author: Owen, J.

text:
    Zimmerman v. Canfield et al. and Zimmerman v. Prickett et al.

    1. Section. 4452 (Rev. Stats.) which authorizes the county commissioners to view the line of a proposed ditch, and determine, by actual view of the premises along and adjacent thereto, whether the ditch is necessary, or will be conducive to the public health, convenience or welfare, invests the commissioners with political and not judicial powers, and notice of such proceedings to the owners of lands crossed by the ditch is not essential to the validity of such enactment or of such proceedings thereunder.
    2. Sections 4461, 4471 and 894 (Rev. Stats.) authorize the payment of money out of the county treasury as compensation forlands taken for a county ditch, within the meaning of section 19 of the bill of rights, which ordains that: “ When private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by deposit of money.”
    8. The statutes relating to county ditches, in force in the year 1881, were valid and constitutional enactments.
    4. In an action by a resident owner of land crossed by the line of a proposed ditch, who has neither notice nor knowledge of such proceeding prior to the hearing upon the engineer’s report, to enjoin the construction of the proposed ditch, it is error in the court to send the proceedings before the commissioners for hearing upon the plaintiff’s claim for compensation and damages, and leave the commissioner's at liberty to proceed with the construction of the ditch without regard to whether his compensation for lands taken he first made in money or first secured by deposit of money, as required by section 19 of the bill of rights.
    ERROR to the District Court of Fulton county.
    These cases are considered together. The first was one to enjoin the construction of a proposed ditch about eight miles in length, seventeen rods of which crossed the plaintiff’s lands seven miles below the initial point and about one mile above the outlet.
    The object of the second was to enjoin all proceedings upon a petition to locate and construct a ditch across the plaintiff’s land along the route of the proposed ditch involved in the first case.
    In the first case the proceedings were regular except that the plaintiff (who was a resident of the county) had no notice or knowledge of the ditch proceedings prior to the hearing of the engineer’s report. The proceedings were under the statutes in force in 1880 as amended in 1881 (78 O. L. 204-210).
    A preliminary injunction was allowed by the probate judge against all work on the ditch. A judge of the court- of common pleas dissolved the injunction as to all of the ditch except , that crossing the plaintiff’s lands.
    Two judges of the district court modified this last order by restraining the construction of the ditch above and across the plaintiff’s land ; leaving the part below to be completed.
    Thereupon the second petition was filed with the commissioners, to establish a ditch across plaintiff’s land of the same dimensions as the first proposed ditch.
    Before the time for hearing this second petition plaintiff filed another petition for an injunction, which is the second of the above mentioned cases, upon which a preliminary injunction was allowed.
    Upon trial in the common pleas both injunctions were dissolved except so much of' the first as related to the seventeen rods across plaintiffs land, which was held in force until his damages, if any, were legally ascertained and paid.
    Upon appeal, the district court found the foregoing facts and that the ditch was necessary and would be conducive to the public health, convenience and welfare, and proceeded to make the following order :

      u And the court upon the conclusions of fact and law aforesaid, do order, adjudge and decree : That said county commissioners shall and they are hereby ordered, to give said plaintiff an opportunity to be heard before them and to present any claim for compensation or damages that he may have or sustain by reason of the construction of said ditch, and said commissioners shall give him such notice of the time and place, when and where such hearing is to be had, and claim to be presented, as is prescribed by statutes in case of proceedings to establish ditches by county commissioners; and plaintiff shall have the same right of appeal and all other remedies, as is provided by said statute, upon said question of compénsation and damages, and no other question shall be heard by said commissioners or upon such appeal. It is further considered, that the injunction heretofore granted in this case be, and the same hereby is dissolved, and said plaintiff shall have'and recover his costs in this case, taxed at $ — , which shall be paid by said county of Eulton, upon the warrant or order of the auditor thereof. It is ordered that the further construction of this ditch and all proceedings to establish the same or to ascertain said damages or compensation shall be delayed for sixty days. To all and each of which action, rulings and judgment of said court said plaintiff then in due form excepted.”

      Pratt & Bentley and W. G. Kelly, for plaintiff in error:
    The plaintiff had no notice, as provided for by §§ 4457, 445S Rev. Stat. of the proceedings of the commissioners to appropriate his property to a public use. This is in contravention of section 19, art. 1 of the constitution. This plaintiff had he been notified, had a right to come before the board of commissioners and have determined any one or all of tlie following questions under section 4463 Revised Statutes. 1. “ Whether said ditch will be conducive to the public health, convenience or welfare.” 2. “ Whether the route thereof is practicable.” 3. “ The compensation for lands appropriated.” 4. “ The damages claimed to property affected.”
    Now without notice he lost all these rights, and section 19 art. 1 of the constitution was rendered nugatory. Sections 4461 and 4481 Revised Statutes provide for means to pay for the construction and location of a county ditch, but there is no provision made for paying for lands appropriated or damages thereto. Sessions v. CrunJcelton, 20 Ohio St. 360.

      Henry Newbegin, representing parties having like interests as plaintiff in error:
    1. It is the filing of the petition before the commissioners that gives them jurisdiction to act in the premises.
    The ditch law of 1880 makes no provision for service of notice of the hearing upon the petition but authorizes the commissioners to find for the improvement without any such hearing. Rev. -Stats. §§ 4451, 4452, 4453, 4454. The matter is disposed of on its merits upon the petition alone, no one interested having opportunity to be heard except the petitioners. This contravenes sections 16 and 19 of the bill of rights. Reeves v. Treasurer of Wood County, 8 Ohio St. 333.
    The hearing by the commissioners upon the report of the engineer provided for by section 4457 Rev. Stats.' is confined to the award of the engineer in his report. Rev. Stats. §4459. Rut even this hearing may, perhaps, be only directory, and if so, there need be no hearing even upon the report of the engineer.
    2. Section 4460 Revised Statutes also is in contravention of section 16 of the bill of rights, in this, that there having been no opportunity by constructive service even to appear and demand it, land owners whose property is appropriated for the ditch are held to have waived their right to compen-' sation therefor.

      3. Section 4463 Revised Statutes determines what orders may be appealed from. The first is the finding for the improvement, that is, that the ditch will be conducive to the public health, &c., but as there is no provision for hearing or notice therefor on this question, how is it possible for any one to appeal from a proceeding he knows nothing of? The same objection applies to the 2nd, 3rd and 4th provisions for appeal.
    4. It is the award of the apportionment to the lands along the route of the ditch, for benefits, which divests the owner of his property. Rev. Stats. §§ 4458, 4459. From this award, or order making it, there is no provision for appeal (§ 4463 Rev. Stats.) and hence no right of trial by jury as provided by the constitution of the state.
    IF". W. Touvelle and Dodge ds Raymondfor defendants in error :
    Claimed that sections 4461 and 4471 Rev. Stats, provide for the payment of lands appropriated for ditch purposes, and hence the act of 1880 does not contravene section 19 of the bill of rights. Reeves v. Treasurer of Wood County, 8 Ohio St. 333.
   Owen, J.

1. It is maintained by the plaintiff (1) that the statutes in force in 1881, under which the commissioners were proceeding, were unconstitutional and void, and (2) that the order of the district court directing proceedings before the commissioners was unauthorized.

One of the grounds relied upon to support the first proposition is that these statutes were in contravention of section 19 of the bill of rights of the constitution of Ohio, which ordains that: “ Where private property shall be taken for public use, a compensation therefor shall first be made in money, ox first secured by a deposit in money, and such compensation shall be assessed by a jury."’ . .

It is contended that the legislation in question failed to provide for payment or deposit of compensation in money before the lands are “ taken ” by the construction of the ditch. The Revised Statutes § 4461 provides that: “ The commissioners shall, upon actual view of the premises, fix and allow such compensation for lands appropriated, . . to each person or corporation making application as provided in the preceding section.” . . .

By this provision the commissioners are called upon to do two things: First to “fix” the amount of compensation, and second to “ allow ” it.

Let us inquire what it is to allow a sum of money which has been “ fixed,” that is, determined upon by the commissioners.

Section 894 (Rev. Stat.) provides that: “No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorized to be fixed by some other person or tribunal, in which case the same shall be paid upon the warrant of the county auditor, upon the proper certificate of the person or tribunal allowing the same; but no public money shall be disbursed by the county commissioners, or any of them, but the same shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled to the same, on what account, and upon whose allowance, if not fixed by law.”

When the commissioners have caused to be entered upon their journal an order fixing and allowing the amount of compensation to a land owner who has made application therefor, they have exhausted their powers, and it only remains for the county auditor to draw his warrant on the county treasurer for the sum so allowed.

If an appeal is taken from the allowance of the commissioners to the probate court, and “ the verdict of the jury be in favor of the appellant, the commissioners shall cause to be made on their journal an entry carrying out the findings of the jury,” etc. § 4471.

How may the commissioners “ carry out the findings of the jury” except by the allowance of the amount of the compensation found by the jury ? Whether the amount of compensation for lands taken, be “ fixed ” by the commissioners or “ found ” by the jury the provision for first paying or depositing the compensation in money is ample; and it is no answer to this to say that the particular fund to be drawn upon is not designated.

The case of Ohio ex rel. McConahey v. Seaman, 23 Ohio St. 389, where it was held that orders drawn on the county treasurer for the cost of constructing a ditch were not payable out of the general county fund, has no application to the present case.

It is to be supposed that when the commissioners enter upon the location and construction of a ditch which .must involve the “ taking ” of lands, they do so in contemplation of the fact that compensation for lands so taken must, if applied for, be first paid or deposited, and it seems clear .that if no other fund is provided, nor payment or deposit otherwise made by those to be benefited by the ditch, the general county fund is to be resorted to. Ample provision' is made to reimburse this fund. Section 4479 provides for assessments on benefited lands to raise the amount of compensation and damages, and section 2834 provides for the transfer of these special funds so raised to the general fund.

