author: Bradbury, J.

text:
    Newman et al. v. King.

      Promissory note — Date a material part — Alteration by payee renders instrument void.

    The date borne by a promissory note is a material part thereof; and if the payee, without the knowledge or consent of the maker, alter its date after the note has been delivered to him, such act renders the instrument void even in the hands of an 'nnocent indorsee for value.
    (Decided March 17, 1896.)
    ERROR to the Circuit Court of Morgan county.-
    This action was brought in the court of common pleas of Morgan county by the defendant in error, Charles J. King, as the indorsee of a promissory note, against the makers thereof, Ida Newman, Martha Martin and George Martin. The verdict and judgment of the court of common pleas was for the makers of the note. The cause was taken on error to the circuit court, where the judgment of the court of common pleas was reversed. One of the grounds of reversal was that the latter court erred in its instructions to the jury, as well as by its refusal to instruct the jury as requested by the plaintiff below. Thereupon the plaintiffs in error brought the cause to this court to obtain a reversal of the judgment of the circuit court and an affirmance of that of the court of common pleas.

      E. M. Stanbery and TannehMl & lyne, for plaintiffs in error.
    The note and the concurrent written contract constitute one and the same contract though on different papers. Jacobs v. Mitchell et al., 46 Ohio St., 601.
    A change of the date destroys the identity, and confuses the traces of his obligations, and every reason of policy and principle forbid that the laws should tolerate tampering with the rights and engagements of others. Daniel, Negotiable Instruments, section 1376; English v. Breneman, 41 Am. Dec., 96; Charlton v. Reed, 47 Am. Rep., 808; Lighter v. Bates, 22 Am. Dec., 92; Harsh v. Keppler, 28 Ohio St., 200.
    The question of a true or false date, or of an alteration to correct a mistake in the date of the note is not made an issue, by the pleadings, in this case. If it was desired to show that the note, at the time of its execution didn’t bear the date intended by the parties, the defendant in error should have set out in his replies that the note, by mistake, was not drawn in accordance with the intention of the parties, and that the correction was made in conformity to such intention. Evans v. Foreman, 60 Mo., 450.
    An alteration of the date of a note by the payee thereof without the knowledge or consent of the makers thereof so as to make the date of the note correspond to the date originally agreed upon by the parties thereto, is a material alteration and avoids the note .even in the hands of an innocent holder. Brown v. Straw, 29 Am. Rep., 369; Thompson on Trials, section 1395.
    And the rule holds even though the alteration be made with honest intent, in order to conform the note to the agreement of' the parties. The alteration vitiates the note regardless of the intention. Bowers v. Jewell, 2 N. H., 543; Markham v. Gonastan, Cro. El., 627; Brandt on Guarantyship and Surety, section 331; Wood v. Steel, 6 Wall., 80; Am. and Eng. Ency. of Law, 510; Haskell v. Champion, 30 Mo., 136.

      MoElhiney db Hanford, for defendant in error.
    1. Was any alteration made after the note was executed? and,
    2. Was such alteration material or immaterial?
    Many questions enter the consideration of every claimed alteration. One important one being the intent, was not it done in good faith and to corrects mistake? And if so done- and it does in fact correct a mutual mistake made by the parties to the instruments, we contend that it is immaterial. King sought to make the proof in this case through Frampton that the note was written, signed and delivered on Monday, June 23, 1890.
    Frampton said in answer to question 15, that the note originally bore date of June 22. Then to show a reason for a change of date, the question was put, Was June 22, 1890, a true or false date for that note? The answer to this question accounts for the change made, and makes the change consistent with honesty of purpose, and negatives the idea of fraudulent designs, and as throwing light on this transaction should have been permitted to go to the jury.
    Assuming that this change was made after the note was signed, and assuming it was made by Frampton, yet the defendant in error says the alteration would be an immaterial alteration; that the change, whenever made, was made to correct an error; that, in fact, it did correct an error; that it was done in good faith, neither fraud nor prejudice having been charged in the pleadings or soug’ht to be proved on the trial of the cause. Daniel on Negotiable Instruments, 2 vol. sections 1403 and 1404. Dennison v. Jessup, 1 Disney, 580; Jessup v. Dennison, 2 Disney, 150; Duker v. Franz, 3 Am. Rep., 314; Ames v. Colburn, 11. Gray, 390; Derby v. Thrall, 8 Am. Rep., 389; Fuller v. Green, 54 Am. Dec., 600; Harst v. Wagner, 22 Am. Dec., 255 ; parsons on Contracts, 2 vol. section VII., at pages 717, 718, 719 and 720; Huntington & McIntire v. Finch Co., 3 O. S., 445; Wait’s Actions and Defenses, vol. 6, page 474, section 11, page 487, section 5, and page 493, section 16; Greenleaf on Evidence,. vol. 1, section 565; Fullerton v. Sturgis, 4 O. S., 586. The presumption is the alteration is made with good motives. 48 Ohio St., 296; Parsons on Bills and Notes, vol. 2, page 569.
   Bradbury, J.

The promissory note, the subject of this action, was executed, by Ida Newman, Martha Martin and George Martin, and delivered to the payee, J. C. Frampton. By successive indorsements, made in due course of business and before due, the note was transferred to defendant in error, Charles J. King, for value.

The makers of the note answered, contesting, among other defenses, its validity on the ground that the payee, after its delivery to him, and without their consent and knowledge, altered its date from June 22, 1890, to June 23, 1890. This was denied by the holder of the note, defendant in error, in his reply. Upon the issue thus arising, and after the testimony bearing thereon had been given to the jury, the holder of the note, defendant in error, requested the court to charge the jury as follows:

“If the jury find from the evidence that J. C. Frampton ■ did alter the date of this note from June 22, 1890, to June 23, 1890, and further find that such alteration was only for the purpose of making the note bear its true date, and that such alteration did in fact make such note bear its true date, then such alteration is an immaterial alteration, and is not a good defense in this action,” but the court refused to so charge as requested, to which' refusal the plaintiff' at the time excepted.

Thereupon the court charged the jury upon this point as follows: “Now I say to you as matter of law in this case, gentlemen, that if you shall find from the evidence in this case that since the defendants signed the note sued upon in this action, the same has been altered by the payee thereof J. C. Frampton, without the knowledge or consent of either of these’defendants, by changing the date thereof from June 22, to June 23, that such alteration and change would, in law, amount to and would be a material alteration, and such alteration would render the note void as to these defendants, and would operate to discharge them from all liability thereon, although you may believe from the evidence that the plaintiff took the note in the regular course of business before due, for a valuable consideration and without notice of such alteration. ” To which charge as given the plaintiff at the time excepted.

The verdict and judgment were against the validity of the note. This judgment the circuit court reversed on the ground, among others, that the court of common pleas erred in refusing to charge the proposition requested, and in charging as it did upon the subject. This is the only question arising on the record of sufficient importance to require attention. That the date borne by a promissory note is a material matter is not seriously contested. That it is material, we think, clear upon both reason and authority, the time of payment and the bar of the statute of limitations both depend upon its date. If the date of a promissory note may be changed one day, why not two days? If two days are not material, what number shall be held material? No satisfactory answer can be made. By changing its date the identity of the instrument is destroyed, and it is no longer the contract made by the parties. Bowers v. Jewell, 2 N. H., 543; Wood v. Steele, 6 Wall., 80; Inglish v. Breneman, 5 Ark., 377; Miller v. Gilleland, 19 Pa. St., 119; Brown v. Straw, 6 Neb., 536.

The authorities bearing upon this proposition are quite numerous, but to cite them further would be a work of supererogation.

If by reason of the alteration it has ceased to be the contract of the parties, the defense thus aris ing is available against an innocent purchaser Charlton v. Reed, 61 Iowa, 166; Cronkhite v. Nebeker, 81 Ind., 319; Haskell v. Champion, 30 Mo., 136; Wood v. Steele, 6 Wall., 80. Other authorities could be cited, but we do not think it at all necessary to support by an extended list of precedents, a proposition so obviously consistent with sound reason.

The defendant in error contends that, although the date which a promissory note bears may be a material matter, yet that as the note in controversy, according to the intention of all the parties to it, should have been dated June 23d, instead of June 22d, 1890, an alteration made by the payee honestly and in good faith after its delivery to him, that merely caused the instrument to express the date intended, even if done without the knowledge or consent of the makers, would not render the note void. This contention finds support from reputable authorities. In Decker v. Franz, 7 Bush. (Ky.), 273, a promissory note had been dated in 1868, and the payee altered the date to 1869 by changing the figure “8” to “9” without the knowledge or consent of the maker. The court maintained the validity of the note on the ground that in its altered condition it conformed to the intention of the parties. The same doctrine is maintained in Mississippi. McRaven v. Crisler, adm’x, 53 Miss., 542; in Maine, Hervey v. Harvey, 15 Me., 357. In the latter case, however, great weight was given to the fact that the maker knew of the mistake, while the other parties did not, and the court' seemed to be of opinion that his attempt to avail himself of the alteration as a defense constituted a fraud upon the plaintiff. Ib., 359; Clute v. Small, 17 Wend., 238; Bowers v. Jewell, 2 N. H., 543.

Other cases, cited as sustaining this doctrine-do not support it to the extent claimed for them.

