author: Price, J.

text:
    Laws v. Schmidt et al. Bradford v. Schmidt et al.

      Owner of real estate contracts with broker — For services in securing lessee — Written proposal to lease accepted by indorsement — But no lease executed — Owner not liable for commission, when.

    On the 4th day of May, 1903, L. wrote and delivered to real estate brokers a proposition, the substance of which is, that she would lease perpetually property known as No. 512 Vine street, Cincinnati (describing it), at the rate of four thousand dollars per pear, payable quarterly, the owner to pay taxes due June 20, 1903, the lessee to pay all taxes and assessments thereafter; the lessee to have the privilege of purchase at the end of twenty years for the sum of one hundred thousand dollars, by giving notice in writing sixty days before that date, and the lessees to assume lease on first and second floors, expiring December 31, 1908, to guarantee to erect a new, modern, first-class, up-to-date building, and to make good such guarantee, the lessees should deposit cash or securities in the sum of twenty thousand dollars with the Third National Bank of Cincinnati; and in case of failure to erect such building within six years, the funds deposited to be delivered to L.; but on completion of said building, said fund to be returned to the lessees. The property to be delivered July 1, 1903, and lease to begin on that date — proposition to be binding upon the payment of one thousand dollars cash, to be credited on first quarterly payment of rent.
    Besides the foregoing proposition and at the same time, L. signed and delivered to the brokers the following; “Gentlemen: In case you make a lease of the property known as No. 512 Vine street, as per written proposition made you this date, I agree to pay you a commission of two per cent, on the privilege of purchase price.” (Signature.)
    On the 9th of May, 1903, as a result of the solicitations of the brokers, an acceptance of the proposition was endorsed thereon as follows: " “We accept the above proposition. The Heuck’s Opera House Co., per H. Heuck, Pres.” The company paid the $1,000, but without the fault of L., no lease was made or taken of the premises, and nothing further was done in relation thereto by either said company or said brokers.

      Held: That L. is not liable to the brokers for any commission.
    (Nos. 10811-10812
    Decided March 30, 1909.)
    Error to the Circuit Court of Hamilton county.
    The action in the court of common pleas was commenced by Frederick A. Schmidt and Frank J. Wade against the plaintiff in error, Florence E. Laws and Harry L. Laws, to recover commission for negotiation of a lease on certain real estate in Cincinnati. For cause of action they averred in their petition, that “on the 4th day of May, 1903, they engaged, at request of defendants, to secure a lease of the property known as No. 512 Vine street, in the city of Cincinnati, belonging to the defendants, under and in pursuance to the following written proposition made to said plaintiffs by said defendants, to wit:

      “Cincinnati, May 4, 1903.
    “Mr. Frederick A. Schmidt,
    “Mr. Frank J. Wade,
    “Cincinnati.

      “Gentlemen:

    “I will lease perpetually the property -known as No. 512 Vine street, Cincinnati, Ohio, being 20 feet front by 100 feet deep, at the rate of four thousand ($4,000) dollars per year, payable quarterly.
    “I will pay all taxes due and payable June 20th, 1903, the lessees to pay all taxes and assessments thereafter.
    “The lessees to have the privilege of purchase at the end of 20 years, for the sum of one hundred thousand ($100,000) dollars, by giving notice in writing 60 days before that date.
    “The lessees to assume the lease on the first and second floors, expiring Dec. 31st, 1908, and to guarantee to erect a new, modern, first-class, up-to-date building, and as a further guarantee that such a building will be erected, the lessees to deposit cash or securities in the sum of $20,000 with the Third National Bank, Cincinnati, Ohio,' and in case of failure to erect such a building within six years, the funds so deposited to be delivered to Florence E. Laws, but on completion of said modern building, said funds to be returned to the lessees.
    “The property to be delivered July 1st, 1903, and the lease to begin on that date.
    “The title guaranteed to be perfect.
    “This proposition to be binding upon the payment of $1,000 in cash, which will be credited on the first quarterly payment of rent.
    “This proposition to be good for ten days from date. “Florence E. Laws,
    “By Harry L. Laws.”

      It is alleged that on the 9th of May, 1903, they secured an acceptance of said proposition in writing from The Heuck’s Opera House Company, which acceptance was endorsed on the written proposition as follows: “We accept the above proposition. The Heuck’s Opera House Company, per H. Heuclc, Pres.” Thereupon there was paid to defendants by said company the sum of one thousand dollars in cash, as provided in the proposition, and that, for their services in securing the lease of said property, defendants promised to pay plaintiffs a sum equal to two per cent, on the privilege of purchase price, namely, two thousand dollars. They make the general allegation that they have performed on their part all the conditions of the contract to secure the lease for defendants, for which they have not been paid, and they pray judgment for $2,000.
    The defendant, Florence E. Laws, now plaintiff in error, demurred to the petition, but the demurrer was overruled. The other defendant, Harry L. Laws, also demurred, and his demurrer was overruled. ,
    The answer of Harry L. Laws admits the business occupation of the plaintiffs as real estate brokers, and denies all the other allegations of the petition.
    Florence E. Laws makes the same admission in her answer, and that she executed the written proposition set out in the petition, and denies every other allegation. These answers were filed March 22, 1905.
    In September, 1905, the death of Frank J. Wade was suggested in court and the action revived in the name of Ettie M. Wade, his administratrix. The case was tried to a jury, and to make out the case for the plaintiffs, together with other evidence, they introduced the written contract to pay compensation, which is:
    “Cincinnati, May 4, 1903.
    “Mr. Frederick A. Sci-imidt,
    “Mr. Frank J. Wade,
    “Cincinnati, Ohio.

      “Gentlemen:

    “In case you make a lease of the property known as No. 512 Vine street, as per written proposition made you this date, I agree to pay you a commission of two per cent, on the privilege of purchase price.
    “Florence E. Laws,
    “By Harry L. Laws.'”
    At the close of plaintiffs’ evidence defendants moved for a verdict in their favor. The motion was overruled. The court excluded evidence offered by the defendants, to which they took exception. At the close of all the evidence, the court, without request, directed a verdict for plaintiffs against both defendants, overruled motion for new trial and rendered judgment.
    The defendants prosecuted error in the circuit court, where the following disposition was made of the proceeding: “On consideration whereof, the court do find that there is error apparent upon the record in the proceedings of said court to the prejudice of the plaintiff in error, Harry L. Laws, and the said judgment is reversed. And the court further proceeding to- render such judgment as the court of common pleas of Hamilton county ought to have rendered, it is ordered, adjudged and decreed that the defendants in error recover from the plaintiff in error, Florence E. Laws, the sum of two thousand dollars with interest thereon at the rate of six per centum per annum from the third day of April, 1906, and their costs herein expended. * * * It is further ordered * * * that Harry L. Laws go hence without day and recover from'defendant in error his costs,” etc.
    Florence E. Laws prosecutes error in this court ' to reverse the judgment against her.