The position contended for, that the allowance by the commissioners or even the drawing of his warrant by the auditor is neither the payment nor deposit of money in the sense in which these terms are employed in the bill of rights, is not well taken. There is no complaint that the county was insolvent, nor that for any other cause the warrant of the auditor would not be honored.

The solvency of the state and of her municiple subdivisions is presumed in the absence of a showing to the contrary. Talbot v. Hudson, 16 Gray, 431; Hill v. United States, 9 How. 386; Long v. Fuller, 68 Pa. 170; Yost’s Report, 17 Pa. 524; Mills on Eminent Domain, § 126.

This question was considered by the supreme court of Indiana in Rudisill v. State, 40 Ind. 490, where it is said : “ The auditor is authorized to draw his warrant upon the treasurer, for a sum allowed or certified to be due . . by the board of county commissioners. We are of the opinion that, when the amount of damages is ordered to be paid out of the county treasury, as in this case, the commissioners may treat the case as one where the amount is deposited in the treasury for the use of the parties entitled to the same.” It is not easy to conceive how a more efficient scheme can be devised for either the payment or deposit of money for compensation for lands taken, than the statutes in question have provided.

2. It is further maintained that the statutes under consideration are in contravention of the constitution for the reason that no notice is provided of the hearing of the petition for the ditch. That it is the filing of this petition which confers upon the commissioners jurisdiction to act, and that the failure of the statutes to provide for notice of the hearing of such petition, and permitting the commissioners to proceed to find for the improvement ” without giving parties to be affected by the improvement their day in court is fatal to the validity of the statutes.

It is not denied that opportunity is afforded to all parties affected by the ditch to be heard upon appeal in the probate court; and this leads to the inquiry whether they are entitled to such hearing in the first instance.

The proposition contended for, contemplates that the commissioners, in determining upon the necessity of the ditch or whether it will conduce to ’the public health, convenience or welfare, are acting judicially.

Section 4452 provides that the commissioners, upon receiving a copy of the petition, shall proceed at once to view the line of the proposed ditch and determine by' actual view whether it is necessary, or will be conducive to the public health, convenience or welfare, and whether the line described is the best route.

Section 4453 provides that if the commissioners shall find against the improvement, they shall dismiss the petition and proceedings at the cost of the petitioners.

By section 4454, if the commissioners find for the improvement, they shall direct a survey, &c. of the line described in the petition. Up to this point in the proceedings, none of the interested parties except the petitioners for the ditch have notice. So far the proceedings are preliminary. The state has delegated to the commissioners so much of her power of eminent domain as is necessary to determine whether the construction of the ditch is so far a public necessity, as that it is demanded by considerations of public health, convenience or welfare. There is nothing in the constitution of our state which guaranties to the owner of lands traversed by a ditch a trial by jury, or other judicial investigation, to determine upon its necessity or whether it will conduce to the public good.

While the statutes in question do provide for such a hearing upon appeal, it is so rather as a matter of favor than of right.

The commissioners, in determining this preliminary question of the necessity of appropriating lands for the purposes of a ditch, are called to the exercise of political and not judicial powers. It is a question rather of public policy than of private right. McMicken v. City of Cincinnati, 4 Ohio St. 394; Giesy v. Railroad Co., 4 Ohio St. 325; People v. Smith, 21 N. Y. 597; Bowersox v. Watson, 20 Ohio St. 507; Mills Eminent Domain, § 11; Cooley’s Constitutional Limitations, 528; Kramer v. C. & P. Railroad Co., 5 Ohio St. 146.

It is not upon the question of the appropriation of lands for public use, but upon that of compensation for lands so appropriated, that the owner is entitled, of right, to a hearing in court and the verdict of a'jury.

What remedies the courts afford for the perversion or abuse of this power of appropriation we are hot now called upon to inquire.

3. The remaining constitutional objections to these statutes are predicated upon the assumption that all proceedings looking to the appropriation of lands for ditch purposes are judicial in their nature and that the owner is entitled to a jury trial or other judicial investigation, and are sufficiently answered by the conclusions already declared.

4. It is also assigned for error that, even if the statutes in question are valid, the district court erred in ordering the proceedings before the commissioners for hearing upon any claim of the plaintiff for compensation and damages; and in dissolving the injunction theretofore granted in the case, and staying the proceedings to establish the ditch for only sixty days.

It is maintained by the defendants that this order was warranted by section 4491 which provides that: (i The court in which any proceeding is brought ... to declare void the proceedings to locate or establish any ditch .... shall, if there is manifest error in the proceedings, allow the plaintiff in the action to show that he has been injured thereby, . . The courts in which any such proceedings are begun shall allow parol proof that said improvement is necessary and will be conducive to the public health, convenience, or welfare, . . and without finding error, the court may correct any gross injustice in tire apportionment made by the commissioners ; the court shall, on final hearing, make such order in the premises as shall be just and equitable,” etc.

How far this provision may authorize the court to cure jurisdictional defects in the proceedings of the commissioners by ordering proceedings, in their nature de oiovo, in which the plaintiff- would be permitted to make every claim and assert ev'ery right allowed to him in case of notice of the original proceedings, or whether it was the duty of the district court to proceed in the case before it, to administer such relief, we need not now inquire.

No opportunity had been afforded the plaintiff to claim or prove compensation and damages.

The court dissolved the injunction theretofore granted, and thus left the commissioners entirely at liberty to proceed (after the expiration of the sixty days for which proceedings were stayed) with the construction of the ditch across the plaintiff’s land regardless of whether his compensation should “ first be made in money, or first secured by a deposit of money ” (as required by section 19 of the bill of rights). In this there was error for which the judgment of the district court is reversed.

Judgment will be entered enjoining all further proceedr ings until the ditch is legally established.

5. In the second case, the commissioners, when their proceedings were enjoined, were proceeding to act upon a petition for a ditch across the plaintiffs lands along the identical route, and of the same dimensions, of the ditch involved in the first case. It represented that a large extent of country above was in need of drainage and would be drained by the proposed ditch. It was alleged by the plaintiff that this second ditch proceeding was the result of a conspiracy between the commissioners and the petitioners to ignore and defeat the injunction against the first ditch proceedings.

So far as the proceedings for the last ditch had progressed, they were regular.

The district court found the facts which embraced the proceedings in the first case up to that time, and then stated their conclusions of law, and ordered as follows:

“And the court upon the facts aforesaid, and those admitted in the pleadings herein, find as matters of law, that it is not a question material for the introduction of testimony, whether or not there was any conspiracy between the county commissioners and said petitioners for said shorter ditch, or what the motives of said parties might have been o.r were; that the plaintiff began this action for an injunction prematurely, and that for the matters complained of in his petition, he has an adequate remedy at law by hearing before said county commissioners, and an appeal thence to the probate court of said county. That the statutes of the state of Ohio relating to the establishment of county ditches under which the proceedings complained of in this action were had, are not in conflict with the constitution of the state of Ohio.”

And the court upon the conclusions of fact and law aforesaid, do order, adjudge and decree as follows, to wit:

“ That said petition of the plaintiff in this case be dismissed at the costs of the plaintiff, and that the temporary injunction heretofore allowed in this case, be, and the same is hereby dissolved. That the defendants recover of the plaintiff therein, their costs herein, taxed at $ — . But" that the further construction of the said ditch and proceedings to establish the same, or to ascertain damages and compensation therefor, shall be delayed for sixty days.
“ To all and each of which actions, rulings and judgment of said court, the said plaintiff then in due time excepted.”

The objection chiefly urged against the second ditch proceeding (aside from the constitutional question relied upon), is that the proposed ditch was a short.one. It is not the ength of a proposed ditch, but the extent of the drainage to be effected by it which determines the power to establish it. Kent v. Perkins, 36 Ohio St. 641. This question was properly addressed to the commissioners.

There was no error in the action of the court.

Judgment in Zimmerman v. Canfield, reversed.

Judgment in Zimmerman v. Prickett, affirmed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Burckhardt v. Burckhardt.
    1. L. B. and F. B., who had for many years been engaged in a prosperous business in Cincinnati, under the firm name of B. & Co., agreed to dissolve and wind up the partnership business. Under this agreement L B. sold to F. B. all the real and personal property, together with the good will of the business heretofore clone by said firm,” and stipulated that he would not thereafter do business in said firm name of B. & Co. in Cincinnati, but with the right reserved “to carry on business in his own name, or under any name other than that of B. & Co.”
    The consideration was an agreed sum in gross for the real estate, fixtures and machinery used in the business, also the good will and the exclusive right to the firm name, as an entirety.
    F. B. paid part of the purchase mone3r, took possession and thereafter prosecuted the same business as the successor of the old firm. Held: That L. B. sold not only the real estate, fixtures and machinery, but the good will of the lousiness, and not of the premises merely, and also the exclusive right to the use of the old firm name of B. & Co. as a trade-marh, as his property.
    2. L. B. is liable in damages for wrongful acts, whereby F. B. is deprived in whole or in part of such good will and exclusive use of said firm name, to the extent of the injury sustained, and in action by L. B. on notes and mortgage, given for the unpaid purchase money, F. B. by counter-claim, may recover such damages.

