to withhold the expression of an opinion upon that question until such opinion becomes necessary. I think the case will be properly decided when a correct answer is given to the question, whether the act, so far as its validity is involved in this case, is in conflict with the provision of the constitution inhibiting the granting of corporate powers by special act.

Not only is the fact found in the record that the words above quoted from the act apply to the city of Springfield alone, but without such finding this court would take judicial notice that the words never did and never can apply to any other municipal corporation than Springfield; and, consequently, the act, to that extent, is local and special. State v. Covington, 29 Ohio St. 102; McGill v. State, 34 Ohio St. 228, 258, 270; State v. Brewster, 39 Ohio St. 653; Devine v. Com. of Cook Co., 84 Ill. 590. And as the act assumes to confer upon the city of Springfield power to hold an election of its electors for public officers for the corporation, and exercise other important functions, it is too clear for argument that the act, in form, confers corporate power. State v. Mitchell, 31 Ohio St. 529. And the act being invalid, for the reason stated, so far as it authorizes the city of Springfield to hold a corporate election, and it being neither reasonable nor probable that the legislature would have made provisions with respect to Springfield, unless the whole act could have effect with respect to that city, it follows that the whole act is void, so far as Springfield is concerned. State v. Sinks, ante, 345. So far from State v. Covington, supra, being opposed to this view, it will be found, on careful examination, that it strongly supports it. There the officers were not elected ; they were appointed ; and of course the appointment by the governor of officers for Cincinnati was an act done in pursuance of authority conferred upon him. In fact, no corporate power was conferred upon the city with respect to the selection of those officers; and as the legality of their appointment was the only question involved, it was properly held in that case that art. 13, sect. 1, could not be successfully invoked to defeat their title, however clearly such constitutional provision might, in some other action or proceeding, be fatal to other parts of the act. The same remarks are applicable to State v. Baughman, 38 Ohio St. 455. Believing the position I have assumed to be impregnable, I am content to rely upon it.


author: Follett, J.

text:
    Bolles v. Stockman. Bevington v. Meinzer.
    1. Where a court acquires jurisdiction of an action, such court (unless the action he ended by the parties), retains jurisdiction until it renders a final judgment in the case.
    S. Where a proceeding in error is prosecuted in the district court to reverse the judgment of the court of common pleas, a judgment reversing the judgment of the common pleas with costs, and remanding the cause to the court of common pleas for execution, is not a final judgment, but it leaves the cause pending in the district court.
    MotioNS for leave to file a petition in error to the district court of Henry county, and to the district court of Crawford county.
    William" Bolles brought suit in the court of common pleas of Henry county, upon the bond of William H. Stockman as administrator of John J. Stockman. He alleged that he had a claim against the estate, which had been duly allowed, but which had not been paid; that there were assets in the administrator’s hands, etc. A demurrer was filed to the petition, and was overruled. Answers and replies, presenting questions of fact, were filed, and on the trial a judgment was rendered for Bolles. The defendants, by petition in error, prosecuted the case in the district court; and on hearing, the district court made the following entry : “ And now come the said parties, by their attorneys, and thereupon this cause came on to be heard, and was heard upon the petition of said plaintiffs in error, and was argued by counsel; on consideration whereof the court find that the said court of common pleas did not err in overruling the demurrer of said William H. Stockman, Frederick Bostleman, and Dei trick Bremer, to the petition of said William Bolles.
    “And the court further finds, error in the proceedings of said court of common pleas, and the evidence, and find that tbe judgment should have been for tbe defendants below instead of for said plaintiff, tbe said William Bolles.
    “ It is therefore considered and adjudged by this court, that for the error aforesaid, the said judgment of the said court of common pleas, be and the same is hereby reversed with costs, and the said plaintiffs in error be restored to all things which they have lost by reason thereof; to all of which last finding aforesaid, and the judgment and order therein by this court, the said William Bolles excepts, and prays that his exceptions thereto be made a matter of record in this cause, which is done accordingly. And it is further ordered that this cause be remanded to the said court of common pleas to carry this judgment into effect.”
    Also on August 31, 1880, Mary E. Meinzer brought suit against Cassola Y. Harrer, a minor, for partition of certain lands, of which one-half was owned by each. After appraisement and notice, the land was bid off by C. L. Meinzer, the the husband of Mary E. Meinzer, and the sale was confirmed, but he refused to pay for the same. The land was again sold at public auction to another party for a less sum than Meinzer bid for it. The guardian of Cassola sued Meinzer for the loss occasioned by his refusal to complete his purchase. On the trial judgment was obtained against Meinzer, who prosecuted proceedings in error in the district court of Crawford county; and on hearing, the district court made the following entry: “ This day came the parties by their attorneys and thereupon this cause came on to be heard as well upon the transcript of the judgment and other proceedings between the said parties in the court of common pleas of said county of Crawford, and the original files and pleadings brought here upon said petition in error, and also upon the matters by the said plaintiff herein assigned for error, and the same being 'seen and by the court now here fully understood, and was argued by counsel.
    “ On consideration whereof the court do find that in the record and proceedings aforesaid, and on giving the judgment aforesaid, there is manifest error; therefore it is considered that the judgment aforesaid for the errors aforesaid be reversed, annulled and altogether held for nothing; and that the said plaintiff in error herein be restored to all things which he has lost by occasion of said judgment, and recover against the said defendant in error, his costs in this behalf expended taxed to $ . ‘ And it is ordered that a special mandate be sent down to the said court of common pleas to carry this judgment into execution.’ ”
    Plaintiffs ask leave to file petitions in error on these judgments of the district courts.

