text:
    Cassilly v. Cassilly.

      Release and transfer of prospective estate— Written contract read to and asse?ited to by one who cannot read — Cannot be set aside, when.

    1. A written instrument in the following terms :
    ‘ ‘ In consideration of five hundred dollars, ($500,) tome this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have, or may ever have, in the estate of Francis Owens, deceased, whether said estate, or any part thereof passes, or may ever pass to me, by descent, bequest, gift, devise or otherwise. I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890 ; and not to bring an action or to be a party to the same to set said will aside. her
    Margaret (X) Cassilly. • mark.
    Witnesses :
    Edw. A. Foy,
    Wm. F. Foy.
    Dated July 26, 1890.”
    embodies a contract which cannot be contradicted by parol evidence.
    2. Where mother and son enter into a written! contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.
    (Decided December 17, 1897.)
    Error to the Superior Court of Cincinnati.
    This action was brought in the Superior Court of Cincinnati, by defendant in error against plaintiff in error, the plaintiff there recovered judgment which was affirmed in general term, whereupon the cause was brought here to reverse the judgment in general term. The facts will be stated in the opinion of the court.

      Outcalt & Granger, for plaintiff in error.
    We contend that only upon two theories could parol evidence have been properly admitted, either because the written document in question was, in legal effect, merely a receipt for money, or, if it was more than that, because it had been executed through mistake or fraud. For, if it is the undoubted law, as it seems to be, that a receipt given for money or property may be varied by parol evidence, it is likewise thoroughly established that a written agreement of release or settlement, purporting to be full and complete in its terms and containing no ambiguity, can not be varied by such evidence, except where it is shown that the instrument was executed under a mistake or was procured by fraud.
    If any authorities can be cited to maintain the doctrine that where a written instrument is both a receipt and an agreement the two parts may be separated and parol evidence admitted to vary the words of the part which is the receipt, it will still appear that the Supreme Court of Ohio has repudiated such doctrine, and we need not go outside to discuss it. Stone v. Vance, 6 Ohio, 246; Baird v. Hueston, 10 Ohio St., 430; Fitz v. Corney, 118 Mass., 100; Frost v. Brigham, 139 Mass., 43; Doyles v. Dickson, 94 Mass., 576; Fowler v. Richardson, 32 Ill. App., 152; Tarbell v. Elevator Co., 47 N. W. Rep., 152; Taylor v. Davis, 52 N. W. Rep., 756; Transportation Co. v. Miller, 59 Fed. Rep., 483.

      As to the admissibility of the aforesaid evidence on the theory that the written release and agreement was executed under a mistake or through fraud, our first proposition is, that the case presented by the pleadings precluded it. Nothing was alleged by this plaintiff, in her petition or reply, that would entitle her to attack this paper on any such ground.
    Even in suits instituted for the express purpose of impeaching a transaction on the ground of fraud, it is required, as a rule of pleading, that the nature of the case should be distinctly and accurately stated ; a mere general charge of fraud, without, alleging specific facts, is not sufficient to sustain the petition; it must be shown in what the fraud consisted and how it was effected ; the facts constituting the fraud must be stated. Am. & Eng. Ency. of Law, Vol. 8, page 653; Pendleton v. Galloway, 9 Ohio, 178; McMurray v. Gifford, 5 How., Pr. 14; Bliss’ Code Pleading, section 211.
    And in actions brought for the express purpose of reforming- a written instrument on the ground of mistake, the court will not consider whether the relief should be granted, without the requisite allegations in the bill to bring the parties within the rule of equitable relief under this head of equity jurisdiction. White v. Denman, 1 Ohio St., 110; Kinkead’s Code Pleading, sections 607, 620, 825 and 1095.
    A fortiori, relief on either of the above mentioned grounds would not be granted and could not be regarded as a part of an action to enforce a verbal contract, when such verbal contract is, on the trial, shown to have been merged into a written contract, and no fraud or mistake in the written contract is in the slightest manner set up in the pleadings. Whittaker’s Ohio Code Pleading’, pag’e 115; Bates’ Pl. & Pr., Vol. II, pp. 862 et seq; Pomeroy on Remedies, sections 664, 687; Jenkins v. Long, 19 Ind., 28; Parsons on Contracts, 8th Ed., Vol. II, page 833. Pratt v. Castle, 52 N. W. Rep., 52; Howard v. Thomas, 12 Ohio St., 201.
    It is for the court to decide whether the facts are sufficient to establish such a mistake as will justify the reformation of a written instrument. Shettiger v. Hopple, 3 Grant (Pa.), 54.
    What is “mistake?” Am.- & Eng. Ency. of Law, Vol. XV. p. 625; Ligon v. Rogers, 12 Geo., 281.
    Chancery will not reform a written contract by the insertion of a stipulation which was designedly omitted from the writing and trusted to the defendant's honor. Betts v. Gunn, 31 Ala., 219.
    Equity will not interfere where the instrument is such as the parties design it to be. If they voluntarily chose to express themselves in the lang’uage of the deed, they must be bound by it. Mackelderry v. Shipley, 56 Am. Dec., 703.
    Nor where the facts could have been obtained by the exercise of due diligence. McDaniels v. Bank, 29 Vt., 230.
    To entitle a party to relief for mistake, he must have been free from negligence. Bonney v. Stoughton, 122 Ill., 536; Robertson v. Smith, 11 Texas, 211; Byers v. Chapin, 28 Ohio St., Androscoggin Bank v. Kimbel, 10 Cush., 373.
    As a rule of evidence, this court has declared that as against a claim, of mistake, ‘ ‘ the presumption is so strongly in favor of the instrument that nothing short of a clear- and convincing statement of facts showing the mistake will warrant the court to interfere and. reform the instrument. Potter v. Potter, 27 Ohio St., 84.
    There is a presumption in favor of the due execution of solemn instruments. Greenleaf on Evidence, Vol. I, section 38a.
    The courts will not grant relief when the means of knowledge were equal. Belt v. Mehan, 2 Cal., 159; Van Voorhis v. Rea Bros., 153 Pa. St., 19.
    The simple fact of making’ a representation which turns out not to be true, unconnected Vith fraudulent desig’ns, is not sufficient to constitute fraud ; for fraud means an intention to deceive, and if there was no such intention, if the party honestly stated his opinion, believing in it, he commits no deceit, even if the representation proves entirely untrue. Lord v. Goddard, 13 How. (U. S.), 198, 211; Young v. Covell, 8 Johns, 23 ; Parmlee v. Adolph, 28 Ohio St., 10; Kimball v. Insurance Co., 9 Allen, 540; Armstrong v. Karshner, 47 Ohio St., 276; Burt v. Bowles, 69 Ind., 1; Gallager v. Brunel, 6 Cowan, 346; Fisher v. N. Y. C. P, 18 Wend., 608; Long v. Woodman, 58 Me., 49; Fenwick v. Grimes, 5 Cranch C. C., 439; Sawyer v. Prickett, 19 Wall., 146; In Com. v. Brennerman, 1 Rawle, 314; Pomeroy on Contracts, section 255, page 340 ; Thurston v. Ludwig, 6 Ohio St., 4; Parsons on Contracts, 8th Ed., Vol. II, star pp. 548, 549; Greenleaf on Evidence, Vol. I, section 87.
    When an instrument by mutual mistake of the parties fails to carry out their intention, it may be reformed in a proper proceeding for that purpose. Globe Ins. Co. v. Boyle, 21 Ohio St., 119; Railroad Co. v. Steinfeld, 42 Ohio St., 449.
    It is not the law that a party is conclusively and necessarily relieved from his written contract merely because he did not understand what he was signing or did. not intend to do what the writing shows he. did. If this were enough, then what becomes of the presumptions of law which are indulged in to sustain the integrity of written agreements ; what contract could not be easily repudiated under such a charge? Pomeroy on Contracts, pp. 332, 333; Lyman v. U. S. Ins. Co., 17 Johns. (N. Y.), 373; Tesson v. Ins. Co., 40 Mo., 33; Diman v. Railroad Co., 5 R. I., 130; Renshaw v. Lefferman, 51 Md., 277.
    The effect of the charge was that a representation which turns out to be false is per se fraud, as a matter of law. This is contrary to the doctrine established in Armstrong v. Karshner, 47 Ohio St., 276, that a misrepresentation, to constitute fraud, must have been made “fraudulently, for the purpose of deceiving.” If it was honestly made, and not recklessly, or if the plaintiff was negligent in relying upon it — if the circumstances were such as that she had no right to rely upon it, as, for instance, if she knew, as she said she knew,' that Mrs. Goddard would not settle for $500, then there was no fraud in the statement described by the court. Ins. Co. v. Reed, 33 Ohio St., 283; McDonald v. Trafton, 15 Me., 225.
    Even if the theory of the special charges was correct, that for fraud the written agreement could be ignored and a recovery be had on the previous verbal agreement, this could not be, unless the plaintiff first return the consideration which she received under the written agreement; she coidd not rescind in pa/rt. Snow v. Alley, 11 N. E. Rep., 764; Barrie v. Earle, 8 N. E. Rep., 639; Merrill v. Wilson, 33 N. W. Rep., 716; Byard v. Holmes. 33 N. J. L., 119.

      Keeping the $500, her only remedy was to sue for damages, in an action for deceit.. Gould v. Bank, 99 N. Y., 333
    The cases reported in this country upon this doctrine, showing variously that the required amount of proof necessary to reform and enforce an agreement on the ground of mistake, must be “ such as leaves no doubt in the mind of the court;” that it must be “clear and overwhelming;” that it must be “clear, precise, indubitable;” that .it must be “clear and satisfactory;” that it must be “the strongest and most convincing;” that “it must be provenas satisfactorily as if admitted;" that “a mere preponderance is not sufficient” — are collected in the marginal notes of The American & English Encyclopedia of Law, Vol. XV, pp. 650 and 653.
    But the doctrine is also well settled in Ohio: the proof must be clear and satisfactory. Davenport v. Scovil, 6 Ohio St., 459; Stine v. Sherk, 1. W. & S., 195; Stockbridge Co. v. Hudson Co., 102 Mass., 54.