      8.' Where such wrongful acts, which result in injury, consist of holding himself out as the successor of the old firm, and in printing and circulating bill-heads, cards, circulars and the like, calculated and intended to deceive the customers of the old firm, and which in fact do mislead and deceive them, and also, by special inducements, offered to such customers to trade with him, which Wrongful acts deprive F. B. in whole or in part of such good will and exclusive use of the firm name. Held: That the right reserved to do business in his own name, or in any other name than that of the old firm, did not warrant or excuse such acts, resulting in injury to the purchaser.
    4. Owing to the peculiar character of property, known as the good will of a business, which depends upon the contingencies of trade, that degree of certainty as to proof of damages is, in the nature of things, not attainable as in most cases of breach of contract. All that is required is that degee of certainty of which the nature of the case will admit.
    5. Where the injury complained of results in seriously affecting the business of the purchaser, as the success or of the old firm,by which a large part of it was for the time taken away, he is entitled to recover adequate damages, and is not limited in his proof of the same, to loss of commissions or profits on the business done by customers of the old firm who were thus induced to deal with the seller.
    6. Although the tangible property and the good will were sold as an entirety, for a gross sum, it is competent to show by witnesses the value of the property, with and without the good will, and how much less valuable the purchase is with the good will impaired or destroyed, than the purchase price. This will measure the damages, when more satisfactory proof is not attainable or where from the nature of the case it is difficult or impossible to show the actual loss of the business, by the wrongful acts complained of.
    7. In such case, while the court or jury may not be able to calculate the damages, with that certainty required in the case of a bill of particulars, yet it may from all the facts and circumstances estimate the damages sustained.
    ERROR to the Superior Court of Cincinnati.
    For a specific statement of the facts and pleadings.in this case, see the same case, 36 Ohio St. 261. The statement theremade contains the proceedings down to the time this court reversed the judgment below for errors hereafter to be noticed and remanded it for further proceedings.
    Under this mandate, further proceedings were had before the master, and a judgment was rendered by the court below, which it is now sought to reverse.

      Prior to October 16, 1871 plaintiff and defendant bad for more than 20 years been doing business under the firm name of Burckhardt & Co. their line of business consisting chiefly of the sale of carbon oils, including all the products of petroleum, the manufacture and sale of lard oil, stearine, and the sale of parafine wax, whiskey received on consignment, the sale of cotton as the liquidator of E. O. Hurd & Co. also the sale of peanuts consigned to it, and as a commission house.
    In these several lines of business and especially in the petroleum trade, the Arm had built up a large and profitable business. On the 16th of October 1871 the partners mutually agreed in writing to dissolve the partnership, and to that end were to meet on the 26th of October and bid each against the other for the real estate then owned by the firm, including fixtures, &c. and not including the stock of oil lard, stearine or other merchandise pertaining to said business.
    The party buying, was to pay one half the entire price as follows:
    One third cash, one third in one and one third in two years, the deferred payments to be secured by a mortgage on the real estate sold, and the party selling, “ Agrees to execute a good and sufficient deed of his interest in the real estate, with release of dower in said premises to the party buying, and to transfer said personal property so to be included in said bidding and sale together with the good will of the business heretofore done and ca/rried onby said firm, and to stipulate therein that the party selling shall not thereafter do business under the name of Burckhardt & Co. in the city of Cincinnati, but he reserves the right to carry on business in his own name or under any other name and style than that of Burckhardt & Co.”
    On the 26th of October following, the parties met and bid against each other.
    Frederick was the successful bidder at the sum of $166,000, for the entire property, including the good-will, or $83,000 for Leopold’s half. In performance of this contract, Leopold by warranty deed conveyed the property so purchased to Frederick, who executed a mortgage back for the deferred payments and for an invoice of merchandise, the half of which was also sold and transferred to Frederick. For the purpose of fixing the proper revenue stamp in the deed the sum of $45,000 was agreed upon as the value of the real estate. Leopold at the same time executed a contract, reciting that in consideration of $35,000 paid by Frederick (which was the balance of the one-half the purchase price to wit; ($83,000), he sold to Frederick his moiety of all the fixtures, machinery, utensels, furniture, packages and chattel, .... and also the good-will of said partnership in business, subject to the reservation contained in the agreement of October 16, and for further consideration of $3,340.13, he sold his interest in the stock of merchandise as per invoice annexed.
    . He also, in consideration of the premises, and in pursuance of the articles of dissolution, agreed and bound himself as follows : “ that I shall not nor will at any time hereafter do business in the city of Cincinnati by or under the name of Burck-hardt & Co. reserving nevertheless the right to carry on business either in my own name or any other name and style than that of Burckhardt & Co.”
    The record shows that two actions were commenced, one by Frederick, setting out this transaction, taking possession by Frederick of the business of the firm and charging Leopold with having violated his contract in the following particulars, to wit:
    And the plaintiff further says, that immediately thereafter, the defendant, in violation of his said agreement and of the terms of said sale to this plaintiff, and for the purpose of injuring this plaintiff, entered into the business of receiving and selling petroleum and coal oils and of stearine and lard oils in the city of Cincinnati, under the name and style of “ L. Burckhardt & Co.,” and has ever since continued the same, and held himself out to the community and to the persons engaged in trade with the said original firm of Burckhardt & Co., as the successor to said firm. And the defendant has caused bill-heads, cards, circulars and brands to be made and printed in imitation of the bill-heads, cards, circulars and brands of the said original firm of Burckhardt &. Co., that were calculated and intended to deceive the public and the customers and consignors and those who had theretofore dealt with the said firm of Burckhardt & Co., and to induce them to believe that he was carrying on and continuing the business of said original firm of “ Burckhardt & Co., and the defendant, by promise of reward and otherwise, enticed away the employees of said firm, who were employed and instructed by said firm and acquainted with their customers and trade, and .held out and represented to the consignors of oils to said firm and to the customers thereof, that he was entitled to do the said business, and in every possible manner attacked, injured and destroyed the goodwill of the business that he had so sold and conveyed to this plaintiff, whereby the good-will of said business was "wholly destroyed and rendered of little or no value to the plaintiff. And the plaintiff avers, that the consideration of said sale and of said promissory notes to the extent of the sum paid for the good-will of said business, and the exclusive right to said firm name, has thereby wholly failed and been lost to this plaintiff.”
    He prayed, that Leopold be restrained from transferring the notes and mortgages for the' deferred payments, and to the extent of the sum paid for the good-willOof said business and the' exclusive right to the firm name, said notes and mortgages be canceled and satisfied.
    There is also a prayer for general relief.
    Shortly after this, Leopold commenced an action against Frederick on his notes and mortgage asking for judgment and foreclosure. These two actions were by order of the court consolidated.
    The petition of Frederick stands as an answer and counterclaim to the petition of Leopold. Sundry pleadings of a supplemental nature were afterwards filed by the parties by means of which an issue was joined upon the so called counter-claim of Frederick. For a specific statement of these pleadings reference is made to this case as reported in 36 Ohio St. 261. It is sufficient now to say that the main question involved was, what was the contract of October 16, 1871, and whether Leopold had violated it or not, and if so, what were the damages sustained by Frederick. At the January term 1875, the court found specially the execution of said contract, the sale made under it for $166,000, whereby Frederick became liable to pay Leopold $83,000, together witb the other facts above stated.
    It further found that Leopold sold his half of the property, including good-will of the business theretofore carried on by the old firm in the name of Burckhardt & Co. (and not merely the good-will attaching to the premises upon which such business had been carried on), and the exclusive right thereafter to the use of the name of Burckhardt & Co. as his trade-mark. It further found “ that he bid for and purchased them all for $83,000, and that Leopold had failed to give him or had deprived him of the exclusive benefit to the use and enjoyment of such good-will, and such firm name of Burckhardt & Co., and the real estate sold by Leopold was only of the value of $45,000, and that $35,000,'was the value of such good-will and firm name as a trade-mark, as fixed by the parties in this transaction.
    The court further found as follows:
    “ Third. Whether in point of fact, Leopold is entitled to recover from Frederick no part of such sum of $35,000, or whether he is entitled to recover part of it, and if so, what part, we do not now undertake to determine. That must be done by a master, upon a reference of the case to him upon the testimony now before us, and such other testimony as the parties may adduce before him upon the subject of the extent of the deprivation, or damages sustained by Frederick, by reason of the premises. The master will determine such question upon such evidence, not requiring the defendant to make proof, as of a bill of particulars of his injuries, but upon the testimony applied to the case, in view of the nature of the subject; to which and to all the circumstances, he will give due weight and consideration. He will be required to report to the next general term of this court.”
    The case was then referred to John S. Conner as a special master in obedience to the third finding above stated.
    The master took testimony and made eleven specific findings of fact together with his conclusions of law, which will be found stated in 36 Ohio St. 272, 275. That case was reversed by this court chiefly on the ground that in assessing the damages to Frederick his measure of damages was the actual “ amount of improper solicitation ” of the customers and consignors of the old house of Burckhardt & Co., and not “ the actual loss in money,” to Frederick from the loss of business to the old house, or in other words, that unsuccessful improper solicitations was the basis of recovery of damages.
    It was further held by this court that Frederick’s counterclaim could be properly asserted as such in an action by Leopold to foreclose his mortgage and, as in either case where there is an independent action, or by way of counter-claim, the measure of damages is the same.
    It was further held in that case, that the fact, that the parties had by mutual agreement fixed upon the sum of $45,000, for the mere purpose of determining the revenue stamp required, did not destroy or sever the entirety of the consideration for the purchase as fixed by the contract of sale.
    Under a mandate from this court, the case was again referred to the same master to rehear the case upon the same and such further evidence as either party might offer and “ to ascertain and find the amount of damage, if any, suffered by defendant (Frederick), with respect to the business and good will referred to in the pleadings herein by reason of the acts and conduct of plaintiff and those acting by his direction and authority.
    The master took additional testimony and submitted the following findings of the facts and law.
    As Matter oe Fact.
    1. That the first eleven (11 j findings of facts, to-wit: findings 1 to 10 inclusive, in his former report filed in this court, and confirmed by it Feb. 24, 1877, are now re-found, and re-affirmed. '
    2. That the defendant, Frederick Burckhardt, has suffered material and great damage with respect to the business and good will referred to in the pleadings herein by reason of the acts and conduct of the plaintiff, Leopold Burckhardt and those acting by his direction or authority, hereinbefore reported by said master to have been done and carried on by them.