      John U. Doyle and Tyler dk Donnelly, for Bolles, and James Lawrence, for Bevington.

      J. M. Haag, for Stockman, and 8. R. Harris and J. R. Glymer, for Meinzer.
   Follett, J.

In both of these cases proceedings in error were prosecuted in the district courts. Each one was fending in the district court, and has not been reserved to this court; and, there being no appeal, has the petition in either ease been dismissed? Or has either case been remanded to the court of common pleas ?

In the first case, the district court found, that the court of common pleas did not err in overruling the demurrers to the petitions, and the court did not dismiss the petition. It adjudged that the judgment of the court of common pleas be reversed with costs, and that the plaintiffs in error be restored to all things which they had lost by reason of the judgment.

The court did not remand the case with special directions, neither did the court remand the case to be tried on its merits. The district court simply remanded the cause to the court of common pleas to have its judgment for costs carried into effect.

In the second case, the district court found error in the court of common pleas in rendering its judgment, and the district court reversed that judgment, and restored the plaintiff in error to all things he had lost by reason thereof; and also rendered judgment in favor of the plaintiff in error against the defendant in error for costs in that behalf expended. The district court did not reserve the case to this court; it did not remand the case to be tried on its merits, or to be disposed of in any way; but it only ordered that a special mandate be sent down to the court of common pleas to carry its judgment for costs into execution. In neither case is the judgment rendered a final judgment or order. It does not dispose of the whole case, nor of any distinct part of the case, as it must do before this court can take jurisdiction. Bevised Statutes, § 6707, provide, “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a ji/nal order which may be vacated, modified, or reversed, as provided in this title.”

See also, Kinsley v. State, 3 Ohio St. 508; Holbrook v. Connelly, 6 Ohio St. 199; Hobbs v. Beckwith, 6 Ohio St. 252; Stubenville, etc. R. R. Co. v. Patrick, 7 Ohio St. 170; and Teaff v. Hewitt, 1 Ohio St. 511; also Bevised Stats. § 6710, as to when this court may act.

Our statutes provide for books and officers to keep an exact record of ea'ch step in a cause, and true and full statement of what is done by the parties, by the officers, and by the court. So there should be" no doubt or ambiguity as to just what is done in every stage of the case, at least by the court. The Bevised Statutes provide as follows: section 1240 requires the election, in each county, of a clerk of the court 'of common pleas.

Section 1241 requires him to give bond conditioned, among other things, “ that he will enter and record all the orders, decrees, judgments and proceedings of the courts of which he is by law the clerk,” &c.

Section 1242. The clerk of the court of common pleas shall also be clerk of the district court, and of any superior court held in his county.”

Section 4957. The clerk of the court of common pleas shall keep at least five books, to be called the appearance docket, trial docket, journal, record, and execution docket.”

Section 1245. “ The cleric shall indorse on every pleading or paper in a canse filed in his office, the time of filing, and enter all orders, decrees, judgments and proceedings of the courts of which he is by law the cleric,” &c.

Section 5331. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.”