      Charles W. Baker, for defendant in error.
    To say because Cassilly produced a pretended receipt that had his mother’s mark affixed to it, that this prevented the introduction of proof showing what the agreement was between himself and his mother, of showing that Cassilly did not do as he agreed, that this very receipt was a violation of his agreement, and was fraudulently obtained, is too entirely absurd to argue. Merrick v. Boury, 4 Ohio St., 60; Fleig v. Sleet, 43 Ohio St., 53; Mullen v. Old Colony R. R. Co., 127 Mass., 86; Railway Co v. Phillips et al., 66 Fed. Rep., 35; Sobieski v. Ry. Co., 41 Minn., 169.

      It is urged that the action in this case should have been for deceit, and not upon contract. How can this be ? The cause of action is stated in the petition.
    Mrs. Cassilly was entitled to retain the $500 and credit it upon the $2,000 that was due her the moment Cassilly paid that sum to Mrs. Goddard. Railroad v. Steinfeld, 42 Ohio St., 449.
    The only action that could have been brought, was upon contract as set forth in the petition.
    Asa corollary to this, the suggestion of counsel is, that the plaintiff in this cause ought to have brought a separate action in a court of equity to reform or change or cancel the alleged instrument to which she attached her mark, upon the ground that it was fraudulent, and that she could not maintain this action upon contract until after there had been an adjudication upon this question in a court of equity.
    Courts of law and courts of equity in Ohio administer justice with the same hand. In our practice one is not bound to go into a court of equity to have a receipt or contract declared fraudulent as a preliminary step to an action at law for what is due him, and of which it is sought to deprive him by the fraudulent instrument.
    Besides, that was waived by the defendant going to trial upon the issues as pleaded. Hollins v. Iron Co., 150 U. S., 371; Tyler v. Savage, 143 U. S., 79.
    It has been repeatedly held that an appellate court will not entertain an objection to the form of the action when the objection is not interposed in ample time in the trial court.
    It will be presumed that the parties assented to the theory that the remedy adopted was the proper one, and they will be held by that theory on appeal
      Brown v. Lawler, 21 Minn., 327; Weaver v. Kintzley, 58 Iowa, 191; Town of Mentz v. Cook, 108 N. Y., 504; Cement Co. v. Railroad, 29 N. E., 121; Creely v. Brick Company, 103 Mass., 514.
   Bradbury, J.

The plaintiff in error, Thomas Cassilly, is the son of the defendant in error. In the year 1890, her brother, Francis Owen, died in Cincinnati, Ohio, unmarried, leaving a will, by the terms of which her son, Thomas, plaintiff in error, was made the principal legatee. The testator left surviving him two sisters, the defendant in error, and Ellen Goddard, and possiby one brother ; however, as they had not heard from the latter for many years, he was supposed to be dead. These two sisters of the testator were not satisfied with the provisions of the will of their brother, and were considering the expediency of contesting its validity. Wishing to prevent this, the plaintiff in error sought a compromise with his mother, the defendant in error, and also with his aunt, Ellen Goddard. He first entered into a written contract of settlement with his mother, by the terms of which he paid her five hundred dollars in consideration among other tilings, that she would neither bring an action herself to contest the validity of the will, nor become a party to such action if brought by another. He and his mother subsequently disagreed respecting the amount, which, by the terms of the settlement, was to be paid to her ; he claiming that the amount was five hundred dollars, and she contending that she was to be paid whatever sum, her son should pay to her sister in case the two latter should come to a settlement. Afterwards her son and sister came to an agreement by which the latter was paid two thousand dollars. Thereupon the defendant in error brought an action to recover the difference between what had in fact been paid to her under the settlement with her ($500.00), and the sum paid to her sister under the settlement with the latter.

In her petition she averred that by the terms of the settlement between herself and her son, the latter was to pay to her whatever he should pay to her sister according- to the terms of the settlement had by him and the sister.

The defendant below, by answer, among other matters set in bar of the action that he and the plaintiff below, had come to an agreement by the terms of which he was to pay, and had paid her five hundred dollars, in full settlement of all rights she might have in the estate in question.

The action was founded on a contract by the terms of which Mrs. Cassilly had released to her son, defendant below, whatever interest she might have in the estate of her deceased brother. The son rested his defense upon the' same contract. Both ag-reed that she had released that interest to him; the amount to be paid to her by him in consideration of such release was the only matter in dispute between them.

When the cause came on for trial in the Superior Court, the son, defendant below, introduced in evidence, in support of his contention in this respect; the following’ written instrument:

‘ ‘In consideration of five hundred dollars ($500.00) to me this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have or may ever have in the estate of Francis Owens, deceased, whether said estate or any part thereof, passes or may ever pass to me by descent, bequest, gift, devise or otherwise.
I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890; and not to bring an action or to be a party to the same to set said will aside.
her
Margaret (X) Cassilly. mark.
Witnesses :
Edw. A. Foy,
Wm. F. Foy.
Dated July 26, 1890.”

While this instrument bears the form of a receipt, it nevertheless contains the terms of a valid contract entered into by and between Margaret Cassilly and her son Thomas. It recites the fact of payment, but in addition to that it states, also ; that in consideration of five hundred dollars, she releases to him whatever interest she might have in the estate of her brother, and that she agrees not to engag’e in any contest to set aside the will of that brother.

This instrument, in as far as it embodies the contract which the parties have made, cannot be contradicted or varied by parol evidence. It obligated him to her in the sum of five hundred dollars, neither more nor less, and until it should be set aside in equity, she could no more vary, by parol evidence, the obligation it imposed upon him, than he could, by that method, vary its terms as to what she had undertaken to do. Jackson v. Ely, 57 Ohio St., 450, decided contemporaneously with this cause.

After this paper had been given in evidence the plaintiff below, Mrs. Cassilly, was called as a witness, and, over the objection of plaintiff in error, defendant below, testified as follows:

“Direct examination by Mr. Baker :
£ £Q. Did your son, Thomas Cassilly, at your house, in the presence of his sister, tell you the morning that he came up there, when he would give you five hundred dollars to settle, no matter what he gave Mrs. Goddard?
“(Objected to by counsel for ■ defendant as repetition. Objection overruled ; to which counsel for defendant excepted.)
“A. He did. He told me that he would give me five hundred dollars, and give the same to Mrs. Goddard. I said Mrs. Goddard would not take five hundred dollars. Well, he said, if she don’t take five hundred dollars, she would get none, and to please me he would come up and take me to Hamilton if I would go.
£ £ Q. I want to know if he told you at that time, or you agreed' with him to take five Hundred dollars, no matter what Mrs. Goddard got ?
“(Objected to by counsel for defendant. Objection overruled.)
“A. He did.
“ Q. I want to know whether or not he told you that he would give you five hundred dollars, .no matter what he gave Mrs. Goddard ?
“(Objected to by counsel for defendant. Objection overruled; to which counsel for defendant excepted.)
“Q. I want to know whether or not Mr. Cassilly told you that he would give you five hundred dollars, no matter what he gave Mrs. Goddard, or did he agree to give you what he gave Mrs. Goddard?
“A. Yes, sir; what he would give one sister, he would give to the other, and no more. ”

The only effect this evidence could produce was to show that the written contract did not correctly express the agreement which the parties had made, that while it only imposed upon her son an obligation to pay her five hundred dollars, his real obligation was to pay her what he had paid her sister, which was two thousand dollars. Its admission was a violation of the settled rule of evidence, which prohibits the variation or contradiction of a written contract by parol evidence.

In support of the ruling which admitted this parol evidence:

Authorities are cited which hold that a party against whom a contract is thus introduced in an action, may introduce evidence to show that it had not been executed by him at all, or that he had been induced by some trick or devise to attach his signature to the paper, supposing it to be another and different document. The evidence however discloses nothing of that kind in the case before the court. The version given by Mrs. Cassilly, herself, while testifying to the transaction, affords no ground to suppose that the paper was not truthful^ read to her, or that it was not the one she had in fact signed, no fraud was practiced upon her in that respect. True, she could not write, and was dealing with her own son, in whom she says she placed great confidence, which it is quite natural that she should; and on that account may not have weighed the words of the writing when read to her with the caution and deliberation she would have exercised if she had been dealing with a stranger; nevertheless she freely and voluntarily executed the writing, after its contents had been correctly read to her. Whatever the rule may be respecting the introducing’ of evidence to show that a party has been trapped by a fraudulent device into executing a paper he did not intend to sign, it does not follow that such rule should also be applied to a case where a party executed a paper knowing what it was, but, by reason of confidence in the other party to it, did not carefully weigh the words of the instrument or fully understand their import. In the former case, the party defrauded ■might be permitted to show in any action or proceeding wherein the instrument became material that it was never executed by him, and therefore never had any legal operation, and should be treated as a nullity. The introduction of evidence to establish this state of facts would in no wise violate the rule which prohibits the contradiction, by parol, of the terms of a written instrument. Tn the latter case however, the instrument even if extremely improvident in its terms, yet having been knowingly and voluntarily executed, is not a nullity. If it should be conceded that the circumstances show that a court of equity ought to have set aside the con tract, if an action had been brought for that purpose by the party that had been overreached, nevertheless, until that shall be done, it remains binding on the parties and is within the protection of the rule of law that prohibits the admission of parol evidence to contradict its terms.

Judgment reversed.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    The Lufkin Rule Co. v. Fringeli et al.

      Restraint of trade — Agreements in general against public policy and void — Agreements having partial effect may be enforced, when.