      Messrs. Maxwell & Ramsey and Mr. Joseph S. Graydon, for plaintiffs in error.
    Defendants in error could not recover unless they proved that the lease which was proposed was actually executed, or that the execution failed by reason of the default of plaintiff in error. Keener v. Harrod, 2 Md., 70; Murray v. Currie, 32 Eng. Com. Law, 641, 7 Carr. & P., 584; Kimberly v. Henderson, 29 Md., 515; Richards, Exr., v. Jackson, 31 Md. 250; Melvin v. Aldridge, 81 Md., 65Ó; Hale v. Kumler, 84 Fed. Rep-., 161; Kost v. Reilly, 62 Conn., 57; Chapman v. Wins on, 91 L. T., N. S., 17.

      Betz v. Land Co., 46 Kans., 45, lays down the rule that the burden of proving that the purchaser is ready, able and willing to perform is upon the broker to establish.

      Messrs. Outcalt & ILickenlooper, for defendants in error.
    A real estate broker is entitled to commissions upon presentation to the owner of a lessee whom the owner accepts and with whom he contracts. Rice v. Mayo, 107 Mass., 550.
    The general proposition of law is that, under a contract to pay commissions, such as was here entered into, whether express or implied, the broker has performed his full duty .and is entitled to his commissions when he presents to his principal a purchaser or lessee with whom the principal is satisfied and with whom he enters into a contract either upon the terms proposed or others then agreed upon. The fact that subsequently the contract entered into is not performed will not deprive the broker of his right to commissions, after acceptance of the purchaser or lessee by the owner and part performance of the contract. Green v. Lucas, 33 L. T., N. S., 584; Roche v. Smith, 176 Mass., 595; Wilson v. Mason, 158 111., 304; Keys v. Johnson, 68 Pa. St. 42; Coleman’s Exr. v. Meade, 13 Bush (Ky.), 358; Conklin v. Krakrauer, 70 Tex., 735; Burns v. Oliphant, 78 la., 456; Vinton v. Baldwin, 88 Ind., 104; Ward v. Cobh, 148 Mass., 518; Veazie v. Parker, 72 Me., 443; Francis v. Baker, 45 Minn., 83; Wittes v. Smith, 45 N. W. Rep., 666; Whitaker v. Engle, 111 Mich.,.205; Rothschild v. Burritt, 47 Minn., 28; Knapp v. Wallace, 41 N. Y., 477; JJeinrich v. Korn, 4 Daly (N. Y.), 74; Glentworth v. Luther, 21 Barb., 145; Mooney v. Elder, 56 N. Y., 238; Love v.' Miller, 53 Ind., 294; Potvin v. Curran, 13 Neb., 303; Leete v. Norton, 43 Conn., 219; Love v. Owens, 31 Mo. App., 501; Middleton v. Findla, 25 Cal., 76; Lane v. Albright, 49 Ind., 275; Buckingham v. Plarris, -15 Pac. Rep., 819; Goss v. Brown, 18 N. W. Rep., 290; Wray v. Carpenter, 16 Col., 271; Mechera on Agency, Section 612; 23 Am. & Eng. Ency. Law, 912, 922; Huffcutt on Agency, Section 78; Godley v. Haley, 3 O. L. R., 51.
   Price, J.

The circuit court very properly reversed the judgment rendered against Harry L. Laws by the court of common pleas. There was nothing in the petition, nor in any of the written instruments put in evidence, to warrant a judgment against him. In those written instruments bearing his name, he disclosed the name of his principal, signed her name as such and his own name as her agent. There is no evidence otherwise introduced that fixed any liability as to this agent. And we find in the record sound reasons why the judgment against the other defendant, now plaintiff in error, should also have been reversed.

While the case was nominally tried to a jury, it was disposed of by the rulings of the court excluding valuable testimony, and then directing a verdict for the plaintiffs on that which had been admitted. It seems to us that the trial court labored under a misconception of the contract between the parties, and that we may ascertain its meaning, we look to the written proposition placed in the hands of the plaintiffs below to guide them in their negotiations for a lease of the premises and which should become the basis of their compensation. This proposition appears in the statement of this case. It was addressed to Schmidt and Wade, the plaintiffs below, and delivered to them.

The offer was, to lease perpetually the property known as No. 512 Vine street, Cincinnati, twenty feet front by one hundred feet deep, at the rate of four thousand dollars per year, payable quarterly, she to pay all taxes due and payable June 20, 1903, and the lessees to pay all taxes and assessments thereafter. The lessees should have the privilege of purchase at the end of twenty years, for the sum of one hundred thousand dollars, by giving notice in writing sixty days before that date; the lessees to assume the lease on the first and second floors expiring December 31, 1908, and to guarantee to erect a new, modern, first-class building, and as a further “guarantee” that such a building will be erected, the lessees were to deposit cash or securities in the sum of twenty thousand dollars with a certain bank in Cincinnati, and in case of a failure to erect such a building within six years, the funds so deposited should be delivered to Florence E. Laws, the owner; but on completion of said modern building, said funds should be returned to the lessees. The possession to be given July 1, 1903, and the lease to begin on that date. The proposition to be binding upon the payment of one thousand dollars in cash, to be credited on the first quarterly payment of .rent. This instrument bears date May 4, 1903.

Having thus defined her conditions of lease a.nd ultimate sale, and placed the same in the hands of Schmidt and Wade, real estate brokers, their right to commission or compensation was also put in writ'ing, addressed to them as follows: “Gentlemen: In case you make a léase of the property known as No: 512 Vine street, as per written proposition made you this date, I agree to pay you a commission of two per cent, on the privilege of purchase price. Florence E. Laws, by Harry L. Laws.”

On the 9th of May, 1903, the efforts of Schmidt and Wade were so far successful as to obtain from The Fleuck’s Opera House Company an acceptance of the foregoing proposition, which acceptance is as follows: “We accept the above proposition. The Heuck’s Opera House Company, per H. Heuck, Pres.” This company paid the thousand dollars required as the cash to be paid to make the proposition binding; and the record informs us that Mr. Harry L. Laws, who acted for his sister, delivered the deed for the property to Mr. Wade, one of the agents, who desired to hand it to a certain attorney for examination of title and preparation of the lease. This is the limit in the history of the transaction, for the trial court shut out what occurred after that point, except that it does appear distinctly that no lease, was ever made. A representative of one of #these agents and who acted for him in the negotiations, says no written lease was made, and that “they did not get as far as drawing a lease.” The defendants below, on cross-examination of witnesses for the plaintiffs, endeavored to show why no lease was made. Mr. Heuck was asked on cross-examination: “Did The Heuck’s Opera House Company ever execute a lease of this property?” The court sustained plaintiff’s objection to the question, and the court said: “All the broker has to do is to bring the parties together, and if there is a failure, provided the broker did not contribute to the failure, he is entitled to his commission as a matter of law.”

Harry L. Laws, agent for his sister, was a witness, and testified that he tendered deed for property to the Opera House Company, and was asked if it accepted the deed, but the court ruled that he should not answer for the reason given in sustaining objection to previous question. He was asked further if the Opera House Company refused to accept a deed, but objection to the question was sustained. The court announced that “in my view of the law, it does not make any difference what occurred; whenever a broker has a property for sale and procures a purchaser, no matter what happens after that, he has complied with the terms of his contract. I sustain the objection.”