Thus, in Johnson v. Johnson's estate, 66 Mich., 525, which was an action to charge the estate of the principal maker of a promissory note for the debt evidenced thereby, a note had been given on October 23, 1876, for the balance due on account stated between the parties, but by mistake was dated October 23, 1875. The trial court found that the payee honestly,, and with no fraudulent intent, changed the “5" to a “6.” This was done without the knowledge or consent of the makers. After-wards the principal made two payments on the note, upon which circumstances some stress was placed by the court, although it does not appear that he knew of the alteration, when the payments were made. The wife of Johnson had signed the note as surety. The court seemed to be of opinion that the alteration changed the contract and discharged the wife, for the court said “the fact that Mrs. Johnson was not bound by the note would not discharge her husband for whom she signed as surety. ” The claim was allowed against the estate of the principal. The reasoning of the court is not very clearly set forth, but sufficient appears to show that the decision was quite as m.uch due to the theory that the original considertion, the account stated, would support the claim as to any other principle, the. court saying: “And furthermore the account stated, which was the foundation of the note would form a new basis of indebtedness.”

In some cases the alteration was sustained on the ground that it was made by an agent of the maker, or drawer, before delivery. Brett v. Pecard, Ryan & Moody, N. P., 37; Van Brunt & Slaight v. Eoff, 35 Barb., (N. Y.), 501. In other 'cases the note or bill of exchange was held valid, notwithstanding the insertion of a word without the knowledge of the maker or drawer, upon the ground that the word inserted was implied by the contents of the instrument.

The question raised by the instructions given and refused, relate solely to the effect to be given to a promissory note, after its date has been altered by the payee without the knowledg*e or consent of the maker.

The question is one of public policy. Doubtless, all minds will concur in the proposition that after a written instrument has been altered in a material matter, it no longer retains its identity; it is in fact a new contract, and imposes obligations and secures rights different from those it imposed or secured at its origin. Nor will any reasonable mind contend that one of the parties to a written instrument may alter it without the consent of the others so that it will express anything not intended by the parties. The contention is, however, that it may be altered by one party, alone without the knowledge or consent of the others, if in its altered condition, it conforms to the intention of the parties, and the alteration was honestly made; and that, that being true, it may be enforced in its altered condition. The reasoning is that, as, in its changed condition, it expresses the intention of the parties, no injury has been done by the alteration. That, no doubt is true, in every case of an alteration in so far as it concerns the parties affected by it. If, in its altered state, it requires the obligor to do the particular thing he agreed to do, mo personal wrong has been inflicted on him. In this view of the matter the number and extent of the alterations are immaterial, for, however great and numerous they may happen to be, the instrument in its changed condition requires the' obligor to do just what he promised, and therefore, in good conscience, ought to do. The question, however, does not rest solely upon this aspect of the matter. Regard should be had to the policy of maintaining the integrity of written instruments; particularly those whose character, or nature, is such that their possession and custody belong to one party only.

" * Promissory notes are of this class. This policy, we think, denies to the custodian of a written instrument,- to whose possession its nature necessarily confides it, the power to alter its terms in any-material matter whatever, in order that it may conform to his notion of what the parties intended when it was executed.

Deliberate tampering with written instruments by their obligees upon any pretense whatever should not be encouraged. If the right to do so in respect to any material matter should be established the principles by which satisfactory limits can be fixed to such right are not apparent. And if established, the nature of the right is such that probably it would be rarely exercised by the prudent and conscientious custodian of a written instrument in any ease; but instead it would be used chiefly if not altogether by those at whose hands its exercise would be fraught with peril to the integrity of written instruments, namely, those who, if not actually unscrupulous, are at least regardless of the rights of others.

Where, by mistake, a written instrument does not conform to the intention of the parties, and they cannot agree respecting the mistake and its correction, an adequate remedy has been provided according to the principles of "equity jurisprudence, by courts having jurisdiction to correct such mistakes where rules of evidence appropriate to establish the fact of mistake are prescribed and enforced.

In this state an alteration appearing on the face of a promissory note is presumed to have been made at or before the time of its execution, and the burden of proof is east upon one who seeks to establish the contrary; Franklin v. Baker, 48 Ohio St., 296, and this seems to be the rule that gen-' erally prevails throughout the United States. Bailey v. Taylor, 11 Conn., 531; Speake v. U. S., 9 Cranch, 37; Wickes v. Caulk, 5th Harr. & John., 36.

This presumption, that, an alteration appearing on the face, of a written instrument was made at or before its execution, is an additional and obvious reason for denying to the custodian of any instrument to which the presumption applies, any authority to' change its terms in a material respect.

Otherwise a party by his own act may change the burden of proof and thus deprive the other party of a valuable right. Before the alteration was in fact made, should he have sought a correction through the medium of a court of justice, the burden would have rested upon him to establish the mistake by clear and convincing evidence. Having made the alteration, when, perhaps years after-wards,- he seeks the enforcement of the instrument in its altered state, this ex parte act, by its inherent force, raises a presumption that the alteration had been made at or before its execution, and thus the burden of establishing the fact that the alteration was made afterwards, is thrown upon the party who alleges it.

Ve are not at this time concerned as to the effect that a material, though innocently made, alteration of a written instrument may have upon the rights of the beneficiary in it, to recover on account of the original consideration moving between the parties, nor with his right to restore the instrument to its original condition and to enforce it when thus restored. Because the only question raised by the record relates to the right to recover upon the instrument itself in its altered condition; for the instructions given and refused by the trial court, to which exceptions were taken, bore upon this last question only.

The action was brought by an indorsee who sought a recovery upon the instrument itself. The makers denied that the instrument was the one they had executed, because its date had been altered without their knowledge or consent. This was the is she. to which the instructions in controversy relate, and we think the court of common pleas laid down the correct rule upon the subject. The view we have adopted finds support among the text writers, and in the decisions of courts of high authority. Inglish v. Breneman, 5 Ark., 377; Charlton v. Reed, 61 Iowa, 166; Wood v. Steele, 6 Wall., 80; Haskell v. Champion, 30 Mo., 136-138; 1 Thompson on Trials, section 1395; Evans v. Foreman, 60 Mo., 449; Moore v. Lessee of Bickham & West, 4 Binn., 1; Miller v. Gilleland, 19 Pa. St., 119.

However, the judgment of reversal was not placed solely upon the ground of error in the charge given and refused, but rested, also, upon the action of the court of common pleas in excluding evidence offered by the defendant in error, plaintiff below, which evidence we think was material and competent.

Therefore, the judgment of reversal was correct and will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    City of Cincinnati v. Steinkamp, Trustee.

      Regulation of construction of buildings — Requirement of fire escapes — Constitutional law — Laws of general nature and uniform operation — Invalidity of sections 82 and 61 of act of February 28,1888 (86 Ohio Laws, 34).

    Scetions 32 and. 61, of the act of February 28, 1888, entitled “An act to regulate the construction of buildings within any city •of the first class and first grade,” etc., (85 O. L., -34), which require among other things, that all buildings (save private residences), of three or more stories in height, shall be provided with suitable fire escapes, and require the owner or occupant, upon thirty days’ notice by the fire inspector, to put up such escapes, and providing punishment by fine for non-compliance with such order, and empower a court of equity, on application of the inspector, by suit in the name of the city, to enforce the provisions of the act, and enjoin the use or occupation of any building used in violation of the act, are not invalid as depriving the owner of the use of property without the intervention of a jury, nor as depriving him of due process of law.
    But said sections are in conflict with sections 26, article 2, of the constitution, which prescribes that “all laws of a general nature shall have a uniform operation throughout the state, ” and are therefore invalid, inasmuch as the act is one of a general nature and has operation only in the city of Cincinnati.
    (Decided March 17, 1896.)
    ERROR to the Circuit Court of Hamilton county.
    Plaintiff’s action was commenced in the superior court of Cincinnati, for the purpose of compelling the erection, by defendant, of fire escapes upon certain buildings in that city, owned by defendant as trustee. Issue being joined, on trial the court found the equities with the plaintiff, and ordered and adjudged that defendant be perpetually enjoined from using the building without fire escapes-being placed thereon, and adjudged costs against defendant. On appeal, the circuit court found for the defendant, dismissed the petition, and adjudged the costs against the city.

      Frederick Hertenstein, corporation counsel, and W. II Whittaker, for plaintiff in error.
    The claim of counsel for the defendant that the law is of a general nature, and, therefore, must be uniform in its operation throughout the state, and that as the section itself makes it applicable to cities of the first grade of the first class, it is in violation of this provision, was disposed of by the court. City of Cincinnati v. Steinkamp, 9 C. C., 178. See cases cited under section 1546, page 5, Coppock’s Municipal Code.
    It is claimed that this law is unconstitutional, for the reason that it does not provide for the right of trial by jury, and that it deprives a person of his property without due process of law.
    We claim, on behalf of the city, that these laws are in the nature of police regulations, for the protection of the lives of persons occupying tenement or dwelling houses, are justified by necessity, and can not, therefore, be said to interfere unreasonably with the use and enjoyment of private property. Parker & Worthington on Public Health and Safety, section 341; Reynolds v. Schultz, 34 How., 147; New York laws, section, 506; Mass. Statute, 1885, chapter 374; Everett v. Edwards, 149 Mass., 589; Fire Department of City of New York v. Chapman, 10 Daly, 377; Grant v. Slater Mill and Power Co., 14 R. I,. 380; Rose v. King, 49 Ohio St., 213; Fire Department of the City of New York v. Sturtevant, 33 Hun., 407; Fire Department v. Tallman, Daily Register, May 31, 1883; Todd v. Fire Department, Id., June 19, 1883; People v. Mayor, 32 Barb., 102.
    Such proceedings are not obnoxious to the objection that the party affected is deprived of his property without due process of law. Nor is the right of trial by jury secured to him therein, or in any just sense applicable thereto. Board of Health v. Heister, 37 N. Y., 668; Health Department v. Knoll, 70 N. Y., 530; Reynolds v. Schultz, 34 How., 147.
    Two prerequisites are stated in a recent case, as necessary to justify the exercise of the police posver. It must appear that the interests of the public general, as distinguished from those of a particular class, require its exercise, and that the means must be reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. Lawton v. Steele, 152 U. S., 133; Turnpike Co. v. Parks, 50 Ohio St., 568.

