text:
    Partridge v. Jones.
    To charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution.
    Error to the District Court of Licking county.
    This action was originally br'ought in the court of common pleas of Licking county, by Edward L. Jones against David H. Ralston, George W. Ralston and Mary Partridge, administratrix of Ebenezer Partridge, deceased, to recover $2,097.16 for the breach of a certain undertaking for a second trial in an action wherein Jones had recovered a judgment against David Ralston, which undertaking was signed by Partridge, and was as follows:
    “ Know all men by these presents: That David H. Ralston and George W. Ralston are held and firmly bound unto Edward L. Jones in the penal sum of $2,600, to the payment of which, well and truly to be made, we do hereby jointly and severally bind. ourselves, our heirs, executors and administrators. Signed by us, and dated this 4th day of March, a. d. 1871.

      “ The condition of this obligation is such that, whereas the said David IT. Ralston has demanded a second trial in a certain action, wherein, at the January Term, a. d. 1871, of the court of common pleas, within and for the county of Licking and state of Ohio, in a cause then and there pending in said court, a judgment was rendered in favor of .said Edward L. Jones, and against said David Ii. Ralston, for the sum of $2,123.45 and costs, $98.65.
    “ And said David H. Ralston then having been desirous of-a second trial of said cause, duly entered on the records of said court his notice of his demand for the same; and said court then having been of opinion that the case was one in which' a trial by jury might be demanded by either party, did then allow said David Ii. Ralston a second trial thereof, on his entering into an undertaking as provided for by law; and did then fix the amount in which such undertaking must be given, in order to perfect the right of said David H. Ralston to such second trial, at the said sum of $2,600.
    “ Now, if the said David Ii. Ralston, the party obtaining such second trial, shall abide and perform the order and judgment of the court, and shall pay all moneys, costs and damages which may be required of, or awarded against him, consequent upon such second trial, then- this obligation shall be void, otherwise in full force. “ D. H. Ralston,
    G. W. Ralston,
    E. Partrid&e.”
    The case being at issue upon the answer of the administratrix of Partridge, was tried, and the facts found to be as follows:
    “ The court, being fully advised in the premises, find that the second-trial bond in the pleadings mentioned was, at its execution, first signed by David 'H. Ralston and George W. Ralston, and in that condition handed to the clerk of the court of common pleas with their names thereon, but that said clerk did not accept or receive said bond as an accepted second-trial bond or undertaking, but that said clerk refused to receive the same as such until other and better security was obtained thereon.
    “ That thereupon, and within the time limited by law for giving an undertaking for a second trial in' said case, the said David H. Ralston procured Ebenezer Partridge to sign, and he ¡did sign the undertaking for second trial in the petition set forth, and thereby intended to, and did, bind himself as upon sl second-trial bond and for the second trial of said case, and that his name was intended to have been, but was not, inserted, in the heading of said bond, by reason of the neglect of the clerk of the court and of said Ralston.
    “ And the court further finds that after said E. Partridge’s name had been signed to said bond, and said additional security given, and not before, tlie clerk of said court indorsed on said bond that the security thereon was to his satisfaction, and marked the same filed.”
    Judgment for plaintiff was thereupon rendered, but no motion for a new trial was filed within three days thereafter. This judgment was affirmed in the district court.

      Charles H. Kibler and J. R. Ramies, for plaintiff in error,
    cited: 2 Tucker’s Blackstone’s Com. (ed. of 1826) 340; Adams v. Hedgepeth, 5 Jones (N. C.) 327; and commented on Tierman v. Fennimore, 17 Ohio, 546; Kelly v. State, 25 Ohio St. 567, and Stevens v. Almen, 19 Ohio St. 485.

      Gibson Atherton, for defendant in error,
    cited : Stevens v. Almen, 19 Ohio St. 485; McLain v. Simmington, 37 Ohio St. 484; Parks v. Brinkerhoff, 2 Hill, 663; Exparte Fulton 7 Cow. 484; Decker v. Pedson, 16 N. Y. 439; Kursely v. Shenberger, 5 Watts 193; Leath v. Bush, 61 Pa. St. 395; Ahrend v. Ordione, 125 Mass. 50; Smith v. Crooker, 5 Mass. 538; Dunker v. Atwood, 119 Mass. 146; Schud v. Lubshultz, 51 Ind. 37; Potter v. State, 23 Ind. 552; 4 Haywood 239; Stone v. Wilson, 4 McCord, 203; Martin v. Dorch, 1 Stew. (Ala.) 479; Campbell v. Campbell, Brayt. (Vt.) 38; Joyner v. Cooper, 2 Barley (S. C.) 199; Bartiey v. Yates, 2 Hen. & M. (Va.) 398; Beale v. Wilson, 4 Munf. (Va.) 380; Blakey v. Blakey, Id. 463.
   Longworth, J.