      3. That the average amount of capital, including real estate, employed by the old firm of Burckhardt & Co., in its business, for a period of six (6) years prior to its dissolution in October, 1871, was two hundred thousand ($200,000) dollars ; and the average yearly profits during the same period realized by it from all sources was thirty-five thousand ($35,000) dollars.
    4. That while Leopold’s interest in the real estate, fixtures and machinery, and good-will and exclusive right to the use of the name of “ Burckhardt & Co.” was sold to Frederick as an entirety and as a going business, for the sum of $83,000, (the total valuation as fixed by said sale being $166,000,) the value then of the whole real estate was $90,000, of the fixtures and machinery $6,000, and of such good-will and firm name as a trade-mark $70,000.
    5. That if the testimony offered on the present hearing by the defendant, as to the difference in the value of the whole property, real estate, fixtures, and good-will or of the goodwill alone, before and after commisson of the acts by, and the conduct of Leopold and his agents, heretofore found to have been done and carried on by them, be competent and sufficient evidence, and is to be considered independent of and not modified by the former finding of the inaster, that but four-fifths in value of the consignors and customers of the old house were solicited by Leopold and his agents, then the defendant, Frederick, was damaged, with respect to the business and good-will referred to in the pleadings herein by reason of said acts and conduct, to the extent of the value of the good-will and exclusive use of the old firm name, to wit, to the extent of thirty-five thousand ($35,000) dollars.
    6. That of said testimony, referred to in the 5th finding, is to be considered subject and modified by the former finding as to the amount of the solicitation, by Leopold and his agents, of the consignors and customers of the old firm, (which finding has in no way been modified by any testimony offered on the present hearing, but is now re-affirmed), there is no direct testimony tending to prove the specific damage, in the way of loss of business or profits, to Frederick, resulting from such solicitations (and in some cases, there was no loss of business or profits from such solicitations), the same being ineffectual. And considering said testimony, with respect to the general damage caused by the said acts and conduct of Leopold and his agents considered generally,'as modified by the former finding that the solicitations were not absolutely general, but consisted actually of but four-fifths in value of the consignors and customers, were confined almost entirely to the carbon and lard oil branches of the business, and that some of them were ineffectual, then the amount of damage suffered by the defendant, Frederick, with respect to the business and good will referred to in the pleadings herein by reason of said acts and conduct, was far less than $35,000, and could in no event .exceed twenty-eight thousand ($28,000) dollai's, the four-fifths cof the value of said good will and exclusive use of the old firm name; but the exact amount of said damage cannot be ascertained from the testimony now in the case.
    7. That if the testimony offered on this hearing as to the value of all the property, or of the good will alone, before and after the«ommission of the acts by and the conduct of Leopold and his agents heretofore found, be incompetent, or, although competent, be insufficient in the absence of further and specific proof, to prove the damages suffered by the defendant, Frederick, by reason of said acts and conduct, then there has been a failure of proof on the part of the defendant of any damage therefrom.
    As Mattee of Law.
    1. That the measure of the damage suffered by the - defendant, by reason of the acts and conduct of Leopold and his agents, heretofore found to be done and carried on by them, is the amount of injury sustained therefrom ; and this may be ascertained both by proof of specific loss of business and profits, and of diminution in the value of property sold by Leopold to Frederick, considering the same as an entirety, or the good will alone.
    2. That the burden of proof of such amount of injury is upon the defendant, and it must be established by clear positive testimony, and not from mere conjecture, independent of the evidence.
    3. That the defendant is entitled to recover- interest, upon the amount of his damage, from August 1, 1S73, when Leopold went out of business.
    4. That the defendant is'entitled-to have the amount of his damage and interest thereon, from August 1, 1873, off-set against and deducted from the principal and interest of the notes, given by him for his deferred payments on the purchase of the property sold him by Leopold.
    5. That if the testimony offered on this hearing, as to the difference in value of all of'said property, sold by Leopold to Frederick, or of the good will alone, before and'after the commission of the acts by, and the conduct of, Leopold and his agents, heretofore found to have been done and carried on by them, be incompetent; or, although competent, be insufficient, either alone, or in connection with the former testimony and findings, to base a finding of the amount of damage suffered therefrom, by the defendant, and there being no proof of amount of specific loss of business and profits, then the de-, fondant can only recover nominal damages.
    The undersigned further reports, that he has given very careful and long consideration to the testimony offered on this hearing, and, while he has considered the same to be competent and of great weight, yet he has not deemed it, even in connection with the other evidence in the ease, sufficiently conclusive, when considered in the light of, and modified as he thinks it must necessarily be modified, by the former finding of the amount of solicitation done by Leopold and his agents, to enable him to make a positive and definite finding of the exact amount of damage suffered by Frederick. Knowing that this honorable court will have to pass upon the competency and weight of this testimony, and upon the numerous questions involved by his rulings, made during this hearing, and knowing also that the case is to be fully argued before this court, upon both the evidence and law, he respectfully submits the above findings, without coming to a conclusion of the exact amount to be allowed the defendant as his damage.

      To this final report of the master Leopold excepted to the findings of fact by the master on the grounds that same is contrary to the evidence, namely: to Nos. 1, 4, 5, 6, 7, 9 and 10 of the former report re-affirmed by No. 1 of the last report, also to findings No. 2, 3, 4 and 5 of the last report, also to Nos. 1, 2 and 3 of his finding of law.
    , Frederick excepted to No. 6 in his findings of fact to the effect, that if his former rule that unsuccessful solicitations was not the true measure of damages, then there is no direct testimony tending to prove specific damage, and also to the finding that the exact amount of damage can not be ascertained from the testimony in the case.
    He also excepts to the 7th paragraph of the findings of fact, that if the testimony offered cn this hearing as to the value of all the property or of the good will alone before and after the commission of the acts and conduct of Leopold and his agents be incompetent or insufficent to prove the damages suffered, then there has been a failure of proof on the part of Frederick of any damage.
    He further excepts to the 5th finding of law to the effect that if the testimony offered in the hearing as to the difference in value of all the property sold, or of the good will alone, before and after the commission of the acts and conduct of Leopold be incompetent or insufficient in connection with former testimony, to base a finding of the amount of damages suffered by Frederick and there being no proof of amount of specific loss of .business and profits then the defendant can only recover nominal damages.
    This report of the master with the exceptions thereto, again came on to be heard by the general term of the superior court •which rendered its final decree December 15, 1882.
    That decree first found the amount due Leopold on his .notes and mortgage, not■ necessary to be particularly stated ■here. Upon the issue joined on the counterclaim of Frederick, and upon the master’s report and evidence it found as follows:
    And the court further find that the plaintiff has in sundry instances improperly solicited the trade of customers of the

      former firm of Burckhardt c& Go., that there is a faihtre of proof of damage eaused by such solicitations, except as to the solicitation of W. 33. Brooks & Co., of Nelsonville, Athens county, Ohio, L. D. Poston of the same place, Leith & Leineke, of Evansville, Indiana, and Philip Hornbrook of the same place, and that the damages suffered by the defendant because of such improper solicitation of the parties above named, so far as shown by the evidence, amount to one hundred dollars and no more, that defendant is entitled to recoup from the sum due on said notes, said sum of one hundred dollars, and that the plaintiff is entitled to have the real estate described in the petition sold to pay the balance of said indebtedness, amounting to ($62,719.06) sixty-two thousand seven hundred and nineteen and 6-100 dollars.
    And the court further finds that the defendant should pay the costs of this case accruing since the issuing of the mandate from the court, including the fee of the special master of five ■hundred dollars ($500), which is hereby allowed.
    The court also overruled all the exceptions of Frederick except so far as they were sustained by the foregoing finding, to all of which he excepted.
    A motion for a new trial on his behalf was overruled, bill of exceptions taken embodying all the evidence, and a judgment was rendered according to the foregoing findings of the court.
    To reverse this judgment is the object of the present proceeding in error. The principal ground of error and the only one noticed in the opinion of the court is that the report of the master and of the finding of the court is to the effect that Leopold was guilty of violating his contract as to the sale of the good-will, and of improper solicitations of the customers and consignors of the old firm, and yet it is held there should be proof of specific loss or damage and that there is a failure of such proof as will warrant the court in finding any damage except in the case of the aforenamed customers and to the extent of $100 only.
    The nature of the acts complained of by Frederick, are set out in his answer and counterclaim as a basis for damages.