      Von Seggern, Phares <£¡ Pewalcl, for defendant in error.
    The question for this court to decide (if it has jurisdiction in the matter at all) is whether a law or an. act which is declared to be for the purpose of “the better preservation of human life against fire’ ’ is or is nor an act of general nature.
    It seems to us clear that the subject of this legislation is as purely general in its nature as was that considered in the Falk case, 42 Ohio St., 639. An act that concerns every body in the state is an act of a general nature. The question of the better preservation of human life concerns every body in the state. Therefore it is that this act recites the better preservation of human life, as its sole purpose is an act of a general nature, and is inhibited by article 2, section 26, of the constitution of Ohio. We cite also to sustain the proposition, Commissioners v. Roche Bros., 50 Ohio St., 103.
    This act is clearly unconstitutional for other reasons. It undertakes to give a court of equity jurisdiction to take away a property right without the intervention of a jury, and is in this respect, in contravention of section 5, article 1, of the constitution, which provides that “The right of trial by jury shall be inviolate.”
    Also, of section 15, article 1, of the constitution, which provides that “Every person for an injury done him to his land and goods shall have remedy by due course of law.”

      And also of section 1, article 14, of the amendments of the constitution of the United States, which provides that “No person shall be deprived of his property without due course of law. ”

      Turnpike Co. v. Parks, 50 Ohio St., 568; Turnpike Co. v. Gay et al., 50 Ohio St., 582.
    If we are right as to our last proposition, then it seems to us that it must necessarily follow that this court has no jurisdiction to decide any further question arising in the case. Whatever jurisdicton it has it gets from section 8223-130, Smith & Benedict Statutes.
   Spear, J.

The action is based upon provisions contained in the act of February 28, 1888 (85 Ohio Laws, 34), entitled “An act to regulate the construction of buildings within any city of the first class and first grade, and to provide for the appointment of an inspector of buildings.” By section 33 of the act it is provided that all buildings except such as are used for private residences exclusively, in a city of the first grade of the first class, of three or more stories in height, shall be provided with one or more suitable fire escapes, extending from the first story to the upper stories of such building, and above the roof and on the outer walls thereof, in such location and numbers and of such material and construction as the inspector (provided for in the statute) may determine.

It is further provided that after such determination by the inspector he may notify the owner, lessee, or occupant of such building, requiring him to cause such fire escape to be constructed within thirty days after the service of the notice, and if the person so notified fails to comply therewith, he shall be subject to a fine of not less than ten dollars or more than one hundred dollars, and to the further fine of fifty dollars for each week that he fails to comply with the same.

By section 61 of the act, it is provided that “any court having equity jurisdiction in term time, or in vacation, may, on the application of the inspect- or, by any suitable process or decree in equity suit, brought in the name of said city, enforce the provisions of this act; and may, on such application, issue an injunction to restrain the use or occupation of any building or structure in- said city, erected, altered maintained, or used in violation of this act.”

No question of fact material to the case is in dispute. • The contention is as to the constitutionality of the sections of the act referred to.

1. It is urged that the sections cited undertake to confer upon a court of equity, without the intervention of a jury, the power to take away from the owner by an order of injunction, the right to the use and enjoyment of real estate, and thereby deprive the party of his constitutional right of trial by jury, • and of his remedy by due course of law.

The proposition cannot be maintained. It is not the purpose or effect of the act to take property, nor to deprive the owner of the lawful use of property, but simply to require him to use it in a lawful manner. The owner is not prevented from selling it, mortgaging it, devising it, or giving it away; nor does the act impose any lien on property. The .statute simply operates upon it as it does upon all other like property coming within its terms. Our constitution, and the practice of the courts, have always recognized the fact that in many cases no right of trial by jury exists. If the civil authorities were obliged to wait the slow process óf a jury trial in such matters the evil sought to be remedied would seldom be avoided. The power to be exercised by the inspector is administrative rather than judicial in its character. A jury has not been the ordinary tribunal to determine the exercise of such power. Hence, no right of trial by jury is violated in. the present case. Inwood v. The State, 42 Ohio St., 186; Met. Board of Health v. Heister, 37 N. Y., 661.

The enactment is but the exercise of the police power of the state, that power which is characterized by Mr. Justice Gray, in Leisy v. Hardin, 135 U. S., 127, as “that inherent and necessary power, essential to the very existence of civil ■ society, and the safeguard of the inhabitants of the state against disorder, disease, poverty and crime,” and necessarily extends “to the protection, health, comfort and quiet of all persons and all property within the state.” It no more denies to the owner the use of his property than do' those acts known as building laws, which forbid the erection of frame structures within prescribed limits, or define the thickness, and strength of walls, bearers, girders, etc., or direct the demolition of strúetures falling to decay, or otherwise endangering the lives of passers-by, which acts so far as they are reasonable in their character, ahd adapted to accomplish the purpose for which they are designed, are uniformly held to be within the constitutional authority of the .general assembly in its just exercise of the police power of the state. Ex parte White, 67 Cal., 102; St. Paul v. Dow, 37 Minn., 20; Hennessy v. St. Paul, 37 Fed. Rep., 565; Hubbard v. Paterson, 45 N. J. (L.), 310; People v. D' Oench, 111 N. Y., 359; Phila. v. Coulston, 13 Phila., 182; Fire Dep. v. Wendell, 13 Daly, 427; P. & W.’s Public Health and Safety, sections 326, 341; Fire Dep. v. Chapman, 10 Daly, 377; Grant v. Slater Mill & Power Co., 14 R. I., 380; Lawton v. Steele, 152 U. S., 133.

Nor is the act open to the criticism that it violates that provision of section 1, of article 4, of the constitution of the United States, which declares * * * “nor shall any state deprive any person of life,, liberty, or property without due process of law,” for the settled doctrine is that this section does not abridge the exercise of the police power of the states, nor limit the subjects upon which they may legislate.. The State v. Moore, 104 N. C., 714; Woodruff v. Railroad Co., 59 Conn., 63; In re Rahrer, 140 U. S., 545; P. & W. Public Health and Safety, section 15, and authorities cited; Lawton v. Steele, supra.

But were it otherwise, still the criticism could not avail, for it is due process of law if it be “law in its regular course of administration through courts of justice; law which proceeds upon due notice and inquiry, which hears before it condemns, and renders judgment only after trial.” All these requirements are amply provided for in the sections of the act which have been recited.

It will be noticed, also, that the action at bar is not for the recovery of a fine, or the enforcement of any penal sanction, but that its object is simply to prevent the use of the building complained of until the owner shall comply with the requirements as to fire escapes. The action does not seek to punish for past violations of the law; its purpose is only to stay the arm of the wrong-doer.

Hence, no question is here raised as to the much-debated doctrine that the general assembly has no power to authorize enforcement of a criminal law by a civil action, and that a court of equity cannot hold cognizance of any criminal matter. A building of the character described not provided with suitable exits, is, speaking in a general sense, a nuisance, and the power of the general assembly to authorize injunction, at the action of the proper authorities, to present the continuance of that which is detrimental to the public safety, is too well established in this state to need vindication.

2. Another, and a more serious question arises upon the second objection to this statute. The objection is that it violates section 26, article 2, of the constitution, which provides that “all laws of a general nature shall have a uniform operation throughout the state.” That this clause is mandatory in character, and not directory only, has been held in a number of cases by this court, .and is so well settled as to make further discussion unnecessary. Therefore, if the sections here in review violate section 26, they cannot be maintained.

"We approach the consideration of the constitutional question with a full appreciation of the rule that every presumption must be taken in favor of the validity of the. statutes, and that no court should declare a statute unconstitutional unless its invalidity is clear. It is frequently extremely difficult to determine the exact line where validity ceases, and invalidity intervenes, as will appear by reference to a few of the many cases on the subject.

It has been held (State v. Shearer, 46 Ohio St., 275), that a law is not necessarily of a general nature merely because it is upon a general subject, or because the same result might have been reached by a general law, and that special legislation upon a subject-matter in its nature local is not prohibited by section 26 of article 2, and that the subject of dividing territory into school districts being in its nature local, the formation of a special school district by special act was valid.

So, too; it has been held (McGill v. The State, 34 Ohio St., 228), that although the trial by jury was a general subject in which the people of the state at large were equally interested, yet the mode of selection of juries was left to legislative discretion and judgment, and it was within legislative competency, where it was apparent that a mode differing from that generally in use is necessary to meet the special wants of a particular county, to enact a law applicable to that county.

In Marmet v. The State, 45 Ohio St., 63, it was held that an act which provided that in cities of the first grade of the first class, proprietors of theaters, of livery stables, etc., and owners of vehicles used upon the streets of the city, should pay a license as provided, and any one violating the provisions should be fined, was not unconstitutional, inasmuch as the general assembly has •the power to regulate occupations (other than the selling of liquor) by license, where a special benefit is conferred by the public upon those who follow them, or where the occupation is injurious to or dangerous to the public. The principal question in dispute was the claim to impose a license, but incidentally it was urged that the act was a special one conferring corporate power, thereby violating section 1, of article 13, of the constitution, and that it violated section 26, of article 2. It was considered that a special need for such legislation appeared to exist in the 'locality named, and, the act, as to that feature, was sustained upon the principle which is made the basis of the holding in the McGill case. The act was regarded as special and local as to the ends to be accomplished, while it conformed in letter to the legislative rule of classification, and even though it did confer corporate power, was not regarded as open to greater or other objection on that score than many acts which have been sustained by the courts since the adoption of the present constitution. No claim is made that the fire escape act attempts to confer corporate power.