Section 5332. The clerk shall make a complete record of every cause,” &c.

Section 5334. The records shall be made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court,” etc.

Section 5335 provides how a complete record may be secured, and the record is the evidence of what is done., "When ■ such a record is secured — and all records' not impeached are held to be such — it shows all that was done in the case; and there is no room to conjecture that other things, not shown by the record, were intended.

In these cases the records do not show a final judgment, but they do show that the cases are pending in the district courts.

The motion in each case must be refused.

Motions overruled.'


text:
    Railroad Co. v. Steinfeld.
    1. In an action to reform a contract and for relief thereunder, after the same is reformed, the court may specifically enforce the same when that may he done, or may give adequate compensation for its nonperformance.
    2. On trial of an action to reform a written substituted contract for fraud or mistake, and to enforce the same when reformed, or if the same could not he reformed then to rescind the written contract, there may he given in evidence the original writing made by the same parties upon the subject matter in dispute, and also the subsequent acts done or procured to be done by tbe party charged with the fraud and which tend to prove the fraud or mistake.
    3. On such a trial the court may find that the written contract in dispute does not contain the true agreement of the parties, but if the party complaining neither pays back nor offers to return the money received by him under the contract, it is error to order the contract to be set aside and held for naught.
    ERROR to the District Court of Marion county.
    Steinfeld is the'owner of about 170 acres of land which is divided by the Columbus & Toledo railroad into two parts, the one on the east side, where the house and buildings are situated, being about 75 acres, and the one on the west side being about 90 acres — the balance of the farm being taken by the right of way.
    ' These two parts of the farm are cut off from each other by an embankment from 15 to 23 feet high and a cut from 12 to 15 feet deep.
    On the 9th day of April, 1874, Steinfield and wife made and handed to the railroad company a grant of right of way to the railroad company for $1,200, on certain conditions, among which were the following :

      “ And provided, further, that the company guarantee us against loss or injury, owing to the construction of the road.
    “And provided, further, that the company build and maintain two good crossings, also one passage under said road for stock, if the embankment of the road will admit.”
    No money was paid, but the company retained the conveyance until September 29, 1875, when the agreement was changed and a new grant of right of way was made by Stein-field and wife. In this grant the consideration money to be paid was reduced to $850, and, in other respects was like the other grant, except, in lieu of the above provisions,, there was the following:
    “And provided, further, that the said company build and maintain a good crossing; also one passage under said road for stock.”
    Steinfeld claims that the last above provision did not truly state bis agreement with the company in this respect; but that the agreement was, that, in consideration of the rebate of $350, and in place of one of the crossings mentioned in the first grant, the company agreed to make .and construct for him under the railroad, at a point where the railroad runs on an embankment of about 23 feet in height, a passage way of the width of 16 feet and of the height of 15 feet, sufficient in all respects to allow and give full, free and safe access under the railroad to his lands on the west side thereof, so constructed that he might pass under the railroad through said passage way with team and wagon with loads of grain and hay, and to be of such magnitude that a ton of hay upon a wagon could be drawn through the passage way.
    That one Graham, who acted for the company, prepared the conveyance, and, before the same was signed, read the same to Steinfeld and wife as though the above agreement was therein ; and, believing the grant to be as he understood it, he took the $850 and permitted the company to take possession of the land.
    The company claims there is no mistake or fraud, and refuse to make such a' passage way as Steinfeld demands, but after the suit was brought it made a small passage way for cattle up on the side of the hill.
    Steinfeld prayed that the contract might be corrected so as to conform to the agreement as he stated it, and that the court would decree the specific performance of the contract so corrected ; or that the court would rescind the written contract, and for other relief. On the trial the company objected to the original writing being received in evidence. Also to testimony showing what the company did in building the passage way as Steinfeld claimed the company agreed to do; but objections were overruled.
    ' Steinfeld obtained judgment in the court of common pleas, and the case was appealed to the district court; and, on trial there, the court found the following facts and rendered judgment as follows:
    “ This day came the parties and this cause came on to be heard upon the pleadings and testimony and was argued by counsel; and the court being fully advised in the premises, do find that the agreement in writing attached to the ammended petition of the plaintiff is not the valid agreement of the parties; that the same was executed and delivered by the said plaintiff to the said defendant, in ignorance of its contents and by mistake, and the court do further find that through ignorance of the contents of said contract and by mistake, the plaintiff surrendered to said defendant the possession of the real estate now used and occupied by said defendant as and for the right of way for its railroad, through and over the farm of the plaintiff in the said amended petition described ; and that the plaintiff through ignorance of the contents of said contract and by mistake received of said defendant and receipted for the said sum of eight hundred and fifty dollars.
    Wherefore it is considered by the court that no contract exists nor has existed between said plaintiff and defendant concerning said right of way, the compensation therefor and the damages which may have resulted to the plaintiff by reason of the construction and use of said defendant’s railroad through and over said plaintiff’s said land. .
    “And it is adjudged and "decreed that the written instrument purporting to be the contract of the plaintiff, a copy of which is attached to said amended petition, be, and the same hereby is, set aside and held for naught.”
    A motion for a new trial was overruled, and there was filed a bill of exceptions containing all the evidence.
    The railroad company now seek to reverse the judgment of the district court.