      Upon this issue tlie master in his fourth finding of fact in his original report, reaffirmed in his second report, finds, that the wrongs complained of were by solicitations of the old customers, in the manner following : “ that such solicitation was done frivaiel/y by letters, envelopes, cards, quotations, or price currents, or personally, by Leopold Burckhardt, or his agents or employees, runners or traveling agents; asking said parties to deal with the house of Leopold Burckhardt & Co.; or by specially applying to said parties, and urging and holding out special and designed inducements to them to leave the successors of the old firm, and deal with it.”
    The final judgment rendered December 15, 1882, above cited, reaffirms the original judgment of the court before reference to the master upon the issues joined upon the counterclaim, by .specially finding that Leojmld had, “in sundry instances improperly solicited the trade of customers of the former firm of Burckhardt & Co.”
    The court, however, proceeds to hold, that there is a failure of proof of damages caused by such solicitations, except in four cases named, where the evidence showed specific proof of actual loss of gains and profits by reason of such improper solicitation.
    This is the error coni plained of.
    The master further finds as a fact, and of this there is no complaint, that as to some branches of the business of the old firm, the house of Leopold Burckhardt & Co. did not engage, such as in the cotton business, but very slightly if any, dealing in peanuts, and in the manufacture of lard oil or stearine, and did not deal in stearine, but did engage in active competition with the old firm, in dealing in carbon oils, received on consignment the sale of lard oils purchased or consigned, upon which it put its own brands, sales of linseed oil and a few sales of whiskey.
    The extent of the injury caused by the improper solicitations of Leopold is thus found by the master.
    “ 10. That it is clear that nearly every prominent customer of the old house in carbon oils and lard oils, and every prominent consignor of the old house of carbon oils and whiskey, dealing with it the year preceding its dissolution, was solicited by the house of Leopold Burckhardt & Co.; and that as a result of such solicitation, the business of Frederick Burckhardt as' successor of the old house, was most seriously affected, and for a time, a large part of it was taken away.”

      Sage & Hinlde and Stallo <& Kittredge, for plaintiff in error:
    Leopold Burckhardt had no right to solicit the trade of the old customers, not because such solicitation would be a breach of contract, for lie had made no contract not to solicit, but because he had made a grant of the good-will; and to solicit the trade of the old customers, would be, as the court said in La Bouehere v. Dawson, 13 L. R. Eq. 322, to derogate from his own grant. For the same reason he had no right to entice away the consignors, nor to persuade the employees of the old'Jinn to leave Frederick, and enter his employment, nor to do any of the acts complained of. And every one of those acts was a trespass upon the property of Frederick in the good will. And, as it is for the injury to that property that we ask compensation, we claim, upon the principle of compensation, the,right to show to what extent the value of that property was impaired by that injury.
    That the person injured shall received a compensation commensurate with his loss or injury, is the universal and cardinal principle of the law of damages. This principle is paramount, and by it all rules on the subject of compensatory damages are tested and corrected. In eases of willful or malicious injury, and injury from reckless or illegal acts, or from positive fraud, the damages are not so strictly confined, to proximate consequences as when these elements do not exist. 1 Sutherland on Damages, 71. Where there, is fraud or other intentional wrong, there is not the same strictness to exclude remote or uncertain damages, even where punitory damages are not involved. Sutherland on Damages, 161,173 ; Deathless v. Taw-son, 7 Daly, 355 ; Coffee v. Meigs, 9 Cal. 363; Allison v. Chandler, 11 Mich. 552; Morse v. Ilutehins, 102 Mass. 439 ; T-oullte v. Harding, 13 Pa. St. 242 ; Cook v. Collingridge, Jac. 607 ; Collyeron Part. § 322n.; Smith v. Everett, 27 Beavan, 4b), 456; Mellersh v. Keen, 28 Beavan, 453; Mitchell v. Head, 84 N. Y. 556.
    Leopold Burckhardt having attacked covertly and openly, and by every means in his power, the good-will which he had sold and transferred to Frederick — that intangible, shadowy property, the value of which, as Sir John Bomilly said, is so easily affected — we insist-that we have the right to prove by the testimony of witnesses of long experience in the business how the value of the property was affected, and what diminution of value resulted from the wrongs complained of. And wo claim that the cases above cited are authority.

      Aaron F. Perry of Perry d¡ Jenney, also for plaintiff in error,
    submitted and discussed the following propositions.
    I. The wrong complained of by Frederick is to be considered in two aspects, which should not bo confounded with eaeh other: One of them being the willful destruction of the good-will of the old firm, which Leopold had sold to Frederick for a valuable consideration; the other, the covenant, or contract, entered into by Leopold, for a valuable consideration, not to go into business under the old firm name.
    II. Leopold’s efforts to divert to his own benefit the goodwill he had sold, were violations of law and duty relating to good-will; his active warfare on the business of the old firm, by reduction of prices, and other irregular inducements, was a breach of his contract not to go into business under the old firm name, and also in relation to good-will.
    III. The going into business by Leopold (who has no partner), under the name'and ¡style’of “ L. Burckhardt & Co.” and of “ Leopold Burckhardt & Co.” tested by the law of trademarks, was not, in legal effect, going into business under a name and style other than “ Burckhardt & Co.” unless the initial L., or the name Leopold, signifying the same person who was the head of the firm, changed it into another firm. The use, in connection with the style and name of “ Leopold Burck-hardt & Co.” of letter-heads, bill-heads, and other trade-marks of the old firm, and deceptive representations made to customers of the old firm, show a deliberate purpose to represent the new concern as the same whicli' tbe customers of the old firm had been dealing with, and to appropriate the benefit of the reputation of the old firm.
    IY. It is unnecessary to consider what Leopold might lawfully have done in soliciting business, or in reducing prices, in the absence of a contract not to go into business in the old firm-name ; or if he had gone into business in his own name; or under a name and style really, instead of col or ably, different from the old firm name. Because nothing which he might lawfully have done can be used to mitigate damages for his unlawful and wrongful conduct. He cannot recoup or set-off against the damage unlawfully committed by himself, possible damage, conceivably possible to have been lawfully inflicted.
    Y. The proof, before the master and before the court below, of damages caused by defendant in error to plaintiff in error, outside of and other than the four instances for which damage was decreed, was, and is, in respect to directness and •certainty, and to legal competency and sufficiency, adequate and ample; and the finding of it not so was error.
    And as to the measure of damages cited : 1 Sutherland on Damages, 106, US, 119; Bell v. Cunningham, 3 Peters U. S. 69 ; Fritz v. Hobson, L. R. 14 Chy. Div. 542; Jacques v. Miller, L. R. 6 Ch. Div. 153; L. R. 3 Com. Pleas, 499; Had-ley■■ v. Baxendale, 9 Ex. 341; Schell v. Plumb, 55 N. Y. 592; Rhodes v. Baird, 16 Ohio St. 573 ; Battler v. R. R. Co., 66 N. Y. 50 ; Simpson v. Ry. Go., L. R. 1 Q. B. D. 274; Macrae v. Ciarle, L. R. 1 C. P. 403; Dalton v. Ry. Go., 4 O. B. (N. S.) 296 ; Tilley v. Ry. Co., 29 N. Y. 252; Rowley v. Ry. Go., L. R. 8 Ex. 221; Philips v. Ry. Co., L. R. 5 C. P. Div. 280 ; 3 Wall. 315 ; 97 U. S. 348 ; 93 U. S. 64, 67; 91 U. S. ' 646 ; 16 How. 480 ; 7 Cush. 322; 67 Me. 414; 62 Mo. 171; 10 N. Y. 489; 37 Conn. 278 ; S4 N. Y. 556.

      King, Thompson & Maxwell, for defendent in error:
    The two questions presented by the assignments of error are :
    1. Was there a failure of proof of damage ?
    2. Did the court exclude evidence which was competent, in .connection with the other evidence, to make out a case for the assessment of damages ?
    I. The burden which rested upon the defendant, in Older to make out his counterclaim, involved his establishing — (1) Violation by the plaintiff, in the particulars charged in the counterclaim, of the legal obligation imposed upon him by the agreement of sale. , (2) Substantial loss to the defendant by reason of such breach of obligation on the part of the plaintiff. (3) The amount of such loss, with a reasonable degree of certainty. In support of the second and third of these propositions, we cite the following authorities. As to necessity of proof of substantial loss, in addition to proof of breach of duty, see Blofield v. Payne, 4 B. & A. 410 ; Leather Cloth Co. v. Birschfield, L. R. 1 Eq. Cas. 299 ; Browne on Trade-Marks, §§ 499, 503 ; Parker v. Bulme, 1 Fisher, 56,; Smith v. Weed Sewing Machine, 26 Ohio St. 562 ; Banh v. Telegraph Co., 30 Ohio St. 555 ; Blalte v. Robertson, 94 U. S. 728 ; Treat v. Shoninger Melodeon Co., 35 Conn. 543; Burclchardt v. Burclchardt,, 36 Ohio St. 261. Date must be furnished by which the loss may be calculated with reasonable certainty. Leake on Contracts (2nd ed.) 1054; Philip v. Bock, 17 Wall. 460; Browne oh Trade-Marks, § 505.
    II. As to the exclusion of the testimony offered by plaintiff in error, to rebut and explain the evidence of his books, see Kilbourn v. Jury, 26 Ohio St. 153,162 ; Alexander v. Jacoby, 23 Ohio St. 388 ; 1 Sutherland on Damages, 793,794; Norman v. Walls, 17 Wend. 136 ; Shepherd v. Willis, 19 Ohio, 142 ; A. da G. W. R. R. Co. v. Campbell, 4 Ohio St. 583. The exceptions upon the exclusion of evidence are really all pressed in defiance of the elementary rule which requires the book itself to be produced, where the witness cannot swear to the fact from recollection, any further than as finding it entered in the book. State v. Perry, Wright, 662 ; Doed. Church v. Perkins, 3 T. R. 749 ; Ball v. Ray, 18 N. H. 126 ; Stan-wood v. McLellan, 48 Me. 275 ; Chapin v. Latham, 20 Pick. 473.
    III. We concede, that, in the business which the plaintiff established shortly after the dissolution, and carried on for eighteen months, he solicited the trade generally, including customers of the old house, in one of the departments of its business. This he had a right to do. The preliminary agreement of dissolution and the final transfer, both expressly reserved to the plaintiff “ the right to carry on business in his own,name, or under any other name and style than that of Burckhardt & Co.” This reservation entitled him to solicit former customers. Hanna v. Andrews, 50 Iowa, 462. The sale of good-will, even without such a reservation, does not prevent the vendor’s setting up again a similar trade, in the absence of express covenant to that effect. Sale of good-will simply confers upon the vendee the right to hold himself out as the successor in business of the concern whose good-will is sold. OruttweU v. Lye, 17 Yes. 335 ; Shackle v. Baker, 14 Yes. 469; Ohurton v. Douglas, 1 Johns. (Eng.) 187; Hupp v. Over, 3 Brews. (Pa.) 133; Bassett v. Pereival, 5 Allen, 345; Bergamini v. Bastían, 16 Rep. 460 (La.) Jan. 1883 ; Bammelsierg v. Mitchell, 29 Ohio St. 54; White v. Jones, 1 Abb. Pr. N. S. 337; Collier on Part. § 322 n; Demis v. Hodgson, 25 Beav. 182; Johnson v. Ilelléby, 34 Beav. 63; Hall v. Burrows, 33 L. J. Eq. 204; Palmer v. Graham, 1 Pars. Select Eq. Cas. 476 ; 2 Bindley on Part. 844, 1026; Story on Part. § 99. The ease of Ldbouchere v. Dawson. L. R. 13 Eq. Cas. 322, is not authority, see Walker v. Mottram, L. R. 19 Ch. D. 355, 356; Leggott v. Barrett, L. R. 15 Ch. D. 306.
    It is an egregious violation of elementary and fundamental principles of the science of jurisprudence, to hold that the sale of good-will imposes an obligation upon the seller not to solicit former customers.
    Ail rights, according to scientific classification, are embraced within two classes; rights in rem or those which avail against the world at large; and rights in personam or those which avail only against a determinate individual or individuals. Austin’s Jurisprudence, Lect. xiv., 380 et seq. (4th ed.); Digby’s History of the Law of Real Property, 223, 224, 225, pars. 2 and 3; Markby’s Elements of Law, § 136; Anson on Contracts, 3, 4; Holland’s Elements of Jurisprudence, 92, and chaps, xi., xii.
    The right to restrain others from soliciting customers is necessarily a right in personam. There can be no such right against the world at large (i. e., in rem).