    T. All agreements in general restraint of trade are against public policy and void ; but agreements having such partial effect only, made in connection with the purchase of a business and its good will, shown to be reasonably necessary to the enjoyment of the good will of the business purchased, and not oppressive, may be enforced.
    2. Where one engaged in the same business as another, purchases that of the latter with its good will, and takes from the latter a stipulation that he will not directly nor indirectly engage in the same business in the state nor in the United States for the period of twenty-five years, such agreement necessarily tends to create a monopoly ; and whether necessary or not to the reasonable enjoyment of the good will so purchased, the interest of the public in the non-enforcement of such an agreement outweighs the interest of the purchaser in its enforcement, and is void.
    3. Such an agreement is not divisible, for the reason that if restrained to the limits of the state, still such restraint would be general in its nature, and obnoxious to all the objections that exist against a general restraint of trade.
    (Decided February 1, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The suit below was brought to enforce an agreement claimed by the defendant on demurrer to be in general restraint of trade and therefore void, The petition is as follows :
    The plaintiff says it is a corporation under the laws of Ohio; that the defendants, Xavier and Lucas Pringeli are partners under the firm name of the Pringeli Rule Company.
    The plaintiff further says that on January 28, 1893, and prior thereto, the said Xavier Pringeli and Lucas Pringeli, partners as the Pringeli Rule Company, and the said Prank and Charles Pringeli were all engaged in the city of Cleveland, Ohio, in the business of manufacturing and dealing in wood, iron, steel and copper rules, pencil holders, calipers and gauges for measuring timber, logs, lumbef and other thing's, and said defendants then had a factory located at No. 7 Bergen street, equipped with machinery, tools, implements, furniture, patterns, dies, molds, engine, boiler, shafting, belting and other property and appurtenances used in the manufacture of said rules, etc., and in handling’ the materials therefor; and then had on hand large quantities of manufactured rules and materials of various kinds in process of being made into rules and other things, and also had accounts receivable and other choses in action and resources connected with said business, including a leasehold interest in certain real estate, and had an established business, trade and good will; all of which property, interest, business and good will, the said defendants then sold, assigned and transferred to the plaintiff by an agreement in writing dated January 28, 1893; and the said defendants further stipulated in said agreement that the_ demand for the kind of goods, which they were then producing, owing to the nature of the goods, was limited in quantity and restricted chiefly to ihe sections of the United States where lumber is manufactured and handled, and said defendants also.agreed that the plaintiff, who was then engaged in the same business, extensively, had ample facilities to supply the demands for said goods throughout the United States, promptly and at reasonable prices.
    Said defendants jointly and severally bound themselves not to engage in, or be in any way, directly or indirectly, connected with, the manufacturing, dealing in, or handling of board or log rules, lumber gauges, log calipers, pencil holders, or any í of the other goods which the defendants were then .making or dealing in, within the state of Ohio, or elsewhere in the United States, at any time during the next ensuing twenty-five years; and the said Frank and Charles Fringeli, specially agreed that they would not, directly or indirectly, engage in the manufacturing or production of any of said articles within the United States, during the said period of twenty-five years; and said defendants further agreed to promote the interest and aid the business of said plaintiff and agreed that the said plaintiff should receive all orders, letters, documents, papers and correspondence then in the possession of the defendants, and all such letters and orders as they might thereafter receive; and said defendants then agreed and authorized the plaintiff to use the name of the Fringeli Rule Company for any purpose connected with the business or which the plaintiff might deem essential to promote its business, and the said defendants also agreed not to use said name, or any of their names in connection with the rule business throughout the United States during the said period of twenty-five years.
    As consideration for the transfer of said property and the agreement above specified, the plaintiff agreed to pay to said defendants, the sum of four thousand two hundred and seventy-seven dollars and forty-five cents, ($4,277.45), in- certain installments ending March 1, 1894; all of which installments have bée?.i paid according to said agreement, by the plaintiff.

      It is further stipulated in said agreement that if said defendants, Xavier and Lucas Fringeli, or either of them, shall in any respect violate the provisions thereof, as to engaging in the manufacturing or handling said rules and other articles, then, and in that case, they shall become liable to the plaintiff, as for so much liquidated damages in the sum of five thousand dollars (S5,000), and said Frank and Charles Fringeli, also separately agreed, in said contract, to not engage, directly or indirectly, in the manufacturing, dealing in or handling any of the goods in the foregoing agreement mentioned, and if they, or either of them do so, they shall become liable and indebted to the party of the second part in the sum of five thousand dollars ($5,000) liquidated damages. The plaintiff further says that the said defendants, Xavier, Lucas, Frank and Charles Fringeli have violated said agreement, and are infringing’ the same, in the manner following, to-wit:
    They have established a factory, at 272 Wellington avenue, in Cleveland, Ohio, and have equipped it with machinery and are now therein engaged in manufacturing board and log rules, lumber gauges, log calipers and other articles, which they agreed not to manufacture in said contract; and they are also selling the same and sending out circulars to dealers in said articles, all over the United States, offering to fill orders for all of said materials and soliciting orders and correspondence, all in violation of said agreement and without any right or authority from the plaintiff..
    The plaintiff further says that said conduct of said defendants causes a constantly and increasing damage to its business, by interrupting’ and interfering therewith, and such damage is irreparable owing to its peculiar nature and because each and all of the defendants are insolvent and have no property or resources to pay damages, and the plaintiff has no adequate remedy at law.
    The plaintiff farther says that the said defendants are carrying on said business, at No. 272 Wellington street aforesaid, in the name of The Cleveland Rule Company, which all of the defendants claim is a partnership composed of the defendants, Andrew Fringeli and George Junglas, but the plaintiff says that neither said Andrew Fringeli nor George Junglas have contributed any money or capital to said business; nor have they done, nor do they intend to do, anything in connection therewith; that they are not acquainted with the business, are not' mechanics, have no money or resources and are unable to take any part in the business which the other defendants are carrying on; that the names Andrew Fringeli and George Junglas are used by the other defendants collusively for the purpose of cheating and defrauding-the plaintiff and concealing their real purpose and actions and evading liability under said contract.
    The plaintiff says that all of the business carried on at said place, under the name of The Cleveland Rule Company, is directed and carried on in all respects by the defendants, Xavier, Lucas, Frank and Charles Fringeli.
    The plaintiff says it will sustain great and irreparable damages unless the further conduct and management of said business, by said defendants, is restrained by order, of this court.
    The plaintiff further says that a copy of said contract, dated January 28, 1893, is hereto attached and filed herewith.

      Wherefore the plaintiff prays that the defendants may be restrained by order of this court, and enjoined from manufacturing, handling, dealing in or offering for sale any of said rules, calipers, or other things, which they agreed not to manufacture, as aforesaid ; that on the final hearing hereof, the plaintiff may have a judgment against said Xavier Fringeli and Lucas Fringeli for $5,000, and against said Frank Fringeli and Charles Fringeli for $5,000, and that all of said defendants be perpetually restrained from doing said acts and from in any way interfering in the plaintiff’s business, in violation of said contract, and that the plaintiff may have such other and further relief in the premises as it may be entitled to have in equity.”
    Dickey, Brewer, & McGowan, for plaintiff in error.

      Allan T. Brinsmade, for defendants in error.
   Minshall, J.

The question in this case arises on a demurrer to the petition, which was sustained in the common pleas, and the judgment was affirmed in the circuit court. From the petition and the agreement annexed to it, it appears that Xavier and Lucas Fringeli, as partners under the name of The Fringeli Rule Company, werecarryingonthe business at Cleveland, Ohio, of manufacturing and selling rules and other instruments used principally in measuring lumber ; and that the plaintiff, The Lufkin Rule Company, an Ohio corporation with its principal office at Saginaw, Michigan, engaged in the same business, on January 28, 1893, purchased the business and assets of the Fringelis, together with the good will of the firm, they agreeing not to engage in the same business, directly or indirectly, in the state of Ohio or in the United States for a period of twenty-five years. The Fringelis also assented to the statement, contained in the agreement between the parties,44 that the demand for the different kind of rules which they producéis limited as to quantity and restricted to the section of the United States where lumber is manufactured and handled; and the parties of the second part (Lufkin Rule Company) have ample facilities to supply the demand in all sections of the United States, promptly, at reasonable figures. ” Afterwards, the agreement having been performed on the part of the plaintiff, the defendants violated it and continues to violate it, by carrying on the same business with others at Cleveland, Ohio, in the name of the Cleveland Rule Company. It asks for liquidated damages as fixed by the agreement, and for an injunction restraining the defendants from further prosecuting the business.

It is the settled rule in this state that all agreements ixi general restraint of trade are against public policy and void; butitis held that agreements that only impose a partial restraint, made in connection with the purchase of a business, that are reasonably necessary to make available the good will purchased with the business, and are reasonable and not oppressive, may- be enforced. The case of Lange v. Werk, 2 Ohio St., 519, is the leading one on the subject. The authorities there, both in England and this country at that time, were so fully and intelligently considered, as to dispense with their examination here.

In that case the party, by his covenant, was restrained from engaging in the business of manufacturing stearin or star candles in Hamilton county, state of Ohio, or at any other place whatsoever in the United States. The covenant was regarded as divisible, and that that part of it which bound Lange not to pursue the business, or give his assistance at any place in the United States, was void, being in general restraint of trade; but, as to Hamilton county, it was held, that if it were attended with certain other necessary requisites, it might be good. These requisites were stated to be, 1st, that the restraint is partial; 2d, that it is founded on a valuable consideration, and 3d, that the contract is reasonable and not oppressive, the presumption being always in the first instance that it is illegal, and must be overcome by the party seeking to enforce it, before relief can be had. The presumption of illegality arises from the fact, that any restraint of the kind tends to oppression by depriving’ the individual of the right to engage in a pursuit or trade with which he is generally most familiar, and, consequently, the community of the services of a skillful laborer; and the general effect must be, more or less, to encourage idleness, and affect the price of such things as had been produced by his labor. These are the general reasons against any restraint of trade; and being founded in the nature of things, cannot be materially varied by any change in the times and circumstances of a people. The judge however, in delivering the opinion in the above case, says, that: “No case is found where such a contract lias been upheld, which covered the whole of England or a state of this Union ;” such restraints are regarded as general. And it will be observed that, in the case before us, the restraint at the least is to the state of Ohio, and hence the agreement is

not capable of such a division as, under any circumstances, would make it a valid one. It is in general restraint of trade. In Taylor v. Blanchard, 13 Allen, 370, where the restraint extended only to the state of Massachusetts, the court said : “We do not think the extent of the territory embraced in a state affects the principle. Whatever may be the extent of the state, the monopoly restricts the citizen from pursuing his business, unless he transfers his residence and his allegiance to some other state or country. Its tendency is to drive business and citizens who are skilled in business from this to other states. If one is not at liberty to carry on his business here, but is at liberty to do so elsewhere, he will be likely to go elsewhere, and employ others to go with him.” And, see also, Chappel v. Rockway, 21 Wend., 157; Dunlop v. Gregory, 10 N. Y., 241, 244; Wright v. Ryder, 36 Cal., 342; Homer v. Ashford, 3 Bing., 328.