      James A. Wilcox and McNeal & Wolford, for plaintiff in error:
    As to fraud: The rule of law is that the fraud must be clearly and distinctly, proved. Kerr on Fraud, 382, 383; 15 Ohio, 600, 604, 605; 6 Ohio St. 459, 464. And, the agreement being executed, actual fraud on the part of the company must be established. Kerr on Fraud, 55; 2 Disney, 302; Syl. 2,304; 28 Ohio St. 10, 18. Therefore, the only question is, does the evidence clearly and distinctly establish such fraud, so as to justify the decree? The paper introduced by Steinfeld which he called the first contract, was incompetent. It had never been acted upon, had nothing whatever to do with the agreement, and even if it had, would undoubtedly come within the principle of the rule as to contemporaneous declarations and negotiations,, which are never admitted to contradict a written contract. 1 Greenleaf on Ev. §§ 275, 277; 16 Ohio St. 472, 477; 21 Id. 596, 605 ; 26 Id. 33.
    Again, it is the rule of law that when a party intends to-rescind a contract, he must give notice thereof and exercise the right within a reasonable time. 8 Ohio, 198, 202; 16 Ohio. St. 321, 328; 28 Id. 10, 18; 2 Handy O. S. C. Rep. 283, 287, 2S8; Oooley on Tort, 503, 504; 7 Ohio (pt. 2), 97, 99, 101, 102. The agreement was concluded in 1875, when the company took possession and constructed extensive and costly works upon the premises, and had continued in the use thereof for the operation of the road until the commencement of this action in 1879, four years, without any intimation from Stein-feld of an intention to rescind the contract. And, in case of rescission, the parties must be substantially re-instated in their original situation. 2 Story on Cont. §§ 1086, 1337; Cooley on Tort, 504; 28 Ohio St. 10, 18; and see 7 Ohio St. (pt. 2) 102; 30 Ohio St. 647, 661.
    IF. Z. Dmis, for defendant in error:
    We are not seeking, in this proceeding, either to reclaim, tbe land or to enjoin the company from using it. We are only asking the enforcement of the agreement, as we understood it, or that it be set aside. This is not a case of rescission, nor attempt at rescission of contract by one party, and therefore the authorities cited by counsel upon that point are inapplicable. So far from rescinding, we ask the court to correct and enforce the contract; and if, as the court find, there never was a contract, the minds of the parties never having met, there is nothing to rescind. I refer the court to the following: Pollock on Contracts (Wald.) 448-450; Ibid. 399, et seg_.

      C. H. JVorris, also for defendant in error.
   Follett, J.

I. There was no error in admitting testimony.

The first writing was taken and retained by the company until the second took its place. On payment of the $1,200, the company could take possession and build the road across the farm.

Steinfeld attacked the truthfulness of the statement of one of the changed conditions, and in trying that issue, the court should look to all that had been done by the parties in that respect, and that would throw light upon the issue.

“ What the parties mean is to be carried into effect, no matter what are the words they use.” Whar. Cont. § 202.

For this purpose the original writing is competent evidence. And the acts of the company in making the passage way, as Steinfeld claimed it should be, may be pertinent — at least they may excuse him from sooner acting to rescind the contract.

“A construction, adopted and acted on by both parties, will be regarded as worked into the contract.” Whar. Cont. § 206; Stone v. Clark, 1 Met. 378; Caley v. P. & C. C. R. R. Co., 80 Pa. St. 363; West R. R. v. Smith, 75 Ill. 496.

