author: Newman, J.

text:
    Benckenstein et al. v. Schott, Sheriff.

      Depositions — Commissioner of another state court — Contempt— Section 11310, General Code, constitutional.

    1. A commissioner appointed by a court of another state to take depositions in Ohio is an officer in the sense in which that term is used in Section 11510, General Code.
    2. That section as applied to such commissioner who seeks to punish a witness for contempt for his refusal to be sworn as a witness is constitutional.
    (No. 14858
    Decided April 9, 1915.)
    Error to the Court of Appeals of Hamilton county.
    Plaintiffs in error, Julius and George Benckenstein, applied by petition to the court of common pleas of Hamilton county for a writ of habeas corpus. They alleged in their petition that they were unlawfully restrained of their liberty and imprisoned by defendant in error in the jail of Hamilton county and that said imprisonment and detention was without legal authority. To the petition is attached a copy of the commitment, from which it appears that on December 30, 1914, in causes pending in the supreme court of the state of New York for Monroe county, in which Bernice M. Snyder and Evelyn L. Snyder, infants, by Bertha M. Snyder, their guardian ad litem, were plaintiffs, and The Berkshire Life Insurance Co. was defendant, a commission was issued by said court to John D. Ellis, requesting and directing him to take the testimony of plaintiffs in error in behalf of The Berkshire Life Insurance Co. in answer to certain written interrogatories attached to the commission. A copy of the commission is also attached to the petition. On January 12, 1915, Ellis, as commissioner of the state of New York, issued subpenas to plaintiffs in error and the same were served on them personally on January 12, 1915. They appeared before Ellis on January 13, 1915, at room 14, Masonic Temple, building, Cincinnati, Ohio, as witnesses on behalf of the insurance company. The commissioner, with the consent of the parties and plaintiffs in error, continued the taking of the depositions from time to time until January 28, 1915, at which time plaintiffs in error again appeared as witnesses in behalf of the insurance company and the latter requested and the commissioner ordered plaintiffs in error to be sworn as witnesses. They wilfully refused to be sworn, and the commissioner, having examined the complaint and answer in the case and finding that defendant insurance company expected to prove by plaintiffs in error that the insured was suffering from sugar diabetes at the time.he applied for insurance and that the plaintiffs in error sold the deceased a medical belt to cure diabetes, and finding that said testimony was necessary to the presentation of the defense raised in the answer of the insurance company, and that the same could not be obtained satisfactorily in any other way, he, the commissioner, for the contempt of plaintiffs in error in refusing to be sworn, ordered and adjudged that they be imprisoned in the county jail of Hamilton county until they submitted to be sworn as witnesses, and the order of commitment was directed to defendant in error.
    A writ of habeas corpus was duly issued to the defendant in error directing him to have plaintiffs in error before Hon. Frederick L. Hoffman, a judge of the court of common pleas of Hamilton county, or, in case of his absence or disability, before some other judge in the same county forthwith.
    Plaintiffs in error, in their petition for a writ, alleged that Ellis derived his sole authority from the state of New York; that he took no oath of office in the state of Ohio as such commissioner and gave no bond as such. It is further represented that the commission was issued by the supreme court of Monroe county of New York, under and by virtue of section 887 of the code of civil procedure of the state of New York; that neither said section nor any other provision of the law of the state of New York permitted said commissioner to commit plaintiffs in error to jail; that the law of the state of Ohio does not authorize said commissioner to imprison them, and that by-reason of the premises plaintiffs in error were imprisoned unlawfully and without due process of law, contrary to the provisions of the fifth amendment of the constitution of the United States of America and the fourteenth amendment of the constitution of the United States of America, and contrary to Section 1, Article I of the Constitution of the state of Ohio.
    In the return and answer of the defendant in error it is recited that plaintiffs in error are in his custody by virtue of the authority of a commitment issued to him by said Ellis, commissioner .of the state of New York.
    Upon the hearing of the case evidence was introduced to the effect that the only authority under which Ellis acted in committing plaintiffs in error was the commission issued to him by the state of New York, and that he did not take an oath of office or oath of allegiance to the United States or to the state of Ohio as commissioner of the state of New York. The court found that plaintiffs in error were unlawfully imprisoned and detained and restrained, and they were ordered discharged from said imprisonment, detention and restraint. Error was prosecuted to the court of appeals of Hamilton county and the judgment of the court of common pleas was there reversed and set aside and plaintiffs in error were remanded to the custody of the defendant in error.

      Messrs. Bruce & Bruce and Messrs. Cramer & Headley, for plaintiffs in error.

      Messrs. Maxzvell & Ramsey and Mr. Robert W. Taft, for defendant in error.
   Newman, J.

In the original code of civil procedure, enacted in 1853 (51 O. L., 57), there was no provision for the taking of depositions in Ohio to be used outside the state. In 1854, however, there was passed an act which authorized any party to a civil action, cause or matter pending before any court of any other state, district or territory of the United States, to obtain the testimony of any witness residing in this state, to be used in such other state, district or territory (52 O. L., 27). Section 4 of this act was as follows:

“Sec. 4. If any person shall refuse or neglect to attend at the time and place mentioned in the summons, issued in accordance with this act, not having a reasonable excuse for such refusal or neglect, or if on his attendance, he shall refuse to testify, or answer any question, not being protected by law from testifying thereto, the officer or commissioner issuing such summons, is hereby authorized and empowered to compel such person, by attachment, to appear and answer, under such penalties as would be incurred, for a like offense, on the trial of a civil action before a justice of the peace, in this state; provided, that before any person, summoned as aforesaid, shall be compelled to testify, he shall be paid, if he demand them, his lawful fees for attendance.”

This act was repealed in 1878 (75 O. L., 796) and there was enacted in the act revising and consolidating the laws relating to civil procedure, under subdivision 3, “Modes of Taking Testimony,” page 657, the following: “Section 29. Depositions may also be taken when the testimony is required in an action, cause, or matter pending before any court or authority without this state.” In the same act there was added to Section 340 of the original civil code of procedure “and if to be used out of the state, they may be taken before a commissioner or officer who derives his authority from the state, district, or territory in which they are to be used.” (75 O. L., 658.) Section 29 is now Section 11528, General Code, and the language which we have quoted and which was added to Section 340 of the original code of civil procedure is now a part of Section 11530. These two provisions, with but slight modifications, have been in force since their enactment.

It is the contention of counsel for plaintiffs in error that these two provisions are the only ones which have to do with depositions taken in this state for use outside the state and that they do not operate to give the power assumed by the commissioner in the case under consideration.

They insist that such power is not clearly and expressly conferred by these provisions and the same should never be assumed or implied. They contend further that the history of the legislation on the subject shows an unmistakable legislative intent that the power should not be conferred. They call attention to the fact that the original code of civil procedure makes no mention of depositions to be used in jurisdictions outside of Ohio; that there was enacted in 1852 an act which not only provided for the taking of such depositions, but section 4 thereof, supra, authorized and empowered the officer or commissioner to enforce his authority by punishment, while the act of 1878, which repealed these provisions, replaced them with provisions which merely recognized' the right and contained no authority for commitment.

If these two provisions stood alone there might be some force in the contention of counsel, for the power on the part of a foreign commissioner, if any existed, would have to be implied. But counsel have failed to take into account certain statutes of the General Code, in Part Third, Title IV, Division III, Chapter 3, entitled “Evidence,” “Means of Securing Attendance,” “Modes of Taking Testimony,” to which Sections 11528 and 11530 are related and with which they are to be construed:

“Sec. 11502. When the attendance of a witness before an officer authorized to take depositions is required, the subpoena shall be issued by such officer.”
“Sec. 11510. Disobedience of a subpoena, a refusal to be sworn, except upon failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required.”
“Sec. 11512. Punishment for the acts of contempt specified in section eleven thousand five hundred and ten shall be as follows: When the witness fails to attend in obedience to a subpoena, the court or officer may fine him not over fifty dollars; in other cases, not more than fifty dollars nor less than five dollars; or he may imprison him in the county jail, there to remain until he submits to be sworn, testifies, or gives his deposition.”
“Sec. 11528. Depositions also may be taken when the testimony is required in an action, cause, or matter pending before any court or authority without this state.
“Sec. 11529. Depositions may be taken in this state before a judge or the clerk of the supreme court, a judge or clerk of the court of appeals, a judge or clerk of the court of common pleas, a probate judge, justice of the peace, notary public, mayor, master commissioner, official stenographer of any court in this state, or any person empowered by a special commission.
“Sec. 11530. Depositions taken in and to be used in this state, must be taken by an officer or person whose authority is derived within the state; but, if for use elsewhere, they may be taken before a commissioner or officer who derives his authority from the state, district, or territory in which they are to be used.”