    But a right in personam can not be generated by a mere sale or transfer. A grant or conveyance never creates a right in personam in the grantee against the grantor, as will readily appear from an example. I own Blaekacre, which means that I possess the right as against all the world to use and enjoy it, without unlawful interference, and to transfer it at pleasure. I convey it to you, and you thereby acquire the rights with respect thereto, which before were vested in me. But you acquire no special right against me which you do not have against persons generally. After my conveyance I am no more and no less bound to refrain from interfering with your use and enjoyment of the property than is the rest of the world. My conveyance creates no special obligation against me. No conveyance ever has that effect. Its office is simply to transfer to the grantee and to vest in him, the rights which formerly resided in the grantor ; and as a necessary result the grantor is thereafter with repect to the grantee and the subject of the grant, simply in the situation of one of the world at large against whom the grantee’s newly acquired rights avail.
    To create a right in personam, a contract, as distinguished from a conveyance, is required. But there is no word of contract or promise in the instrument,'executed by plaintiff, except his promise to" perpetually forbear from doing business in the city of Cincinnati by or under the name of Burckhardt & Co., and that promise he has not violated and is not alleged to have violated. As to the good-will, there is only a “ selling, assignment and setting over,” — words of conveyance, and not of promise or contract. And as a right in personam— which the right to restrain others from soliciting particular customers must necessarily be — is not susceptible of creation by a mere conveyance, it cannot be true that such a right arose from the transaction at bar.

      Good will, as a legal concept, must indicate some sort of a legal right — a right recognized and enforced by law, to do something which other people may not do. The right to use the name of a concern, and after its dissolution, to hold oneself out as its successor in business, has value in commerce, and has acquired recognition as a legal right, under the name of good will. That this right to hold oneself as the successor of an establishment is the precise legal right indicated by the term good-will, is evident from the authorities. It is the very right in the exercise of which all the cases show the purchaser of good-will to have been protected.
   Johnson, C. J.

In Burckhardt v. Burckhardt, 36 Ohio St. 261, it was held: 1st. That the entirety of the consideration which Frederick agreed to pay Leopold for his half of the property and good-will, including the right to use the old firm name of Burckhardt & Co. was not severed by the severance of the gross sum paid for both, for the mere purpose of .determining the amount of the internal revenue stamp to be fixed to the deed of the realty.

In other words, such severance, after the sale had been made, for revenue purposes merely, of the gross sum paid for the real estate and good-will into two sums, the one representing the estimated value of the real estate at $45,000 and the other the value of the good-will at $35,000, did not destroy ■the entirety of consideration as agreed by the parties to be paid for both.

2nd. In an action by the purchaser of the good-will, to recover damages for a breach of said contract, the measure of damages is not to be determined by the number of the old customers improperly solicited, irrespective of the effect of such solicitation on the business of the purchaser, but the damages should be measured by the injury sustained and not by ineffectual attempts to injure. It is only successful efforts to injure, and not unsuccessful, which renders the seller liable to damages.

3d. The measure of damages is the same whether relief be sought in an'independent action or by counterclaim.

4th. Informalities in pleading such a counterclaim are not grounds for reversal of the judgment after issue and trial.

This case does not, as seems to be supposed, decide what is the proper measure of damages where the good will is impaired or destroyed. In general terms it is held : “ The damages should be measured by the injury sustainedbut what is the proper rule of measuring such injury 2 or what amount of proof is necessary 2 or what effectual solicitations proven, constitute a breach of the contract for which damages are recoverable 2 are questions not considered or decided in that case.

The main, and perhaps only question necessary to be considered now is, what is the rule for ascertaining the damages where it is proven that there has been a breach of the contract for the sale of the good-will, and therefore a legal injury, entitling the purchaser to some damages 2 That these damages should be measured by the injuries sustained, is conceded. The question here is, whether there has been a failure of proof of such damages, except in the four instances named. The counterclaim of Frederick alleges, as a breach of said contract, that Leopold, for the purpose of injuring Frederick, entered into the business of the old firm and held himself out as the successor thereof, and caused bill-heads, cards, circulars and brands to be made and printed in imitation of those of the original firm, which were calculated and intended to deceive the public, and the customers and consignors of the old firm, and to induce them to believe that he was carrying on and continuing the business of the old firm of Burckhardt & Co., and that he, by promise of reward and otherwise, enticed away employees of said firm, who were acquainted with its customers and trade, and held out and represented to its consignors and customers, that ho was entitled to do said business, and in every possible manner, attacked, injured and destroyed the goodwill of the business he had sold and conveyed to Frederick.

Upon issue joined on these charges, the court find, first, that Frederick purchased from Leopold the latter’s half of the real estate, &c., the good will, of the business theretofore carried on by the old firm, and not merely the good will attaching to the premises upon which such business had been so carried on, and also the exclusive right thereafter to the use of the name of Burckhardt & Co. as his trade-mark.

2nd. The court found upon such issue joined, that Frederick had bought the whole property and good will for $83,000¿ $45,000 of which was the value of the real estate and fixtures and machinery, &c. and that $35,000 was the value of the good will and firm name as the trade-mark, “ as fixed by the parties in this transaction.”

It was further found That Leopold had failed to give him (Frederick), or has deprived him of the exclusive benefit, use and enjoyment of such good will and such firm name of Burckhardt & Co.”

The fact that the parties had thus fixed the value of the real estate, etc. at $45,000 and the good-will at $35,000, which was found to be for internal revenue purposes merely, ceases to be of significance since the decision above quoted in 36 Ohio St.

The finding that Leopold had failed to give him, or had deprived him of the exclusive benefit, use and enjoyment of the firm name, is equivalent to finding the issues joined in favor of Frederick. That is to say that Leopold was guilty of a breach of his contract in regard to the sale of the good-will.. This is a final judgment, and from which neither party appealed. It is the basis of the original order of reference to a master, for the purpose of determining the amount, if any, of daniages Frederick should recover.

The master was directed to determine such question from the testimony then before the court, “ and such other testimony as the parties may adduce before him upon the subject of the extent of the deprivation or damages sustained by Frederick by reason of the premises.”

The master was directed to determine such question upon such evidence, Not requiring the defendant to make proof as of a bill of particulars of" his injuries, but upon the testimony applied to the case in view of the nature of the subject; to which and to all the circumstances, he will give due'weight and consideration.”