On the other hand, a late deliverance of the court giving construction to section 26, article 2, is the case of Commissioners v. Rosche, 50 Ohio St., 103, involving the validity of an act to provide for refunding taxes erroneously paid in counties containing a city of the first grade of the first class, and it is there held that the subject of the act being in no respect local, but of general interest to all the inhabitants of the state, the act was in conflict with section 26, of article 2, and therefore invalid.

In The State v. Bargus, 53 Ohio St., 94, .it is held that “laws providing for the public support of the poor are of a general nature,” and that “an act by which the general assembly attempts to exempt counties from the operation of general laws on ac-j count of trivial differences in population is not of 1 uniform operation throughout the state.” See also, Falk. Exp., 42 Ohio St., 638, and The State v. Ellet, 47 Ohio St., 90.

It is observed by Boynton, J., in McGill v. The State, supra: “The difficulty encountered in all cases where a legislative act is alleged to contravene the provision requiring the uniform operation of law of a general nature, lies in determining what constitutes a law of that nature, within the meaning of the constitution. The test is said to depend upon the character of its subject-matter; that if that is of a general, as distinguished from a local or special nature, existing in every county throughout the state, a subject in which all the citizens have a common interest, then the law is one of a general nature, -requiring a uniform operation throughout the state.”

“Existing in every county throughout the state” means, we suppose, only in every county where the conditions of the statute exist, for in order to be general and uniform in operation it is not necessary that the law should operate upon every person in the state, nor in every locality; it is sufficient, the authorities coincide in holding, if it operates upon every person brought within the relation and circumstances provided for, and in every locality where the conditions exist. But, upon the other hand, it seems equally well settled, a law is not of uniform operation if it exempts a portion of those coming within its terms; that is, if it confers privileges, or imposes burdens, upon some of a class answering the description which are not conferred or imposed upon all others belonging to the same category. And it would seem to follow from this that the constitutional requirement of uniform operation throughout the state is not answered by showing that the law is of uniform operation within one city of the state only, however populous, and even though described as a city of the first grade of the first class, if it appears that the act does not confer power, corporate or administrative, and that the conditions undertaken to be legislated upon are common to other sections of the state generally.

While the subjects to be acted upon by the statute under consideration are persons and buildings, the object of the statute is the protection of persons from the dangers of fire. This is implied in its title as well as subject-matter, and is perhaps made clearer by the title of the amendment of April 18, 1892, which is entitled “An act to provide for the better protection of human life against fire,” etc., etc. Protection of life and limb, it would seem, is not a local matter, but is a matter of general public interest, in which every person in the state coming within the category of people exposed to the dangers intended to be guarded against, is equally interested with every other such person, and it would appear to be as much the duty of owners of buildings answering to the description as to construction and occupancy of those named in the statute to observe the humane directions of this act whether located in one part of the state or in another, for buildings (other than private dwellings) of three or more stories in height are found in every locality throughout the state. Doubtless more frequent instances of dangers of the nature referred to may occur in thickly populated cities than in the smaller municipalities or the rural districts, but how can it be said that there is any appreciable difference between the hazards incident to the occupancy of such a building in a city- of the first class and those to be encountered in other portions of the state wherever they are found ?

If any reasons of a local character exist which require this legislation for Cincinnati which do not apply with equal force to other portions of the state, none appear on the surface, and certainly none have been suggested.

Being a law of a general nature, not adapted alone to cities of the first class (Cincinnati), and lacking the requirement of uniform operation, we are of opinion that the sections cited are in clear conflict with section 26, article 2, of the constitution; and realizing as every observer must, the growing tendency to render this limitation on legislative power directory merely, and to treat it as if it were devoid even of moral obligation, by resorting to local legislation upon matters which, if of importance, concern the people of all parts of the state, we are impelled by duty, whenever such acts are brought before us for review and their invalidity appears clear, to so declare. Upon this ground the judgment of the circuit court dismissing the case should be affirmed.

It is not intended by this holding to overturn earlier decisions of the court upon kindred questions. Each case stands, and must stand, upon its peculiar facts and circumstances. The matter of discrimination between cases is often one of nicety. Legal definitions, in the nature of things, cannot be so comprehensive and exact as to embrace necessarily all possible cases arising which may involve the general subject, and hence, in considering the language of the reports, and especially of opinions, the precise ease before the court must be apprehended in order to an understanding of the rule of law determined.

Judgment affirmed.

Minhsall, J,, dissents as to the last proposition.


author: Burket, J.

text:
    Clark v. Guest.

      Contract for purchase of land — Vendor to have timber and cut same by certain date — Extension of time within statute of frauds.

    Where a man purchased a farm, and agreed in writing that the vendor should have all the timber suitable for lumber, except the hard maple, to be cut and taken off before the first day of April, 1891; Held, that this was a sale of only so much of the timber as the vendor of the farm should take off within the time limited; that the timber not taken off within the limited time, adhered in the land and lapsed into the fee, freed from the contract of sale; that, until taken off, the title and possession of the timber remained in the owner of the farm; that a verbal extension of the time within which to take off such timber is within the statute of frauds, and to be valid must be in, writing; and that such verbal extension of time, reliance thereon, and consequent delay in taking off such timber, is not such fraud as will take the case out of the statute.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Ashtabula County.
    At the time of the date thereof, Stanley Clark signed and delivered to J. M. Sirrine the follow ing written instrument:
    “Cherry Valley, O., January 1, 1890.
    “I, Stanley Clark, having bought a farm of J. M. Sirrine, have agreed that he shall have all the saw timber suitable for lumber, except the hard maple, to be cut and taken off before the first day of April 1891.
    (Signed) ‘ ‘Stanley Clark. ’ ’
    Afterward Mr. Sirrine assigned and delivered said instrument to said Charles Guest.
    Before April 1, 1891, said Charles Guest cut and ' carried away part of said timber under said contract. About May 1, 1890, said Stanley Clark verbally agreed with Mr. Guest to extend the time .of taking said timber off until the first day of April, 1892, which agreement the circuit court finds to have been made upon the consideration of “reserving a few soft maples standing and growing upon said lands.”
    After the first of April, 1891, and before the first of April, 1892, Mr. Guest entered upon the premises, cut and took away part of the trees without the knowledge of Mr. Clark, and while he was cutting other of the trees, Mr. Clark learned the fact and immediately positively forbade his cutting any more trees, and prevented his so doing, on the ground that the time limited in said written instrument for taking away the timber had expired, and he denied making an extension of time, and claimed that a verbal extension, if made, was within the statute of frauds.
    Mr. Guest, plaintiff below, commenced this action to enjoin Mr. Clark from interfering with the cutting and removing of said timber, and while the injunction was in force plaintiff below cut and carried away all the remainder of the timber in controversy. The case was appealed to the circuit court, and upon the trial in that court a finding of facts was made in effect as above set forth, and also finding that in the land transaction, the defendant below, plaintiff in error here, received full pay for the timber. Upon the facts so found the circuit court found as matter of law in favor of the plaintiff below, on the ground that it would be a fraud against the plaintiff to revoke said verbal extension of time, and that a court of equity should interfere to enfore said parol agreement. The defendant below duly excepted, and filed his petition in error in this court to reverse the judgment of the circuit court.

      Edwa/rd II. Fitch, for plaintiff in error.
    If there was no parol agreement claimed by the writing, Guest would have had no right to the timber after April 1, 1891. His only claim of right to enter upon the land, cut and carry away this timber after April 1, 1891, rests in parol. The petition so avers, such is the proof, and so the court finds as a matter of fact, and as a conclusion of law holds that the same ‘ ‘was a legal and binding agreement between the parties.”
    But though the case must be very strong, which will engage a court of equity in a direct contest with the statute by coercing the performance of a parol agreement; yet, if a suitor is striving to compel the performance of a written contract, equity will always refuse its discretionary and extraordinary relief where the justice of the case, through whatever medium of evidence it is made to appear, is on the side of resistance. A defendant is, therefore, in a better plight in that court to take advantage of parol testimony than a plaintiff. Roberts on Frauds, 81; Woolam v. Hearn, 7 Ves. Jr., 211; Giles v. Simonds, 15 Gray, 443; Montacute v. Maxwell, 1 P. Williams, 618; Wilton v. Horwood, 23 Me., 134; Browne on Frauds, section, 461; Jones v. Timmons, 21 Ohio St., 604; Jacobs v. Railroad Co., 8 Cush. (Mass.), 225; Jerome v. Ross, 7 Johns., Ch. 315; Lindsay v. Lynch, 2 Sch. and Lef., 4.
    W e claim in this case there is no part performance. By the authorities, unless actual fraud is proven, part performane will not take the case out of the statute. In support of this we cite the cases above referred to and Brown on Frauds, section 448, and cases there cited. Fry on Specific Performance on Contracts, section 384; Baker v. Wells, 6 Whart., 153; Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528; Crabill v. Marsh, 38 Ohio St., 331; Howard v. Brower, 37 Ohio St., 408; Myers v. Croswell, 45 Ohio St., 543; Ford v. Osborne, 45 Ohio St., 3; Potter v. Potter's Ex'rx., 27 Ohio St., 84; Owens v. Lewis, 46 Ind., 488; Solcum v. Seymour, 36 N J., 138; Drake v. Wells, 11 Allen (Mass.), 141; Goddard v. Donohue, 22 P. Rep., 708; Paddock v. Davenport, 12 S. E., 464; Clifford v. Heald, 141 Mass., 322; Jackson v. Myers, 22 N. E., 90.