The doctrine of Lange v. Werk, was followed in Thomas v. Adm'r of Miles, 3 Ohio St., 274. There the restraint extended to carrying on the business in the city of Cincinnati, or any other point where agencies might be established. It was held that under the facts of that case, whilst the restraint as to Cincinnati was reasonable and might be sustained, yet so far as it attemped'to prevent Miles from competing with any branch that Thomas might establish at any and all other places, it was clearly opposed to public policy and void. It was not departed from in Morgan v. Perhamus, 36 Ohio St., 517. There the restraint was partial. Mrs. Morgan carried on the business of a dressmaker in the town of Felicity, Clermont county, Ohio. She sold her business to another with the good will, and bound herself not to carry it on in the same town, or at any place within such distance as would interfere with the business. Mrs. Morgan commenced to carry on the same business in Felicity and was enjoined. The good will being in general nothing more than the probability that the old customers will resort to the old place for the purpose of trade, it is apparent that, in this case, the restraint imposed was reasonable, being no more than was required to secure the good will of the business to the purchaser; and was not oppressive, as she was at liberty to carry on the same business outsideof the limits to which the good will of her former business, carried on in Felicity, extended. Partial restraints on trade of this character have been generally sustained, and they are the only ones that have have been in this state, or elsewhere, unless it be in a few modern instances to which we will hereafter refer.

But there is a particular feature in this contract, reflecting on its purpose and character that deserves notice, to-wit, the statement to which the Fringelis are required to, and do assent, that the demand for the kind of goods they were then manufacturing was limited in quantity and restricted chiefly to particular sections of the country; and that plaintiff, who was then engaged in the same business, extensively, had ample facilities to supply the demand, “promptly and at reasonable prices.” This was likely introduced for the purpose of showing the reasonableness of the contract; but, when analyzed, tends more strongly to show, that its principal ob j ect was, not simply to acquire the defendant’s business and its good will as an invest-; ment, but to purchase them out of business, that it might have a more complete monopoly of the entire business of making rules ; and, therefore, on principles of public policy, should not receive any aid from the courts in its enforcement! That the field is a limited one, only furnishes the more reason on the part of the public that it should not be engrossed by a single person; and the statement that it has the facilities to supply the public at reasonable prices, lacks perception of the real ground of objection. Certainly we are not called on to relearn how little human cupidity can be trusted when it has the opportunity to enrich itself at the expense of others. A disposition to overlook this feature, only shows how far, in some of the cases, we are getting away from the salutary principles of the common law, which never permitted a person to occupy a position in which his duties were opposed to his interests. No one could be judge in his own case, nor, in a fiduciary capacity, buy of or sell to himself. ■

The case of the Diamond Match Co. v. Roeder, 106 N. Y., 473, is referred to by plaintiff, as supporting the validity of the restraint on. trade imposed by this contract; and we are not disposed to controvert the claim. The defendant Rober, who was engaged in the manufacture, and sale throughout the United States, of friction matches, sold his business with its goodwill to the plaintiff, engaged in the same business, and ag’reed that he would not at any time within ninety-nine years engage in the same business anywhere in the United States, with exception of the states of Nevada and Montana. In an action for a violation of the agreement the restraint was held to be reasonable. In this case and some others, the decision is acknowledged to be a departure from the well established rule of the earlier decisions, notably Mitchell v. Reynolds,1 P. Williams, 181, followed and approved by Ranney, J., in Lange v. Werk. In this ease, and in those similar to it, the question seems to be considered as one wholly between the parties; and, if the restraint is no more than the purchaser requires as a protection to the enjoyment of what he purchased and for which the vendor received a fair consideration, then it is argued that there is no objection to the contract; because the limits of trade and commerce are now so great, under modern conditions, that a general restraint is not more than is reasonable to afford protection to the purchaser in his business. This, as we think, is fallacious, as it ignores the interest of the public in the question, which now, more than at any former time, is involved. All monopolies, combinations and agreements of whatever nature, formed for the purpose of controlling the production and manufacture of commodities are generally considered against public policy, as thereby prices may be unreasonably increased to the consumer, and are almost uniformly entered into for such purpose. Heretofore the right of any trade or business to determine for itself the extent of production and the price that shall prevail, has been stoutly denied by the public. This can only be done by the government, and then only in extreme cases, amounting to a necessity. So general have these agreements become and their attendant evils, as to have arrested the attention of the legislatures of some of the states; and laws have been passed to correct, as far as possible, the evils. And in 1890 the Congress of the United States passed an act, known as the Sherman Law, to protect trade and commerce against unlawful restraints and monoplies. In construing this act, the Supreme Court, in United States v. Freight Association, 166 U. S., 290, 328, held that under its provisions, any restraint of trade affecting the interstate trade and commerce of the United States, is invalid. It had been claimed in argument that it only included such contracts in restraint of trade as were unlawful at common law. These statutes give emphasis to what has been heretofore regarded as a sound public policy bjr the courts.

But beyond this there is still another consideration connected with such monopolies and combinations, that is not to be overlooked from the standpoint of sound political wisdom and economy. It is to the interest of the Republic that there should be, measurably, an equality in the fortunes of its citizens, and one of the best modes of accomplishing this, without the use of arbitrary means, is by encouraging separate and . independent employments and discouraging by law and its administration in the courts, all ten dencies to the concentration of property in the hands of the few — a condition in which there will be a constant unrest and dissatisfaction among the masses, that can bode no good to the nation. It may be safely affirmed, that free institutions cannot long be maintained among a people, where a few, possessed of great wealth, are the employers, and the many are mere laborers, wholly dependent on wages as a means of supporting themselves and families. These considerations, and others of a like character, constitute in great measure, that sound public policy which looks with distrust upon all agreements in restraint of trade; and particularly such as may be used in the formation of monopolies, and the control, by a few, of all individual pursuits.

Therefore contracts whereby men are purchased out of their business and restrained from carrying it on anywhere else, should receive no aid from the courts. No more efficient method could be devised for the creation of a monopoly in any business. It simply requires a combination of persons possessed of a large amount of capital, for the purpose of engaging in a particular business, and purchasing that of all others engaged in the same business, and binding them not to engage in the same business anywhere else. Among the various methods adopted for the purpose of engrossing a particular business, this seems to have become a quite favorite one, when the business may be, and generally is, carried on by individuals on a limited capital; for the reason, no doubt, that in such cases, it is easier to accomplish the desired result in this way, than by the formation of a trust through which an entire business may be carried on — each separate owner as a beneficiary of the trust, receiving its, or his, proportion of the net earnings. To say in such cases that the vendor should be bound not to carry on his business because he has received an adequate consideration for his agreement, is no answer to the objection that the agreement tends to foster the formation of a monopoly and is therefore against public policy.

The reasoning of the cases in which a departure from the common law had been adopted, fails to persuade us that we should disregard the rule that has been so long settled in this state by the decisions of this court; on the contrary, the changed conditions, on which the argument proceeds, tend the more strongly to convince us that, in the interest of a wise public policy, it should be more firmly adhered to.

Judgment affi/rmed.


author: Bradbury, J. Shauck, J.

text:
    Brinkerhoff, Trustee, v. Smith et al.

      Assignment in contemplation of insolvency — Section 6S4S, Revised Statutes — Conveyance by debtor in trust — For benefit of certain creditors — Inures to equal benefit of all creditors— Nature of action to enforce the trust.