Thus it will be seen that the court found that Frederick bad sustained a legal injury, and referred the case to the master to ascertain the damages which Frederick had sustained by 'reason of-such injury. The master, in his final report upon this subject, found, as a matter of law, that the amount of such damage may be ascertained both by proof of specific loss of business and profits, or diminution of the value of the property sold, considering the same as an entirety, or the good will alone. He further found, that if the testimony, as to the difference in value of said property, or of the good will alone, before and after the commission of the acts and conduct of Leopold and his agents, of which they had been found guilty, be incompetent, or though competent be insufficient upon which to base a finding of the amount of damages sustained, and there being no proof of specific loss of business and profits, then Frederick can only recover nominal damages. He was, however, of the opinion that such ■ evidence was of great weight, though not sufficiently conclusive upon which to base a positive and definite finding of the exact amount of damage suffered by Frederick. Pie therefore submitted his report without coming to a conclusion as to the amount to .be allowed Frederick as his damages. This brought before the court the whole question as to the competency and sufficiency of evidence as well as the extent of the injury and the amount of damages. That question was whether there should be proof of the amount of specific loss of business and profits, before Frederick could recover more than nominal damages. The court found that while there had been sundry instances of improper solicitation, yet there was a failure of proof of damage caused thereby, except in the case of four customers named. As to these, damages were assessed at $100. The master had found, assuming the difference in value before and after the wrongful acts was not sufficiently conclusive, and that there was no proof of specific loss of business and profits, that therefore Frederick could only recover nominal damages. The court modified that finding in the case of the four customers named, and from the evidence found there was proof of specific loss of business and profits as to them, and sustained the report as to nominal damages for all other wrongful acts proved. In this, we think the master and court erred. In the original order of reference, the master was directed not to require proof as in case of bill of particulars, but upon the testimony, in view of the nature of the subject, and all the circumstances which would enable him to determine the amount. In other words, the clear and distinct meaning of the third paragraph of the order of reference is, not to require proof of specific loss of business and profits as of a bill of particulars of his injuries, but to ascertain the amount of damages sustained by Frederick, by reason of the premises. This was disregarded. This direction to the master was apparently satisfactory to all the parties, and in our judgment was right and proper. It is manifestly at variance with the final action of the master in reporting in favor of nominal damages, and of the court below in holding that there was a failure of proof as to damages, because it was not specific as to loss of business and profits.

The final judgment, which was the basis of the original order of reference, found, and this we think is-a proper construction of the contract, that Frederick purchased, not merely the good will attached to the ¶remises sold, but the property and good will of the business, and the exclusive right to the use of the name of “ Burckhardt & Co.,” as a trade-mark.

The sixth finding of fact in the original report shows, that Leopold did not limit his efforts to legitimate methods for securing business from former customers, but that in making solicitations, Leopold, under the name first of “L. Burck-hardt & Co.” which he was compelled to relinquish, and then often under the name of “Leopold Burckhardt & Co.,” by lowering prices, underselling, giving longer time, sending samples and statements, offering special inducements and other ways, strove to take away the customers of the old house, in which he was successful, and caused a sharper competition in business than was ever known, and this was sharpest and bitterest between Leopold and Frederick.

For such acts and conduct by Leopold, as the master finds, and the evidence warrants such finding, all must admit, Frederick was entitled to substantial damages. These are to be measured by the extent of the injury. The finding of the court upon issue joined before reference, and the report of the master, which is supported by the evidence in the case, dearly establish two propositions : 1st. That the exclusive right of the name of Burckliardt and Company as a trade-mark was violated by Leopold. 2nd. That in violation of his contract, he has impaired, during the time he was in business, by various inducements, devices, and representations, the good will of the old business. These wrongful acts appear to have been intentionally done for the express purpose of depriving Frederick, of the advantages of his purchase, and of securing the good-will of the old house to himself. They entitle Frederick to damages, commensurate with the injury.

The question before us is as to the degree of proof necessary to be made, to entitle him to such damages. The degree of certainty which may be reasonable in some transactions, cannot, in the nature of things, be attained in this case. In some cases, as in an action on a note, damages are easy of proof, while in others, and the case at bar is one of them, the same degree of certainty is not attainable.

“ The most direct and legitimate injurious consequence, which can follow upon an unauthorized’ dissolution of partnership, is loss of'profits. Unless that can be made up to the injured party, it is idle to say that any obligation is imposed by a contract to continue a partnership for a fixed period. It is the same to say that such profits cannot be proved, except to a reasonable probability.” 1 Sutherland on Dam. 119.

“ The success of business ventures is not antecedently certain in an absolute sense; they are generally undertaken in reliance upon probabilities, based upon laws of demand and supply. Though speculative in their inception, by anticipating future values, they are restrospectively examined, generally, when they become subjects of investigation, and then such values are capable of proof. If the business (the profits from which are in question) is a trading business, they must depend on a succession of purchases of stock, of some sort,- for sale, or the employment of labor, or materials to be purchased for its production, and a succession of sales to prospective customers. Where the injury complained of is an interruption or prevention of such a business, or in causing a diminution of it, it is scarcely possible to establish damages to a very high degree of certainly. In many cases the best conclusion will be a probable one. The rule of law is the same in all cases, that the damages must be proved with certainty; but a. greater degree of certainty being attainable, in some cases, than is possible where the result sought depends on the chance of future bargains, the law will not permit the proof which is certain to be neglected, and a resort to that which is less satisfactory ; though the latter, in other cases, is the best the nature of the case admits of, and must be received as the only guide to the proper amount of compensation, and would then be available.” 1 Sutherland on Dam. 118, 119.

In actions for breach of contract where the elements of fraud and intentional wrong exist, as well as in torts, the law does not require impossibilities, it only requires that degree of certainty of which the nature of the case admits. Under proper instructions juries are allowed to act upon probable and inferential, as well as direct and positive proof, and they may look to all the facts and circumstances of the case, so as to enable them to make the most intelligible and probable estimate of which the nature of the case will permit. While it is true that damages must be proved and not conjectiired, it is equally true, that the degree of certainty to be obtained in such proof is not always the same. Graham v. Plate, 40. California, 593, was an action for the infringement of a trademark. Actual profits was adopted as the rule of damages, although it was not ascertained how much of these profits was due to the trade-mark, and how much to the commodity sold. The case was likened to one of confusion of goods, and was placed upon the ground that one who fraudulently uses a trade-mark, cannot shield himself from damages to the extent of the profit he has made, although it is impossible to show how much is due to the trade-mark and how much to the commodity. "Where there is fraud or other intentional wrong, there is- not the same strictness to exclude remote or uncertain damages, evén though punitive damages are not involved. We think the case at bar one of willful wrong, and that the language of Christancy, J., in Allison v. Chandler, 11 Mich. 552, is applicable. He says: The nature of the case is such as the wrong-doer has chosen to make it; and upon every consideration of justice, he is the party who should be made to sustain all the risk of loss which may arise from the uncertainty pertaining to the nature of the case and the difficulty of accurately estimating the results of his own wrongful act.”

“ The value of property constitutes the measure or an ele ment of damages in a great variety of cases, both of tort and of contract; and where there are no such aggravations as call for or justify exemplary damages, in actions in which such damages are recoverable, the value is ascertained and adopted as the measure of compensation for being deprived of property, the same in action of tort as in action upon contract.”

In Mellersh v. Keen, 28 Beavan, 453, it was held that when, on a dissolution, one partner obtains exclusively the benefit of the good-will, and is made acountable for it, the. court, in ascertaining its value, considers what it would have produced, if sold in the most advantageous manner, and at the proper period of time. And on page 454 we find so eminent a judge as Sir John Romilly thought it proper to arrive at the value of the good-will. He says : “ I think the chief clerk has come to a right conclusion. The difficulty of ascertaining the value of the good-will of a business is yery great ; it is of a shadowy character, and a very slight thing will increase or diminish its value. I have no doubt, that the evidence of the eight or nine bankers, who have said that it was worth nothing, may be perfectly true, in one sense, that nothing could have been more easy than to have sold it in such a way that nobody would have given a penny for it. But the court is bound to look at it in this point of view : what would it have produced if it had been sold in the most advantageous manner and under such circumstances that it would have produced the largest sum for -all parties interested ?”

See also Mitchel v. Reed, 84 N. Y. 556, where it was held, that the opinion of witnesses as to the válue of the good-will as an element of damages was competent, Chief Justice Fol-ger said, The question put to witnesses to speak to the damages assumed that it was proper' to consider the furniture and good-will as put up .together with the leases, and the parties, or either of them, had a right to bid, and that what those three together would bring at such a sale was a basis for the computation of damages.”

Alluding to the objection, that the furniture and good-will were not proper constituents in' the inquiry, he said that: “As the matter stood when this suit was begun, the plaintiff’ was entitled to an interest in the leases renewed, in the furniture and whatever else was a thing of partnership value. It. is manifest that the property of a partnership engaged, in the. business of keeping a public house is more valuable if that property may be kept together at the place of business to-which the customers were used, with the right to carry on the. same business at that place by the same proprietors for a fixed-term, than if put up for sale with the need upon most bidders for it, including one of the partners, to take it elsewhere intoother business or into a hew place for the same business. ' The defendant had done damage to the plaintiff in bringing about the last named state of things, and one element of that damage^ was the diminution in value to the plaintiff of his interest in. the property thus affected.

So it was an element in the estimate .of damage, what the property would have brought had there gone with the sale of. it the right to keep it on at the same place in the same business. The law’s delay and the course of events.had precluded the plaintiff, from an enjoyment of the leases, and there was no practical departure from instructions by an agent, or a loss-through his' negligence or misconduct, or that of a bailee or trustee ; as well as where there is a tortious taking or conversion, by one standing in no contract relation to the owner.And, moreover, the value' is fixed in each instance, on similar considerations, at the timé when, by the defendant’s fault, the' loss culminates.”

- In .view of these citations with many others that might be added, we conclude that the court below erred. It is apparent both from the record and .from the published opinion that the degree of certainty required, amounts to a practical denial of justice. The case is shown to be one where the conduct of Leopold is marked with the elements of unfair dealing. It is impossible to prove the injurious consequences of each particular act, and it is proper that Frederick should have substantial damages, to be determined by the results of the wrongful acts upon his business. AH the facts and circumstances tending to show the extent of the injury, which will enable the court or jury to adequately estimate damages should be considered. While the opinion of witnesses as to the amount of damages is incompetent, yet such an opinion coming from witnesses, as to the value of the property with and without good will and trade-mark, or the diminished value of the property with the good will destroyed or impaired, by reason of the wrongful acts of Leopold, is competent and may in the absence of more specific proof be taken as the measure of damages. C. & P. R. R. Co. v. Ball, 5 Ohio St. 568; Lawson on Opinion and Exp. Ev. 446. Since the act of April 1883, after which this case came to this court, we are not required to determine as to the weight of evidence, we cannot undertake to do so now, therefore it must be remanded for further proceedings as to the extent of the injury and for' the assessment of damages. There is an additional reason for this. The new firm was not engaged in competing for certain lines of business with the old, and therefore the deprivation and damages resulting from the wrongful acts of Leopold must be limited to such lines of business as he was engaged in, in common with the old firm.