Entertaining such firm convictions as to the meaning of the contract for commission, the court instructed a verdict for the plaintiffs. We cannot agree with the trial court on its construction of the contract. What the owner offered as first in order stated in the written proposition, was to lease the described premises perpetually. The lessees to have the privilege of purchase at the end of twenty years for one hundred thousand dollars. They were to put up a new, modern, first-class building, and to secure the erection of such a building within six years, they were required to deposit in a certain bank twenty thousand dollars in cash or securities, and in case of failure, the funds so deposited should go to Miss Laws, but if building should be completed, funds to go to the lessees. The scheme of the owner was to obtain a tenant on the terms specified and it was not a proposition of direct sale, but of a privilege of purchase at the end of twenty years at a specified price; but until that event occurred the party accepting the offer would be a tenant under a lease to be executed in due form. The offer starts out with the statement: “I will lease perpetually the property known as No. 512 Vine street, Cincinnati * * * at the rate of four thousand dollars per year, payable quarterly,” et cet. When the Opera House Company made and endorsed its acceptance on the proposition, it accepted the offer of a perpetual lease, and not a direct and simple offer to sell. Hence many authorities cited in brief for defendants in error fail, to be authority in this case. The agents did not secure a purchaser of the premises ready to take them on terms offered by the owner, as instanced in many of the cases cited; nor were they commissioned to find a purchaser, but one who would take or enter into a lease on the terms defined in the written offer of the owner, and the acceptance covered the several things that were to be done during the running of the lease.

The petition filed in the* lower court sets out a copy of the written offer of a perpetual lease, and avers that the plaintiffs secured an afcceptance of the same on the 9th of May, 1903, and “that for their services in securing the lease of said property, defendants promised and agreed to pay to plaintiffs a sum of money equal to two per cent, upon the privilege of purchase price, namely, two thousand dollars.” It seems that our construction of the instrument is the pne entertained by the plaintiffs in their petition; — that they were to secure a lease, and not make a sale. This view stands out plainly in the language of their contract for compensation, which is not set out in the petition, but which is: “In case you make a lease of the propert3^ known as No. 512 Vine street, as per written proposition made you this date, I agree to pay you a commission of two” per cent, on the privilege of purchase price.” The name of the owner is signed by her agent.

Under such a contract, was it enough that the agents procure some one to endorse and sign an acceptance on the written offer, and neither do or offer to do anything further? Had they earned the commission according to this contract when they secured a party to merely accept the offer containing so many conditions ? In their petition they say they were to be paid the commission for securing a lease, and it is shown in the brief testimony which the court admitted that they never secured a lease or tenant for the owner. After the acceptance was made the deed held by the owner was delivered through her agent, Harry L. Laws, to an attorney, for some purpose, for examination óf title and drafting of a lease, some witness stated, and when inquiry was made of witnesses as to why the deal failed, the court held that was immaterial and refused to hear it. No lease was procured or made, and the record does not disclose a single step taken by the Opera House Company after signing the acceptance, except the payment of the thousand dollars to bind the acceptance. There is nothing- said in the record about a deposit of twenty thousand dollars as a guaranty that the accepting company would erect the modern building specified in the proposition. There is no evidence that such deposit was made or tendered. This was to be a condition ih the lease.

Now in the presence of these facts, did the plaintiffs “make a lease of the property known as No. 512 Vine street,” et cetera? They did not, and yet that is the condition of the contract upon which they seek to recover. There is no claim that the plaintiff in error defaulted in any respect, and it is understood that she was anxious that the lease be obtained, but the court prevented the plaintiff in error from showing who was at fault for the failure to carry out the terms of the accepted proposition, on the ground that when the plaintiffs secured — not a lease, but an agreement to lease — they had done their whole duty under the contract of employment. Such a construction would enable agents to trifle with the rights and interests of their principal, and by procuring merely an acceptance of an offer to lease, collect commission and leave the owner to perform the labor and work out the details for which they have been paid. They might prevent a lease by their fraudulent concealment or false representations. We are unwilling to adopt the theory-followed by the trial court and sanctioned by the circuit court. The terms of employment should not be enlarged and made to create a liability not contemplated in the contract. The fate of the thousand dollars paid with the acceptance can be determined according to the rights of the parties.

In our judgment, the court erred in excluding evidence offered by defendants, and also erred in directing a verdict for the plaintiffs.

Judgment reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Bradford v. Schmidt et al.
    Error to the Circuit Court of Hamilton county.
   Price, J.

This case and the one reviewed in the above opinion were tried together in the court of common pleas and the rulings as to the exclusion of evidence and directing a verdict for the plaintiff, are the same in both cases. They were argued and submitted together in this court, and we find the same errors committed in this that appear of record in the other case.

, Judgment reversed.

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


author: Shauck, J.

text:
    Webb, Receiver, v. Stasel, Receiver

      Action against receiver — For allowance of claim — Not an action for money only, when — Either party may appeal, when.

    An action brought by leave of court against a receiver for the allowance of a claim to be paid in due course of administration of the property in his hands is not an action for money only, and neither party is entitled to a jury for the trial of issues of fact arising therein. It being a civil action within the original jurisdiction of the court of common pleas either party may under favor of Section 5226, Revised Statutes, appeal from the judgment of that court to the circuit court.
    (No. 10785
    Decided March 30, 1909.)
    Error to the Circuit Court of Licking county.
    Webb, as receiver of The Homestead Building and Savings Company, by leave of the court, brought suit against Stasel as receiver of The Newark Savings Bank Company for allowance of a claim for $22,464.83, being for what was alleged to be the balance of money deposited by the Building and Savings Company with the Savings Bank Company before either of the corporations became insolvent and passed into the hands of a receiver. In his petition the plaintiff alleged that he had presented his said claim to the defendant and requested him to allow it as a valid claim against the Savings Bank Company, but that the defendant had rejected it. The prayer of the petition was, that the defendant be ordered to allow the claim and pay the same in the course of the administration of the assets of the Savings Bank Company.
    The defendant answering denied an indebtedness to the full amount alleged by the plaintiff and pleaded certain matters by way of set-off against any balance which might be found to be due to the plaintiff. The reply denied certain of the allegations of the answer respecting the amount of the plaintiff’s claim and admitted one item alleged by the defendant by way of set-off.
    In the court of common pleas the cause was tried without the intervention of a jury, and a finding was made of the amount due the plaintiff, and the defendant was ordered to allow the claim of the plaintiff for the amount so found to be due and to reject it as to the residue. The amount so found to be due to the plaintiff not being satisfactory to him, he appealed the cause to the circuit court for a trial de novo. In the circuit court the defendant moved for a dismissal of the appeal on the ground that the action was not appealable and the motion was sustained. To reverse the order dismissing the appeal this petition in error is prosecuted.