Although differing somewhat in form from the undertaking whose sufficiency was questioned in McLain v. Simington, 37 Ohio St. 484, we think the principle of that decision establishes the character of the undertaking now before us. It is enough in any written contract that the intent of the party clearly appear, though it be not fully and particularly expressed. In Kursely v. Shenberger, 5 Watts, 193, it was said: “ If ever there was a time when courts listened to trivial and verbal inaccuracies in contracts, when the real meaning and intention of the parties was plain, that time has gone by, and the only object of the court is, that, when the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy, or want of the most appropriate words, shall render the instrument unavailing.”

In Ahrend v. Ordione, 125 Mass. 50, it was held, that when one signs a bond, as a party thereto, it is immaterial that he is not named in the bond.

“ A bond was, ‘ I, William Bush, am held, etc. . . , to which judgment, etc., . . I do bind myself, my heirs, etc., and every of them . . Sealed with my seal, etc.,’ with condition ‘the said William Bush’ should account for money received as collector of school taxes, etc. The bond was signed and sealed by Bush and four others. Held, that it was the joint and several bond of all.” Leath v. Bush, 61 Pa. St. 395. See also Shud v. Leibshultz, 51 Ind. 38.

It would be a waste of space to attempt to review the cases upon this subject. Their current is uniform. Those instances in which it has been held that the signer was not bound will be found to be cases in which the language of the instrument was such as was thought to exclude the idea of liability, as where a bond recites that: “We, A. and B. are held,” &e., and is executed by A., B. and C. Here the pronoun “ we ” is declared to refer to A. and B., and there are said to be no words to indicate any intention that C. shall be bound. Such intention must be gathered from the whole instrument, taken in connection with the circumstances of its execution, and cannot be supplied by parol.

The language of Brinkerhoif, J., in Stevens v. Allmen, 19 Ohio St. 485, indicating a contrary rule, has already been commented upon, and disapproved in McLain v. Simington, supra.

Judgment affirmed.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Chapman v. Sollars.
    1. A purchaser at a tax sale of land delinquent for the non-payment of assessments under the Two-Mile Road Improvement Law, after the same has proved invalid, on account of a defective description of the lands.upon the tax duplicate, may prosecute an action against the owner to recover the amount of taxes, interest and penalties due at time of sale, interest subsequently accruing, and all legal taxes by him afterwards paid. under authority of section 32 of the act relating to county auditors (S, & O. 104), and section 106 of the tax law of 1859 (S. & C. 1473).
    2. In such case parol evidence is admissible in connection with the duplicate to identify the lands actually assessed.
    3. The fifty per cent, penalty imposed upon the owner who redeems his land's from a sale for taxes cannot be recovered in this action.'
    Appeal. Eeserved in the District Court of Highland county.
    In January, 1875, the plaintiffs purchased, at delinquent tax sale by the treasurer of Highland county, three parcels of land, which had been returned delinquent in the name of defendant Samuel Sollars. The delinquent taxes consisted of assessments made by the commissioners of said county for the payment of two road improvements under the act of March 29,1867, and its amendements, commonly known as the Two Mile Eoad Improvement Acts. After the expiration of two years, a tax deed was executed by the auditor of the county to the plaintiffs for the lands so alleged to have been sold for delinquent taxes, whereupon the plaintiffs brought an action against Sollars to recover the possession of the lands, in which action it was found and adjudged that said tax sale was invalid by reason of irregularity in the proceedings. The only irregularity shown to have existed consisted in defective and insufficient descriptions upon the tax duplicate of the lands assessed and sold.
    Thereupon this action was commenced under favor of section 32 of the act of April 4, 1859, relating to auditors of counties (S. & C. 96), which provides, “ Upon the sale of any land or town lot for delinquent taxes the lien which the state has thereon for taxes then due shall be transferred to the purchaser at said sale; and if such sale should prove to be invalid on account of any irregularity in the proceedings of any officer having any duty to perform in relation thereto, the purchaser at such sale shall be entitled to receive from the proprietor of such land or lot the amount of taxes, interest and penalty, legally due thereon at the time of such sale, with interest; thereon from the time of payment thereof, and the amount of taxes paid thereon by the purchaser subsequent to such -sale, and such land or lot shall be bound for the payment thereof and section 106 of the tax law of April 5,1859 (S. & O. 1473), which provides that “ the amount of taxes and penalties charged on the land at the time it was sold, together with all legal taxes afterward paid thereon by such purchaser, his heirs or assignees, shall operate as a lien on said lands and may be enforced as any other lien.”
    The plaintiffs seek to enforce a lien against the lands of defendant Sollars, for the amount of the assessments, interest and penalties charged against them at the time of sale, interest accruing since that date, and taxes paid by them since the date of sale, and also fifty per centum of penalty in addition thereto.
    Defendant Sollars denies the plaintiffs right to recover. The other defendants are mortgage lienholders subsequent to date of the tax sale.
    The cause was appealed from the judgment of the common pleas, in favor of plaintiffs, except as to fifty per cent, penalty, and a small tract of 8K acres, which it found was never owned by Sollars, to the district court. The district court refused to hear parol testimony in aid of the duplicate description for the purpose of identifying the lands assessed, and having stated the case as found upon other testimony, reserved it for decision in this court.