    1. Where, in an action brought under sec. 6343, Revised Statutes, the petition sets forth facts showing that a conveyance made in contemplation of insolvency by a debtor to secure certain favored creditors, should be declared a general assignment for the benefit of all the creditors of the party executing it, a defendant, in his answer and cross-petition may adopt such averments without repeating them, and if he does adopt them, they should be deemed a part of his answer and cross-petition, entitling him to the same relief as if he had restated them. After such answer and cross-petition has been filed the plaintiff cannot dismiss the action as to such defendant without the consent of the latter, who, notwithstanding such attempted dismissal, may proceed in the action in all respects as if he was the plaintiff therein.
    2. The right arising under section 6343, Revised Statutes, inures to the equal benefit of all the creditors of the insolvent maker of the conveyance; and a right of action to enforce the trust created by this section accrues to each creditor, contemporaneously with the execution and delivery of the instrument upon which the trust arises, whether his claim has been reduced to judgment or not.
    3. An action to enforce the trust is a civil action, equitable in its nature, and governed by the provisions of the code of civil procedure. It can be prosecuted, only, by one who is a creditor of the insolvent assignor. The action being properly cognizable in equity, the court in which it is pending, possesses in regard to it the general jurisdiction that appertains to courts of equity, and may hear and determine every issue of law or fact joined between the parties, whether such issues relate to the character of the conveyance, or to the question whether the plaintiff or one or more oí the defendants, is a creditor of the assignor, and its determinations, as in other cases, are conclusive.
    (Decided May 11, 1897.)
    Error to the Circuit Court of Richland county.
    This action was brought in the Court of Common Pleas of Richland county by Hood, Faulkrod & Co. against Mrs. P. L. Harrison, and a number of her creditors. The object of the action was to have a certain chattel mortgage, made by Mrs. Harrison to secure favored creditors and a contemporaneous instrument by which plaintiff in error was made trustee, declared to constitute an assignment for the benefit of creditors generally, according to the provisions of section 6343 Revised Statutes.
    The record discloses that January 5, 1891, Mrs. Harrison executed and delivered to the plaintiff in error a mortgage, conveying to him a stock of dry goods, notions, ladies and gentlemens furnishing* goods, etc. ; and that by the terms of a contemporaneous agreement executed by plaintiff in error (mortg-agee), and Mrs. Harrison (mortagor) the property was to be held by him in trust, primarily for the payment of the claims of thé Mansfield Savings Bank, Mollie V. Harrison, Hiram R. Smith, and Jenner & Tracy. The proceeds of the property, after paying these favored creditors, were, to be applied to the payment of other creditors of Mrs. Harrison if they should be satisfied with the arrangement.
    Brinkerhoff, the trustee, wentinto immediate possession of the mortgaged property, retained possession for a few hours when the property was seized by the sheriff in the execution upon a writ issued on two judgments recovered in Ash-land county by The Mansfield Savings Bank, the principal beneficiary under the chattel mortgage, against Mrs. Harrison, the mortgagor.
    The judgments on which this execution issued were recovered on the day the chattel mortgage was made. The mortgage and possession thereunder by Brinkerhoff, trustee, were doubtless resorted to for the purpose of holding the property until the writ of execution could be served. On the next day, January 6, 1891, Mrs. Harrison made a general assignment for the benefit of her creditors. Executions other than that of the Mansfield Savings Bank were issued and levied upon the stock of goods mentioned. There is confusion in the record as to dates, but it seems clear that at least one of them, that issued on the judgment of Hood, Faulkrod & Co., plaintiffs below, was served on the same day that the execution of the Mansfield Savings Bank was served. By general consent the property was sold, realizing $10,525.
    The plaintiff below, Hood, Faulkrod & Co., thereupon brought their action, asking that the chattel mortgage and the trust agreement made contemporaneously with it, be declared to constitute a general assignment for the benefit of all the creditors of the mortgagor, Mrs. Harrison. To the petition a considerable number of the judgment creditors of Mrs. Harrison were made defendants, among which were the Mansfield Savings Bank, Marker Pocket Book Co., and Joseph Beifield & Co.
    . The two latter defendants answered, setting up claims founded on judgments recovered against Mrs. Harrison and praying that the chattel mortgage, etc., referred to in the petition should be declared a general assignment for the benefit of creditors, but setting forth no facts tending to establish a right to such relief.
    Some time after these answers and cross-petitions of Joseph Beifield & Co., and the Marker Pocket Book Co., had been filed, the plaintiffs, and the Mansfield Savings Bank together with certain other defendants who it is claimed, had not filed any pleadings in the action at all, entered into a contract by the terms of which substantially all the fund arising from the sale of the stock of goods was divided among them to the entire exclusion of Joseph Beifield & Co., The Marker Pocket Book Co., and all other creditors of Mrs. P. L. Harrison, whether made parties to the action or not and thereupon the plaintiffs dismissed their action. This was done at the March term, 1892. Subsequently, but at the term of court, at which the dismissal occurred, the Marker Pocket Book Co. and Joseph Beifield & Co., who had no knowledge of the dismissal and division of the fund until after both had been accomplished, filed motions to reinstate the action, which was done, and the cause continued with leave to the moving parties to file amended cross-petitions. Joseph Beifield & Go., forthwith filed a cross-petition setting forth facts showing that the two instruments heretofore mentioned, together, constituted a general assignment for the benefit of creditors, and making new parties to the action among whom were, Mollie V. Harrison, H. R. Smith and Jenner and Tracy, whose claims had not been reduced to judgment. In a few days after being made parties to the action, Mollie Harrison and H. R. Smith each filed an answer and cross-petition founded on a promissory note executed by the mortgagor. Later on, Jenner and Tracy also filed an answer and cross-petition which, like the others was founded on a promissory note made by the mortgagor. Neither of these three defendants set forth in their answers and cross-petitions any facts showing that the mortgage and accompanying trust agreement, constituted a general assignment by the mortgagor for the equal benefit of her creditors. In the prayers to these pleadings they simply asked for judgment on their notes and the protection of their interests. On May 31, 1893, while the pleadings were in this condition, the plaintiffs, Hood, Faulkrod & Co., filed in the court of common pleas a motion to dismiss “the answers and cross-petitions of H. R. Smith, Mollie V. Harrison, Jenner and Tracy and others filed herein for the reasons:”
    ‘1 First. — That the plaintiff settled the case and dismissed it before any of said defendants had filed any pleadings or were in the case asking for any relief.
    “ Second. — That the entire fund or proceeds from the property and assets of P. L. Harrison was fully distributed and paid out in the above entitled cause before said parties appeared in the case and upon such distribution plaintiff dismissed its case.”
    After the motion was filed but before the court acted upon it, Jenner and Tracy filed a reply to the answer of the Mansfield Savings Bank, in which they set forth the facts respecting the chattel mortgage and accompanying trust agreement and pray that those two instruments may be declared to constitute an assignment for the equal benefitof all the creditors of the mortgagor. The motion was then heard and sustained by the court of common pleas, and accordingly the answers and cross-petitions of Mollie V. Harrison, H. R. Smith, Jenner and Tracy, Joseph Beifield & Co., and the Marker Pocket Book Co., were each dismissed on the ground that the previous dismissal of the action by the plaintiff carried with it all answers and cross-petitions that did not set forth facts showing a right to affirmative relief, and as the dismissal terminated the action, no pleadings could be filed thereafter by any one.

      Cummings & McBride; W. S. Kerr; L. Brucker; J. E. La Dow and R. Brinkerhoff, for plaintiffs.
    Jenner, Jenner & Weldon, for defendants.
   Bradbury, J.

This action of the court together with the former entry of dismissal constituted a final judgment terminating the action in the court of common pleas. Prom this judgment dismissing their several answers and cross-petitions, each of the dismissed defendants gave notice of appeal. Three of them, Mollie V. Harrison, H. R. Smith and Jenner & Tracy gave bond and perfected the appeal.

The motion to dismiss the answers and cross-petitions of the above named, five defendants was renewed in the circuit court and overruled. A motion was also made to dismiss the appeal, one ground of which was that Joseph Beifield & Co., and The Marker Pocket Book Co., had failed to put in an appeal bond. This motion was also overruled. Thereupon the cause was tried to the circuit court upon its merits. The court finding the amounts respectively due to Mollie V. Harrison, H. R. Smith and Jenner & Tracy on their several notes executed by Mrs. P. L. Harrison, the mortgagor; the mortgage and contemporaneous agreement was decreed to constitute a general assignment for the equal benefit of ail her creditors.

To this action of the circuit court, the plaintiff in error excepted, and has brought the cause here for review. The only questions arising on the record of sufficient interest to require consideration relate to the action of the circuit court in overruling the motion to dismiss the appeal, and in finding the amounts due on the claims of Mollie V. Harrison, H. R. Smith and Jenner & Tracy.

Two of the grounds only upon which the motion to dismiss the appeal rested will be considered.

1. Could the plaintiff below, upon coming to terms of settlement with, only a part of the defendants, rightfully dismiss the action as to all of them ?

2. If such right did not belong to the plaintiff, were the defendants who perfected the appeal, proper parties to the action, or were they mere interlopers who had no rights that they could assert therein ?

1. The plaintiffs below and three of the defendants, without the knowledge of the others, entered into an agreement by which they divided among themselves substantially all the proceeds of the stock of goods, and then sought by a dismissal of the action, to preclude further enquiry on behalf of those who had been excluded from participation in the division. If the plaintiff below had the right to dismiss his action, and the dismissal was effectual as to.all the parties, the action was ended when so dismissed, and the circuit court should have respected this right of the plaintiff and dismissed the appeal when its attention was called to the matter as was done by the motion under consideration.

Doubtless the general rule is that the plaintiff in an action may dismiss it, and those defendants who have not set forth their claims, by an answer in the nature of a cross-petition, will not be heard to complain. Usually the claim of each defendant in an action, rests upon facts peculiar to it, and those facts differ from the facts upon which the claim of the plaintiff and that of every other defendant is founded. In the ease of a number of mortgages or mechanic’s liens, against the same property, for instance, the rights of the parties grow out of different transactions with the owner of the property, and of necessity, in order to entitle. him to call for affirmative relief, each party must set forth the facts that show his interest or lien upon the property, or its proceeds. If he does not, the record will not disclose the nature of his interest therein and therefore he cannot call on the court for affirmative independent action in his behalf.

This is not so in the action under consideration. The action was brought under section 6343, Revised Statutes, which provides: “All assignments in trust to a trustee or trustees in contemplation of insolvency with intent to prefer one or more creditors shall inure to the equal benefit of all creditors.” * * * qijie right 0f the plaintiff and that of each defendant to have the instruments executed by Mrs. P. L. Harrison declared an assigmment for the equal benefit of all her creditors, rested upon the same transaction. The facts and circumstances to be averred were those which disclosed that, in contemplation of insolvency, she had conveyed the property in question to a trustee with intent to prefer one or more of her creditors. If this was established, the proceeds of the property would be divided among ali her creditors, instead of the favored few. The right of each one of them, therefore, depended upon the construction placed' by the court upon the transaction set forth in the petition. The facts and circumstances upon which the court must act having been stated in the petition, to restate them in an answer would seem tobe a work of superogation ; and where the creditors were numerous to require a restatement of them by each might seriously encumber the record, could serve no useful purpose and would not comport with that simplicity, sought to be attained by our code of civil procedure.

Each defendant who answers should, of course, set forth the facts that establish his character of creditor, thus showing he is within the protection of the statute, but we do not think he should be required to restate the facts which show that the conveyance falls within the statute. If content with the averments of the petition in this respect he may adopt, without repeating them.

The prayer to the answer and cross-petition of Joseph Biefleld & Co., as well as that to the answer and cross-petition of the Marker Pocket Book Co., contains the following reference to the averments of the petition respecting the trust character of the instruments in question; “ These defendants pray that the chattel mortgage given by Mrs. P. L. Harrison to R. Brickerhoff as Trustee, etc. * * * may be declared a general assignment for the benefit of all the creditors, etc. * * * The nature of the proceedings in a ease under section 6343, Revised Statutes, as this was, is such that doubtless, the meresettingforthof his claim by a defendant in his answer and cross-petition, would justify anassumption that he had adopted the averments of the petition respecting the character of the conveyance; his omission to include in his own pleading any averments on the subject is explainable only by that assumption. Being content with the sufficiency of the petition in this respect he may well omit to incumber the record by repeating them. But if some reference to these averments of the petition should be required in an answer and cross-petition then we think the reference contained in the prayer above quoted was sufficient for that purpose, and without the consent of the defendants who had thus answered, the plaintiff could not dismiss the action as to them. Therefore their right to proceed in the action was not affected by a dismissal so had, without their consent and its reinstatement upon their motion was right and proper.

2. Were Mollie V. Harrison, H. R. Smith and Jenner and Tracy proper parties to the action? They were the only parties to perfect an appeal by giving bond. Neither of them had been made parties at the time the action was dismissed. However on its reinstatement upon the motion of Joseph Beifleld & Co. and the Marker Pocket Book Co., the former by answer and cross-petition brought them into the action. This could be done by a defendant as well as by the plaintiff, for a defendant’s right to bring new parties into an action is as perfect in that respect as is the right of a plaintiff. If they were proper parties, having thus been brought into the action they could rightfully appeal from a judgment rendered therein by the courtof common pleas. If they were not proper parties, they had no authority to take any step in the action and the appeal would be ineffectual. The correctness of the ruling of the circuit court on this branch of the motion to dismiss the appeal depends therefore upon the determination of the question whether or not these defendants who appealed were proper parties or not.