      Messrs. Kibler & Montgomery, for plaintiff in error.
    While we have been unable to find any case determining the exact question which is now before the court, that is, whether an appeal will lie from an order directing a receiver to allow or reject a claim, yet we have found cases covering other officers bearing a trust capacity, and reasoning by analogy, we say that that rule applies in this case, and that a right of appeal does lie to the circuit court from an order of the common pleas court, such as this was, directing a receiver to reject a claim presented to him. Bank v. Little, Assignee, 4 C. C., 195; Chinn v. Trustees, 32 Ohio St., 236; Kennedy v. Thompson, Assignee, 3 C. C., 446; Meader, Trus

      tee v. Root, 2 O. Dec., 547, 11 C. C, 81; 1 Rockel on Probate Practice, Section 783; Gordon' v. Walton, Assignee, 3 C. C., 433; Smock v. Bouse, Admr., 12 C. C, 46; Harris v. Westervelt, 15 C. C, 534; Bank v. Bank, 127 N. Car., 432, 36 S. E. Rep. 39; State v. Railway Co., 45 S. Car., 464, 23 S. E. Rep., 380; Sections 6203 and 6407, Revised Statutes.
    Where an action is one for relief other than money only, neither party is entitled to demand a jury for the trial of the issue, and either may appeal from the final judgment rendered against him. Alsdorf v. Reed, 45 Ohio St., 653; Fleming v. Kerkendall, 31 Ohio St., 568.
    An action for the enforcement of a trust and for an account by the trustee, is not triable of right by a jury, but by the court. Carlisle et al. v. Foster, 10 Ohio St., 198; Bricker v. Elliott, 55 Ohio St., 577; Reed’s Adm’r v. Reed, 25 Ohio St., 422; MeAlpin Co. v. Finsterzvald, 57 Ohio St., 524.
    An action is not one for the recovery of money only within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties. Black v. Boyd, 50 Ohio St., 46.
    Whether the issues in the case are triable by jury so that an appeal will not lie to the judgment rendered depends upon the nature and character of the relief sought in the action. Lange v. Lange, 69 Ohio St., 348; Raymond v. Raikvay Co., 57 Ohio St., 271; Pierce v. Stewart, 61 Ohio St., 423.
    That the ultimate relief sought in an action is the recovery of money is not conclusive that the entire action is one for the recovery of money only; where it is necessary to invoke the equity powers - of the court, an appeal may be taken from the judgment .or decree rendered. Chapman v. Lee, 45 Ohio St., 356; Fleming v. Kerkendall, 31 Ohio St., 568; Bricker v. Elliott, 55 Ohio St., 577.

      Mr. A. A. Stasel, for defendant in error.
    This is an action for money only. No other relief is sought and is therefore for a jury. Section 5226, Revised Statutes.
    The allowance of the claim of plaintiff by the court of common pleas would be of no other effect than a judgment of a jury, namely, that there is due from defendant to the plaintiff a certain sum of money.
    A creditor of a corporation may procure leave of court in the case in which the receiver is appointed to sue the receiver in an independent action, and in such event the separate action is an action at law, in case the cause of action is one at law and not equitable in its character. Olds v. Tucker, 35 Ohio St, 581.
   Shauck, J.

We are not favored with the view which conducted the judges of the circuit court to the conclusion that the case could not be brought to that court by an appeal from the judgment of the court of common pleas. Whether it could or not must be determined by the provisions of Section 5226, Revised Statutes. Under favor of that section such appeals may be taken in all civil actions within the original jurisdiction of the court of'common pleas when the right to demand a jury does not exist. It has long been familiar to counsel that the civil action of the code includes all such proceedings as prior to its enactment were regarded either as actions at law or suits in equity, and rights of action since authorized by statute unless the authorizing statute itself defines a mode of enforcing the right at variance from the procedure prescribed by the code. This action involved the rights of the creditors of the insolvent corporations which the receivers represented, and no reason is suggested for doubting that it is embraced within the phrase civil action. Not only was it within the original jurisdiction of the court of common pleas, but it was within its exclusive original jurisdiction.

But counsel for the defendant insists that it was an action at law) and that, therefore, either party had a right to demand a jury for the trial of the issues of fact which were joined in the pleadings, and that for that reason the action was not appeal-able. As we have had frequent occasion to point out, the appealability of an action cannot be determined by considering whether the principles upon which it proceeds are legal or equitable in their origin and nature. While it is true that all cases which were triable to a jury before the adoption of the present constitution are still so triable, the converse is not universally true. The general assembly has by the provisions of Section 5130, Revised Statutes, extended the right of trial by jury to issues of fact arising in actions for the recovery of money only, even though the action may be founded upon principles which are of equitable origin and nature.

While it is true that the demand which the plaintiff in error asserted in the court of common pleas would have been satisfied by the payment in money of the amount of his claim, he did not in the sense of the statute prosecute an action for the recovery of money only. Such actions, when prosecuted suecessfully, lead to a precise determination of an amount due from one party to the other. For that precise and definite amount a judgment is awarded. The judgment is enforced by the seizure upon execution of the property of the judgment debtor. The original petition of the plaintiff in the present case contained no allegation against the Savings Bank Company, which was alleged to be the debtor. Indeed, that company was not even joined as a defendant in the action. The prayer of the petition was not for a judgment, but for an order requiring the original defendant to allow the demand set up in the petition, the same to be paid in due course of the administration of the trust estate in his hands as receiver. The plaintiff upon the facts alleged was not entitled to a judgment for money in the legal sense of that phrase, for while the amount of his claim could be definitely determined, the amount which he should receive from the defendant receiver could not be, since that amount would depend upon the contingencies to arise in the course of the administration of the estate in his hands. With respect to its appealability, the case does not seem to differ from an action against the assignee of an insolvent debtor, or from any other suit for the right to participate in the distribution of a trust estate. In the view taken in the Willson Improvement Company v. Malone et al., 78 Ohio St., 232, it must be conceded that this case was not appealable because of the numerous items of the accounts set out in the claim of the plaintiff, but it is appealable because of the nature of the relief sought.

Judgment reversed.

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


author: Davis, J.

text:
    Erie Railroad Company v. Cappel.

      Goods carried over connecting lines — Refused by consignee — Company appointed shipper’s agent — To return goods — Not liable for loss, when — Law of agency.

    When goods have been carried over connecting lines to the point of destination and there refused by the consignee, and the shipper, on receiving notice thereof, in writing appoints the company owning and operating one of the lines his agent to stop the goods for him before delivery to consignee and return the same to him, and agrees to indemnify and save harmless such company from any suit or legal proceedings, loss, damage, expense, counsel fees, costs and charges arising from or caused by its attempt to comply with the request, such writing does not imply a verbal contract by such company to transport and safely carry the goods over all the connecting lines; and such company will not be liable for loss of the goods or damage thereto, occurring on the return without its fault and not on its own road.
    (No. 10838
    Decided March 30, 1909.)
    Error to the Circuit Court of Montgomery county.

      Messrs. McMahon & McMahon and Messrs. Cushing & Siddall, for plaintiff in error.

      Messrs. Young & Young and Mr. R. G. Corwin, for defendant in error.
   Davis, J.