II. Did the court err in finding that the writing did not contain the agreement of the parties ?

There is no dispute as to the right of way the railroad company was to have through Steinfeld’s farm. The parties-agree as to one crossing, and as to the money that was paid. They differ as to the size and use of the passage way under the track.

In the first grant, Steinfeld was to receive $1,200, and to have 'built and maintained by the company, “two good crossings, also one passage under said road, for stock, if the embankment of the road will admit.”

In the second grant, Steinfeld was to receive but $850, and to have built and maintained, a good crossing, also (as expressed in the writing) “one passage under said road, for stock.”

As the writing was made, Steinfeld gave up to the company $350, and released it from building and maintaining one good crossing. The company say he did this without compensation. This Steinfeld denies, and the 'company show no reason why lie should not have compensation. In arriving att the agreement of the parties, the court is aided by the language of the first grant. The company was to mate one passage under said road for stock, if the embanltmeni of the road will admit P Roes that mean as high as the embankment will admit ? Any railroad embankment “ will admit ” of “ one passage under said road for stock.”

When the second grant was made, the company must have known, that at the place this passage-way was to be made, the embankment would be over 20 feet high. Steinfeld testified, it was to be “ as high as could be given, big enough for a ton of hay on wagon to pass through. The engineer ” (who was the railroad company in making this contract), “ said it would be 16 feet high and that was as high as he could give; I said that was enough,” &c. Others testify about the same.

Graham, the engineer and contracting agent, testified, “I told him it was the intention to build a culvert in his bank which would answer all the ^purposes of an underground passage.”

We think the evidence justifies the court in its finding, “ that the agreement in writing attached to the amended petition of the plaintiff.is not the valid agreement of the parties; that the same was executed and delivered by the said plaintiff to the said defendant, in ignorance of its contents and by mistake,” and that in like ignorance Steinfeld gave the company possession and received the $850; and in so finding, there was no error.

III. The court also say: “ And it is adjudged and decreed that the written instrument purporting to be the contract of the plaintiff, a copy of which is attached to said amended petition, be, and the same hereby is, set aside and held for naught.” There is no proof of unreasonable delay, but Stein-feld has not returned, or offered to return, the $850 paid him, and gives no reason why he has not.

A contract induced by fraud is not void, but it is voidable at the election of the one defrauded. Ry the Roman law, the party defrauded in a contract could hold on to the contract and recover damages, or rescind the contract and recover his full damages. And now such Í3 our law. Oakes v. Turquant, L. R. 2 H. L. 346; Clough v. R. R., 7 Ex. 26; Foreman v. Bigelow, 4 Cliff. C. C. 508; Lindsley v. Ferguson, 45 N. Y. 625. That the party seeking equity must do equity, as far as he can, is well settled. If Steinfeld seeks a rescission of the contract on the ground of non-performance by the company of a part of the contract, he must, as far as possible, put the company into the position it would be had the contract not been made.

He must at least return, or offer to return, the $850.

In rendering judgment that the contract be set aside and held for naught, without the return of the money paid, the court erred.

IN. The court say: Wherefore it is considered by the court that no contract exists nor has existed between said plaintiff and defendant concerning said right of way.” In this the court erred. The matter in dispute was, as to one passage under said road,” its location, and its size, and use. The fact that the writing does not contain the agreement of the parties in this respect, and that Steinfeld acted in ignorance of that fact, and by mistake on account thereof, do not warrant the court in considering that no contract exists.” There was a contract, as the evidence shows ; and what the contract, is, the court should find. The court finds that the agreement in the writing is not the agreement of the parties, then the court should find what the agreement is, and reform the contract to be as the parties made it. If the mistake was not bilateral, but was unilateral and fraudulent as to the other, the contract may be reformed.

“The ease for rectification is strengthened when it is made to appear that the party against whom the relief is asked, after agreeing to the omitted terms, was cognizant of their subsequent omission from the document as engrossed, and was also cognizant of the fact that the other party was ignorant of the omission.” Whar. Cont. § 206. “ But mistake on the one side and fraud on the other will authorize a reformation.” Willis v. Yates, 44 N. Y. 525.