2. Extended arguments have been made pro and con as to whether Leopold was in fact guilty of a breach of his obligations as fixed by the contract of the sale. In the view we have taken of this case this question is not before us, unless we review the evidence.

The court, before any reference, had found against Leopold on this question. The court below, in its final judgment upon the report, finds that there were sundry instances of improper solicitations, but what were their extent, nature and character, or what particular acts were proper or improper is not stated. In the original order of reference it was, as we have said, found that the contract transferred to Frederick, the good-will of the business and not merely that of the premises, and also the exclusive right to the old firm name as a trade-mark; and that Leopold had by the acts charged, deprived him in whole or in. part, of what he had purchased.

Taking, as we must, that finding, as a basis of the assessment of damages, the final finding of sundry improper solicitations was uncalled for, or too indefinite to be reveiwed here. The case must be remanded, to a court competent to determine the extent of these wrongful acts and to assess the damages accordingly. We cannot now undertake to go through this evidence and specify each particular act, which was a violation of the contract. This must be determined in every case by the underlying principles of good faith and fair dealing.

Leopold had the right to engage in a similar business as that of the old firm. But this gave him.no right to resort to undue means, to take from Frederick the benefits of his purchase. By his sale he parted with the good-will of the business of the old firm, and cannot be permitted to derogate from his grant.

The special efforts which he made, as appears from the master’s report, to induce the customers of the old firm to believe that he was its successor, or to deceive them by an imitation of its trade-mark and the special inducements offered to old customers to decoy them to his place of business, and all other unfair means to which he and his agents resorted, are forbidden by the plainest principles of common honesty. As the case must be remanded for further proceedings, we have not thought it necessary to pass upon other questions raised.

Judgment reversed and cause remanded.


author: Follett, J.

text:
    The State v. Brady.
    1. In cities of tlie second class the terra of office of city clerk is two years. State v. Squire, 39 Ohio St. 197, followed.
    2. Where, in April, 1883, A. was elected such city clerk for the “coming term,” such term of office will extend to April, 1885, and A. is entitled, without re-election, to hold such office for the full term, unless lie abandons the same or is estopped from claiming it.
    3. A.’s accepting the office in 1883 with the knowledge that the council each year elected a city clerk, and his soliciting a re-election in 1884 do not estop him from claiming the full term ; and in April, 1884, while A. rightfully insisted on holding the office for the full term, another person could not be duly elected to such office.
    Quo Waeeanto.
    This action is brought to oust the defendant from the office of city clerk of the city of Newark, a city of the second class. The petition states that the defendant has usurped that office, claiming to hold and perform the duties of the same, by the authority of being chosen thereto by the city council of said city, at the regular organization meeting thereof, in April, 1884. The petition states also that Thomas G. Thornton was duly elected by said council as clerk of the city at the organization meeting of said council in 1883, that he was then elected and qualified for two years, and that he is entitled to serve in said office for said two years from said meeting in 1883, but that said defendant prevents him from so doing, that there was no vacancy when said defendant was elected, and that his election was a nullity.
    The answer denies that said Thornton was elected, or that he qualified in 1883 for the term of two years, but states that he was chosen by the council in 1882, that he understood, and so did the council, that he was then, and also when he was chosen in 1883, chosen for the term of one year, and that in both cases he qualified accordingly. The answer also alleges that in 1869 the electors of said city elected to said office S. S. Wells for the term of two years, which expired in April. 1871, that since thentbe council has chosen a clerk every year, who has qualified in every instance for a year term. It is also stated in the answer that Thornton was a candidate before said council in 1881, when defendant was chosen for the office of clerk, but not elected.
    It is admitted, that the city clerk was elected by the city council each year from 1871 to 1883 inclusive ;• but relator claims that in April, 1883, Thornton was elected for the term of two years, and then entered on such term and is entitled to hold the office for the full term of two years, and that in April, 1881, there was no term of the office, or vacancy in the office, to which Brady could be elected, and that Brady should be ousted from the office.

      Gibson Atherton, for the plaintiff,
    claimed that section: 1709 of the Revised Statutes had received a construction in States. Squires, 39 Ohio St. 197, where it was decided that the section was applicable to the office of city clerk, and that the term of office was two years. That an intention to elect for one year would make no difference as the. law fixes the term. Stadler v. Detroit, 13 Mich. 316 ; People v.. Lord, 9 Mich. 226; Turnipseed v. Hudson, 50 Miss. 129; Dezill v. Odell, 3 Hill, 215 ; Taylor v. Zepp, 11 Mo. 182 ; Alexander. v. Walter, 8 Gill, 239; 2 Story’s Eq. Jur. § 1516 ; Bigelow on Estoppel, ch. 19; Herman on Estoppel, § 112.

      Jones & Phillips, for defendant,
    • claimed that the action should be dismissed for: I. If the term is two years, then Thornton having been elected in 1882, there was no vacancy, in 1883, and he was not then legally elected and his term, expired in 1881, the time of defendant’s election.
    II. Thornton having acquiesced in a long course of action by the city authorities in electing clerks for one year, and having accepted said, office upon two elections for said one year term, and having been a candidate for re-election in 1881, will not now be aided by the court but will be held to have resigned, if necessary, before the last April election, and that he is estopped from denying it.

      III. The terna of office is one year.
    IY. If tbe term is two years, the two year term commenced at the organization meeting of the city council of Newark held in 1878, and there was an expiration in 1884, and the election of defendant then was regular and legal.
   Follett, J.

Is Brady the duly elected city clerk?

The regularity of his election is admitted, provided Thornton was not entitled to the office until April, 1885.

This presents the question, when should Thornton’s term of office end ? On March 15, 1869, the following provision became the law (66 Ohio L. 25). “The qualified voters of each city of the second class shall, on the first Monday of April, 1869, and every second year thereafter, elect... a city clerk, who shall hold his office for two years.” This fixed a definite term of office for city clerk. Newark was then a city of the second class, and on the first Monday of April, 1869, elected a city clerk for the term of two years.

On May 7, 1869, the above act of March 15, 1869, was amended, and the municipal code was'passed, which took effect July 1, 1869.

This revision did not cause any change in the law except as is specifically provided. State v. Perrysburgh, 14 Ohio St. 472; State v. Newton, 26 Ohio St. 206.

Section 60 (66 Ohio L. 160), provides, “ the officers of cities of the. second class shall consist of a mayor, clerk, treasurer, ... all of whom shall be'elécted: ” etc.

Section 62 provides, All officers who are elected shall serve for two years and until their successors are elected and qualified, and all officers who are appointed shall serve for one year and until their successors are appointed and qualified.”

Section 60 above was amended April 18, 1870 (67 Ohio L. 68), so as to provide : the officers of cities of the second class shall consist of a mayor, treasurer, ... all of whom shall be elected by the qualified electors of the city ; and a clerk, who shall be chosen by the council; provided, that all clerks heretofore chosen or elected shall hold their office until the expiration of the term for which they were chosen or elected.”

The city clerk, who was elected April, 1869, held his office until April, 1871, when the council elected his successor.

Rut it is claimed that the office of a city clerk chosen by the council, is held by appointment and not by election; and that the term of office of such city clerk, is but one year, as provided by section 65 above, being section 1709 of the Revised Statutes.

In State v. Squire, 39 Ohio St. 197, it is held: “ 1. The office of clerk, in the cities of the second class, is held by election, and not by appointment, within the meaning of section 1709 of the Revised Statutes. 2. The term of office of such clerk is two years.”

We are asked to reverse that decision, and able arguments are presented why it should be reversed ; but we think it better to let the decision stand.

This determines that the term of this office is two years : and by the above acts of ” March 15, 1869, and of April 18, 1870, the term began April 1869, and ended April 1871. No statute since then has changed or fixed the beginning or the ending of such a term of office. So this term began April, 1883, and ends April, 1885.

The practice of the council to elect a city clerk each year, did not change the term of office. Stadler v. City of Detroit, 13 Mich. 356. And Thornton’s knowledge of such practice did not change his term of office.

The record of the council showing its doings on April 16, 1883, contains the following : “ Thomas G. Thornton was then nominated for clerk and auditor of said city for the coming term, a yea and nay vote was then taken.. . Thomas G. Thornton was then declared elected as clerk and auditor.”

It is claimed that coming term ” should read “ coming year” and that the word “ year ” was written therein, and the record approved, and that it was erased since the record was approved by the council, and the word“ term” placed in its stead. But the testimony is, that the record is now as it wa.s when approved by the council.

This bi’ings us to the conclusion, that Thornton’s term of office as city clerk does not expire until April, 1885 ; and that lie is entitled to bold this office until that time, unless be bas abandoned tbe same or is estopped from claiming tbe same.

Tbe record remaining as it is, there is no act of abandonment or estoppel shown, except being a candidate for re-election in April, 1884. This is notan abandonment and does not estop Thornton from claiming tbe office. Turnipseed v. Hudson, 50 Miss. 429 ; State v. Bryce, 7 Ohio, pt. 2, 82.

There was no vacancy in tbe office of city clerk of Newark in April, 1884; and Brady was not duly elected to that office.

Judgment of ouster and judgment of induction.