The plaintiff in error received from defendant in error a box of umbrellas consigned to persons at Marietta, Indian Territory; and agreed, by the terms of the bill of lading, to carry the goods to the destination if on its road, otherwise to deliver to another carrier on the route to the destination of the goods. The road of the plaintiff in error terminates at Chicago, and beyond its line the goods were transported by connecting carriers to the point of destination in good condition and in due time. The goods were not delivered to the consignees because they refused to accept them, having become insolvent. The Erie company's agent notified the defendant in error that the goods were at a railway station at destination and -undelivered because the consignees had failed and quit business. Thereupon the defendant in error signed an indemnity contract of the Erie’s usual and regular form, as follows:

“May 29, 1902.
“To Erie Railroad Company:
“The undersigned shipped by Erie Railroad from Dayton to Marietta, I. Ty., March 15, 1905, marked Freeman Bros., Marietta, I. Ty., one box umbrellas.
“Please use all available means to stop for me the above mentioned articles before delivery to consignee, and return same to me at Dayton, Ohio, and, in consideration of your effort in my behalf, I hereby agree to indemnify you against, and save you harmless from, any suit or legal proceedings, loss, damage, expense, counsel fees, cost and charges arising from or caused by your attempt to comply with this request.
“The full meaning and-intent of this agreement being that you are to act as my agent in this transaction. ■ “A. CappeL.”

The company always exacted that form of contract unless the plaintiff surrendered the original bill of lading, which was not done in this case. After the execution of the indemnity contract a request for the return of the • goods was forwarded through the different connecting lines to Marietta, Indian Territory, and the goods were started on the return, but were lost somewhere in transitu, never having reached the Erie road on the return.

The defendant in error, alleging a verbal agreement by the plaintiff in error, in consideration of the usual freight charges, to return the shipment to the defendant in error at Dayton, Ohio, sued to recover the value of the goods less the usual freight charges. He obtained a judgment therefor in the court of common pleas, which was affirmed by the circuit court.

We find in the record no competent evidence to sustain the claim of a verbal contract as alleged. The alleged consideration was never paid; and all the conversations between the agent of the railroad company, on the one side, and the defendant in error and his employees on the other side, were connected with, conditioned upon and consummated in, the written indemnity contract which the defendant in error signed. The loose expressions of the company’s agent, as testified to by two employes of the defendant in error, that he would return the goods, or have them returned, are too vague and indefinite, under the circumstances, to have much weight, even if they were competent. Indeed, it nowhere appears in the record that the agent of the railroad company had authority, express or implied, to enter into any such verbal agreement on part of the company. On the contrary, it appears to have been the usual and ordinary course of business of the plaintiff in error in such cases, well known to the defendant in error, to insist upon a written authority and agreement to indemnify, as was done in this case. Therefore, whatever may be the rights and liabilities between these parties, they must be ascertained and defined by the written instrument.

We are led to believe that the circuit’court was of the opinion that, inasmuch as the blank was furnished by the company and was signed by the de.fendant in error at its request, this conduct implies an undertaking on part of the company to return the goods; and that if there were no such undertaking there would have been no necessity for the indemnity, and the subsequent conduct of the railroad company would have been without explanation.

We regard this as a rather hasty induction. The plaintiff in error and the connecting carriers had already performed their contract to safely carry the goods to the designated point. They were not bound to return them to the shipper, and could only be held therefor when they re-obligated themselves for that purpose. So far from doing so, the plaintiff in error stipulated, as a condition precedent to any action by it, that it should be authorized by the shipper to act as his agent in the transaction. “The full meaning and intent of the agreement” was expressly stated to be that the Erie Railroad company should act as the shipper’s agent. As such agent it was requested to use all available means to stop the goods before delivery to the consignees and return them to the shipper, the defendant in error. It might be that the insolvent consignees, or their assignees or creditors, might intervene and resist the return of the goods. It might be that loss or damage (as did occur) might arise from the company’s “attempt to comply with this request” of its principal, the shipper, when the company had no actual possession or control of the property and was acting only for and in behalf of the owner. All of these circumstances and risks would seem to constitute a sufficient reason for indemnity to the railroad company as an agent, while such an indemnity to a railroad company as a protection from its liabilities as a common carrier for loss or damage occurring in transit would be preposterous and obviously illegal.

Under our construction of this written instrument the railroad company could not be held liable for loss or damage occurring without its fault on the return trip, and not on its own road; because it did not receive, or agree to receive, the goods as a common carrier for shipment back to the original point of shipment, but acted only as the agent of the shipper, expressly authorized thereto, to obtain the return of the goods, and as such was indemnified by the shipper against loss or damage arising from or caused by its attempt to comply with his request.

The defendant in error did not, therefore, make out his case upon a verbal contract, as alleged in his petition, nor under the written instrument which appears in the evidence. What might be the liability of the railroad company if the goods had been lost after coming back to its possession while returning is not involved in this case. The judgment of the circuit court and that of the court of common pleas are reversed and judgment is rendered for the plaintiff in error.

Reversed.

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


author: Spear, J.

text:
    The Board of Education of Sycamore et al. v. The State, ex rel. Wickham.

      Mandamus will lie, when — Not to control discretion, •when — Boards of education may establish rules — Enforced by courts — Rule providing for promotion of pupils — Superintendent may refuse to allow pupil to omit grade — Mandamus will compel promotion, when.

    1. Mandamus will lie to compel the performance of an act which is clearly shown to be especially enjoined by law as a duty resulting from an office, trust or station. But it will not lie to control discretion unless it be clearly shown that the refusal by the one occupying the trust or station to perform the desired act is an abuse of discretion. The State, ex rel. Milhoof v. The Board of Education, 76 Ohio St., 297, approved and followed.

      2: The statutes of the state relating to education which give the control and management of the public schools to the boards of education of the several districts, authorize such boards to establish rules and regulations for the government of the schools, and, so far as rules so established are reasonable, and fairly calculated to insure good government and promote the ends of education, will be sustained by the courts.
    3. A rule which provides for the proper examination at the end of the school year of pupils jointly by the teacher of the grade in which such pupils have been students and the superintendent of the schools, and for the promotion of pupils to the next higher grade upon the recommendation of such teacher and superintendent, the same being based on merit, is a reasonable rule.
    4. A pupil who has favorably passed examination, and been given a proper certificate authorizing him to enter the next higher grade, is without right, in the absence of authority from- the board of education, to omit such grade to which he has been promoted and passed to a higher one.
    5. Where, by direction of the parent of the pupil thus promoted, the pupil without authority of the boar,d, enters the room of such higher grade for the purpose of remaining there, it is the right and duty of the superintendent to refuse to allow the pupil to remain and direct him to go to the room of the grade to which he has been promoted.