No part of the claim of Mollie V. Harrison, or of Jenner and Tracy had been reduced to judgment. The claim of each rested in action; being founded on a promissory note held by each, respectively, against the mortgagor. Tt is true that the notes of Jenner and Tracy, and Mollie V. Harrison were among the claims attempted to be secured by the chattel mortgage. They, however, repudiated the transaction, and sought relief under the statute, section 6343, Revised Statutes. This we think they could do although their respective claims had not then been reduced to judgment. The action authorized by this section is not a creditor’s bill, but rest upon the statute which creates the right; and that right is to require a conveyance made to a'trustee in contemplation of insolvency, declared an assignment for the equal benefit of all the creditors of the debtor who made it, although designed for the benefit of a part of them, only. The action is not an equitabLe execution to be invoked upon equitable principles, only after exhausting the legal assets of the debtor.

The right is thecreatureof the statute, — section 6343, Revised Statutes. The statute defines the circumstance that shall clothe the conveyance with the attributes of a general assignment for the benefit of creditors. The rights of creditors attach contemporaneously with the complete execution and delivery of the conveyance, and excepting those who may have secured liens on the property prior thereto, by virtue of judgments or legal process, the rights of a judgment creditor are no greater than the rights of one whose claim rests in action. The rights of each in the property so conveyed are identical, each being entitled to a pro rata share of the proceeds of its sale. The statute now under consideration, unlike the succeeding one — section 6444, Revised Statutes — which deals with conveyances actually or constructively fraudulent — does not declare by whom the action may be brought, but the right it creates being for the benefit of every creditor, the inference is clear that an action under its provisions may be instituted by any one of them, whether his claim has been reduced to judgment or not. Nor is there anything in the nature of the remedy given that conflicts with this inference. That remedy, as we have seen, is to cause the conveyance to be adjudged to constitute an assignment for the equal benefit of all the creditors of the person executing it: and that being done the proceeds of the property are divided ratably among- all creditors who have not previously acquired liens against it. We think, therefore, these defendants, Mollie V. Harrison, H. R. Smith, and Jenner and Tracy were proper parties although their respective claims had not been reduced to judgment, and that the appeal of the cause by either of them would carry the case into the circuit court, and that the motion to dismiss the appeal was therefore properly overruled.

The cause was tried in the Circuit Court upon its merits. The Court found the amounts respectively due to these appellants upon the promissory notes set up by them in their respective cross-petitions, adjudged the chattel mortgage and accompanying instrument to constitute an assignment for the benefit of all the creditors of mortgagor, and ordered the decree certified to the probate court for the appointment of a trustee to execute the trust.

Had the Circuit Court jurisdiction to ascertain the amounts due the appellants upon their respective promissory notes ?

The character of the action and the remedy prescribed, make it one of equitable cognizance. The parties to it are, therefore, in a court of equity, one of the chief characteristics of which is an adequate power to afford full relief to all parties before it. The creditor who brings the action, and each defendant who answers must set forth the fact of their being creditors, otherwise they would appear as mere interlopers. The action is one governed by the code of civil procedure. The rules of pleading requires a party to state the facts which constitute his cause of action, each party, whether plaintiff or defendant, must therefore set forth the facts which make him a creditor in an issuable form, so that if the alleged assignor, desires, he may deny them. If not denied they are admitted; if denied the issue thus raised must be determined by a trial conducted according to established principles and modes of procedure. Whether the facts are confessed, or established by a trial after being’ denied, no principal is apparent for denying to the facts thus judicially ascertained that conclusiveness which attaches to all other judicial determination of questions of fact. The facts having been judicially ascertained the judgment which they authorize would seem to follow as a matter of course. The section of the Statute 6343 Revised Statutes, upon which the action rests in no wise limits the power of the court in this respect. The next succeeding section of the statute provides that if the instrument is declared to constitute an assignment for the benefit of creditors, the trust thus arising shall be administered in the probate court. This provision, however, does not confer upon the- probate court jurisdiction to hear and determine a controversy between a creditor and the assignor respecting the liability of the latter to the former. That the trust is to be administered there, is true, but the contests over the liability of the assignor is not thereby transferred to the probate court.

If this is so as to a controversy arising after the instrument has been declared a trust, upon what ground can the court of common pleas be denied the exercise of its ordinary and general jurisdiction before the trust, which the probate court is to execute has been created ? This succeeding section — • 6344 Revised Statutes — -provides that in certain instances the trust may be executed by the court of common pleas. This provision in no way affects the other powers of that court; but simply provides that the formal execution of the trust— the conversion of the property assigned into money, its distribution among the creditors of the assignor, etc., shall remain in the court of common pleas.

In this connection it has been suggested that the debtor, being in failing circumstances may be indifferent and suffer judgment to be taken against him for larger sums than he owed, and which would bind his estate, to the injury of his other creditors. It may be said in reply to this that the rules of law afford ample relief against fraud or collusion in this respect; yet if the power to relieve against judgment, thus obtained did not exist, the want of it would not deprive the court of common pleas of its ordinary jurisdiction.

Judgment affirmed.

Shauck, J.

dissenting.

Whether the conveyance be with intent to prefer • one or more creditors within the provisions of section 6343 of the Revised Statutes or with the intent to defraud creditors within the provisions of section 6344, the proceedings to subject are prescribed in the latter section. If the creditor instituting the suit to subject publishes the prescribed notice to creditors of its pendency and object, the common pleas court originally, or the circuit court on appeal, may administer the property for the benefit of the plaintiff and the other creditors who come in pursuant to such notice and comply with the requirements of the section.

If such notice be not given the jurisdiction of the common pleas and circuit courts is restricted to adjudging that the - conveyance is void. The section expressly provides that “if such notice shall not have been given, the said court shall forthwith, on declaring- the intent aforesaid, cause a copy to be certified to the proper probate court, which shall, on its own motion, appoint a trustee as in this chapter provided.” The duty of the trustee with respect to such property is “to administer the same as in other cases of assignments to trustees for the benefit of creditors.”

In this case no notice to other creditors was published by the plaintiff. The circuit court was therefore without jurisdiction to administer the property, or to find the amount due to any creditor. Such finding can be made only in an ad versary proceeding. If the required notice is given by the plaintiff, the proceeding is adversary. If it be not given the finding must be made in a case in which the trustee appointed by' the probate court represents all creditors except the adverse claimant.

In view of these provisions of the statute • the duty of the circuit court in the case is not determined by the- general jurisdiction of courts of equity. It may not affect the rights of the cred-' itors in this ease, but it seems that the judgment should be so modified that in the administration of the estate the trustee may not be embarrassed by a finding as to the amounts due some of the creditors which the circuit court had no jurisdiction to make.

Judgment affl/rmed.


text:
    Motion No. 2529.

    The State ex rel. Nellie G. Robinson v. William McKinley, Governor.
    (Decided January 14, 1896.)

      Notary public— Women not eligible to.

    Motion by the relator for an alternative writ of mandamus.

      Nellie G. Robinson, for relator.

      J. K. Richards, Attorney General, for respondent.

      It is not customary to publish, in the reports, proceedings under the Motion Docket, but the Reporter has received so many inquiries concerning this Mandamus proceeding, that he herewith inserts the decision of the court upon the same.

   Under the constitution and laws of Ohio a woman is not eligible to the office of notary public.

Motion overruled.


text:
    No. 4668.
    Board of Education v. Stephenson.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Hancock county.

      G. W. Ross, City Solicitor and W. H. Kinder, for plaintiff in error.

      A. F. P.& R. A. Blackford, for defendant in error.


text:
    No. 4672.
    Mithoff v. Hughes et al.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Franklin county.

      George B. Okey and W. F. Hunter, for plaintiff in error.

      J. T. Holmes, for defendants in error.
   Judgment affirmed.

Shauck and Minshall, JJ., dissent.


text:
    No. 4687.
    Greene et al. Trustees, v. Greene et al.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Franklin county.

      Nash & Lentz, for plaintiffs in error.

      Outhwaite, Linn & Gumble; Taylor, Taylor & Taylor & R. A. Harrison, for defendants in error.
   Judgment affirmed on the authority of Johnson v. Johnson, 51 Ohio St., 446.


text:
    No. 4716.
    Grimes et al. v. Crawford et al., Admrs.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Adams county.

      D. W. C. Loudon; Hook & McClung and Bayless & Blair, for plaintiffs in error.

      G. W. Pettit, for defendants in error.
   Judgment affirmed.


text:
    No. 4721.
    Chester v. Floyd et al.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Guernsey county.

      J. B. Ferguson, for plaintiff in error.

      Campbell & Rosemond and Robert T. Scott, for defendants in error.
   On consideration whereof, it is ordered and adjudged by this court that the judgment of the said circuit court be and the same is hereby affirmed on the ground that upon the'facts found the parties are estopped from demanding partition, and it appearing to the court that there were reasonable grounds for this proceeding in error, it is ordered that ho penalty be assessed herein.

Judgment affirmed.


text:
    No. 4722.
    Harris v. Ohio Oil Company.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Wood county.

      A. & F. P. & R. A. Blackford, for plaintiff in error.

      Troup Dunn and M. F. Elliot, for defendant in error.
   Judgment affirmed.


text:
    No. 4750.
    BODI ET AL. v. THE WlNOUS POINT SHOOTING Club.
    (Decided October 5, 1897.)
    Error to the Circuit Court of Ottawa county.

      George A. True and C. I. York, for plaintiffs in error.

      E. G. Love and J. R. Bartlett, for defendant in error.
   On consideration whereof this court finds that there is error in the order and judgment of the circuit court in this, to-wit: In enjoining the defendants below from setting fish nets and fishing-in the waters described in said order of injunction, and removing fish therefrom, and so much of said judgment is hereby reversed.

In all other respects said judgment of injunction is affirmed. Each party to pay one-half of costs in this court.


text:
    No. 5312.
    Hartman et al. Commissioners v. Sawyer.
    (Decided October 5, 1891.)
    Error to the Circuit Court of Erie county.

      Court & Blackford and Garver & Garver, for plaintiffs in error.

      Willis Vickery and Jesse Vickery, for defendant in error.
   ' Judgment affirmed for the reason that tne cause of reversal was, that the verdict was not sustained by sufficient evidence. Othe r question s not pas sed upon.


text:
    No. 5700.
    The State ex rel. Franklin v. Kinney, as State Supervisor of Elections.
    (Decided October 5, 1897.)
    Mandamus.