In this case the commission was issued by the supreme court of Monroe county, New York, where the depositions are to be used, under section 887 of the New York code, which authorizes the issuing of a commission, directed to one or more competent persons named therein, authorizing them to take the testimony of witnesses outside of the state of New York under oath upon interrogatories annexed to the commission. Under the provisions of Section 11530 of our code depositions for use elsewhere may be taken before such commissioner. Under. Section 11510 a refusal to be sworn may be punished as a contempt of the court or officer by whom the testimony of the witness is required. Section 11512 prescribes the punishment for the acts of contempt specified in Section 11510, and in case the witness refuses to be sworn, as was the case here, the court or officer may imprison him in the county jail, there to remain until he submits to be sworn.

But it is suggested that an officer within the meaning of these sections is an officer of the state of Ohio, one who derives his authority from this state and who, under Section 7 of Article XV of the Constitution, is required to take an oath before entering upon the discharge of his duties.

We cannot ascribe this meaning to the word “officer” as used in these sections. In our opinion it is a term used to designate those persons who are empowered to take depositions and is not limited to one who holds what is technically an office under the state of Ohio. This seems clear upon an examination of Section 11543. This section relates to a deposition taken out of the state by an officer authorized to take it. The term “officer” is there used and unquestionably includes a commissioner appointed under the provisions of Section 11533 to take a deposition without the state. We find no provision requiring a commissioner so appointed to take an oath of office and such commissioner cannot be said to be an officer in a technical sense.

It appears from the record that the commissioner issued a subpena to plaintiffs in error and they appeared before him in obedience thereto. No objection was made to this and his right to issue a subpena does not seem to be questioned. The only authority, however, for issuing a subpena is under Section 11502, and such authority is vested in him by reason of the fact that he is an officer in the sense in which that term is there used.

We think the case of DeCamp v. Archibald, 50 Ohio St., 618, is decisive of this question. It was there held that the power of a notary public in taking depositions to punish a contumacious witness is not limited by Section 126, General Code, to the powers in that regard conferred on justices of the peace by Sections 10318 and 10319, but by being included in Section 11530 he has the further power of imprisoning for contempt conferred on “an officer” taking depositions by Sections 11510 and 11512. So a commissioner who derives his authority from another state, being included in Section 11530, has the same power.

We conclude, then, that by Section 11510 there is expressly conferred upon a commissioner appointed by another state to take depositions here the power to commit a witness to jail upon his refusal to be sworn. The purpose of Section 11528 is to give to litigants outside the state of Ohio the right to take the testimony of witnesses in this state for use in their litigation. It is to be presumed that the legislature intended to give effect to this statute, and if there is no provision for compelling the giving of testimony the very purpose for which it was enacted would be defeated.

But it is claimed that if the Ohio statute attempts to authorize the commitment such statute is unconstitutional. In support of this contention counsel rely wholly on People, ex rel. McDonald, v. Leubischer, 34 App. Div., 577. Section 3001 of the New York code provided that where a witness attending before a justice in an action refuses to answer a pertinent and proper question and the party at whose instance he attended made oath that the testimony of the witness was so far material that without it he could not safely proceed with the trial of the action, the justice might by warrant commit the witness to the jail of the county. By section 920 of the code of that state a person who failed to appear at the time and place specified in a subpena duly served upon him or to testify or to subscribe his deposition when correctly taken down, was liable to the penalties which would be incurred in a like case if he were subpenaed to attend the trial of an action in a justice’s court, and for that purpose the officer before whom he was required to appear possessed all the powers of a justice of the peace upon the trial.

Section 920 was declared unconstitutional as applied to a commissioner appointed by a court of another state to take depositions in New York and who sought the'reunder to imprison for contempt. The court in reaching its conclusion proceeds upon the theory that power to punish for contempt is judicial in its nature and arises only in a judicial proceeding and can only be exercised by a competent judicial tribunal which has jurisdiction in the premises. By the constitution of New York judicial power is vested in the courts established by or provided for in the constitution and in other bodies where the constitution by express provision vests in such other bodies powers in their nature judicial. In the second proposition of the syllabus in the New York case it is held that a notary public of one state appointed by the court of another state as a commissioner to take depositions in the former state in an action pending in the latter is not a member of the judicial department of the former state.

That decision would have weight here if this court entertained the same view as to the nature of the power of an officer in the taking of depositions to commit for contempt. But in DeCamp v. Archribald, supra, it was held that the power conferred by Sections 11510 and 11512, General Code, on a notary or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question is not judicial in the sense of the constitution conferring all judicial power upon the courts of the state. In view of this holding we do not regard the New York case as in point here.

A commissioner who derives his authority from another state, being an officer within the meaning of that term as used in Section 11510, the holding in the DeCamp case with reference to the nature of the power of a notary applies to a commissioner. It is true that he derives his authority from a state other than Ohio in the sense that he is designated as one to take depositions, but his appointment is recognized by this state and he is vested for the performance of his duties here with the same power and authority as a notary public or any of the other persons mentioned in the statutes. In a number of other cases decided by this court the power of a notary to commit for'contempt has been recognized, and. we think it is settled that there is no violation of any constitutional provision in the exercise of that power, and this is equally true when exercised by a commissioner of another state. Ex parte Jennings, 60 Ohio St., 319; In re Rauh, 65 Ohio St., 128; Ex parte Schoepf, 74 Ohio St., 1.

In the proceeding had in the case at bar plaintiffs in error were duly subpenaed and appeared before the commissioner. They were requested to be sworn but refused. They were then committed to jail, not as a punishment but for the purpose of compelling them to do what they had refused to do, for, as said by Justice Lamar in Gompers v. Bucks Stove & Range Co., 221 U. S., 418, 442, in speaking of imprisonment for civil contempt where the defendant has refused to do an affirmative act: “Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do.” In the case at bar, when plaintiffs in error perform the act required of them, the commitment is at an end, or, under the provisions of Section 11514, they have the right to apply to a judge, who may discharge them if it appears that the imprisonment is illegal.

It is said by the supreme court of the United States that due process of law has never been precisely defined, but it does not require a plenary suit or a trial by jury, nor is it necessarily, judicial procedure. In Iowa Central Ry. Co. v. Iowa, 160 U. S., 389, it is held: “The fourteenth amendment to the constitution in no way undertakes to control the power of a state to determine by what process legal rights may be asserted, or legal obligations be enforced, provided the method of procedure adopted for these purposes gives reasonable notice, and affords fair opportunity to be heard, before the issues are decided.” We think these requirements are met by the procedure provided in the statutes under consideration, and we are unable to say that there has been a failure of due process of law in the proceeding which is challenged by plaintiffs in error.

It is suggested that to permit a commissioner of the state of New York to commit a witness to jail in Ohio while in New York a commissioner appointed under the laws of Ohio does not have that authority would present an anomalous situation, and it is urged that no rule or principle of comity between states requires this state to accord to another state rights which that other state does not accord to this. But as we view the Ohio statutes they do not rest upon the ground of reciprocity or that other states shall have and enforce identical laws. It is to be said, however, that under section 854 of the code of New York, depositions may be taken by a person designated in a commission issued by a court of another state or country, and upon the refusal of a witness to be sworn, then under the provisions of section 856, if the person issuing the subpena is not a judge of a' court of record, a judge of such court may commit the offender to jail, there to remain until he submits to do the act which he was required to do or is discharged according to law. The New York statute differs from ours in that it requires the commissioner taking the depositions to refer the question to a court in the first instance, while in this state the commissioner is authorized to commit and his action is subject to review under Section 11514, General Code. The mode of procedure rests solely with each state, and the fact that one state may have prescribed a course of pro-cedure different from that of another is wholly unimportant.

For the reasons we have given the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, . Wanamaker, Jones and Matthias, JJ., concur.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The Davis Laundry & Cleaning Co. v. Whitmore.