      6. In the absence of any showing that application had been made to the board for permission to the pupil to enter such higher grade and in the absence of showing that the board had before it a report of its superintendent recommending the promotion of the pupil to such higher grade, mandamus will not lie to compel the board to order such promotion even though it be shown that the pupil was, at the time of such attempted entry, in fact fitted to enter such grade.
    (No. 11161

    Decided March 30, 1909.)
    Error to the Circuit Court of Wyandot county.
    The cause to be here reviewed was tried on appeal at the January Term, 1908, of the Circuit Court of Wyandot, upon pleadings embracing petition (filed in the common pleas September 23, 1907), answer and reply, the action being in mandamus brought by the State, ex rel. W. H. Wickham against the Board of Education of the Sycamore village district, F. J. Remington and Fred Teal, to obtain the issue of a writ of mandamus to compel the Board to promote a son of the relator, one Terry Wickham, to enter the seventh grade of the village schools, and the teachers, Remington and Teal, to receive relator’s son into said grade, and commanding them to give him instruction in the prescribed work of said grade.
    It was averred, among other things, in substance in the petition that the school in the district is what is known as a graded school, consisting of eight grades in which the common branches of study are taught, and high school; that the defendant, Fred Teal is employed by the Board as teacher in the seventh grade; that by the course of study prescribed by the Board it was required that certain studies be pursued and a certain degree of proficiency attained therein by pupils before they take up the work in the next higher grade; that Terry Wickham having made'the necessary proficiency in the preceding grades, and having been examined by Fred Teal, the teacher in the seventh grade, and by Remington, superintendent of the schools, and having been found proficient and well qualified in the work prescribed for the preceding grades, applied for admission into the seventh grade at the beginning of the present school year, and although he was pronounced proficient by his teacher' and superintendent in the preceding work and found qualified for the work of the seventh grade, he was informed that by some pretended rule, emanating from the Board, he was precluded from taking up the work of the seventh grade and the teacher was not allowed to give him instruction in said work. Relator does not know the exact nature of the pretended rule, but this boy, although qualified, was refused admittance into said grade and in effect expelled from it. The said rule of the Board which denies the right of relator to have his child receive instruction in the proper grade is unreasonable and beyond the authority of the Board, is unlawful and an abuse of the discretionary powers of the Board, and, as a citizen of such district and a taxpayer therein, relator has a right to have his son receive instruction in the seventh grade, which right is unlawfully withheld from him by the Board. Then follows the prayer as before referred to.
    The answer, admitting certain of the averments of the petition not necessary to be here repeated, denied others, and alleged the age of the boy to be eight years, and as a second defense averred that, prior to the year 1903 the Board,, pursuant to the statutes of the. state, made and published rules and regulations for the government .of its appointees and the pupils, setting out in the answer in extenso said rules, among which rules were the following, given here in substance:
    The schools of the village to consist of four departments, the first primary to include the first, second and third years; the second primary the fourth, fifth and sixth years; the grammar school the seventh and eighth years; the high school the freshman, sophomore, junior and senior years. The school year to open on the first Monday of September unless otherwise ordered and continue thirty-four weeks. The course of study for the several grades as provided: That of the fifth grade as follows:
    “Reading — Fifth Reader. Arithmetic — Part III. and supplementary work. • Writing — Copybooks 4 and 5. Drawing — Book No. 4, Spelling — To.lesson 50, Part II. Written exercises continued. Language — Part III. and supplementary exercises. Geography — Elementary, completed and reviewed. Physiology- — -The Flouse I Live In.”
    That of the sixth grade as follows:
    “Reading- — -Sixth Reader six months. . Seventh Reader two and one-half months. Arithmetic— Modern Practical to Common Fractions. Writing —Copybooks 5 and 6. Drawing — Book No. 5. Spelling — -To lesson 150. Written exercises. Language — Elements of Grammar and Composition Part I. Geography — Natural Advances, through United States. Physiology — The House I Live In, completed.”
    That of the seventh grade as follows:
    “Reading — Seventh Reader, four months. History — Eggleston’s First Book, four and one-half months. Arithmetic — To Compound Interest. Writing — Copybooks 6 and 7. Spelling — Book completed. Written exercises using Spelling Blanks. Language — Parts II. and III. Geography — Completed from United States. Physiology —Overton’s Intermediate.”
    That among the rules so provided for the promotion of pupils from one grade to the next higher or succeeding grade were the following:
    “Promotions shall be made on the basis of fitness only and not on account of the size or age of the pupil, or the wishes of the parents. Due credit will be given, however, to the diligence, punctuality, habits of study and general conduct of the pupil. Pupils will be promoted at the close of the school 3^ear, if they have obtained an average of 75 per cent, with not less than 60 per cent, in any branch. Pupils, whose general average is fair, but who have fallen below 60 per cent, in any one branch, may be promoted conditionally and given an opportunity to make up the deficienc3c No pupil shall be promoted during the year except upon the approval of the Board and with the recommendation of the teacher and superintendent.”
    As to pupils the following:
    “1. Pupils, between the ages of six and twenty-one years, residing in the district, are entitled to attend the schools, receive like instruction and be promoted from grade to grade on the grounds of merit and proficiency only. * * * 2. Pupils are required to be regular and punctual in attendance, to be diligent in their studies, to conform to the rules and regulations of the school, to obey the directions of the teachers and superintendent, to be respectful and courteous at all times to teachers and kind and obliging- to schoolmates.”
    As to superintendent the following:
    “1. The superintendent shall act under the advice and direction of the Board of Education and shall have and exercise complete supervision over the public schools, and he shall see that all the rules and regulations of the Board of Education are enforced. * * * 4. He. shall direct as to the classification, examination and promotion of all pupils.”
    Also, as to the examination of pupils the following:
    “Pupils shall be examined at such times and in such manner as the superintendent may direct. Ordinarily, there will be three regular examinations each year; but there shall be given, in all grades above the third, at least one written review lesson or test in each branch eveiy month. From these written tests .no one will be excused. Any pupil, who.is absent from the regular examination, shall not be permitted to go on with his class until he shall have given a satisfactory excuse for his absence and passed a satisfactory special examination. For all such examinations or tests a uniform style of paper shall be used. Such manuscripts, as the teacher may see fit to retain, shall be kept on file where they may be referred to and examined by any who may desire. The teacher shall make and record a careful estimate of the work of each of their pupils in every branch of study pursued. The standing of each pupil shall be determined from the daily recitations, reviews, tests and examinations, in such manner as the superintendent may direct.”
    All of which rules were well known to relator and to his son Terry at and prior to the commencement of the action.
    The school term for the year 1906 commenced the first Monday of September and continued thirty-four weeks, closing May 16, 1907, during all of which time Terry was a pupil in the fifth grade; at the conclusion of the term he, together with all other pupils in that grade, as provided by the rules, was duly examined by the teacher of that grade and the superintendent for promotion to the sixth grade, which teacher and superintendent had the sole authority to examine said pupils for presentation to the sixth grade, but had no authority to examine for promotion of said pupils to the seventh grade. The said Terry duly passed the examination and was promoted to the sixth grade authorizing him to enter that grade as a pupil at the opening of the school in September following, and a certificate issued to him as follows:
    “The Sycamore Public Schools. Terry Wick-ham, for proficiency in study, is promoted to the sixth grade. (Signed) F. J. Remington, Supt., May Gibbs, Teacher. May 22, 1907.”
    ' This card of promotion was received, accepted and retained by the son with the consent of relator. At the opening of the schools in September, 1907, the son without the knowledge or consent of the Board or superintendent, wrongfully and in violation of rule, went into the seventh grade of the school in. a different room from that of the sixth, and undertook to take lessons in said seventh grade; that after remaining there, without the knowledge or consent of the Board, until Friday morning of that week, the superintendent informed him that he had not been promoted to the seventh gra.de but had been promoted to the sixth, and requested him to enter the sixth grade. The pupil immediately left the school and did not return, and shortly thereafter this suit was commenced by the father, and the Board had no knowledge of what had transpired as above set forth until after the service of the writ herein.
    The reply admitted that the Board published the manual as alleged, and relator had some knowledge of what it contained, but denied that his son or the superintendent or teachers well knew the same; admitted that what is alleged in the answer as to the organization, the school year, fifth grade, sixth grade, seventh grade and promotion is all found in the manual; also that in the school year commencing oil the first Monday in September, 1906, the son was a pupil in the fifth grade and received his certificate of promotion set out in the answer, and that he kept the card with the consent of the relator; also that at the opening of the school on the first Monday in September, 1907, he went into the seventh grade in a room different from the sixth, and remained there until Friday when expelled as in the petition alleged, and denies all other allegations of the second defense. Then, as new matter, it is alleged that during the summer vacation the son was under the tutorship of a competent instructor and completed all the work prescribed for the sixth grade and nearly all of that for the seventh, and his fitness for entering the seventh grade is all and more than is called for by any proper regulation of the school.
    Before filing answer by the Board a motion to make the petition more definite and certain was overruled;. Answer being filed a general demurrer to the second defense was then interposed and sustained. A demurrer to the reply was also sustained.
    The cause was tried in the circuit court and submitted January 8, 1908, and taken under advisement. The court then ordered that Mr. R. J. Kiefer, superintendent of schools at Upper San-dusky, examine the pupil as to his fitness at that time to enter the seventh grade. On February 14, following, the report of the examiner holding the pupil then qualified for doing the work of the seventh grade having been filed, and the examiner having explained and re-'enforced his report and conclusion by oral testimony in open court, the court found the issues for the relator and that he was entitled to a peremptory writ, and rendered judgment accordingly commanding the Board forthwith to admit the pupil to the seventh grade of the school and ordering the school district to pay the costs including a fee of twenty dollars allowed Mr. Kiefer for his services rendered.
    The defendants below bring error. Facts are stated in the opinion.