      D. J. Cable; John W. Roby; W. L. Rogers; I. R. Longsworth and James W. Halfhill, for relator.

      F. S. Monnett, Attorney General Daniel J. Ryan; W. D. Davies and E. N. Lewis, for respondent.
   Demurrer to petition sustained, and petition dismissed at costs of relator.


text:
    No. 4681.
    Pike Township Mutual Insurance Company v. Elsessor.
    (Decided October 12, 1897.)
    Error to the Circuit Court of Stark county.

      Harter & Krichbaum, for plaintiff in error.

      Jones & Hudson, for defendant in error.
   Judgment affirmed.


text:
    No. 4692.
    Breidinger v. Emerine
    (Decided October 12, 1897.)
    Error to the Circuit Court of Seneca county.

      Brewer & Brewer, for plaintiff in error.

      Seney & Sayler and McCauley & Weller, for defendant in error.
   Judgment affirmed for the reason that one ground of reversal was, that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 4698.
    Regg v. Mann.
    (Decided October 12, 1897.)
    Error to the Circuit Court of Scioto county.

      A. H. Bannon, for plaintiff in error.

      N. W. Evans and Duncan Livingstone, for defendant in error.
   Judgment affirmed.


text:
    No. 4702.
    Gardner, Admr. et al v. Smith et al.
    (Decided October 12, 1897.)
    Error to the Circuit Court of Morrow county.

      Olds & Olds, for plaintiffs in error.

      Harlan & Wood and John D. DeGolley, for defendants in error.
   Judgment modified so as to exclude the half-blood from all interest in the twenty-four acres, on authority of Stone v. Doster, 50 Ohio St., 495.


text:
    No. 4706.
    Barnes et al. v. McLaughlin.
    (Decided October 12,1897.)
    Error to the Circuit Court of Huron county.

      Stephen M. Youny, for plaintiffs in error.

      J. R. McKnight, for defendant in error.
   Judgment affirmed.


text:
    No. 4711.
    Slaybaugh v. The Boomer & Boschart Press Company.
    (Decided October 12,1897.)
    Error to the Circuit Court of Stark county.

      Fording & Harris, for plaintiff in error.

      John C. Welty, for defendant in error.
   Judgment affirmed.


text:
    No. 4727.
    Page v. Pogue, Agent et al.
    (Decided October 12, 1897)
    Error to the Circuit Court of Hamilion county.

      Ramsey, Maxwell & Ramsey and Alfred Hill, for plaintiff in error.

      Pogue & Pogue and Province M. Pogue, for defendants in error.
   Judgment affirmed.


text:
    No. 4755.
    Rote v. Warner et al.
    (Decided October 12, 1897)
    Error to the Circuit Court of Lake county.

      Horace Alvord, for plaintiff in error.

      G. H. Shepard, and C. W. Osborne, for defendants in error.
   Judgment affirmed on the ground that one cause of reversal was, that the verdict was against the weight of the evidence. Other questions not passed upon.


text:
    No. 4763.
    Chesrown v. Morris et al.
    (Decided October 12, 1897.)
    Error to the Cirtuit Court of Ashland county.

      Cummings & McBride; Campbell & Semple and George A. Nicol, for plaintiff in error.

      Winbigler & Goshorn and McClure & Smyser, for defendants in error.
   Judgment affirmed.


text:
    No. 5413.
    The Salem Wire Nail Company v. Egts, by his Next Friend.
    (Decided October 12, 1897.]
    Error to the Circuit Court of Hancock county.

      John Poe, for plaintiff in error.

      M. R. Smith, for defendant in error.
   Judgment affirmed.


text:
    No. 4676.
    Myers et al. v. City of Toledo et al.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Lucas county.

      Waite & Snider and Cummings & Lott, for plaintiffs in error.

      C. F. Waite, City Solicitor, for defendants in error.
   Judgment affirmed.


text:
    No. 4679.
    Lasley Admr. et al. v. Greenough et al. Trustees.
    (Decided October 19, 1897. )
    Error to the Circuit Court of Meigs county.

      John U. Myers, for plaintiffs in error.

      Russell & Webster, for defendants in error.
   Judgment affirmed.


text:
    No. 4717.
    Rank, by His Next Friend v. Ickes.
    (Decided October 19,1897.)
    Error to the Circuit Court of Licking county.

      Waldo Taylor and B. G. Smythe, for plaintiff in error.

      Carl Norpell, for defendant in error.
   Judgment affirmed.


text:
    No. 4729.
    Hoffman. Sr., Admr. v. Pape, Sr. Admr. et al.,
    (Decided October 19,1897.)
    Error to the Circuit Court of Montgomery county.

      John Schuster, for plaintiff in error.

      Gunckel, Rowe & Shuey and Baumann & Baumann, for defendants in error.
   Judgment affirmed.


text:
    No. 4730.
    Hoffman, Sr., Admr. v. Hilscher.
    (Decided October 19,1897.)
    Error to the Circuit Court of Montgomery county.

      John Schuster, for plaintiff in error.

      Gunckel, Rowe & Shuey and Baumann & Baumann, for defendant in error.
   Judgment affirmed.


text:
    No. 4731.
    Jashenosky v. Burgunder Bros. & Co.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Franklin county.

      John S. Freisner and C. V. Wright, for plaintiff in error.

      J. T. Keating and M. R. Patterson, for defendants in error.
   Judgment affirmed.


text:
    No. 4732.
    Butt, Executor, v. Worthington.
    (Decided October 19,1897.)
    Error to the Circuit Court of Madison county.

      Lincoln & Lincoln, and H. C. Black, for plaintiff in error.

      Durflinger & Emery, for defendant m error.
   Judgment affirmed.


text:
    No. 4747.
    Sawyer et al. v. Sawyer et al.
    (Decided October 19,1897.)
    Error to the Circuit Court of Morgan county.

      E. J. Brown and E. M. Stanbery, for plaintiffs in error.

      Berry & Weber, for defendants in error.
   Judgment affirmed.


text:
    No. 4751.
    Beyer v. Bormuth, by Her Next Friend.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Hancock county.

      Shafer & Shafer and John Poe, for plaintiff in error.

      H. Walter Doty, for defendant in error.
   Judgment affirmed.'


text:
    No. 4752.
    Beyer v. Bormuth by Her Next Friend.
    (Decided October 19,1897.)
    Error to the Circuit Court of Hancock county.

      Shafer & Shafer and John Poe, for plaintiff in error.

      H. Walter Doty, for defendant in error.
   Judgment affirmed.


text:
    No. 4756.
    The Scottish Union and National Insurance Company v. C. A. Dundon & Company.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Portage county.

      J. H. Nichols and I. T. Siddall, for plaintiff in error.

      S. F. Hanselman and Cole & Douthitt, for defendants in error.
   Judgment affirmed.


text:
    No. 4757.
    The Manchester Fire Insurance Company v. C. A. Dundon & Company.
    (Decided October 17, 1897.)
    Error to the Circuit Court of Portage county.

      J. H. Nichols and I. T. Siddall, for plaintiffs in error.

      S. F. Hanselman and Cole & Douthitt, for defendants in error.
   Judgment affirmed.


text:
    No. 4759.
    Bunnell et al. v. Railway Company.
    (Decided October 19, 1897.)
    ERROR to the Circuit Court of Warren county.

      W. F. Eltzroth and W. G. Thompson, for plaintiffs in error.

      Charles Darlington, for defendant in error.
   Judgment affirmed.


text:
    No. 4767.
    Wheeler et al. v. Lindsley, etc. et al.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Erie county.

      J. & D. J. Mackey and L. W. Hull, for plaintiffs in error.

      A. E. Merrill and E. B. King, for defendants in error.
   Judgment affirmed.


text:
    No. 5116.
    Railway Company v. Kirby, Admr.
    (Decided October 19, 1897.)
    Error to the Circuit Court of Lake county.

      Theodore Hall and George C. Greene, for plaintiff in error.

      George W. Alvord, for defendant in error.
   Judgment affirmed.


text:
    No. 5410.
    Railway Company v. Devol, by His Next Friend.
    (Decided October 19, 1897)
    Error to the Circuit Court of Miami county.

      M. H. & W. D. Jones and Long & Kyle, for plaintiff in error.

      A. F. Broomhall, for defendant in error.
   Judgment affirmed.


text:
    No. 5448.
    The State v. Bohn.
    (Decided October 19, 1897.)
    . Error to the Circuit Courtof Cuyahoga county.

      John L. Lott, Assistant Attorney, General, and Clark Thompson, for plaintiff in error.

      Goulder & Holding, for defendant in error.
   Petition in error dismissed for the reason that it was not filed within six months after judgment was rendered, so held on authority of State v. Bohn, 55 Ohio St., 555.


text:
    No. 4652.
    Cole et al. v. Mathews.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Lake county.

      Tuttle & Tuttle and Harry E. Hammar, for plaintiffs in error.

      George H. Shepherd, for defendant in error.
   Judgment affirmed.


text:
    No. 4703.
    Miller v. Oglevie et al.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Knox county.

      John Adams and R. M. Voorhees, for defendant in error.

      Critchfield & Graham, for defendants in error.
   Judgment affirmed.


text:
    No. 4741.
    Allen et al. v. McCoy, Admr.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Fayette county.

      Mills Gardner, for plaintiffs in error.

      Harper & Harper, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed on the authority of McGaughey, Admr. v. Jacoby et al., 54 Ohio St., 487.


text:
    No. 4743.
    Railroad Company v. Goodman.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Pickaway county.

      J. H. Collins, for plaintiff in error.

      P. G. Bostwick, for defendant in error.
   Judgment reversed and cause remanded to the court of common pleas, on the ground that no jurisdiction was obtained of the person of the railroad company, there being no service of any' process on said company.


text:
    No. 4764.
    Hawker v. Makley et al.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Montgomery county.

      Kennedy & Munger, for plaintiff in error.

      Gunckel, Rowe & Shuey, for defendants in error.
   Judgment affirmed.


text:
    No. 4969.
    Railroad Company v. Barnes, Admr.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Lawrence county.