      C. H. Collins, for plaintiff in error:
    The taxes were a lien on the land. Dreake v. Beasley, 26 Ohio St. 315, and see Gillett v. Webster, 15 Ohio, 623; Stephan v. Daniels, 27 Ohio St. 531; Craig v. Heis, 30 Ohio St. 551; 31 Ohio St. 654.

      Matthews & .Huggins, with whom was J. H. Thompson, for defendant in error:
    1. If plaintiffs have a lien at all, it is for no more than the money paid and legal interest.
    2. Parol testimony is not admissible to sustain the description of the land. Hunnels v. Smith, 15 Ohio, 134; Turney v. Yeoman, 16 Ohio, 24; Stewart v. Aten's Lessee, 5 Ohio St. 257.
   McIlvaine, J.

We have considered three questions arising on this record.

1. Can the plaintiffs maintain an action under the statutes .above quoted ?

It was decided in Craig v. Heis, 30 Ohio St. 550, that assessments under the Two-Mile Road Improvement Acts constitute a lien upon the lands assessed. In addition to the arguments found in the opinion in that case, I will name one or two considerations tending to the same conclusion. In Dreake v. Beasley, 26 Ohio St. 315, it was held that these assessments were not a personal charge against the owner of lands assessed, hence, the charge, or lien upon the land, is the only security provided for their payment. Again, the act of April 11, 1876 (73 Ohio L. 218), gives to the treasurer of the county the right to enforce the lien of taxes and assessment by action. Assessments under the Two-Mile Improvement Acts have uniformly been regarded as within the meaning of this act.

The lien being shown to exist, it must exist in favor of the state. These road improvements are state improvements, worked out through instrumentalities employed by the state. The power of taxation or assessment is in the state, and is put in operation by the state. And section 53 of the tax law of 1859, as amended February 25, 1862 (S. & S. 762), declares, “ That the lien of the state for taxes levied for all purposes,” &c. The lien for these assessments must be regarded as the lien of the state.

No other objection to the right of the plaintiffs to this action being made, the first question must be answered in the affirmative.

2. May parol evidence be offered to help out the defective description, on the duplicate, of the lands assessed ?

In respect to this question it must be assumed that the defendant was the owner of lands within two miles of the improvement ; that these lands were benefited, and ought to have been, and, in fact, were, assessed for the payment of the same.

The viewers, whose duty it was to report the lands subject to assessment, made report, and, among others, reported as follows:

Owner’s Name.
Samuel Sollars.
Original Quantity.
1000.
No. of Entry.
1838.
Water Course.
Rattlesnake.
Original Owner.
Wm. Cherry.
Acres.
300

By this description a parcel of the land assessed was placed . upon special tax duplicate for collection as other taxes.

It is conceded that the description is insufficient to suppoi’t a tax sale. And, on the other side, it is admitted that if the tax levied had been for general revenue, parol evidence, in such an action as this, might be admitted for the purpose of identifying the land subject to the lien. We can perceive no substantial difference between the cases which could vary the rule as to the admission of evidence in aid of the description contained on the duplicate.

When the purchaser at a tax sale relies upon a legal title acquired thereunder, the policy of the law requires that he should show by record evidence that every essential proceeding was had in conformity to the requirements of the statute. But when the suit is brought under authority of the state, to recover money paid for defendant’s use, and which, in equity, he ought to have paid, a court of equity will inform itself, by parol testimony in aid of the record, of the existence of every fact necessary to sustain the plaintiff’s suit.

If all the proceedings necessary to charge the lands described in the petition with the payment of these assessments were, in fact, conducted in accordance with law by the officers having duties to perform in relation thereto, save only that the description reported by the viewers, and placed on the duplicate, was imperfect, we think there can be no doubt that the case is within the statute, and parol evidence should be heard for the purpose of identifying the lands actually assessed.

3. The fifty per cent, penalty on the amount actually paid at tax sale cannot be recovered in this action. Such penalty is only assessable on redemption of the lands by the owner. The defendant had no occasion to redeem, as he lost nothing by the sale. Johnson v. Stewart, 29 Ohio St. 498.

Cause remanded to district court, with directions to proceed to final trial and judgment in accordance with this opinion.


author: Johnson, J.