      Contracts — Sale' of corporation — Memorandum is offer to purchase, when — Acceptance, mutual obligations and consideration — Time not essence of contract — Formal stock transfer unnecessary, when — Statute of frauds — Sale of corporate stock — Writing necessary, when — Section 8384 (1), General Code — Partial delivery of stock and operation of plant — Justify finding of acceptance, when.

    The Ideal Laundry Company was a corporation capitalized át 250 shares of the par value of $100 each, of which plaintiff owned 126 shares, the balance outstanding in the names of other parties.
    The defendant laundry company, doing a kindred business and desiring to purchase all the shares, executed on January 11, 1910, to the plaintiff the following memorandum of agreement: “We agree to purchase 126 shares of Ideal Laundry stock for $5500.00, and the balance of 124 shares at $50.00 per share, from F. C. Whitmore. (Signed) , The Davis Laundry Company, Per. E. W. Sloan. 1-11-10.” This memorandum was not signed by Whitmore. No time was fixed for the delivery of these shares, and it was verbally agreed that delivery should be made at a local bank and that the buyer should assist in obtaining the outstanding shares. On February 21, 1910, the seller had deposited in the bank his own 126 shares and had obtained 116 of those outstanding, at which time he notified the defendant of this fact, and that the remaining 8 shares would be delivered in a very short time. On January 31, 1910, the buyer took possession of the plant^and asséts of The Ideal Laundry Co. and operated the same for a period of two weeks. On February 28, 1910, the seller had secured the entire 250 shares and deposited them with the local bank for delivery and so notified the buyer. On February 16, 1910, the buyer yielded possession and repudiated the contract. Held:

    1. The written memorandum was an offer to purchase the entire 250 shares of stock, and stipulated the price per share.
    2. That, upon acceptance, the obligations became mutual, and the promise of one furnished a consideration for the promise of the oth?r,

      3. The written offer, not having stipulated the time when the stock should he delivered, time did not become the essence of the contract, but the seller had a reasonable time to procure the outstanding stock.
    4. Transfer upon the corporate books was not necessary; tender or offer to deliver the stock properly indorsed for transfer by the ov/ner, either in blank or to the defendant, was sufficient.
    5. A contract relating to the sale of corporate stock of the value named, falls within the statute of frauds relating to the sale of personal property. Such contract is one for the disposal of goods within the meaning of Section 8384 (1), General Code, and is required to be in writing and signed by the parties to be charged.
    6. The delivery of the 242 shares of stock to the National Bank of Commerce, accompanied by defendant’s possession and operation of the plant for a period of two weeks, was evidence justifying a jury in finding that this was an acceptance under the verbal contract, and took the case out of the statute above mentioned.
    (No. 14512
    Decided May 4, 1915.)
    Error to the Court of Appeals of Cuyahoga county.
    In the court of. common pleas the plaintiff, Whit-more, brought an action against The Davis Laundry & Cleaning Company, a corporation, for damages alleged to have been sustained by the refusal of the defendant to carry out its contract for the purchase of stock in The Ideal Laundry Company, another corporation engaged in a business kindred to the defendant company. ' The petition alleges that the capital stock of The Ideal Laundry Company consisted of 250 shares of the par value of $100 each; that on January 11, 1910, the defendant entered into a written contract with plaintiff whereby defendant was to purchase 12$ shares of the stock of The Ideal Laundry Company for $5,500, which stock was owned by the plaintiff, and further agreed to purchase the remaining 124 shares of stock at the price of $50 per share; that the written contract did not provide any time within which said shares of stock were to be delivered, nor was there a place of delivery provided therein, but it was verbally agreed by the contracting parties that the stock should be delivered to and deposited in The National Bank of Commerce at Lorain, Ohio; that the 124 shares of stock were owned by various individuals in various parts of the country, which would require some time for plaintiff to obtain and have the same delivered, all of which was known to the defendant; that on February 1, 1910, in addition to the delivery and deposit at the bank of his own 126 shares, he had procured the delivery and deposit at the bank of 116 shares out of the remaining 124 shares of stock of said company; that of the remaining 8 shares 3 were owned by one Daniels, residing at Orlando, Florida, and 5 were owned by one Truby, residing in Chicago, Illinois; that on February 21, 1910, plaintiff notified the defendant of the deposit and delivery at said bank of all but 8 shares of the total number of shares of stock outstanding; that during this time defendant assisted plaintiff, by correspondence and otherwise, in the procurement of the delivery and deposit of these shares. Plaintiff further stated that on the 28th day of February, 1910, all of the 250 shares of stock were then delivered to and on deposit in said Bank of Commerce, of which fact the defendant was notified in writing; that on the 31st day of January, 1910, “and on the understanding between plaintiff and defendant as to the acquirement of the capital stock of said The Ideal Laundry Company, defendant went into possession of all the property and assets of said The Ideal Laundry Company and began operating said plant under the name of The Davis Laundry & Cleaning Company and continued in such possession and operation to and until the 16th day of February, 1910.” . Plaintiff alleged demand for payment of said shares of stock and the defendant refused to pay for the same, and he asked judgment for the purchase price.
    The defendant in its answer admitted the execution and delivery to plaintiff of a written agreement, which is as follows:
    “We agree to purchase 126 shares of Ideal Laundry stock for $5500.00, and the balance of 124 shares at $50.00 per share, from F. C. Whit-more. (Signed) The Davis Laundry Company, Per.-E. W. Sloan. 1-11-10.”
    After admitting the corporate existence of the two laundry companies and that the entire capital stock of The Ideal Laundry Company consisted of 250 shares, the defendant denied, generally, every other allegation in the petition, and alleged affirmatively that there was no consideration for the written memorandum.
    On the trial, in amplification of the facts pleaded, counsel for the plaintiff stated to the jury that it was the understanding of the contracting parties that if plaintiff could procure within 15 or 20 shares of the 126 outstanding shares that would be all that The Davis Laundry & Cleaning Company would require. He also stated that it was agreed that the stock should be deposited at the Bank of Commerce, which should hold it until the money was paid by the defendant; that the written agreement did not itself provide for the time or place where the stock should be delivered; that the defendant, on February IS or 17, áfter some two weeks’ possession and operation of the Ideal Laundry plant, withdrew from the contract and repudiated it and ordered their manager, who was in charge, to leave it, although informed at that time that the 8 outstanding shares would be available for delivery within a few days. As a part of his statement to the court and jury he said that he would offer in evidence the following letter, dated February 16, 1910, addressed by one of the officials of the company to the plaintiff:
    . “We wish to call your attention to the fact that over two months has elapsed since we agreed to purchase all of the shares of stock in The Ideal Laundry Company from you.
    “While the time was not fixed in the memorandum of agreement within which the stock should be delivered, we think that more than a reasonable time for delivery of this stock has elapsed, and this company is therefore now unwilling to purchase the stock of The Ideal Laundry Company as you have not tendered a delivery to us of all of the stock within a reasonable time.
    “Whatever possession has been taken by us of the property and business at Lorain, we wish to notify you that we now give up any such possession to you and the stockholders of The Ideal Laundry Company.”
    At the conclusion of this statement, acting under authority of Cornell v. Morrison, 87 Ohio St., 215, counsel for the defendant challenged the sufficiency of the statements made, and on motion of the defendant the case was withdrawn from the jury and judgment rendered against the plaintiff.
    Error was taken to the court of appeals, which reversed the judgment of the court of common pleas, and we are now asked to reverse the judgment of the court of appeals and affirm that of the common pleas court.

      Messrs. Howell, Roberts & Duncan, for plaintiff in error.

      Messrs. Cook, McGowan & Foote, for defendant in error.
   Jones, J.

The question presented by this record is whether plaintiff, upon the allegations of his petition and under the statements made by him in open court, stated sufficient facts upon which his case could go to the jury.