      A. D. Marshall and Jed. B. Bibbee, for plaintiff in error.

      E. F. Williams and A. R. Johnson, for defendant in error.
   Judgment affirmed.


text:
    No. 5299.
    Railway . Company v. Boydston, Admr. '
    (Decided October 26, 1897.)
    Error to the Circuit Court of Wayne county.

      Johnson & Taylor and Squire, Saunders & Dempsey, for plaintiff in error.

      S. B. Eason, W. Stillwell and McClure & Smyser, for defendant in error.
   Judgment affirmed.


text:
    No. 5418.
    Brooks, Treasurer, v. Van Nes.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Cincinnati at General Term.

      Rendigs, Foraker & Dinsmore and Foraker & Black, for plaintiff in error.

      Wilby & Wald, for plaintiff in error.
   Judgment affirmed.


text:
    No. 5559.
    Incorporated Village of Salineville v. Zealey.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Columbiana county.

      P. M. Ashford and Potts & Moore, for plaintiff in error.

      W. H. Spence, and Harvey Morrison, for defendant in error.
   Judgment affirmed.


text:
    No. 5576.
    Johnson v. The State.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Coshocton county.

      S. H. Nicholas and T. H. Wheeler, for plaintiff in error.

      W. R. Pomerene, Prosecuting Attorney, for defendant in error.
   Judgment affirmed.


text:
    No. 4723.
    Sellers Exr. v. Hughes.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Licking county.

      S. M. Hunter and Frank Koontz, for plaintiff in error.

      Kibler & Kibler and C. W. Seward, for defendant in error.
   Judgment affirmed.


text:
    No. 4735.
    Farmers’ National Bank v. Powell et al.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Hancock county.

      A. F. P. & R. A. Blackford, for plaintiff in error.

      John Poe and J. A. & E. V. Bope, for defendants in error.
   Judgment affirmed.

Minshall and Spear, JJ., dissent.


text:
    No. 4736.
    Selzer, Admr. v. The Ohio & Pennsylvania Coal Company.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Heisley & Selzer, for plaintiff in error.

      Blandin & Rice, for defendant in error.
   Judgment affirmed.


text:
    No. 4742.
    Sheldon et al. v. Bushnell, Receiver et al.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Caskey & Calhoun, for plaintiffs in error.

      Edward Bushnell and Williamson & Cushing, for defendants in error.
   Judgment affirmed.


text:
    No. 4770.
    Ludwig, Admr. v. Casady et al.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Crawford county.

      L. C. Feighner; Anson Wickham and Cahill & Cahill, for plaintiff in error.

      Harris & Sears; Finley & Bennett and Franklin Adams, for defendants in error.
   On consideration whereof, this court "being of opinion that the bill of exceptions sufficiently complies with Rule I of the circuit court, finds that the order of said court striking said bill from the files, and the judgment of affirmance which followed are erroneous. Said order and judgment are therefore reversed, and the cause is ordered remanded to the circuit court of Crawford county with directions to pass upon the errors set forth in the record.

Judgment reversed.


text:
    No. 4773.
    Traver v. Baker.
    (Decided November 9, 1897 )
    Error to the Circuit Court of Ottawa county.
    Swayne, Swayne & Hayes, for plaintiff in error.

      C. I. York, for defendant in error.
   Judgment affirmed.


text:
    No. 4787.
    Brooks, Admr., et al. v. Grimley et al.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Arnold Green, for plaintiffs in error.

      Burke & Ingersolls, for defendants in error.
   Judgment affirmed.


text:
    No. 5128.
    State ex rel. Monnett, Attorney-General, v. Ziegle.
    (Decided November 9, 1897.)
    Quo Warranto.

      F. S. Monnett, Attorney-General; A. C. Thompson; Walter A. De Camp and Thomas Hollister, for plaintiff.

      Burch & Johnson and W. J. Davidson, for defendant.
   Demurrer to answer overruled and petition dismissed at costs of relator.


text:
    No. 5553.
    Railroad Company v. Ziegler.
    (Decided November 9, 1897.)
    Error to the Circuit Court of Morgan county.

      John Ferguson and R. F. Guerin, for plaintiff in error.

      Berry & Weber, for defendant in error.
   Judgment affirmed.


text:
    No. 4758.
    Hazel v. The Fostoria Cold Storage Company.
    (Decided November 16,1897.)
    Error to the Circuit Court of Seneca county.

      J. D. Snyder and Brewer & Brewer, for plaintiff in error.

      J. M. Bever and A. Blackford, for defendant in error.
   Judgment- affirmed.


text:
    No. 4775.
    Palmer et al. v. Porter et al.
    (Decided November 16,1897.)
    Error to the Circuit Court of Clark county.

      A. H. Gillett, for plaintiffs in error.

      Chase Stewart and Walter L. Weaver, for defendants in error.
   Judgment affirmed.


text:
    No. 4778.
    Halliday et al. v. The Citizens’ National Bank.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Franklin county.

      Charles E. Burr and Merwine & Beardsley, for plaintiffs in error.

      F. F. D. Albery, for defendant in error.
   Judgment affirmed.


text:
    No. 4783
    Cords v. McCafferty.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Hamilton county.

      Keam & Keam, for plaintiff in error.

      C. L. Lundy and E. B. Molony, for defendant in error.
   Judgment affirmed.


text:
    No. 4786.
    Rainey v. Faloon.
    (Decided November 16,1897.)
    Error to the Circuit Court of Cuyahoga county. ,

      Dickey, Brewer & McGowan, for plaintiff in error.

      M. W. Beacom, for defendant in error.
   Judgment affirmed.


text:
    No. 4790.
    Chaffee v. Marquard, Admr.
    (Decided November 16,1897.)
    Error to the Circuit Court of Cuyahoga county.

      E. Jay Pinney, for plaintiff in error.

      G. H. Foster, for defendant in error.
   Judgment affirmed.


text:
    No. 4791.
    Boynton, Admr., et al. v. Croll.

    (Decided November 16, 1897 )
    Error to the Circuit Court of Warren county.

      McMahon & McMahon and Joseph D. Miller, for plaintiffs in error.

      Patrick Gaynor, for defendant in error.
   Judgment reversed on authority of McDonald v. Ketchum, 53 Ohio St., 519, and cause remanded to the circuit court for further proceedings.


text:
    No. 4795.
    Hermon et al., Partners, v. Creager.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Sandusky county.

      Bartlett & Wilson, for plaintiffs in error.

      Buckland & Love and Finefrock & Carver, for defendant in error.
   Judgment affirmed.


text:
    No. 4797.
    Buchman v. Vandercook.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Sandusky county.

      Finch & Dewy and Kinney & Hunt, for plaintiff in error.

      C. P. & L. W. Wickham, and James H. Fowler, for defendant in error.
   Judgment affirmed.


text:
    No. 4807.
    Smith et al. v. Marion Manufacturing Company.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Fayette county.

      Post & Reid, for plaintiffs in error.

      Van Deman & Chaffin, for defendant in error.
   Judgment affirmed.


text:
    No. 4814.
    Railway Company v. Schade, Admr.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Dickey, Brewer & McGowan, for plaintiff in error.

      C. N. Sheldon and E. Jay Pinney, for defendant in error.
   Judgment affirmed.


text:
    No. 4914.

    Stoughton v. The State.
    (Decided June 16, 1896.)
    Error to the Circuit Court of Erie county.

      N. R. Hysell and D. B. Sharp, for plaintiff in error.

      John Ray, for defendant in error.

      This decision was reported in Vol. 55, Ohio St., 639, and was there inserted correctly except as to the attorneys and number of the case, which by mistake were wrongly given. It is herewith again printed in corrected form.

   Judgment affirmed.


text:
    No. 4817.
    Orr et al. v. Clark.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Miami county.

      M. H. & W. D. Jones, for plaintiffs in error.

      Jamison & Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 4818.
    Orr et al. v. Clark.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Miami county.

      M. H. & W. D. Jones, for plaintiffs in error.

      Jamison & Davis, for defendant in error.
   Judgment affirmed.


text:
    No. 4826.
    Hard et al. v. Jones et al.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Coshocton county.

      Vorhees & Vorhees and Morton W. Cope, for plaintiffs in error.

      E. W. James; A. R. McIntire and J. D. Critchfield, for defendants in error.
   Judgment affirmed.


text:
    No. 4830.
    Railway Company v. Gore.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Cuyahoga qounty.

      Dickey, Brewer & McGowan, for plaintiff in error.

      W. H. Polhamus, for defendant in error.
   Judgment affirmed.


text:
    No. 4832.
    Lynch v. Dickey.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Darke county.

      Sater & Robeson, for plaintiff in error.

      Martin B. Trainor, for defendant in error.
   Judgment affirmed.


text:
    No. 4857.
    Critchfield et al. v. Cassil.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Knox county.

      A. R. McIntire; John Adams and Critchfield & Graham, for plaintiffs in error.

      William M. Koons and William L. McElroy, for defendant in error.
   Judgment affirmed.


text:
    No. 4881.
    Day et al. v. Miller.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      A. A. Stearns and A. H. Weed, for plaintiffs in error.

      M. H. Solloway and William H. Miller, for defendant in error.
   Judgment affirmed.


text:
    No. 5430.
    Bell Brothers & Co. v. Roettinger et al., Trustees.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Hancock county.

      George H. Phelps, for plaintiffs in error.

      A. Blackford; E. T. Dunn; Burket & Burket and J. A. & E. V. Bope, for defendants in error.
   Judgment affirmed.

Burket, C. J., not sitting.


text:
    No. 5507.
    The State v. Groenland.
    (Decided November 16, 1897.)
    Exceptions to the ruling of the Court of Common Pleas of Hamilton county.

      D. L. Sleeper and O. J. Renner, for plaintiff.

      A. B. Huston, for defendant.
   Exceptions overruled.


text:
    No. 5525.
    City of Cleveland v. Moran, Admx.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Cuyahoga county.

      Minor G. Norton and Ford, Boyd & Crowl, for plaintiff in error.

      Foran & Dawley, for defendant in error.
   Judgment affirmed.


text:
    No. 5555.
    City of Cincinnati et al. v. Sterritt, Assignee, et al.
    (Decided November 16, 1897.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertenstein and Wm. H. Whittaker, Corporation Counsel, for plaintiffs in error.

      J. H. Charles Smith, for defendants in error.
   Judgment affirmed upon the grounds stated by the majority in the circuit court in this case, 13 O. C. C. Rep., 334.