text:
    Board of Education v. Mills.
    1. By tlie proviso to section 55 of the School Law (70 Ohio L. 310, 211), township boards of education are required, when the cost of building a school-house, or other improvement, exceeds $500, to advertise and let the same to the lowest responsible bidder, unless in case of- urgent necessity, or for the security and protection of school property. This is a duty imposed upon the board, in its corporate capacity, and cannot be delegated to the local directors of the sub-district in which the school-house or other improvement is to be made.
    2. In an action by a contractor against a township board of education, to recover damages for its refusal to allow him to perform a contract made in its behalf by the local directors, for the building of a schoolhouse, the cost of which exceeds $500, where the validity of such contract is in issue, it must appear that the township board advertised and let the work in accordance with said proviso, unless it affirmatively appears that it was a case of urgent necessity, or was for the security or protection of school property.
    3. Upon such an issue the record and proceedings of the local directors, showing that it duly complied with said proviso, is incompetent, as the local board is not authorized 'to advertise, open bids and award the contract.
    4 Where incompetent evidence, which is material to the issue, is allowed to go to the jury in favor of a prevailing party against the objection of the other party, error, to his prejudice, will be presumed. In such case it is not necessary, in order to reverse the judgment, to show that the jury was, in fact, influenced thereby.
    Error to tbe District Court of Guernsey county.
    Stephen Mills brought his action against the board of education of Stock township, alleging: That, on the 8th day of September, 18.76, the plaintiff agreed with the defendant to furnish materials, build and complete a school-house for said defendant, to be erected in sub-district No. 12, which had been consolidated with sub-district No. 2, of said Stock township. The aggregate sum to be paid for the school-house, completed, was $1,444.69 ; that the plaintiff, in pursuance of said contract, proceeded to build the foundation, furnished a quantity of materials, and partly framed the building, when, on or about November 25,1876, the defendant repudiated said contract. This action was brought to recover damages for a breach of said contract on the part of said defendant. The defendant, in its answer, denies the making of said contract, denies that it wrongfully interfered with the plaintiff in the performance of said contract, and denies that the plaintiff was damaged in any amount by any act of said defendant. The issues raised by the pleadings in said court of common pleas were :
    1st. Was the contract counted upon in said petition made by the said parties ?
    2d. If made, did the said defendant wrongfully put an end to it ?
    Upon this issue, the case went to the jury, and on the trial, Mills, to establish the existence of a valid contract, read in evidence to the jury the minutes of the board of education of the township, showing, that on April 17, 1876, sub-district No. 2 was consolidated "with No. 12, to be designated No. 12, and that R. W. Culland, A. Archer, and James Kilbungh were appointed a committee to locate the school-house for the new sub-district, also that a township levy of $1,800 was ordered to build the new school-house.
    July 15, 1876, the clerk was instructed to advertise for an election of three local directors for this sub-district. At the same meeting, “ the board authorized, the local directors of sub-district No. 12 to proceed to the building of a school-house in said sub-distriot.”
    September 18, 1876, the board authorized the local directors to proceed as a building committee to erect their schoolhouse.
    September 30, 1876, the board, at a special meeting, ordered the clerk not to issue any orders for funds to build a school-house in sub-district No. 12, unless it be built at or near the place located by the board.
    This is the substance of all the action taken by the board of education of the township on the subject.
    The plaintiff, further to maintain the issue on his part, read to the jury, against the objection of defendant, the record and proceedings of the local directors of sub-district No. 12, showing, that on August 5, 1876, they met and selected a site for a school-house, and decided to advertise for bids to erect a two-story house.
    September 8, 1876, the local board again met, opened the bids, and awarded the contract to Mills, and, on the same day, entered into the contract on which this action is brought.
    To the introduction of each and all of said entries from the records of proceedings of said local directors in evidence, except the first entry of August 5, the defendant, by its attorneys, objected, upon the ground that the same was incompetent. The objection was overruled, and exception taken.
    The plaintiff, further to maintain the issue, introduced evidence, showing, that the local board advertised four w'eeks for bids; that they met, opened the same, and awarded the contract to Mills, who was the lowest bidder'; that they supposed they had authority to do this; that no regulations were prescribed by the board of education for their government in respect to this matter, and neither was there any special instructions or directions given them, other than is shown by their proceedings.
    It appears that the local board supposed, that under their authority from the township board of July 15, wherein they were authorized to proceed to the building of a school-house in said sub-district, they were authorized to advertise and let the work. This seemed also to be the opinion of the township board.
    Evidence was also adduced as to the breach of said contract, and the plaintiff’s damages.
    It was admitted by the parties, that the board of education never advertised for bids, or took any other steps in the matter of building the school-house in No. 12, except as stated in the record read in evidence, and that no bids were ever received and filed by the clerk of said board of education, or that the board ever opened any bids for the same.
    The plaintiff having rested, a motion was made to arrest the testimony from the jury, and to direct a nonsuit, which was overruled, and exception noted. Defendant then asked tbat the jury be instructed to find for defendant, which was refused, and a bill of exceptions tendered, which the court finds to be a true bill, and signed and sealed the same.
    There was a verdict and judgment for plaintiff, which was affirmed by the district court, and this proceeding is to review that judgment of affirmance.

      Chambers <& Gibbs, for plaintiffs in error :
    By section 55 of the act of 1873 (70 Ohio L. 210-11), the township board of education is required, when the cost of a school building exceeds $500, to advertise for proposals, and the authority of the board to act in such case cannot be delegated. Sedgwick Const, and Stat. Cons. 330 ; Birdsall v. Clark, 73 N. Y. 7; Thompson v. Schermerhorn, 6 N. Y. 92; Thompson v. Booneville, 61 Mo. 283; State v. City of Patterson, 34 N. J. L. 167; City of Bryan v. Page, 51 Tex. 532; Dillon on Muu. Corp. § 6Ó, Lauenstein v. City of Fond du Lac, 28 Wis. 336; State v. Bell, 34 Ohio St. 194.