It would seem that the court of common pleas, in the colloquy that took place between the court and the counsel for plaintiff below, took the view that plaintiff could not recover because the written agreement did not bind the plaintiff to convey the stock to the defendant or fix the time and place for the delivery of the same. It is conceded by the record that the plaintiff did not sign the memorandum of agreement. The statement of counsel that he expected to prove a verbal arrangement by which the contract would be satisfied by the delivery of all but 15 or 20 of the outstanding 124 shares was wholly irrelevant. In this regard the memorandum is clear and definite and called for the delivery not only of the' 126 shares of stock owned by the plaintiff but the full balance of the 124 shares outstanding, and any statement made by counsel tending to show that a less number of shares would satisfy this obligation would be incompetent as proof upon the trial. Had the contracting parties, by memorandum, provided that the time or place of delivery should be made the essence of the contract it would have to be complied with. In the absence of stipulation, the time of delivery must be held to mean that delivery could be made of the stock within a reasonable time, and the place of delivery should be at the office of defendant.

It is contended by plaintiff in error that the contract is invalid because of a lack of both mutuality and consideration. The promise of the defendant to buy and the agreement of the plaintiff to deliver furnish that necessary consideration, one for the other. Under a memorandum of this character, so long as the contract remained executory and not accepted, the defendant had a right to withdraw the offer. However, after an acceptance the contractual obligations became mutual.

The chief contention of the plaintiff in error in this case is that there is a lack of mutuality because of the Ohio statute of frauds relating to the sale of personal property; that since the plaintiff did not sign the written memorandum as the person to be charged, there was no obligation upon his part to procure the stock, and that there was a lack of mutuality because, while the defendant was bound the plaintiff was not.

Section 8384 (1), General Code, provides: “A contract to sell or a sale of any goods or choses in action of the value of twenty-five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold, and actually receive them, * * * unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. * * *

“(3). There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.”

Inasmuch as the plaintiff below did not sign the memorandum of agreement but verbally agreed to sell shares of corporate stock of more than the value of $2,500, it is not open to question but that the undertaking on his part fell within the statute of frauds relating to sales of personal property.

That sales of corporate ■ stock fall within the meaning of “goods, wares or merchandise” has been sustained by the weight of authority in the different jurisdictions of this country. 20 Cyc., page 244, and authorities cited.

These authorities all recognize the fact that sales of shares of stock in corporations have become such a large part of the commerce of this country that they must be. held to be included in the terms of “goods, wares and merchandise,” and by force of our own.statute, Section 8456 (1), General Code, “goods” are defined to “include all chattels personal other than things in action and money.”

The record in this case discloses that the buyer, through its officers, took charge of the kindred laundry company, its plant and all its assets, and operated the same for a period of about two weeks’ time or more; that while in the possession and operation of this plant, and at the time they repudiated the contract of purchase, they had knowledge of the fact that all but 8 of the 250 shares of stock were in the possession of the bank ready for delivery and that the remaining 8 shares would be available in a very short time.

Section 8384 (1), General Code, supra, provides that, verbal contracts “shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold.” Subdivision 3 of that section provides that, “There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.”

Under the facts stated it was for the jury to determine whether or not the acts and conduct of the defendant in the possession and operation of the plant were of such character as to show an acceptance under the contract of 242 shares of stock that had been deposited with the National Bank of Commerce for delivery to the defendant.

In the case of Ford v. Howgate, 106 Me., 517, a case similar in character came up for review. In that case the syllabus is: “A contract to sell corporate stock was taken outside the statute of frauds by the buyer entering upon the management of the corporate business as an owner.”

The question in that case was whether the possession by the defendant was sufficient to show an acceptance of the contract for the sale of unissued stock in a corporation. The evidence showed that the defendant went into the company’s shop and assisted in the business of the corporation for ten days. The court held that such possession was evidence justifying a finding that the contract had become executed, the court saying in the opinion: “And what more significant act could the defendant have done to evidence his ownership of the shares, and to show that the contract was executed, than to enter into the management of the business of the corporation as owner?”

In the absence of time stipulated in the agreement for the delivery of shares of stock, the plaintiff had a right to a reasonable time to procure such delivery. By its letter of February 16, 1910, the defendant undertook to say that they had waited a reasonable time for the delivery of this stock and repudiated the agreement. The question whether the time was a reasonable one or otherwise, at the time of repudiation, was a fact to be determined by the jury under all the circumstances of the case.

Plaintiff in error also contends that there is no allegation in the pleading or statement tending to show that the shares were properly indorsed and ready for transfer or that an offer was made to transfer them on the books of the corporation.

Section 8673-1, General Code, provides that title to shares of corporate stocks shall be transferred by delivery of the certificate indorsed in blank or to a specific person. Though the section was adopted subsequent to this transaction, it simply carried into statute law the legal principle theretofore prevailing; and if it appears upon the trial that these shares were so indorsed and ready for delivery the plaintiff has complied with all the requirements in that respect.

In view of what is said the contention that the place of delivery should have been designated in the memorandum, becomes academic. By reason of acceptance under a verbal arrangement, the place of delivery could likewise be agreed upon verbally. The place of delivery agreed upon was the Bank of Commerce, and the obligation to pay was concurrent with the obligation to deliver at that bank.

The allegation in the petition that all of said 250 shares of stock on February 10, 1910, were delivered to the Bank of Commerce in accordance with the provisions of the contract, was sufficient to sustain the sufficiency of that pleading.

The judgment of the court of appeals is affirmed and the case remanded to the common pleas court for further proceedings.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Matthias, JJ., concur.


text:
    Shuck, Admx., v. Board of Education.

      Board of education — Dismissal of teacher — Written charges — Immorality and improper conduct — Section 7701, General Code— Damages — Section 7708, General Code — Frivolous or insufficient reason for dismissal — Question for jury, when.

    1. The amendment to Section. 7701, General Code (97 O, L., 334), providing that a teacher shall not he dismissed by a board of education unless the charges are first reduced to writing and an opportunity given him for defense, does not enlarge or extend the provisions of Section 7708 which confer upon a teacher, who is dismissed for a frivolous or insufficient reason, the right to bring suit against the school district, nor does the amendment give to the teacher an additional ground upon which to base his action.
    2. Under Section 7708, in an action by a teacher who has been dismissed upon the charge of immorality and improper conduct, it is for the jury to determine from all the facts and circumstances in the case whether or not the conduct of the'teacher was such as to constitute a good and sufficient reason for his dismissal by the board of education.
    (No. 14482
    Decided May 4, 1915.)
    Error to the Court of Appeals of Hocking county.
    This was an action brought originally by George W. Shuck and afterwards revived in the name of his administratrix to recover damages on account of a breach of a contract of employment. He was employed by defendant in error to teach school for a period of eight months, and before the expiration of that period, according to the allegations of the petition, he was unlawfully and wrongfully dismissed by defendant in error from said employment, without any cause whatsoever and without having a copy of any charges preferred against him and without having had opportunity to appear by counsel or produce witnesses in his behalf. He made diligent effort to obtain other employment after his dismissal, but was unable [to obtain the same. He asked for damages in the amount which he would have received had he been continued in his employment as teacher.
    Defendant in error admitted that it dismissed Shuck, but averred that charges of inefficiency, neglect of duty, immorality and improper conduct were duly and legally preferred against him, that the charges were reduced to writing and filed with the clerk of the board of education, that due notice was given him of the filing of said charges and a copy served upon him, that a time was fixed by the board for the hearing of said charges and an opportunity given him for his defense, and that after a full, complete and impartial hearing of the charges and the evidence the board found that the same were true and it thereupon dismissed and discharged him.
    The case was submitted to a jury and the jury found for plaintiff in the amount claimed in the petition. Judgment was rendered on this verdict. and in a proceeding in error the court of appeals reversed the judgment of the court' of common pleas, upon the ground that the verdict of the jury was manifestly against the weight of the evidence and the judgment thereon contrary to law, and rendered final judgment in favor of defendant in error here.

      Mr. C. V. Wright, for plaintiff in error.

      Mr. Harley M. Whitcraft, for defendant in error.
   Newman, J.

On January 18, 1909, plaintiff’s decedent, G. W. Shuck, was served with a notice of which the following is a copy:

“January 16th, 1909.
“G. W. Shuck, Monday, Ohio.
“The Board of Education meets Wednesday evening January 20th, 1909. Please be present, with your witnesses. The charges against you are immorality.
“By order of the Board
“J. W. Wi-iitlatci-i, Clerk.”