      Morthivay c& Williams, for defendant in error.
    Clark has been guilty of treachery and fraud, and now seeks to make the statute of frauds an instrument of fraud.
    Now let us see if there is sufficient authority in law and in equity to sustan those decrees.
    The consideraton need not be expressed in the writing — 17 O. Report, 128; 15 O. S., 546.
    Such a contract may be assigned — 22 O. S., 451; the resolution mentioned was the contract.
    Parol extension of time on written contract is valid; (it is so common in case of promissory notes as to need no authority). Brown on Frauds, sections 267, 242, 255. 1 Met. R., 313; 28 O. S., 90; 5 Ohio Rep., 376; Warvel on Vendors, vol. 1, page 479-480 ; 6 N. Y., 279; 22 Wis.. 544; 37 Wis., 362; 10 Met., 155; 60 Mich., 622.
    If the statute of frauds would otherwise apply to this case, equity will not allow a statute designed to prevent frauds to be made the instrument for committing them.
    American and English Encyclopedia of Law, vol. 8, page 737 and citations.

      Pomeroy’s Eq. Jr., ed. 1886, vol. 2, section 921.
    Fry. on Specific Performance of Contracts, ed. 1891, page 427, section 740, chapter 24.
    Injunction is the proper remedy; 35 O. S., 567.
   Burket, J.

The only question worthy of consideration in this case is, whether the verbal extension of the time within which to cut and take off the timber, is within that part of section 4199, Revised Statutes, which provides, that “No action shall be brought whereby to charge the defendant upon any contract or sale of- lands, tenement or hereditaments, or any interest in, or concerning of them, unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

That standing growing trees are part of the land, is settled in this state, by the case of Hirth v. Graham, 50 Ohio St., page 57. The written instrument in question, is clearly for an interest in the trees on the land and is concerning them, so that the transaction comes clearly within the statute, and is sufficient to authorize the defendant in error to cut and take off the trees within the time limited in the written instrument.

Whether or not the verbal extension of the time for removing, the timber is valid, depends upon considerations which will now be considered.

When a deed of conveyance of real estate is made, and the grantor excepts from the operation of the deed certain parts of the realty, the title to the excepted parts remains in the grantor, and does not pass under the deed to the grantee. In case of a reservation the whole title passes, but the grantor reserves to himself some benefit growing out of the realty, as a certain amount of rent. In such case the grantee has title to the whole estate, burdened with the use reserved; while in case of an exception, the grantor retains the title to the excepted part, and the grantee takes title to the estate less the exception. In the case of an. exception or reservation, the instrument creating the exception or reservation, is signed and executed by the grantor, and usually that which binds the grantee is found in his acceptance of the instrument.

In the case under consideration, the deed to Mr. Clark for the lands, carried with it the title to the timber, and he undertook to dispose of the timber by means of the written instrument in question. It is therefore clear that the transaction was not an exception of the timber in the sale of the land; neither was it a reservation of the timber.

Mr. Clark being the owner of the timber and having the title thereto under his deed, undertook to sell the timber, the consideration being something connected with or growing out of the purchase of the land, in value, $200, as found by the circuit court. The title to the land and the possession thereof, including the trees, remained in Mr. Clark, and Mr. Sirrine had only an executory contract for the trees. Had the trees been excepted from the operation of the deed when the land was sold, the title thereto would have remained in the grantor, together with the right to cut and carry them away within the time limited in the deed. Pease v. Gibson, 6 Greenleaf, 81; Warvelle on Vendors, page 480.

In a case of the sale of the timber on lands, or in the case of an exception of the timber upon conveyance of lands, the timber must be cut and removed within the time limited in the written instrument, and all that is not so cut and removed adheres in the land, freed from the sale or exception, or as expressed by some courts, lapses into the fee.

The legal effects of such contracts of sale of timber, or. exceptions of timber, is a right to only so much timber as shall be cut and taken off within the limited time.

In the ease under consideration the words are: ‘ ‘I have agreed that he shall have all the saw timber,” etc. This was a sale, the title to the trees remaining in the owner of the land until cut and converted into personalty. The right to cut and carry away, continued only, to the first day of April, 1891. On that day the trees remaining uncut, adhered in the land and lapsed into the fee, freed from the written instrument. To again bring them within the terms of sale and extend the time for another year, in which to cut and carry them away, is as clearly a contract for an interest in, and concerning- of, the trees, as was the original sale.

Extension of time is therefore within the statute, and must be in writing. Being verbal in this case, it was void and of no effect.

In the case of Pease v. Gibson, 6 Greenleaf, 81, the operative words were in effect the same as in this ease. The written instrument was as follows:

“I hereby agree to let Joseph Howard have all the pine trees fit for mill logs on my land in Brownfield, said Howard to have two years from this date to take off said timber. I acknowledge one hundred and fifty dollars for same.
“Brownfield, December 7, 1819.
“James Osgood. ”

The syllabus is as follows:

“Where, the owner of land sold, by deed, all the timber trees standing thereon, and in the same deed gave to the vendee two years within which to take off the timber; it was held that this was a sale of only so,much of the timber as the vendee might take off in the two. years.; and that an entry after that period was a trespass.”

The following authorities are to the same effect: Reed v. Merrifield, 10 Metcalf, 155; Rich v. Zeilsdorff, 22 Wis., 544; Martin v. Gilson, 37 Wis., 360; Wait v. Baldwin, 60 Mich., 622.

The fact that-.both the title and possession of the trees in .question remained in the plaintiff, in error, is very important. A written contract for the sale and purchase of land, so long as possession is not .delivered to the purchaser, may be rescinded verbally, but after the. possession is delivered to the purchaser, the rescission is required to be in writing. Kelley v. Stanbery, 13 Ohio, 408 ; Jones v. Booth, 38 Ohio St., 405.

The plaintiff in error having both title and possession of the trees, an agreement to extend the time in which to take them off was an agreement for an interest in, and concerning of, the trees still standing on- the first day of April, 1891.

Such verbal extension of time, is as clearly within the statute as a verbal extension of a lease, which this court has held ,to be within the statute. Armstrong v. Kattenhorn 11 Ohio, 265; Crawford v. Wick 18 Ohio St., 190.

Such extension of time in which to . cut and carry away .the timber, is -not like an extension of time to pay a note or .mortgage. Extension of the time of payment does not concern lands o.r an interest therein.

The circuit court found as its conclusion of law upon the facts found, that it would be a fraud upon the defendant in error to revoke such verbal extension of time; and that the case was therefore taken out of the statute of frauds. This is not tenable. The statute was enacted to prevent frauds and perjuries. The law-making power knew that frauds and perjuries would be practiced with or without the statute, but it was thought that less harm would come from enacting and enforcing the statute, than otherwise. The only exceptions to the statute, engrafted therein by judicial interpretation, if not by judicial legislation, that can be justly defended, are cases in which the acts of both parties are such as to imply a contract with substantially the same certainty as would be shown bv a written memorandum, as in the case of a verbal sale of lands followed by a delivery of possession to the purchaser, and valuable permanent improvements made by him with the knowledge of the vendor.

To say that to refuse to carry out a verbal purchase of standing growing trees is a fraud on part of the owner of the trees, is to disregard the statute, and in effect a repeal thereof. The defendant in error cut and removed part of the timber before the first of April, 1891, but that taking was not possession, or part performance, as to what was left on and after the first of April. The limitation as to time was as much a part of the contract as the right to take the timber. He was free to take all, 'or as much as he pleased, up to the first of April, and what he took up to that time under the terms of his contract, did not imply or in any manner tend to show that a contract had been made for further time. It might ■be urged that if further time had not been promised, that he would have cut all the timber within the time limited,' but this does not follow, because many men fail to avail themselves of their full opportunities. If he relied upon the verbal extension of time, and therefore failed to cut the timber within the time, he did only what was done in Pease v. Gibson, 6 Greenleaf, 81, and yet in that ease the statute of frauds was enforced. He had no legal right to rely upon the verbal contract, and where there is no right there can be no fraud. If he intended to rely upon the extension of time he should have caused the contract therefor to be reduced to writing. The statute was enacted to protect men in their property rights and it should be enforced unless in eases clearly within some of the well established exceptions. This case comes within no such exception. The judgment of the circuit court is reversed, and judgment entered for plaintiff in error. ,

Judgment accordingly.


author: Williams, C. J.

text:
    Francisco et al. v. Ryan.

      Mortgage on stock of merchandise — -Mortgagor retains possession with power to sell — Mortgage ineffectual against mortgagor’s creditors — But valid• when mortgagee takes possession — Effect of stipulation in mortgage making it lien on goods after-wards purchased by mortgagor.