      Belford <& Olcey and D. S. Spriggs, for defendant in error.
   Johnson, J.

It is conceded that the board of education never advertised for bids or took any other steps in the matter of building this school-house, except to levy a tax for the same, and to authorize the local directors of the district to proceed to the building of the school-house. The local board, supposing they were authorized to do so, advertised for bids, opened the same, awarded the contract to Mills, and, on the same day, entered into a written contract with him, by which they obligated the township board to pay $1,444.69 for the house when completed. The contract was repudiated by the township board, and this is an action for damages occasioned by reason of their refusal to allow him to perform the contract.

On the trial to a jury, the plaintiff, to maintain the issue on his part, that the contract was valid and binding on the township board, sought to show, by the record of the proceedings of the local board, that the law, which requires that when the cost of the building exceeds $500 it must be let to the lowest bidder after public advertisement, had been complied with. This was admitted over the objection of defendant. ' The admissibility of this evidence is the sole question here. The powers of the township and local boards of education which govern’this case, are found in the act “for the reorganization and maintenance of common schools.” 70 Ohio L. 195. Section 31 declares, that “ no contract shall be binding upon any board of education, unless such contract shall have been made, or authorised to be made, at a regular or special session of said board.” The only authority for making this contract was the action of July 15, where it appears that “the board authorized the local directors of sub-district No. 12 to proceed to the building of a school-house in said sub-district; ” and the further action of Sejkember 18, when the local directors were authorized to proceed as a building committee to erect this schoolhouse. It is clear that the township and local board each acted on the assumption that as the improvement would cost more than $500, the duty of a public letting could be delegated to the local board. Acting on this construction of the law, the latter board did, so far as it was concerned, fully comply with this requirement. If this duty was one which the township board alone could discharge, and was of such a nature as that it could not be delegated, then the record and proceedings of the local board to show a compliance with the law, was incompetent to bind the township board.

By section 55 of the act, the authority to build schoolhouses is conferred upon the township board and it is made the duty of -the local boards, under such rules and regulations as the township boards may prescribe, to build, repair and furnish them, and the township boards are liable, in their corporate capacity, for all contracts made by such local boards, in accordance with the rules and regulations prescribed by township boards, or with the resolution of the board. It is provided, however, that when the cost of the improvement will exceed $500, except in cases of urgent necessity, or for the security or protection of school property, the township board shall advertise for bids, either by publication in a newspaper, if there be one in the county, or by posting notices, and let the work to the lowest responsible bidder. The minute provisions relating to the duties of the township board in letting such contracts, show that a personal trust involving judgment and discretion is imposed on it, as a corporate body, which cannot be delegated to the local directors. In the construction of this proviso, we adopt with approval, the language of counsel for the plaintiff in error.

“ The terms of this section imperatively require this duty to be performed by the Board of Education ‘ Said Board shall advertise for bids for the period of four weeks,’ etc. ‘The bids, duly sealed up, shall be filed with the clerics' ete. ‘The bids shall be opened at the next meeting of the Board, and publicly read by the clerk, and entered in full on the records of the Board? ‘None but the lowest responsible bid shall be accepted, but the Board may in their discretion accept any bid for both labor and material,’ etc. ‘When there is reason to believe that there is any collusion or combination among the bidders or a/ny number of them the bids of those concerned therei/n shall be rejected? These provisions and requirements evidently show that they must be exercised by the Board of Education, and from their nature cannot be exercised by any other authority. In this case the action of the board of local directors in assuming to act on behalf of the township board, in awarding this contract was unauthorized and void.”

The court, therefore, erred in admitting the record of the local board, showing that it did advertise and let the work.

II. But it is said the bill of exceptions does not purport to set out all the evidence, and the plaintiff may have adduced evidence showing that it was a case “ of urgent necessity or for the security and protection of school property,” in which cases a public letting may be dispensed with. To this there are several conclusive answers.

The bill of exceptions contains the record and proceedings of the township board, and the admission that that board did not advertise or let the work or make the contract, and that it took no other steps in the matter. This excludes the idea, that it had determined that it was a case of urgent necessity or for the security or protection of the school property. Again, where incompetent evidence, material to the issue, is permitted to go to the jury, error prejudicial to the opposite party will be presumed, and in such a case the injured party is not bound to set out all the evidence and show he was prejudiced.

In such case, unless the bill of exceptions shows that he was not prejudiced, the judgment will be reversed. Baldwin v. Bank of Massillon, 1 Ohio St. 141; Sherer v. Piper, 26 Ohio St. 476; Lowe v. Lehman, 15 Ohio St. 179.

This rule is not in conflict with the one which requires all the evidence to be set out where it is sought to reverse for error in refusing a nonsuit, or in overruling a motion in arrest of judgment, or for a new trial on the ground that the verdict is against the evidence.