      Mr, H. H. Newell and Messrs. Finley & Gallin ger, for plaintiffs in error.
    There is no averment that the board failed to do any act specially enjoined upon by law to do, for mandamus can be legally employed only where there is a non-performance of an act which the law specially enjoins to be performed as a duty resulting from an office, trust or station. Selby v. State, 63 Ohio St., 541; State, ex rel., v. Col'eman, 64 Ohio St., 377; State v. Smith, 71 Ohio St., 13; Section 6741, Revised Statutes.

      Courts cannot by mandamus control the discretionary powers- of a board of education. Board of Education v. Minor, 23 Ohio St., 211; State, ex rel., v. Board of Education, 76 Ohio St., 297.

    This proposition is clear. The legislature has given the absolute control and management of the public schools to the board of education of each district. This is exemplified by Sections 3985, 3986, 4009, 4017, 4020-14 and 4022, Revised Statutes-.

      Mr. A. Wickham and Messrs. Carter & Goodrich, for defendant in error.
    Mandamus is the proper remedy to compel the board to perform its legal duty towards a parent and his child on the relator making it to appear that said board has failed and refused to perform its duty. State, ex rel., v. Board of Education, 35 Ohio St., 368; Weifv. Day, 35 Ohio St., 143; State, ex rel., v. Penter, 96 Mo. App., 416; Board of Education v. Felder, 116 Ga., 788; Trustees of Schools v. People, ex rel., 87 111., 303, 29 Am. Rep., 55.
   Spear, J.

There was considerable conflict of testimony as to a number of minor matters concerning which the parties were at issue. It was shown that the *boy was instructed during the summer vacation of 1907 by his parents, both of whom had been teachers, with the purpose of fitting him for admission to the seventh grade, and at one time, Remington, the superintendent, was called into his office by the relator and requested to put questions to the boy which he did. At the conclusion of the talk, as testified by the relator, he spoke of that being the work of the seventh year and they were practically over it, and the superintendent said the boy ought to go there and it would be easy for him. This expression of opinion is denied on the stand by Remington, who adds that he was in the office not more than four or five minutes and did not go in for the purpose of making an examination.

The relator, although he disclaimed in his petition knowledge of the Board’s rules, on the stand admitted that he had once been a member of the Board of Education and was somewhat familiar with the current rules. He had easy access to them.

The boy was examined to some extent with other pupils by Remington the day before he left the seventh grade room, and there is sharp conflict as to the extent of that examination and as to what the superintendent said to the boy and to the teacher Teal as to the boy’s proficiency, the boy putting it that Remington said the work would be easy for him in the seventh grade and the superintendent denying it and giving his opinion that the boy was not qualified for that grade, which opinion he reported to the Board at its meeting Thursday evening. To some extent Teal corroborates the statements of the boy respecting Remington’s expression of opinion. It is not shown, however, that Teal examined the boy at all except that he heard some or all of the lessons during the four days he was in the seventh grade room.

There is no conflict respecting the proposition that the boy went to the seventh grade room by the direction of his father and without any authority to go there by the Board or knowledge on the part of the Board, or of the superintendent prior to his seeing the boy in that room. The appearance of the boy in the room of the seventh grade with his books cannot reasonably be treated as an application for promotion to that grade since such an application should be made to the Board when in session, and the evidence furnishes no support for the allegation of the petition that the boy applied for admission to the seventh grade. No request was made to either the Board or superintendent, the boy testifies, for leave to go into that room. He also says that when Mr. Remington found him there Friday morning he directed him to go into the sixth grade, but that, in obedience to his father’s direction, he took his. books and went home. The superintendent testifies that he did not expel any from the seventh grade room, and there is nothing in the testimony which warrants the conclusion that the boy was expelled from the seventh grade room as alleged in the petition except in the sense that he was directed to go to the sixth grade room to which he had been promoted.

The testimony also shows that when in the fifth grade the boy was seven years of age although the age of scholars generally was from ten to twelve, averaging eleven years. The teacher in the fifth grade, Miss Gibbs, testifies that her examination of the boy at the end of’ the spring term of 1907 showed that his work was exceedingly good in some branches and in other branches not quite so good. She spoke to him concerning his writing and as tO' mathematics, in which his work was not as high as that of quite a number of the class who were promoted to the sixth grade, and advised that he had best do some work at home to perfect himself in those branches; none were promoted from the fifth grade to the seventh that year; it had been done in former years but only by direction of the Board and the superintendent. In her judgment the boy was. not then qualified to enter the seventh grade; she had no personal knowledge of his proficiency after that.

It appears that the superintendent reported to the Board at its meeting Thursday evening (a meeting which he had expected would be held Tuesday evening) that he had made a test of three children, including Terry, and that they were not qualified to enter the seventh grade. The Board took no action and gave no authority in any way for the boy to be promoted to the seventh grade.

Testimony was given by two or three persons who then were or had been teachers, besides Mr. Kiefer, to the effect that they had examined the boy shortly after he left the school and found him, in their judgment, qualified to enter the seventh grade.

These references to the evidence are made not with a view of reviewing all of it, nor for the purpose of attempting to weigh those parts which are in conflict, but for the purpose only of indicating the character of the case presented. It suffices, as conclusion, to say that the trial court’s judgment imports a finding that, upon the whole evidence, the boy was qualified to enter the seventh grade both at the time he attempted to enter and at the time of the trial.