Shuck attended the meeting of the board held January 20, 1909, with witnesses to testify in his behalf. He asked for a continuance of the hearing, which was refused, and thereupon, according to the minutes of the meeting, the board having found that charges against Shuck for immorality and improper conduct had been preferred and reduced to writing and a copy thereof served on him, and an opportunity had been given him for defense, proceeded to consider the charges and hear the evidence. It found that the charges of immorality and improper conduct were true, and on motion, by the vote of a majority of all the members of the board on roll call, Shuck was dismissed as teacher.

A board of education- may dismiss a teacher under the provisions of Section 7701, General Code, which is as follows:

“Sec. 7701. Each board may dismiss any appointee or teacher for inefficiency, neglect of duty, immorality, or improper conduct. No teacher shall be dismissed by any board unless the charges are first reduced to writing and an opportunity be given for defense before the board, or a committee thereof, and a majority of the full membership of the board vote upon roll call in favor of such dismissal.”

The statute in its present form was enacted in 1904. Prior thereto a board of education might dismiss a teacher for inefficiency, neglect of duty, immorality, or improper conduct, without filing charges and without giving him an opportunity to defend.

At common law a teacher who had been dismissed was without redress. But in 1857 (54 O. L., 240) there was enacted a statute giving him the right to maintain an action. This right has existed with the exception of a few years since that time. It is conferred by Section 7708, General Code, which reads:

“Sec. 7708. If the board of education of any district dismisses, a teacher for any frivolous or insufficient reason, the teacher may bring suit against such district. If, on trial of the cause a judgment be obtained against the district, the board thereof shall direct the clerk to issue an order upon the treasurer for the sum so found due to the person entitled thereto, to pay it out of any money in his hands belonging to the district, applicable to the payment of teachers. In such suits process may be served on the clerk of the district, and service upon him shall be sufficient.”

Under the provisions of this section plaintiff brought this action. He based his right to recover upon the ground that the board of education failed to comply with the requirements of Section 7701 in not giving him a copy of the charges preferred against him and in not giving him a sufficient opportunity for his defense. It is insisted that the charges contemplated by that section are such as will apprise the teacher of the precise act or acts against which he is called upon to defend, and in the present case should have embodied facts that in judgment of law would constitute immorality or improper conduct.

Whether or not the notice served on Shuck met the requirements of Section 7701 is, we think, wholly unimportant and immaterial so far as a determination of this case is concerned. It is to be remembered that the remedy' prescribed by Section 7708 is in derogation of the common law and therefore must be strictly construed. It authorizes an action in case a teacher is dismissed for a frivolous or insufficient reason. This statutory right existed a number of years prior to the amendment of Section 7701 prescribing the method of procedure. The gist of the action then was unquestionably “dismissal for a frivolous or insufficient reason.” It could not have been irregularity in the proceeding, for no preliminary steps were required. A teacher then could have been dismissed summarily. As to the purpose of the amendment to Section 7701, it is unnecessary here to inquire. But, as has been suggested, it was undoubtedly intended to give to the board and the teacher opportunity for an inquiry, thereby minimizing the necessity on the part of the teacher to seek redress under the provisions of Section 7708. We do not see how this amendment can possibly enlarge or extend the remedy or give to the teacher an additional ground upon which to predicate an action. If there exists a substantial reason for the discharge of the teacher there is no right of recovery under Section 7708, although the board may fail to reduce the charges to writing and may' deny the teacher the opportunity for a defense. For example, a teacher dismissed for admittedly immoral conduct in the presence of his pupils will certainly have no right of action against the board, whereas one who is discharged for a frivolous reason may recover although the charges against him are reduced to writing and he is given an opportunity to defend.

It appears from the record that the charges of immorality and improper conduct grew out of a controversy between Shuck and the superintendent of the schools, in his school room and in the presence of the pupils, in the course of which Shuck struck the superintendent with a poker and' Shuck was knocked down by the superintendent. It was the claim of Shuck that the superintendent was the aggressor and that what he did in the matter was in self-defense and was justifiable.

In the trial of the case in the court of common pleas the facts and circumstances surrounding the affair were submitted to the jury and the court properly charged that it was for the jury to find from the evidence in the case whether Shuck had been dismissed for a frivolous and insufficient reason. And a frivolous and insufficient reason was defined to be one of little weight or import, not amounting to inefficiency, neglect of duty, immorality or improper conduct. To hold that the board’s action in dismissing a teacher is not reviewable by a court of common pleas, if it appears that the charges preferred by the board of education embody facts which in law constitute inefficiency, neglect of duty, immorality or improper conduct, would, we think, nullify the provisions of Section 7708. All that would be required on the part of the board of education would be to have embodied in the charges reduced to writing facts which constitute inefficiency, neglect of duty, immorality or improper conduct, and when it appears in an action brought by a teacher that the charges were so framed, that would be the end of the inquiry and the teacher would be defeated, although the charges may be wholly without merit and unsupported by any evidence.

The jury in this case, under the evidence, evidently found that Shuck was not in the wrong and there was no substantial reason for his dismissal. The court of appeals in reviewing the judgment of the court of common pleas weighed the evidence and came to the conclusion that the verdict was manifestly against the weight of the evidence. We do not disturb this finding. An examination of the record discloses the fact that there was a conflict of evidence as' to material matters — for instance, as to whether or not Shuck acted in self-defense. Besides, the finding of the court of appeals itself presupposes that there was a conflict in the evidence. Instead of rendering final judgment for defendant in error it should have remanded the cause to the court of common pleas for another hearing.

Judgment of court of appeals in reversing the judgment of court of common pleas affirmed and in rendering final judgment reversed.

Nichols, C. J., Johnson, Wanamaker and Matthias, JJ., concur.

Jones, J., not participating.


author:
Wanamaker, J.
      Donahue, J.,

text:
    The State, ex rel. Enos, Prosecuting Attorney, v. Stone et al.

      Office and officers — General policy fixing salaries — Not repealed by additional-compensation enactments — Effect of codification and subsequent legislation — Purpose of technical rules — County commissioners — Serving on quadrennial boards of equalization —Sections 3001 and 5597, General Code.

    1. When the general assembly of Ohio has entered upon a general policy of legislation, such as the abolition of the fee system and the establishment of fixed and certain lump sums as compensation for county officers, and provided that such compensation shall be in full payment for all services rendered as such public officer, such general statutes declaring such policy repeal by implication all other statutes in conflict therewith.
    2. Such policy of the general assembly should not be overturned or invaded by carrying or reenacting such impliedly repealed statute in the report of a codifying commission, which is subsequently adopted by the general assembly, or by some subsequent enactment of the general assembly, unless such other statute clearly evinces by appropriate language an intention and purpose to provide “an additional salary.”
    3. Mere technical rules of law or interpretation may be invoked to preserve the natural justice and substantial equities of any given case, but they should not be permitted to defeat or destroy the same.
    (No. 14457
    Decided May 4, 1915.)
    Error to the Court of Appeals of Guernsey county.
    Facts are stated in opinion.

      Mr. B. F. Enos, prosecuting attorney; Mr. Timothy S. Hogan, attorney general, and Mr. J. M. McGillivray, for plaintiff in error.

      Mr. Charles S. Turnbaugh, for defendants in error.
   Wanamaker, J.

There is but one question in this case: Was a county commissioner in the year 1910 entitled by law to compensation as member of the quadrennial county board of equalization, under Section 2813a, Revised Statutes, now Section 5597, General Code, in addition to his salary, as provided in Section 897, Revised Statutes, now Section 3001, General Code ?

For many years the people of Ohio had been endeavoring to abolish the fee system as pertaining to county officers. County officials, whose chief work in many cases was done by efficient deputies, were being paid by the people of the county enormous sums after the manner of fees and other emoluments; amounts in excess of the salary of the governor and, in some counties, even in excess of the salary of the president of the United States. In general assembly after general assembly the people had been defeated in this endeavor by a thoroughly organized lobby, with all the funds and allies it could command, and finally outraged public opinion had its way and abolished the infamous county fee system of the state in the year 1906 (98 O. L., 89).

Section 1 of said salary act, now Section 2977,' General Code, is as follows:

“All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of The treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as such as hereinafter provided.”

This section, as well as the sections following, clearly indicates the settled purpose and fixed policy of the state to pay county officials a fixed lump sum, no matter what additional duties may be imposed on them from time to time, unless there be a clear purpose to add further compensation for such further duties.