    1. A mortgage on a stock of merchandise, though made in good faith to secure a bona fide debt of the mortgagor, when it allows him to retain possession with a power of sale in the course of his business, is ineffectual to create a lien as against creditors of the mortgagor who assert their rights against the property while it remains under his control; but it is valid as between the parties, and when the mortgagee takes possession, either with Ihe consent of the mortgagor given at . the time, or under an authority conferred by the mortgage, his title becomes complete, and the property is no longer subject to legal process issued against the mortgagor, nor liable for his debts except-to the extent of any surplus that may remain after the satisfaction of the mortgage debt and proper charges for enforcing the same.
    2. A stipulation in such a mortgage, that it shall be a lien on any goods.the mortgagor may thereafter'purchase and place in stock to supply the place of those he should sell, while not creating a present lien, nor a lien when and as the goods are purchased, constitutes a valid contract for a lien on such after acquired property; and possession thereof lawfully taken by the mortgagee has the same effect of protecting it in his hands from the claims of the mortgagor’s creditors, as has possession taken' of the property owned by the mortgagor at the time of the execution of the mortgage.
    3. Sufficient authority is conferred on the mortgagee to take possession of all of the property upon which the mortgage purports to create a lien, including the after acquired property, as well as the- stock owned when the mortgage was executed, by a clajise therein which provides that if, at any time before the maturity of the debt, the mortgagee shall ‘ ‘ deem it necessary for his more perfect and' complete security, ’ ’ he may enter the store or place where the g'oods may be, and “take and carry away the mortgaged property,” and “dispose of the same at public or private sale.”
    (Decided March 17, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    Action of replevin by mortgagee of chattels, against officer who levied an attachment on the mortgaged property after the mortgagee had taken possession, and the attaching creditors. Judgment for plaintiff! affirmed by circuit court. Case stated in opinion.

      E. P. Hatfield, for plaintiffs in error.

      Ha/rt <& Canfield, for defendant in error.
   Williams, C. J.

'The record shows that William R. Ryan, the- defendant in error, sold, a stock of drugs and meichandise consisting of such articles as are usually kept in a retail drug-store] to Eugene Louselle, who gave Ryan a mortgage on the property to secure the payment of three notes, maturing at different dates, and which were given by the mortgagor for the purchase price of the goods. The mortgage, which was duly executed, verified, and filed with the proper officer, contained the following stipulation: “It is hereby understood that whatever portions of said stock that may be sold in general trade, that the goods purchased by the said grantor shall replace those that were so sold in general trade, and that this mortgage shall be a lien ón same. To have and to hold all and singular the-goods, chattels and property above granted, bargained and sold, or intended to be granted, bargained and sold unto the said grantee, his heirs and assigns.” It contained the further stipulation that if default' should be made in the payment of either of the notes, or if before such default the mortgagee should ‘deem it necessary for his more complete and perfect security, he is hereby authorized and empowéred to enter the store or other place where the goods may be, and take and carry away said mortgaged property, and sell and dispose of the same at public or private sale, and out of the money arising therefrom to retain and pay the mortgage debt, and all charges touching the same, together with a sufficient sum to indemnify the mortgagee for any damages sustained by him by reason of any of the covenants of the mortgagor, rendering the overplus, if any,to the mortgagor.” After the execution and filing of the mortgage, the mortgagor, who retained possession of the stock of goods included in the mortgage,-sold at retail therefrom, and from time to time added to the stock other goods purchased to supply the place of those sold; and he thus continued in possession, carrying’ on the business until the last mortgage note matured, when the mortgagee, after calling several times to see the mortgagor and failing to find him, and becoming apprehensive of his security, took possession of the mortgaged property, including the property purchased to supply the place of what had been sold by the mortgagor. When that had been done, and while the mortgagee was so in possession, the plaintiff in error, Francisco, who was a constable, levied an attachment on the property issued against the mortgagor at the suit of the other plaintiffs in error who were creditors of the mortgagor, and ' todk the property into his custody under the writ. Thereupon Ryan brought the action below to replevin the goods, obtained their possession, sold the same, and applied the proceeds to the payment of the mortgage indebtedness. The attaching creditors, who were made parties to that action, set up their claims, controverted the right of the mortgagee to the property, and prayed judgment accordingly. At the trial, the plaintiff requested the court to charge the jury that the “plaintiff had the right to seize said property under his mortgage, and if the jury found that he did possess himself of the same before defendant’s attachments, their verdict should be for the plaintiff.” The defendants requested asan instruction, that the mortgage “was, as a matter of law, fraudulent and void as to the defendants, and that neither as to goods subject to sale in being and possessed by Louselle at the date of said mortgage, nor as to renewals of or additions to the same did plaintiff, under his said mortgage, have the right to seize the same; and that unless thev found that Louselle delivered said goods to plaintiff or - assented to his taking possession thereof in some way other than signing said mortgage, the verdict should be for the defendants for the amount of their claim. ” Neither instruction was given, but, as the record discloses, the court “not being prepared to charge upon said propositions, by consent a juror is withdrawn, the jury discharged,and the matter in controversy submitted to the court. On consideration whereof the court finds for the plaintiff and assesses his damages at five cents;” and judgment was rendered for the plaintiff, which the circuit court affirmed.

The arguments of counsel for the respective parties here, are directed to the support of the proposition embraced in the instruction which was requested in behalf of the parties they represent.

, The attaching creditors were not seeking to reach any surplus remaining after the application of the proceeds of the mortgaged property to the payment of the mortgage debt; it does not appear that there was any surplus; nor, were they attempting to reclaim property which had been sold to the mortgagor while he was in possession, or subject such property to the payment of their claim. The contention is confined to the sufficiency of the mortgage and the possession taken under it to create a valid lien as against the claim of the plaintiffs in error. The alleged infirmities of the mortgage are: (1) That it gave the mortgagor power to sell in the usual course of business while in possession of the mortgaged property, and is therefore void; (2) That it was ineffectual to create any lien on that part of the property which was acquired by the mortgagor after theexecubiohof 'the mortgage, and the mortgagee’s possession, though taken prior to the levy Of the attachment, did not cure the defect, because it was not delivered' by, nor obtained with the consent of the mortgagor: and (3) That it -conferred no authority on the mortgagee to take possession of such after acquired property.

'"1. A diversity of opinion has been expressed, and is entertainedin regard to the effect of a power off sale reserved-to a mortgagor of chattel property who remains in possession of the same.

It is said by Campbell, J., in Gay v. Bidwell, 7 Mich. 519, 525, that “ho court has given any satisfactory reason why such a provision should necessarily vitiate a chattel mortgage, although it is undoubtedly liable to abuse. The recording law enables a vigilant 'person to ascertain the existence of such securities.' Many small merchants, especially beginners in the business, have no other means of securing their creditors for the stock they purchase, and can only meet their debts out of current sales. If any creditor is likely to be injured by allowing the debtor to dispose of the mortgaged property, it is rather the creditor whose security is thus cut down, than the one who has no claim on the specific property. To hold that a merchant cannot mortgage' his goods without closing his- doors would be to hold that no mortgage of a merchant's stock can be made at all.” And in a late case, Etheridge v. Sperry, 138 U. S., 266, it is said by Mr. Justice Brewer, speaking of á power of sale by a mortgagor of chattels in possession, that: “If this were an open question, we could not be blind to the fact that the tendency of this commercial age is towards increased 'facilities in the transfer'of property, and to uphold such transfers so far as they are made in good faith;” that,- “the interests of the general public áre not prejudiced by any such transaction between debtor and creditor;” and that, if - the question were “a new one, unaffected by any settled law of the state, we incline to the opinion that the question is not one of law, so much as it is one of fact and good faith. ”

: It was held by this court, in Collins v. Myers, 16 Ohio, 547, that: “A mortgage of personal property, where the mortgagor retains possession of the property mortgaged, with the power of sale, is void as against subsequent purchasers and execution creditors.” At least, in the syllabus such is declared to be the holding, and the opinion seems to warrant that conclusion; from which it may be inferred that such a mortgage is valid as between the parties, and as against creditors of the mortgagor until seized on process issued at their suit. In the subsequent case-of Brown v. Webb, 20 Ohio, 389, it is decided that while such a mortgage, with possession and a power of sale in the mortgagor is void as - against subsequent purchasers from the mortgagor, yet “when possession is taken by the mortgagee, the mortgage' becomes valid so as to •protect the mortgaged property from execution creditors not having made a levy, and against subsequent purchasers from the mortgagor. ” Possession so taken by the mortgagee has the effect of completing his title, and relieving the property from liability to seizure at the - suit of the mortgagor’s creditors. That rule has not been qualified or questioned in any subsequent case, but is rather confirmed by that of Webb v. Brown, 3 Ohio St., 246, where it is said by Warden, J., that “the doctrine which is to be collected from authority and reason seems to be that a sale of goods, made with intent to defraud the vendor’s creditors, is absolutely void, only against the legal process of the creditor;” and that “the utmost concession allowed by law to the interests of creditors leaves it still certain that until seizure by a creditor’s writ, the fraudulent vendee can do with the property all that the vendor might have done had he retained the goods.” Before such seizure it is competent for the debtor, in good faith, and for value, to sell and deliver the property to any one who is willing to purchase it, or transfer the same to a creditor in payment of or security for a bona fide debt; and when so transferred, it is beyond the reach of the other creditors of the mortgagor; and it cannot be material in this respect whether the transfer is the result of an agreement made at the time, or is in performance of a previous agreement binding on the parties. And, as some doubt appears to be entertained in regard to the proper scope of the rule, especially in a case like the one before us, we now hold that a mortgage given in good faith, on a stock of merchandise, to secure a bona fide debt of the mortgagor, is valid as between the parties, although the mortgagor be permitted to continue in possession of the property with the power to sell therefrom in the usual course of business; and, while such a mortgage is invalid as against the creditors of the mortgagor who cause the property to be seized on legal process while it remains in his possession, and purchasers who become such during that time, when the mortgagee takes the possession of the property, either with the consent of the mortgagor given at the time, or in pursuance of a stipulation of the mortgage authorizing it, his title becomes complete and the property is no longer subject to legal process issued against the mortgagor, nor liable for his debts except to the extent of any surplus remaining after the satisfaction of the mortgage debt and proper charges resulting from its enforcement. That the mortgage involved in-this case was made in good faith, to secure a debt justly owing to the mortgagee, is not questioned; and, it appears that he had taken possession of the mortgaged property before the constable levied the attachment thereon, and was in actual possession when the levy was made; so that, he was entitled to hold the property as against the claim of the attaching creditor, so far as his right could be affected by the'question now under consideration.