Judgment reversed and cause remanded.


text:
    Dick v. Railroad Company.
    1. A motion to arrest the testimony from the jury, and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.
    3. As between employees of a railroad company, whose duty it is to repair its track while trains are using the same, and the company and its representatives, ■who are engaged in running trains over the same where the trackmen are so employed, it is the duty of the latter, as far as is practicable, to adopt such precautions as will guard its employees on the track from dangers incident to their employment.
    3. Where the liability of a railroad company for injury to one of i^ track repairers, by the careless manner of running a train, is in issue, evidencetending to show that the train causing the injury was in charge of a conductor and engineer, and was, at the time, engaged in a race, at a high and dangerous rate of speed, with a train on a parallel road,-' over several public crossings, on a curve on which the track repairer was at work, in a city limits, and where trains should be run with care corresponding with the circumstances, without sound of bell or whistle, or slack of speed, or any other precaution to warn the men engaged at work on the track of approaching danger, is competent to go to the jury, and should be submitted to it under proper instructions upon the issue joined; and it was error in the court to grant a nonsuit, on the assumption that the negligence and carelessness causing the injury was that of a co-employee in the same service, and not that of the company.
    Error to the District Court of Hamilton county.
    The plaintiff, Rosina Dick, as administratrix of Martin Dick, brought an action against the I. C. & L. R. R. Co. to recover damages for causing his death.
    The petition alleges, that Martin Dick was a section hand and boss on the railroad, engaged daily in making repairs thereon, on a section thereof, extending from Mill creek, in Cincinnati, three miles westerly to a culvert in the village of Riverside; that the railroad has a sharp double curve, somewhat like the letter S, reaching from a point east of Riverside station to the limits of the city of Cincinnati, an extent of about 600 yards; that it had been the custom of the company to cause the approach of its trains" to this double curve to be announced by a whistle and ringing the bell; that, by law, the company was bound, while operating its trains, to limit their speed within the city to a speed not exceeding six miles per hour; and that, on the occasion of his death, Martin Dick and other section hands were engaged in repairing the track within the city limits, on this double curve, about 9 o’clock a. m., September 9, 1874, when the company, disregarding its duty, and reckless of the safety and lives of its employees engaged on this section, and of the public accustomed to cross this double curve, caused and permitted a certain passenger train, coming into the city, to approach and enter upon said curve, withgut sounding the customary signals of its approach, or without reducing its rate of speed; on the contrary, in did not exercise ordinary care, but caused said train to be driven over said curve and into the city limits at a frightful and dangerous rate of speed, being- engaged in a race with a train on the O. & M. track, parallel and near its track, while both trains were behind their schedule time, by reason of which default 'and negligence of the company, and its engineer add conductor in charge of the train, Martin Dick, without his fault, Avas killed.

      It is alleged in tlie answer, that Martin Dick was the section boss of this section, and engaged, as such, in the common enterprise of maintaining and operating said road, with the employees on the train, who were fellow servants and co-employees of Dick, at the time he was killed; but denied that he came to his death by the fault or negligence of the defendant ; that it caused or permitted the train to approach or enter this curve without the proper signals ; that it did so approach this curve ; and denies that it caused or permitted the train to be driven at an unlawful and improper speed on said curve or within the city limits ; on the contrary, it is averred that the company took every precaution to guard against injury to its passengers, employees, and the public, by rules and regulations and other means. It also denies that' the train was behind time, and says, Dick had a time card by which he could have known of the approach of its train ; and denies that this was a dangerous curve; that they were, at the time, racing with an O. & M. train ; or, that it was reckless of the lives of its passengers, or employees, or the public; or, that Dick was killed by any negligence or default of the defendant, but claims, that he came to his death by his own fault.
    On the trial to a jury, after the plaintiff had -adduced testimony on her part, and rested, the court, on motion of defendant, arrested the testimony from the jury, and entered judgment in its favor, to which plaintiff excepted and tendered a bill of exceptions which was made part of the record.
    The district court affirmed the judgment, and this proceed:ing is to review this judgment of affirmance.

      William Disney, for plaintiff in error :
    Nonsuit : Sperry v. Johnson, 11 Ohio, 452, 453; Hicks v. Person, 19 Ohio, 426, 442; Ellis v. Morton, 4 Ohio St. 628, 647; Berry v. State, 31 Ohio St. 219, 320.
    Negligence: Jenkins v. Railroad Co., 2 Dis. 49, 51; Railroad Co. v. Crawford, 24 Ohio St. 631; Railroad Co. v. Whittaker, 24 Ohio St. 642, 651; Railroad Co. v. Picksley, 24 Ohio St. 654, 658; Wood’s Mast, and Servt. 756, 762; Greenleaf v. Railroad Co., 29 Iowa 14.
    Eellow servants : Railroad Co. v. Stevens, 20 Ohio, 415;
      Railroad Co. v. Webb, 12 Ohio St. 475, 497; McGutrick v. Wasson, 4 Ohio St. 566, 575; Railroad Co. v. Keary, 3 Ohio St. 202; Railroad Co. v. Barker, 5 Ohio St. 541, 563; Gibson v. Railroad Co., 46 Mo. 163; Railroad Co. v. Ford, 17 Wall. 554; 13 Albany Law Journ. 114; Brickner v. Railroad Co., 49 N. Y. 672; Wood’s Mast. and Servt. 901; Mullan v. Steamship Co., 78 Pa. St. 26; Railroad Co. v. Collins, 2 Duvall, 114.
    The motion to arrest the testimony from the jury, and render judgment for defendant, should have been denied. Code, § 263; S. &C. 1020.