It appears affirmatively and there is no conflict in respect to' it that no request was made of the Board, either by the relator or the son, for the latter’s promotion to the seventh grade, and each knew that his promotion card entitled him to enter only the sixth grade; also that at least the father knew that the rules gave authority for promotion to pass over the sixth grade to the Board and to the Board only. It is also shown without denial that the Board did not have pres'ented to it at any time a recommendation from the superintendent, or even from a teacher, to the effect that the pupil was qualified for entrance to the seventh grade, but on the contrary, as herein-before stated, did have before it the expressed opinion of the superintendent that he was not so qualified.

It is manifest from the whole record that the circuit court acted upon the belief that the question whether or no the pupil was fitted to enter the seventh grade, and should have been promoted from the fifth to the seventh, was rightfully to be determined by the court rather than- by the school authorities. But is this the law ?

Section 4017, Revised Statutes, provides that the board shall have the management and control of all the public schools in the district. Section 3985 makes provision for the adoption of rules and regulations as follows: “The board of education of each district shall make such rules and regulations as it may deem necessary for its government and the government of its appointees and the pupils of the schools; and no meeting of a board of education not provided for by its rules or by-laws shall be legal unless all the members thereof have been notified as provided for in section thirty-nine hundred and seventy-eight.”

Following this authority the Board had'made and promulgated rules and regulations as hereinbefore given. These rules seem to well cover the case in hand and to be appropriate to the .objects intended. To us they appear reasonable, and quite well calculated to secure, in their application to the great body of pupils, a good school government, with as liberal treatment to the individual pupil as proper discipline will permit. The right of the pupil between the ages of six and twenty-one years, residing in the district, to attend the'schools, receive like instruction with others, and be promoted from grade to grade on the grounds of merit and proficiency only, is provided for, the pupils on their part to conform to the rules and regulations of the school and obey the directions of the teachers and superintendent. The superintendent is to act under the advice and direction of the Board; have complete supervision of the school, and see that all the rules and regulations of the Board are enforced. He is also to direct as to the classification and examination, and, under the advice of the Board, to the promotion of pupils. Abundant examinations are provided for, the manuscript to be kept on file for inspection of any who desire, and the standing of each pupil to be determined from the daily recitations, reviews, tests and examinations in such manner as the superintendent may direct. ^

The complaint in the present case is that the application of some of these rules to this pupil worked an injustice, in that it denied him the right secured by Section 4013, Revised Statutes, to freely enter the school of the district, and thereby deprived him of a right of promotion which because of his advanced proficiency he was entitled to enjoy, viz: to be promoted from the fifth to the seventh grade on the ground of merit. But who is empowered to judge of the merit and the proficiency? Is it the father of the child or the school authorities? The trial court seems to have assumed that, in the first instance, it is the father, and finally the court. If the father in the first instance had not the right to determine the matter and direct his boy to refuse to go to the sixth grade room to which the school authorities had promoted him, but go to the seventh grade room and insist on remaining there, it is difficult to see how the court could have any power to interfere when asked to deal with a situation in which the parent undertook to do as in this case, viz: override the school authorities in the management of the school. It is insisted in argument with great force and eloquence that the evidence conclusively shows that the boy was abundantly qualified to enter the seventh grade. The court, giving effect to all the evidence presented, so found and we are not inclined to question that finding except to say that it was irrelevant to the real issue in the case. But the question is not what in fact were the qualifications of the boy, but what was the duty of the Board on that Thursday evening when the situation as to the three pupils was called to its attention. The boy may have been qualified. Indeed it appears from the whole case that the pupil was mentally a precocious boy. Whether it was best for the boy that he be thus crowded we need not inquire, though that consideration is sought to be impressed upon us, pro and con. People, including educators, differ respecting the comparative harm likely to come to a child by untoward cramming and crowding on one hand, or, on the other hand, being kept back in his studies, with the probable resulting opportunity to acquire a habit of idling and wasting time, and probably will continue to differ to the end of time. As yet no better solution of the problem seems to have been made than to leave its determination to the parents, who presumably have more than any others the good of the child at heart. But though this conclusion be accepted it would not justify the claim on the part of the parent to insist upon his way in the face of contrary opinion and decision on the part of the school authorities.

In the light of the facts as they appear, what duty devolved on the Board at the commencement of the proceeding in mandamus which it had refused to perform? We are unable to perceive any. It is to be emphasized that no application had been made to the Board requesting it to set ^iside the proper action of the superintendent and the teacher of the fifth grade as to the promotion of the relator’s son, and direct an order of promotion to the seventh grade. It had before it, at the only meeting which the record shows was held at which its attention was at all called to this boy, the information that he had gone to the seventh grade room without authority, and the opinion and recommendation of its superintendent that the pupil was not qualified for entry to that grade. No abuse of discretion is apparent in its refusal to act. Indeed, the refusal was the natural and proper result of the facts as they then appeared to the Board.

We are of opinion that the initial error occurred in the common pleas in overruling defendant’s motion to make the petition more definite, and later in sustaining the demurrer of relator to the second defense of the answer. It is not, however, necessary to elaborate this feature since the case is susceptible of final disposition on the merits as made on the uncontradicted evidence. Substantially all of the testimony offered by relator was objected to and proper exception saved. By the testimony of the relator and his son it was made clear that the pupil was sent to the room of the seventh grade by his father and without permission of the school authorities. In other words, it was shown that he was an intruder. The willingness if it existed at any time, of the superintendent that the boy should go to that room could not avail as the rule respecting promotions provided that they are to be made only, as conditions precedent, on the approval of the Board based upon the recommendation of the teacher and superintendent. The.testimony showed that neither condition obtained. The superintendent was a subordinate of the Board, and any action on his part in regard to promotion, as well as other matters, was required to be “under the advice and direction of the Board.” The duty, therefore, to “see that all the rules and regulations of the Board are enforced,” required him, without reference to any expression of individual opinion that he may have given as to the boy’s proficiency, to direct the boy to go to the room of the grade to which he had been promoted. So soon as this condition was shown it became the duty of the court to arrest the evidence and dismiss the relator’s petition. It should be borne in mind, as an obvious and controlling fact, that the statutes impose the duty of the regulation and conduct of all public schools upon the Boards of Education and not upon the courts, and interference by the courts with the discharge of those duties should not be lightly entered upon. If every little neighborhood dispute which develops a difference of opinion with respect to the promotion of a pupil, or some other controversy between parent and teacher of no greater seriousness, is to be rushed into the courts, the natural effect will be to unduly crowd the dockets and to impede the important and useful litigation necessarily demanding the attention of the courts. It is insisted by relator’s counsel that the Board of Education was composed of uneducated men and hence was not qualified to judge of the merits of the pupil for promotion. We can not know about that. It is enough to know that the statutes impose the duty on such boards, they having the aid af-’ forded by the teachers and superintendent, and if in any instance they are hot qualified for the performance of such duty it would become the voters of the district to elect men who would be qualified.

These conclusions require the reversal of the judgment of the circuit court and the dismissal of the petition at the costs of the relator, which judgment will be accordingly entered.

Reversed.

'Crew, C. J., Summers, Davis, Shauci-c and Price, JJ., concur.