Sections 5 and 6 of said salary act require the county officers therein named to file a full report and to pay into the county treasury the money and fees .that they have received as such county officers, and under Section 22 their wilful failure to do the same is made a penal offense for which they are indictable.

The section applying to salaries of county commissioners is Section 3001, General Code, formerly Section .897, Revised Statutes, which reads:

“The annual compensation of each county commissioner shall be determined as follows:
“In each county in which on the twentieth day of December, 1911, the aggregate of the tax duplicate for real estate and personal property is five million dollars or less, such compensation shall be nine hundred dollars, and in addition thereto, in each county in which such aggregate is more than five million dollars, three dollars on each full one hundred thousand dollars of the amount of such duplicate in excess of five million dollars. That the compensation of each county commissioner for the year 1912, and each year thereafter, shall not in the aggregate exceed 115% of the compensation paid to each county commissioner for the year 1911. In counties where ditch work is carried on by the commissioners, in addition to the salary herein provided, each commissioner shall receive three dollars for each day of time he is actually employed in ditch work; the total amount so received for such ditch work, not to exceed three hundred dollars in any one year. Such compensation shall be in full payment of all services rendered as such commissioner and shall not in any case exceed four thousand dollars per annum. Such compensation shall be in equal monthly installments from the county treasury upon the warrant of the county auditor.”

It will be noted from this last section that after fixing the salary for such county commissioner there is a second provision that it shall stay fixed until the general assembly shall amend the same, else what do the following words mean: “Such compensation shall be in full payment of all services rendered as such commissioner,” etc. ?

The general assembly has in certain cases provided for additional salary beyond the amount allowed by the general salary act, but the language of the section providing for such allowance is so clear and unmistakable as to the intention of the general assembly that there can be no doubt about it. To illustrate: Section 2846, General Code, provides: “Upon the certificate of the clerk and the allowance of the county commissioners the sheriff shall receive from the county treasury in addition to his salary his legal fees for services in criminal case wherein the state fails to convict,” etc.

Again, Section 3004, General Code, provides: “There shall be allowed annually to the prosecuting attorney in addition to his salary and to the allowance provided by Section 2914, an amount equal to one-half the official salary,” etc.

But even in this very section, 3001, General Code, which provides for the salary of the county commissioners, there appears this language:

“In addition to the salary herein provided, each commissioner shall receive three dollars for each day of time he is actually employed in ditch work.”

There is no doubt as to the purpose of this language in the statute. It is obviously clear that the legislature, by the use of the words “in addition to the salary herein provided,” meant thereby to increase the salary for ditch work to the maximum of $300.

When the board of equalization statute was enacted, if there had been a purpose to add to the salary, it is self-evident that some similar appropriate words indicating such clear purpose would have been employed in the statute.

Now, it is quite obvious that old Section 2813a. Revised Statutes, now Section 5597, General Code, providing for the three-dollar-a-day allowance, does not contain any such apt words as relate to the salary of sheriff, or salary of prosecuting attorney, or salary of commissioners in ditch matters, as referred to in the foregoing statutes.

Now, counsel for plaintiff in error, as well as the very able opinion of the court of appeals, admit that up to the time of the codification in 1910 the old Section 2813a, Revised Statutes, which purported to allow $3 per day to the county commissioners acting on the board of equalization, was repealed by implication. But it is contended that owing to the fact, and it seems a fact, that the codifying commission included Section 897, Revised Statutes, now Section 3001, General Code, and Section 2813a, Revised Statutes, now Section 5597, General Code, in their report, which was adopted by the general assembly of Ohio, and the further fact that in Volume 102, Laws of 1911, after repealing both of these sections they were again reenacted on the same day and by separate acts, these facts taken together indicate an intention to preserve to the commissioners the benefits of $3 per day as members of the board of equalization.

Manifestly the commissioners of the county are members of the board of equalization-merely because they are commissioners. Their duties on the board of equalization are simply additional to their former duties as commissioners, and the language of the act, as it appears in said Volume 102, page 279, is identical with the language of the old law prior to the codification in 1910, except the name of the county board of equalization.

Counsel contend, by a system of technical reasoning, by invoking the law of presumption and the various rules applicable in the interpretation of statutes, all of which are necessarily more or less abstract and academic, that force and effect must be given to both statutes, and, therefore, that the salary as member of the board of equalization must be considered as additional to the salary provided in the general statute.

Now, there is but one justification for the application of a mere technical rule of law, and that is to preserve and protect the natural justice and the manifest equities of the case. Such rule ought never to be invoked or applied to defeat and destroy such justice and equity, and especially to overthrow the manifest and settled policy of the people of Ohio as to the salaries for county public officers. If it had been the intention of the general assembly to make this compensation additional to what had been theretofore provided, it is reasonable to presume that there would have been like language used as was used in reference to the compensation of the sheriff, compensation to the prosecuting attorney and compensation to the commissioners in ditch matters in the sections heretofore cited, where the language is “in addition to his salary,” making it perfectly plain and clear.

The judgment of the court of appeals is, therefore, reversed and the judgment of the court of common pleas affirmed.

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

Nichols, C. J., Johnson, Jones and Matthias, JJ., concur.

Donahue, J.,

dissenting. It is not now important to discuss the question whether Section 2 of the act of the general assembly, passed April 21, 1904 (97 O. L., 254), fixing the annual compensation of county commissioners, repealed by implication Section 2813a, Revised Statutes.

Beyond all question the laws fixing a sum certain as salaries and compensation for county officers were enacted in response to a popular demand that the iniquitous fee system be abolished in Ohio, and it was evidently the intent and purpose of the general assembly of Ohio to abolish all forms of fees for county officers, in so far as it was possible, without inequality in the compensation paid to the same officers in the several counties of the state, but the legislature did recognize the fact that county officers should be paid fees in some cases at least, and specifically provided in this act itself that $3 per day should be paid for the time each commissioner was actually employed in ditch work.

This was absolutely necessary in order that there might be equality in the compensation paid for the services of these officers in the various counties. In some counties there might be no ditch work, in others very little, while in still others a very great amount. A fixed salary large enough to include reasonable fees for these services in some counties would be too large in others.

This section specifically declared that the compensation provided therein should be in full payment of all services rendered as such commissioners.

At the time this act became a law Section 2813a, Revised Statutes, provided that the county commissioners, for services performed by them as members of the board of equalisation, would be entitled to receive $3 per day.

The act of April 21, 1904, did not in express terms repeal this section, and unless it did repeal it by implication then both of these statutes were the law of Ohio up until the 14th day of February, 1910.

On that date the general assembly passed the General Code, which is a compilation and a revision of all the laws in force at that time, and in this General Code, Section 2813a, was rewritten and numbered Section 5597, General Code, and it was after the passage of this General Code that the services were performed by the defendant in error in this case.

It is therefore not important whether Section 2813a, Revised Statutes, was unrepealed or repealed in express terms or by implication. The adoption of the General Code reenacted it into a law. Section 1 of Article II of the Constitution of 1851, then in force in this state, vested all legislative power in the general assembly. The judicial power of the state is vested in the courts of this state, and the courts discharge their full duty when they interpret, construe and administer the laws as given by the lawmaking power of the státe.

It is insisted, however, that because of the fact that this section was reenacted in the General Code, the same was inadvertently done by the legislature, and that it was not its purpose and intention so to do. In answer to that contention it is sufficient to say that the general assembly of the state is presumed to have intelligence enough to discharge its duties to the state, and to know what it intends to do better than any coordinate branch of the government can possibly know. The very fact that it did this is sufficient for the purpose of this case.

If the legislature did pass this law inadvertently, it was the duty of the legislature, not the courts, to repeal it. During the time between its passage and repeal it must be given the same force and effect as any other statute of the state. There are perhaps a great many statutes that the courts and the people of the state may think are ill advised, unwise or unnecessary, but if the courts were to select out these statutes and declare that they could not be given any force or effect, because in the opinion of the court the legislature must have passed them inadvertently or through mistake as to their wisdom and necessity or because they seem to be in conflict with a policy evidenced by former statutes enacted by the same authority, it would be a clear and inexcusable usurpation of power and a direct interference with the constitutional authority of a coordinate branch of this government. That the legislature did intend to reenact this statute in the General Code, and that it is still satisfied therewith and believes it to be a wise and necessary measure, is so clearly evidenced by the act of the general assembly passed May 31, 1911, and approved by the governor of the state on the 7th day of June, 1911 (102 O. L., 277-279), that it is now beyond reasonable dispute, for in this later act it expressly repealed that section and reenacted it into another revision and codification of the laws of the state relating to the same subject-matter, and in this connection declared each section of this later act, including Section 5597, General Code, to be independent sections, and that the invalidity of one should in nowise affect the validity of the other.