      Hoadbj, Johnson <& Golston, for defendant in error:
    I. If any negligence is shown, it is that of the engineer of the train. He was a fellow servant of the section “ boss,” and the common employer is not liable. Whaalan v. Mad River, &c. R. R., 8 Ohio St. 249; Manville v. Cleveland & Toledo R. R., 11 Ohio St. 425, 426; Col. & Xenia, &c., R. R. v. Webb, 12 Ohio St. 475; P., Ft. W. & C. R. W. Co. v. Lewis, 33 Ohio St. 196; Railroad Co. v. Ranney, 37 Ohio St. 665.
    If there was only negligence on the part of the conductor in charge of the train, the company is still not liable, because there is no relation of superior and inferior between the con ductor of a passenger train and a section foreman or boss. The authority of the conductor is confined to those under him on the same train. Devinney v. P., Ft. W. & C. R. W. Co., 17 Ohio St. 197.
    There is no evidence whatever, that the defendant was guilty of any negligence in the employment of its engineer or conductor.
    II. The motion to arrest the testimony from the jury, and render judgment for the defendant, was properly granted for above reasons. Stockstill v. Dayton & Mich. R. R. Co., 24 Ohio St. 83.
   Johnson, J.

If there was evidence tending to support the issue, the court below erred in arresting it from the jury. It is only, where no evidence is introduced by the plaintiff, tending to support the issue, or where it is such as to show clearly. that he has no cause of action, that it is the duty of the court, to direct judgment of nonsuit. But if the evidence introduced is appropriate to the issue, although it may be slight, and not sufficient, in the opinion of the court, to entitle the plaintiff to a verdict, still the jury should be permitted to pass upon it, and it would be wrong in the court to decide a nonsuit.

Such a motion involves an admission of all the facts which the evidence tends to prove, and presents only a question of law, whether each fact, indispensable to a right of action, put in issue by the pleadings, has been supported by some evidence. Ellis v. Ohio Life & Trust Co., 4 Ohio St. 645. The issue made by these pleadings is, whether the corporation is liable for causing the death of Martin Dick ? The defense, in substance, is, that the^railroad company had performed its whole duty in the premises, and is not responsible for the negligence of its employees engaged in running this train, who were fellow servants of Dick, and engaged in the same common employment ; also, that Dick was guilty of contributory negligence.

The petition explicitly charged, that the corporation was at fault in managing and operating the train which ran into, and killed Martin Dick, and that the manner in which it ran this train, was by the default and negligence of defendant, “ and its engineer and conductor in charge of said train.”

The answer says that Dick, being a section boss, “and as such engaged with other employees of said defendant, and especially those in charge of the train in question were,. . . fellow servants and co-employees,” and denies that defendant was guilty (not that these co-employees, including the engineer and conductor, were not guilty). The answer also denies negligence on its part, as to speed of train, failure to give signals at crossing, &c.

The only question before us is, whether there was evidence tending to show the legal liability of the corporation. In examining this point we do not intend to discuss, much less question the principle, established in Whaalen v. The Mad River R. R., 8 Ohio St. 249, that where one servant is injured through the carelessness of a fellow servant engaged hi a common employment, where there is no relation of superior or subordinate, and the employer himself is guilty of no fault, such employer is not responsible. That principle was there applied to a case, when a hand engaged in repairing a track, was injured by a hand on the engine carelessly throwing out a stick of wood from a passing train. It was there held, that the track repairer, and a hand on the engine whose duty it was to pass fire-wpod from the tender to the engine, and to cast from the train sticks unsuitable for use, were fellow servants coming within the above rule. This rule has been applied as between employees on trams, in Manville v. C. & T. R. R. Co., 11 Ohio St. 417; Railroad Co. v. Webb, 12 Ohio St. 475; Railway Co. v. Lewis, 33 Ohio St. 196; Railway Co. v. Ranney, 37 Ohio St. 665, and P., Ft. W. & C. R. W. Co. v. Devinney, 17 Ohio St. 197.