We think the evidence tends to show that both parties agreed to the contract as claimed by Steinfeld, and that it would justify the court in ordering the contract to be so reformed. When the contract is reformed, the court should grant a specific enforcement of it, if that can be done ; but if it cannot be so enforced there should be given adequate compensation for damages for its non-performance.

In the same action a written instrument may be reformed and relief granted on the contract as reformed. White v. Denman, 1 Ohio St. 110; Davenport v. Sovil, 6 Ohio St. 459; Insurance Co. v. Williams, 39 Ohio St. 584.

“ A party may prove, by parol, a mistake in a written agreement, and have it rectified and then specifically enforced.” Wat. Sp. Per. of C. § 254.

Therefore, 1. In an action to reform a contract and for relief thereunder, after the same is reformed the court may specifically enforce the same when that may be done, or may give adequate compensation for its non-performance.

2. On trial of an action to reform a written substituted contract for fraud or mistake, and to enforce the same when reformed, or if the same could not be reformed then to rescind the written contract, there may be given in evidence the original writing made by the same parties upon the subject matter in dispute, and also the subsequent acts done or procured to be done by the party charged with the fraud and which tend to prove the fraud or mistake.

3. On such a trial the court may find that the written contract in dispute does not contain the true agreement of the parties, but if the party complaining neither pays back nor offers to return the money received by him under the contract, it is error to order the contract to be set aside and held for naught.

4. On such a trial, where the court finds the written contract is not the true contract, and that the complainant holds the money he obtained under the contract without offering to return it, it is error to hold that no contract exists nor has existed between the parties,” but the court should reform the contract as it was made, and if possible enforce the true contract, and if not possible then it should give adequate compensation in damages.

Judgm-ent reversed a/nd ease remanded for further proceedings.


author: McIlvaine, J.

text:
    Lee v. Smith.
    Section 2573 of Revised Statutes, as amended April 19, 1883 (80 O. L. 188), docs not impose upon any owner in fee of a building more than two stories high, the duty to provide a convenient exit from the different upper stories of said buildings when such owner is not in possession or control thereof, although his tenant in possession and control of the building may use the same as a factory or workshop.
    ERROR to the District Court of Hamilton county.
    The original action was brought by the plaintiffs in error, against the defendants in error, under the statute, to recover damages resulting from the death of their intestate, alleged to have been caused by the wrongful act, neglect and default of defendants in failing to provide a convenient exit, or fire escape from the upper stories of certain buildings situate in Cincinnati, and used as a rag factory and workshop by Henry Dreman & Co. in which the plaintiff’s intestate was employed on the 3rd day of September, 1883, when a fire broke out in said buildings and she, being unable to escape therefrom, was burned to death.
    It appears from the averments in the petition that the factory aforesaid was located in adjacent buildings, Nos. 232,234, each of which was five stories high ; that said building No. 232 was and is owned in fee by the defendants, Robert C. Smith, William E. Smith, A. Dennison Smith, Anna K. Smith an<i Martha C. Smith; that the said building 234 was and is owned in fee by Anna C. Kirby, who is married to the defendant, Chiston Kirby ; that Henry Dreman & Co. are tenants of said defandants and used said building, which had openings between them in the walls thereof, as one building for the purpose of rág factory and workshop, with the knowledge and consent of the defendants.
    The superior court of Cincinnati, where the original action was brought, held on demurrer, that the petition did not state facts sufficient to constitute a cause of action, and dismissed the same. ■
    On error to the district court the judgment of the superior court was affirmed.
    This proceeding in error is prosecuted to reverse the judgments of the courts below.

      JE. G. Hewitt and Ramsey, Maxwell da Matthews, for plaintiffs in error,
    contended, that the word owner as used in the statute referred to the owner of the building — the owner of the fee, and cited MoAljrin v. Powell, 70 N. Y. 126, 129 ; Willy v. Mulledy, 78 N. Y. 310, 314.

      McDougal da Longworth, Stephen Goles, Tranhlin T. Ca-hill, Stallo, Kittredge d; Wilby and Reuben Tyler, for defendants,
    contended, that the owner of the factory, the business carried on, was intended by the statute; and relied on Schott v. Harvey, 12 Weekly Law Bulletin, 80 ; s. c., 17 Reporter, 695.
   McIlvaine, J.