2. The mortgage in question, as has before been noticed, contains a provision to the effect that it shall be a lien on any goods that the mortgagor should add to the stock to supply the place of those sold in the course of his business; and it appears that some articles so added constituted part of the stock when the mortgagee took possession of the same; and, as to those articles, it.is contended the mortgage created no lien, and the mortgagee’s possession gave him no right to them.; and further, that because they were so commingled with the balance of the stock as to be indistinguishable and inseparable, his possession of all the property was illegal, and it was, therefore, liable to be taken under the attachment which was levied on it.

Courts have differed in regard to the effect of mortgages intended to create a lien on goods which the mortgagor did not own at the time of its execution, but which it was contemplated he would thereafter acquire. This difference has arisen chiefly from the nature of the jurisdiction exercised by the courts. Those of equitable cognizance applying the maxim that equity regards that as done which ought to be done, hold that under such a mortgage a lien attaches to the property as soon as it comes to the mortgagor’s ownership; while at law, it has been held that it creates no present lien, nor one as the property is acquired, but as between the parties it operates only as a contract for a lien, which may be made effectual for the benefit of the mortgagee by possession lawfully obtained of the property, not only as against the mortgagor himself, but also as against any subsequent legal process issued against him, or disposition attempted to be made by him. Whether, or in what instance, in actions under a civil code like ours, by which the two systems of remedial justice are blended and administered in the same courts, and often in the same proceeding’, the equitable rule should he applied, is a question upon which the courts are not agreed, and one whose decision is not necessary in this case. In the case of Chapman v. Weimer, 4 Ohio St., 481, the court followed the rule at law, holding that: “A chattel mortgage, purporting to create a lien on the stock in a grocery, and also oh such as should be subsequently acquired by the mortgagor, creates no lien on the subsequently' acquired property;” but, “when such mortgagee authorizes the mortgagee to take possession of the property secured and attempted to be secured, it is a continuing executory contract; and when the mortgagor acquires such property after the execution of the mortgage, and actually delivers the same to the mortgagee, the latter thereby acquires a valid lien on such subsequently acquired property.”

/ The contention of the plaintiffs in error on this point is, that it is essential to the acquisition of a valid lien ■ on the after acquired property under such a mortgage, that the mortgagor voluntarily deliver the property to the mortgagee, or .give his consent to the mortgagee’s possession when taken; and that the lien does not arise if, as in this ease, the mortgagee of his own accord take the possession. In the case just referred to, there was an actual delivery of the> subsequently acquired property, by the mortgagor to .the mortgagee, and the court in the decision confines itself strictly to the case made. But the principle upon which that decision rests is, that the mortgagee constitutes a valid and binding contract between the parties; and being so it must be given effect according to the intention of the parties as that may be ascertained from its terms. . The mortgage being a valid contract for a lien, founded on a valuable and sufficient consideration, a stipulation therein authorizing the mortg’agee to take possession of. the property cannot be regarded as a mere license revocable at the pleasure of the mortgagor, nor as an offer to contract merely which may be withdrawn at any time before it is accepted; but is a completed. contract .already obligatory upon the parties, and which continues to be so until it is fully executed; so that, in taking possession of the after, acquired property in pursuance of its provisions, the mortgagee exercises a right belonging to him under the mortgage, which is something more than the naked permission- or consent of the mortgagor to the act. Acting under this contractual authority in obtaining the possession of the property,’ the consent of the mortgagor thereto at the time, can neither be necessary to the legality of the possession, nor can it in any way add to the rights of the mortgagee. Certainly, after possession so taken, the mortgagor could not successfully assert any claim to the- property, for his contract would prevent him; and, as whatever title he theretofore had to the property is thereby extinguished, nothing remains to be. reached by his attaching or other creditor’s, unless it be such surplus as should remain after satisfying the mortgagee’s debt.

This appears to be the established law elsewhere. In Congreve v. Everett, 10 Exch.,298, a farmer gave a mortgage on the crops then on his farm, and such crops as might from time to time be found thereon, agreeing the mortgagee might take possession; and a year or more afterward he took -possession of the crops then growing on the farm. Shortly afterward a creditor of the mortgagor levied an execution upon the crops and sold them. In a trial at law brought by the mortgagee for the value of the property, it was held he was entitled to recover. Parke, B., in giving judgment said: “If the authority given by the debtor by the bill of sale had not been executed, it would have been of no avail against the execution. It gave no legal title nor equitable title, to any specific goods; but when executed— not fully and entirely, but only to the extent of taking possession of the growing crops — it is the same, in our judgment, as if the debtor himself had put the plaintiff in actual possession of those crops.” That decision has since been followed by the English courts. And it is maintained by a long line of American cases, that it is immaterial whether the mortgagee takes possession in invi turn, or the mortgagor voluntarily puts him in possession, if the possession be taken under an authority contained in the mortgage. In either case the mortgagee obtains possession under a valid contract which entitles him, to hold the property as against any subsequent process at the suitof the mortgagor’s creditors. Amongthemany cases so holding are Chase v. Denny, 130 Mass., 566, where it is said that “if the after acquired property is taken by the mortgagee into his possession before the intervention of any rights of third persons, he holds it under' a valid lien, by the operation of the provision of the mortgage in regard to it;” and, that the executory agreement of the owner, in such case, is a continuing agreement, so that “when the creditor does take possession under it, he acts lawfully under the agreement of one having the disposing power, and this makes the lien good.” And see Moody v. Wright, 13 Met., 17; Keating v. Hannenkamp, 100 Mo., 161; Barton v. Sitlington,128 Mo., 164; Tennis v. Midkiff, 55 Ill. App., 642; O'Neil v. Patterson, 52 Ibid, 26; McCaffrey v. Woodin, 65 N. Y., 459.

3. It is further claimed that the mortgage involved in this case did not authorize the mor tgagee to take possession of the property which was purchased by the mortgagor to supply the place of that sold by him, the authority being to take possession of' the “mortgaged property,” which, it is contended, does not include that so purchased. As has been noticed, however, the.mortgage purports to create a lien on the property so purchased by the mortgagor, as well as on the stock owned by him when it was executed, and it was evidently intended by the parties to have that effect. .It is but a reasonable interpretation of the instrument, therefore, looking to all its provisions, that. by the phrase “mortgaged property” .in the subsequent-clause, the parties meant all property which they intended and-agreed should be covered by the mortgage. That interpretation is necessary to give full effect to all its parts, and accomplish the manifest purpose and intention of. the parties.

The seizure .clause in chattel mortgages is inserted for the benefit and: protection- -of the mortgagee; and when,, like the -one in this case, it authorizes, him. to .take the property when, he deems it necessary for his better, 'security, he may take it whepeyer, in his judgment, it is ■ best for him to do so; and the rightful exercise of that authority does. not depend upon-the fact that he has reasonable grounds for deeming it necessary for his security. As - said in Werner v. Bergman, 28 Kans., 60, 64, ‘-if the mortgagor wishes to retain- possession of the property, until the; mortgagee shall have, reasonable grpunds to deem himself insecure, he can iusert, or .have inserted, a stipulation to that effect in the mortgage; or if .he wishes to go still further, and retain possession of the property until the mortgagee shall become in fact insecure, he can have a stipulation put in the mortgage to that effect. ,- But if he chooses only to have inserted, in the mortgage a clause that he shall have the right to, the .possession of the property until the mortgagee deems himself insecure, then he, can.only retain the-property-until the mortgagee does in fact-deem himself insecure ; and he has no right to question the grounds upon which the mortgagee entertains such feeling of insecurity.” . Finding no error, in, the record, the . .• - • . - - -

Judgment is affirmed. ■


author: By the Court:

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    State of Ohio v. Heibel.

      Keeping saloon open on Sunday — Section 8902, Rev. Stat.

    It is an offense against the provisions of section 11, of the act of May 14, 1886, as amended April 14, 1888 (G. Rev. Stat., 8902), to keep a saloon open on Sunday so that patrons may enter, although business be not carried on as on other days of the week.
    (Decided March 17, 1896.)
    On exceptions to the decision of the Common Pleas Court of Pike county.

      Charles M. Calchoeil, prosecuting attorney, for plaintiff.

      F. F. Daugherty, for defendant.
   By the Court:

The defendant was placed on trial for allowing his saloon to remain open on Sunday. Evidence was offered by the state tending to show that he admitted two persons to his saloon on the day named, that they remained there for some hours at work varnishing the woodwork, and that they drank beer, for which they did not pay. Evidence was also introduced by the state tending to show that several other persons were admitted to defendant’s saloon on the day named for the purpose of buying oysters, and oysters were sold to them. The defendant offered no evidence.