As evidence of the fact that the general assembly did not believe that Section 2 of the act of April 21, 1904, relating to ■ the compensation and fees of county commissioners, was in conflict with the provisions of Section 2813a, Revised Statutes, and as evidence that it had intentionally and purposely and intelligently reenacted the latter section into the General Code under the sectional numbering 5597, on the same day it repealed and reenacted Section 5597 into the general revision of the laws relating to that subject, as above stated, it enacted into a law House Bill No. 183 (102 O. L., 514), entitled: “An act to amend Section 3001 of the General Code, relating to the compensation of county commissioners.” Section 3001 of the General Code was identical with the act passed April 21, 1904, fixing the annual compensation of the county commissioners. This act, passed May 31, 1911, amending Section 3001, after providing for the compensation of commissioners and $3 per day in addition thereto for the time actually employed in ditch matters, also provides that such compensation should be in full of all services rendered as such commissioners. Having provided, in a separate act passed the same day, that commissioners, while acting as members of the quadrennial county board of equalization, should receive the sum of $3 per. day for each day necessarily employed in the performance of these duties and the duties as members of the board of revision, certainly and surely it intended to distinguish between their duties as commissioners, for which a sum certain is to be paid in each county, and their duties as members of the quadrennial county board of equalization and the board of revision, for which it provided a separate and distinct compensation, otherwise the general assembly committed an inexcusable folly. This authority for the payment of $3 per day for each day employed in discharging the duties of the board of equalization and the board of revision, is just as plain and explicit as the provision for the payment of $3 per day to each commissioner for the time he is actually employed in ditch work.

The attorney general in his brief in this case concedes that since the two separate acts of May 31, 1911, became the law of this state, the commissioner is entitled to this compensation, and the only reason urged against his right to this compensation in 1910 is based upon the decision in The State, ex rel., v. Comrs. of Shelby County, 36 Ohio St., 326, wherein it is held that “Where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction, to conform to the manifest intent of the legislature.”

This is undoubtedly an established rule of construction in this state, but that does not mean that where a statute has been repealed, either in express terms or by implication, and when it is rewritten into and becomes a part of the revision of the laws relating to the same subject-matter, and has in this manner again found its way into the statutory law of the state, a court will hold that it is still repealed, because it would have so held had the question been raised between the date of its repeal and the date of its reenactment into law.

This proposition seems to be too plain to require further argument. The constitution of Ohio has committed to the general assembly of Ohio the authority to enact the laws of this state, and at the time these laws were enacted that body was the sole lawmaking power of the state. No one questions the constitutionality of either of these acts; therefore a court should not assume any authority not conferred upon it by the constitution of the state, nor attempt to measure its wisdom with the wisdom of the constitutional authority charged with the duty of enacting the laws and declaring the legislative policy of this state.

By reason of this valid and existing statute, in force at the time these services were performed, this commissioner is just as much entitled to these fees as the governor of this state or the respective members of this court are entitled to their salaries which are fixed and determined by the same authority.

There is no public policy in this state that prevents it from dealing fairly and honestly with its public officials, or prevents it from paying to any official, state or county, the salary and compensation that by statute it agreed to pay when the people elected him to that office.

Undoubtedly the taxpayers of this state demand economy in the administration of public affairs, but undoubtedly they are equally a unit in the demand that the state or county, or other public subdivision, shall deal as fairly and honestly with their public servants as each individual taxpayer would deal with a private employe of his own, and for that reason I cannot concur in the judgment entered in this case.

Newman, J., concurs in dissenting opinion.


author: Donai-iue, J.

text:
    Lewistown Foundry & Machine Co. v. The Hartford Stone Co.

      Charge to jury — Confined to evidence on issue pleaded, when— Breach of warranty — Defective machinery — Delay in operation of factory — Burden of proof — Duty of purchaser upon discovering defects — Retention of defective machinery — Measure of damages — Section 8449, General Code.

    1. Where no evidence is offered upon an issue joined by the pleadings in the case, the trial court is not required to charge the jury upon such issue, but, on the contrary, should direct the jury not to consider it. (P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480, approved and followed.)
    2. Where, in an action for damages for breach of warranty, it is claimed by the purchaser that the defective machinery, covered by the warranty, delayed the operation of the factory of which it is a part, and it appears from, the evidence offered by the purchaser that other causes contributed to the delay, the burden is upon the purchaser to show, by a preponderance of the evidence, what part of the delay was caused by the defect in the machinery warranted and what damages, if any, were sustained by reason of the delay so caused.
    3. Where an article covered by a contract of warranty is purchased for the purpose of being used as a separate unit in a factory, and the operation of the whole factory depends upon’this unit properly performing its part, both in quantity and kind, with the other parts, the purchaser cannot retain this article in place in his factory for an unlimited time after discovering that it is defective and recover as damages the daily loss in the operation of the entire factory, but must within a reasonable time substitute a machine, in place of the defective one, that will do its part of the entire work without delaying the operation of the other parts.
    4. If the purchaser elect to retain such defective machinery as a part of his factory, notwithstanding its failure to produce the quantity of the product manufactured by the factory that it is warranted to do, his recovery is limited by the provisions of division (a), paragraph (1) of Section 8449, General Code, to a recoupment in diminution or extinction, of the price paid therefor.
    (No. 14504
    Decided May 4, 1915.)
    Error to the Court of Appeals of Mahoning county.
    On the 14th day of June, 1912, the Lewistown Foundry & Machine Company filed a petition in the common pleas court of Mahoning county against The Hartford Stone Company to recover $785.09, with interest from the 24th day of April, 1911, on an account for merchandise sold and delivered to it, as shown by itemized account attached to the petition.
    To this petition of plaintiff the defendant filed an answer and cross-petition, denying that it was indebted in any sum or amount whatever on the account attached to the petition, and averring in the cross-petition that it is engaged in the manufacture and production of sand and like products; that in its business it was necessary to use a machine known as a chaser mill, in connection with certain appliances and devices known as washers; that on the 14th day of January, 1910, the defendant entered into a contract in writing with the plaintiff, whereby it agreed to purchase from plaintiff, and plaintiff agreed to sell to it, a nine-foot chaser mill, with certain attachments therein described, for $1,750 and furnish a man to place the mill in successful operation for $4.50 per day and expenses; that the plaintiff agreed to guarantee this material to be of good workmanship, and that it would turn out 200 tons of sand per day.
    A copy of this contract is- attached to the cross-petition, marked “Exhibit A.”

    The defendant further avers that the machinery was forwarded by the plaintiff and installed, and that after the same had been in operation it was found to be wholly inadequate and not in compliance with the terms of the agreement and warranty, in that it would not produce 200 tons of sand per day.
    Defendant avers that before it learned of the inefficiency of the machine it paid the contract price therefor, and that it has in all respects performed all the conditions and obligations upon its part to be performed under the terms of said contract; that by reason of the breach of warranty the defendant has been put to great expense, loss and inconvenience in the operation of its business; that it has been unable to produce sand in sufficient quantity to meet the requirements of its business, and that the cost of production of the sand it has been able to produce has been greatly increased by reason of this breach of warranty, to the damage of the defendant in the sum of $1,500.
    To this answer and cross-petition the plaintiff filed a reply and answer, admitting the contract and averring performance on its part; and further averring, that after the machinery and appliances were erected and completed the same were tested and defendant, being fully satisfied, accepted the same.
    The plaintiff further avers that the merchandise specified in “Exhibit A,” attached to plaintiff’s petition, was furnished under a separate order, which was given after the appliances and machinery referred to in the contract had been fully erected and accepted.
    The plaintiff further avers that the defendant determined upon the location of the washers used in connection with said machinery and chaser mill, against the advice of this plaintiff, and avers that the plant erected by it under said contract will produce sand in the amount guaranteed, if properly operated, and that if it will not produce sand in that amount it is solely on account of the location of the washers or the improper operation of the plant, for which plaintiff is in nowise responsible.
    The defendant replied to this answer to its cross-petition, denying all averments made therein except such as are admissions of the allegations in defendant’s cross-petition.
    The issue so joined was submitted to a jury, resulting in a verdict for the plaintiff for the full amount of its claim, with interest, and for defendant on its cross-petition in the sum of $300. Judgment was entered for the plaintiff for $547.81, the balance of the verdict in its favor.
    This judgment was reversed by the court of appeals for “error in giving in charge to the jury written instruction No. 6,” which reads as follows:
    “If you find that the defendant is entitled to damage, the measure of damage is the difference between the value of the machinery purchased under the contract attached to the answer and cross-petition of defendant as warranted, and the machinery as found.”
    This proceeding in error is brought to reverse the judgment of the court of appeals, and to affirm the judgment of the common pleas court.