We have considered a single proposition in this case, to wit: the true meaning of the phrase “ any owner of any factory or workshop,” as used in section 2573 of Revised Statutes, as amended April 19, 1883 (80 Ohio Laws, 188). The section reads as follows: “It shall be the duty of any owner or agent for owner of any factory, workshop, tenement house, inn or public house, if such factory workshop, tenement house, inn or public house be more than two Stories high, to provide a convenient exit from the different upper stories of said building, which shall be easily accessible in case of fire, and any owner or person having control of any such inn or public house where travelers or boarders are lodged in any story above the second story of the building, shall also provide a good rope or other life line for each sleeping room for guests in such stories.”

The plaintiffs in error contend that this phrase means the owner of .the building used for the purpose of a factory or workshop, while defendants in error contend that it means the owner of the factory as such, whether he be the owner in fee of the building or not. It has not been claimed that the legislature intended to include both; and we think, although the words used are broad, the intention was to impose the duty required on one or the other and not on both. The reasons for this conclusion will appear from a close examination of the statute. The language is not any owner of a building, but any owner of a factory or workshop. Hence the solution of the proposition depends on the meaning of the words “ factory and workshop.”

That a factory or workshop is not synonymous with building must be admitted. The former can apply to a building only when used for the purpose of manufacturing ; the latter denotes the character of the structure without reference to the use to which it is applied. The distinction between a factory and a building, under this statute, does not depend upon the intent of the architect. If the building were constructed and fitted for the purpose of manufacturing, but was never used for such purpose, it would not be, a factory within the meaning of this statute, and, on the other hand, if the building were not constructed for the purpose of a manufactory, but were afterwards so used, it would be a factory. In either case it becomes a factory when so used. The legislature intended to provide for the safety of laborers or employees engaged in manufacturing. This is very clear. If the business of manufacturing in the building is discontinued, the duty of providing fire escapes does not rest on any owner, as it does not ’ where such business was never commenced. The owner of a building may have no interest in the use to which it is applied. Hence the owner of a building and the owner of a factory which is conducted in the building, may be different persons, and when this is so, the owner of the factory and not the owner in remainder or reversion of the building, is the person on whom the statute imposes the duty. From this view of the case, it follows, that the averment in this petition that defendants had knowledge of, and consented to, the use of the property by their tenants as a factory and workshop is of no significance in the case. Knowledge of, or consent to, the use of the building is not the test of liability7. If the building were constructed and used for a factory by the owner who afterwards transfers the building in fee and the business to another, the duty of providing fire escapes thereafter devolves upon the purchaser who continues the business, and the grant- or is relieved therefrom. This proposition will not be questioned. We think the same result would follow the transfer of a life estate or an estate for years. The true test of liability7 is the possession and right to control the factory or workshop by one who is owner of the business or agent for such owner, although owner of the building for the time being only.

This proposition is exemplified in the case before us. The ownership of the factory or workshop was in Dreman & Co., a single factory, which occupied two buildings. The buildings were owned by the defendants in error, but by several and distinct titles. No community of interest between the several owners existed. The plaintiff’s intestate lost her life in the factory, but in which building is not averred and perhaps is unknown. Her death resulted from neglect to provide proper fire escapes from the factory. Surely the owner of one building would not be liable for the neglect of the owner of the other in providing fire escapes, unless it can be said the statute imposes a joint duty on the several owners in such case. We think, it cannot be so said.

The facts of this case illustrate the. construction which should be placed on this statute, to wit, that where the owner of the factory is one person and the owner .of the building in which the factory is located is another, the former is the person on whom the duty named in the statute is enjoined.

Again, in the absence of all legislation on the subject, the common law, founded on principles of right and justice, implies, from the relation of master and servant, a duty on the former to provide reasonable means for the safety of tlie latter. Hence it is more reasonable to infer that the legislature intended to impose the duty required by this statute upon the owner of tbe factory, who assumes the relation of master to those employed therein, and for whose safety the duty imposed by this statute is enjoined, than to hold that it was intended to impose the duty upon the owner in fee of the factory building, who may not sustain any relation to the employees injdie factory from which the duty to provide for their safety could, be implied, and who may not even know that his building is being used as a factory or workshop.

There is nothing in the provisions of the section in relation to tenement houses and inns and public houses, which militates against the views above expressed in regard to owners of . factories and workshops.

Judgments affirmed.

OweN, J.,' dissented.