After the conclusion of the evidence the prosecuting attorney requested the court to give to the jury the following instructions:

“That if said place was, on said day, so kept open as to be accessible, either by front, rear or side door, to such, of defendant’s patrons as might wish to enter, and occupy same as a resort, or such persons of the public as might wish to enter, the jury should return a verdict of guilty, ” which was refused.
The court did give to the jury the following instructions : “In contemplation of law, the defendant, to be guilty of allowing his saloon, or place where intoxicating liquors are sold, to remain open, must have knowingly permitted and allowed such place to remain open for' business purposes, or as a place of public resort, in such manner as to induce the public to enter the same. The policy of the law is to require keepers of places where intoxicating’ liquors are sold or exposed for sale to remain closed upon the first day of the week; that is, the keeper of the place is not in law allowed to open up his place and carry on business on Sunday as he does on other days of the week, but the business must close on that day.”

Other like instructions were given, to all of which, as well as to the refusal of the court to give the instruction requested, the prosecuting attorney excepted. The statute which the defendant was charged with violating is section 11, of the act known as the Dow Law, being section 8092-18 S. & B., Revised Statutes; section 8902y, Revised 'Statutes. It provides that “all places where such intoxicating liquors are on other days sold or exposed for sale, except regular drug stores, shall on that day (Sunday) be closed, and *. * * whoever allows any such place to be open or remain open on that day shall be fined, etc.” The statute requires the place to be closed, while the instructions indicated the opinion of the trial judge to be that the regular business should be closed. The instructions given, and the refusal to instruct as requested, introduced a question as to defendant’s purpose, which the terms of the statute do not permit. People v. Cummerford, 58 Mich., 328; Kroer v. The People, 78 Ill., 294. That emergencies might arise which would make it lawful for the proprietor and others to enter a- saloon upon Sunday, may be a necessary inference from the general purpose of the statute. But there was no suggestion of such emergency in this case.

Exceptions sustained.


author: By the Court :

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    Neuman v. Becker.

      Bill of exceptions — Time prescribed for submission to opposite counsel — Section 539%, Rev. Stat. — Act March %%, 189%. (89 Ohio Laws, 1%5.)

    (Decided March 17, 1896.)
    Error to the Circuit Court of Crawford county;

      Stephen JR. Harris, for plaintiff in error, Dan Babst Jr.

      Finley c& Bennett, for defendant in error.
   By the Court :

The provisions of section 5302, Revised Statutes, as amended March 22, 1892 (89 Ohio Laws, 125), prescribing a time with in which a bill of exceptions, taken upon overruling a motion for a new trial, shall be submitted to opposite counsel for examination, and to the judge, or judges for signing, and also the provision requiring the judge or judges to indorse thereon any extension of time that may be given for signing’ such bill of excep-

tions, are mandatory. Therefore such bill of exceptions must be submitted to opposite counsel at least ten days before the expiration of the statutory period of fifty days, and to the judge, or judges, at least five days before the expiration of such period; and unless- both of these conditions are performed, the judge or judges, hg/ve lost jurisdiction over the subject matter, and are without authority to sign the bill of exceptions, or to extend the time for that purpose. If such judge or judges, acting within the statutory period, extend the time for signing a bill of exceptions, but do not indorse such extension thereon, jurisdiction is in that case 'lost also; and any subsequent allowance or signing the same is without authority and for that reason void.

Judgment affirmed.


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    Buchanan et al. v. Baker et al.

      Jurisdiction of probate court — Proceedings for vacation of township road under section 4683, Rev. Stat. — Right of court to order view of road.

    The right of appeal from the final decision of the trustees in a proceeding for the vacation of a township road provided by section 4683, Revised Statutes, is intended to give the probate court jurisdiction to hear the case upon its merits, and order another view of the road, or make any other order that may be just and reasonable in the case.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Monroe county.
    Proceeding before township trustees to vacate portion of a township road. Vacation ordered. Appeal by remonstrants to probate court. Finding that proceeding before trustees were erroneous; order setting the same aside, and appointing viewers and surveyor, whose report, adverse to the vacation of the road, was approved and confirmed, and an order entered that the road be not vacated. Also adjudging costs against the petitioners. On error the common pleas affirmed the reversal of the trustee’s order, but reversed subsequent proceedings. The circuit court found the proceedings before the. trustees regular and affirmed their order, and reversed both the common pleas and probate courts.

      Wats07i d Mo Gammon, for plaintiffs, in error.

      J. P. Spriggs <& Son, for defendants in error.
   By the Court:

The record presents the question whether or not the provision of the statute authorizing* an appeal from the order of the trustees vacating a road is confined to a review of proceedings as upon a petition in error only, or authorizes an appeal in the general sense.

The section of Revised Statutes, which provides for the vacation of a township road, is a portion of chapter 3 of title VII. It is as follows: “Section 4683. When a township road becomes useless, any one or more residents of the township may, after giving the notice required in section 4672, petition the trustees to vacate such road, and if the trustees are satisfied that the proper notice has been given, and no injustice will be done thereby, they shall, at their next regular meeting, declare the same vacated, and give notice thereof to the township clerk, who shall enter the same on the records of the township; but any person in the township feeling aggrieved, shall have a right to appeal from the final decision of the trustees to the probate court in like manner as provided in chapter 4.”

Chapter 4 embraces sections 4687 to 4714, inclusive, and is entitled “Appeals in Road Cases.” The sections prior to 4697 relate in terms to appeals from proceedings before county commissioners. Subsequent sections, including 4697, relate to appeals on the part of those who claim damages, but this section is the only portion of the chapter which appears to provide in terms for appeal from the decision of the trustees of a township in a case where neither damages nor compensation is claimed. Thatsectionisasfollows: “Section4697. An appeal to the probate court, from the final decision of the trustees of the township, on any petition or report for a road, shall be allowed, and the court may order another view of the road and assessment of damages or make any other order which may be just and reasonable in the case, if the appellant enter into bond to the state, for the use of the township, in the sum of one hundred dollars, with sufficient surety, to the acceptance of the township treasurer, within fifteen days from the date of the decision of the trustees, conditioned for the payment of all costs and expenses arising-from such appeal, if the road be established, and the assessment of compensation and damages be not increased, by the proceedings had in the probate court, which appeal shall be entered with the probate judge within six days from the filing- of the bond with the township treasurer.”

It will be noted that the right of appeal is here given “from the final decision of the trustees of the township, on any petition or report for a road, ” etc., and the inquiry arises whether or not this covers a case for the vacation of a road. Light will be thrown upon the true interpretation by a consideration of the statute as originally enacted, and the amendments. The act of January 27,1853, entitled “An act for opening and regulating roads and highways,” vol. 51, Ohio Laws, 303, gives authority (section 35) to township trustees tovacate township roads which have become useless, in language practically identical with the present section 4683, save that no right of appeal is given. By the act of March 7, 1861 (S. & S., 602), section 35 was amended by adding thereto this: “Provided, however, that any person in the township feeling aggrieved, shall have a right to appeal from the final decision of said trustees to the probate court in like manner as set forth in the thirty-third section of the above recited act.” Section 33, referred to, as originally enacted and as it stood when the above amendment to section 35 was made, had no provision covering a case for damages or compensation (the amendment incorporating the present provisions in that regard having been enacted May 4, 1877), but otherwise was practically identical with the present section 4697. The incorporation of a right of appeal in section 35, by amendment, raises an implication that no right of appeal had theretofore existed, and when the provision thus made points out the way the right is to be made available, to wit: in like manner as set forth in the thirty-third section, the inference is that an appeal cannot be had by virtue of any other provision or authority. It follows that the words “for a road,” as originally used, should be construed to include as well a proceeding for the vacation of a road as for its establishment or alteration. . And, inasmuch as, where the statutes have been revised and consolidated, the strong presumption is that the same construction that would have been required before the change should be applied to the revised form, notwithstanding language may have been changed, it also follows that the words of section 4683, “as provided in chapter 4,” imply that the appeal is governed by section 4697, and not by preceding sections of chapter 4. This is a general appeal, and while the language of the section is somewhat involved, and while it makes provisions concerning proceedings other than for vacation, nevertheless does authorize the court, in cases of vacation, to make an order for another view of the road, or any other order which is just and reasonable. This the probate court undertook to do in the present case, and, for ought that appears, its action was regular.

We are not concerned to inquire whether its order reversing the order of the trustees was or not erroneous, for, if the appeal took up the case on its merits, as we hold it did, the action referred to becomes unimportant.

Other questions are argued, but it is not necessary to consider them.

It follows that in reversing the order and judgment of the probate court the circuit court erred.

The judgments of the circuit and common pleas courts will be reversed, and that of the probate corny affirmed.


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    City of Canton v. Wagner.

      Publication of notice of proposed improvements — Sufficiency op form — Section ¡3304, Pev. Stat.

    (Decided March 17, 1896.)
    Error to the Circuit Court of Stark county.

      Peter J. Collins, for plaintiff in error.

      Charles C. Upham, for defendant in error.
   By the Court:

The folloing notice, under section 2304, Revised' Statutes, is sufficient both in form and substance:

“notice.
“Canton, Ohio, April 9, 1891.
“To Christian Wagner:
“You are hereby notified that a resolution was adopted by the council of the city of Canton, Ohio, on the 30th day of March, 1891, declaring it necessary to open and improve Deuber avenue, from Ohio street to ■ Fairfield street, by grading and graveling the same, and by lawning, flagging and curbing’ the sidewalks, in accordance with plans, profiles and specifications on file in the office of the city civil engineer.
“The expense of said improvement to be charged per foot front upon the lots and lands abutting on said improvement. By order of the council.
“H. G. Shaub, City Clerk.”

Judgment of the circuit court is reversed and that of the common pleas affirmed.