      Messrs. McKain & Ohl and Mr. J. B. Morgan, for plaintiff in error.

      Messrs. Hine, Kennedy ■& Manchester, for defendant in error.
   Donai-iue, J.

It is contended, on the part of • the defendant in error, that the measure of damages in a case of this character is furnished by paragraph 6 of Section 8449, General Code, which reads as follows:

“The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.”

The averments of the cross-petition of the defendant fairly brings this case within the terms of this paragraph of Section 8449, General Code, but there is no evidence in this record from which the jury could find that the defendant sustained any other or further damages than the difference between the value of the machinery at the time of the delivery to the defendant and its value if it had answered to the warranty.

The evidence offered on the part of the defendant shows that this mill was installed in July, 1910; that the plant was not put in operation until the early part of December of that year; that the quarry was not then in condition to .produce anything like the quantity of stone that could be handled through this mill, and that at times the defendant was compelled to stop the operation of the mill, until it could get enough rock to make 25, 35 or 40 tons. In that connection, Mr. Clark, the general superintendent of the plant of the defendant company, testified:

“No. Our quarry was small and we would quarry a day and let the plant lay until we could get up enough to make 25, 30 or 35 or 40 tons, you know. Then we would grind that up the next day. We didn’t have the quarry big enough to mine that as fast as we would use it.”

In April of the following year a steam shovel was added to the quarry equipment, and at that time five additional washers were added. According to the testimony of Mr. Clark, the mill then had a capacity of 140 tons per day, but this witness further testified that they were averaging only 40 to 90 tons a day. When asked why they varied so much in tonnage produced, the witness answered :

“Probably the fault of the quarry.
“Q. How do you mean ? A. Not getting stone in for the mill.
“Q. Well then you say that is one of the reasons why the tonnage went low? A. Yes, sir.
“Q. That wouldn’t be on account of the machine then would it? A. No.
“Q. That would be because there wouldn’t be enough product? A. Yes, sir.
“Q. Are there any other reasons? A. None other.”

The record, however, does contain other testimony by this witness and other witnesses, that the mill, by reason of its inefficiency, did occasion delay in the operation of the plant, but even if that fact were conceded there was no evidence offered by which the jury might determine what part of the delay was occasioned by the inability to procure rock from the quarry and what part of the delay was occasioned by the mill, nor is there any evidence contained in the record that would furnish the jury any basis whatever to calculate the damages suffered by the defendant on account of such delay, or by reason of the increased cost of producing sand because of the defects in the mill. On the contrary, the evidence offered by the defendant shows that the plant was never operated to the full capacity of the mill, but that the daily output of sand varied from 40 to 90 tons. How a mill that has a daily capacity of 140 tons delayed the operations of a plant producing from 40 to 90 tons a day, is not made apparent by the evidence, but it does appear that other causes at least contributed to, if they did not cause all, the delay, and this appearing from the evidence offered by the defendant, placed upon the defendant the burden of showing by some evidence what part of the total delay, if any, was occasioned by defects in the mill; and if it were the further claim of the defendant that, by reason of the defects in the mill, the cost of production of each ton of sand was increased, the defendant must furnish some evidence as to the amount of this increased cost of production, before the jury would be authorized to consider that as an element of damages.

The defendant in its answer avers that the mill was defective, but it appears from the evidence that this claim is based upon the defects in that part of the mill known as the washers.

On the 23d day of June of that year the defendant wrote the plaintiff as follows:

“We do not question the capacity of your chaser mill; the controversy is entirely with reference to your washers.”

About the time the steam shovel was placed in the quarry, some question did arise between the parties to this contract as to the capacity of this - mill. At that time plaintiff furnished a new set of washers, the cost of which is included in the account sued upon. It is the claim of the defendant that these washers were furnished under and as a part of the contract, and for the purpose of increasing the capacity of the mill, so that it would answer to the warranty. This is denied by the plaintiff. This issue of fact was submitted to the jury, and the jury found for the plaintiff. It follows that these additional washers cannot now be considered by the court as furnished under the contract or covered by the contract of warranty in the original contract of sale.

The claim of the plaintiff is for damages for breach of warranty contained in the original contract of sale. By the finding of the jury, only part of these washers were included in that contract, and this record is absolutely barren of evidence to show which set of washers is complained of, or, if both are defective, what proportion of damages sustained by defendant, if any, was occasioned by the defect in washers covered by the contract or warranty, and what proportion, if any, was occasioned by the washers not included in the original contract and not covered by the warranty.

There is, therefore, a hopeless confusion in the evidence offered by the defendant, not only as to •the delays occasioned by the defect in the mill and the delays occasioned by the capacity of the quarry, but also in relation to the delays occasioned by the defects in the machinery furnished under the original contract and covered by the warranty, and the defects in the machinery furnished by the plaintiff to the defendant later, under a separate contract, and not covered by the warranty. Still more important is the fact that there is an entire absence of any evidence to establish the amount of damages, or any basis for the calculation of the amount of damages that the defendant suffered by reason of the breach of warranty, other than the evidence offered as to the value of the mill at the time it was delivered to the buyer and the value it would then have had, had it answered to the warranty.

A verdict including other and further damages would necessarily have been based, as to amount, upon conjecture merely, and would not have been sustained by any evidence.

It is not the duty of a trial court to give in charge to the jury any abstract principles of law not applicable to the proofs in the case. On the-contrary, it would have been error for the court to do so. (The P., C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480; Coal Company v. Estievenard, 53 Ohio St., 43.)

Aside from these considerations, however, it is not the privilege of the purchaser to retain defective machinery for an unlimited time, after the discovery of the defect, and recover, as damages for breach of warranty, the daily loss in the operation of the entire plant occasioned by the defect or insufficiency of this unit in the factory. If that were the law then an article of trifling value might delay the operation of large and- expensive machinery and increase the cost per unit of the articles manufactured in that factory for days, months and years, until the total damages arising therefrom would aggregate the value of the whole plant.

It was the duty of the purchaser, under the circumstances and conditions appearing from the evidence in this case, to act with reasonable promptness upon the discovery of the defect in the machinery, to avoid, as much as possible, damage which the plaintiff would be responsible for on account of breach of warranty. Upon the discovery of the defect in this unit of the plant, and it appearing that this defect would cause daily losses in the operation of the entire plant, the defective mill should have v been removed from the plant, within a reasonable time, and another substituted in its place that would do its respective part in the operation of the whole factory. The purchaser would then be entitled to recover from the seller, as damages for breach of warranty, not only the increased cost of the mill and the additional cost of installing the same, but also any other loss directly and naturally resulting in the ordinary course of events, up to the time and until a proper mill was installed and put in operation, if that were done within a reasonable time; but on the contrary, if, notwithstanding the mill is defective, in that it will not produce the quantity of sand it was warranted to produce, the purchaser elects to retain the mill in place and use the same as a part of his factory, he will be limited in an action against the seller, in a breach of warranty, to a recoupment in diminution or extinction of the price paid therefor, under the provisions of division (a), paragraph (1) of Section 8449, General Code. The question, of course, as to whether the purchaser had elected to keep such defective mill, and the further question as to what would be a reasonable time that should be allowed to the purchaser to make such substitution, would ,both be questions for the jury, to be determined by it under the peculiar circumstances of each particular case-.

The judgment of the court of appeals is reversed, and the judgment of common pleas court affirmed. Cause remanded to the common pleas court for execution.

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

Nichols, C. J., Wanamaker, Newman, Jones and Matthias, JJ., concur.