The most liberal application of this rule, does not absolve the company from such acts of negligence to the injury of its employees as are not the result of the carelessness of fellow servants. It is therefore the duty of the company to provide suitable and safe machinery and other appliances to operate its train. Railroad Co. v. Webb, supra; Gutrick v. Wilson, 14 Ohio St. 566; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 202; M. & R. & L. E. R. R. Co. v. Barber, 5 Ohio St. 541. This principle applies to all cases whore the negligence of an employee is imputable to his employer by reason of the fact that in doing the act he is to bo regarded as the representative of his master. In C. C. & C. R. R. C. v. Keary, it was said: “ As corporations act only through their agents and officers authorized to exercise the functions conferred by their charters, there is much force in the view of the late Chief Justice Hitchcock, ‘that the superintendent (and conductor when running a train) of a railroad, ought to be regarded as the proper representatives of the company, and their acts treated as those of the company.’ ” 3 Ohio St. 201-210.

This principle is illustrated in Railway v. Henderson, 37 Ohio St. 552, where it is said that a breach of duty by the master is not one of the risks which a servant assumes in entering hie service. This breach of dut_y may be the employment of other incompetent servants, the failure to provide safe and suitable machinery, or to notify the servant of peculiar dangers known to himself but not to the servant, or in needlessly placing the servant in a place of danger.

In that case, the company was held responsible for injury. to a laborer on a construction train, arising from an order of the superintendent of the company, with respect to the management of a particular train. If the order was an unreasonable one, it was held to be no answer to say, that a fellow servant of the injured party was also guilty of negligence in its execution. So, when a foreman of a set of hands, whose business was to repair cars on a track in the yard in which it was the custom to make up trains, placed a hand under a car to work, and failed to use reasonable care to protect him from the danger, his negligence was imputed to the company. L. S. & M. S. R. W. Co. v. Lavalley, 36 Ohio St. 221. It was also held that it was the duty of the company to make such regulations or provisions for the safety of its employees as will afford them reasonable protection against the dangers incident to their employment.

In view of these principles, did the court err in holding that there was no default or negligence imputable to the company in running this train, or rather that there was no evidence tending to show that the company was liable ?

The answer avers that every precaution was taken to guard against injury to passengers and employees, and that, by rules and regulations and by other means, it had done all in- its power to accomplish that end, but no evidence of this appears in the bill of exceptions which is said to contain all the evidence.

The evidence strongly tends to show that the locality is a dangerous one, that it was a double or triple curve, and that it was impossible for one engaged at work where deceased was, to see an approaching train but a short distance ; that there were several public crossings which the train had to cross in approaching the place where deceased was at work; that it was in a thickly-settled neighborhood within the city limits; that no signal of the train’s approach was given by bell or whistle, either at these crossings or in approaching the curve, •which he could have heard if given, and that the train was engaged in a brisk race with another train on a parallel road. One passenger says, “ The train was going at a terrific rate of , speed. I was thrown against the window, the velocity of the train threw me.” Another says: “ The train was behind time, and was racing with the O. & M. train, that in going around this curve he was thrown off his feet.” Still another gives a graphic description of this exciting race, and several testify that no signals were given. It was a train in charge of a conductor and engineer. There was no evidence tending to show that this dangerous proceeding was owing to the recklessness of the engineer. Por aught appearing, it was in strict accord with the directions of the conductor and with the rules and regulations of the company. In the absence of proof to that effect, the court below erred in assuming that Martin Dick came to his death by the negligence of the engineer, and in holding, as it must have done, that there was no evidence tending to show that the company was liable.

Whether the company is responsible for the culpable conduct of the engineer, in case it should appear it had exercised proper care for the safety of its employees, or whether, in such a case, the engineer is to be regarded as a fellow servant, and so within the rule in Whaalen's case, we need not now determine. All we now decide is, that the evidence given to the jury tended to make a case of liability against the company, and it was for the jury, under proper instructions, to determine the question at issue.

By the act of 1872 (69 Ohio L. 19) the company is made liable in damages occasioned by a failure of the engineer to sound the whistle and ring the bell at a public crossing on the same level with its track. Whether this is for the protection of travelers on the public way only, or extends to persons working upon the track, we need not now consider. We think that, even in the absence of such a statute, it is the duty of the company to make and enforce reasonable rules and regulations to guard against danger at such crossings and in dangerous places, as this apparently was, and that deceased, when he entered the employment, had a right to expect the performance of that duty.

Judgment reversed, and cause remcmdedfor a new trinl.


author: "White, J".

text:
    Davis v. Harness.
    1. A party entering into a contract in Ms own name may sue or be sued upon it, whether he be, in fact, agent or principal.

      2. Where a landlord, with the consent of his tenants, sold their share of a crop of corn with Ms own, and afterward brought an action against the purchaser for not accepting the corn, the fact that the landlord did not own all the corn, neither constitutes a defense nor operates to diminish the damages. If the acceptance ot the corn by the purchaser would have invested him with a good title, it is not material whether the landlord owned all the corn or not.
    Error to the District Court of Róss county.
    Charles E. Harness, defendant in error, brought an action in the court of common picas of Ross county against George Davis, Stephen Morrow and S. Morris, partners as George Davis & Co., plaintiffs in error to recover damages for the breach of a contract. The petition was as follows :
    “ The plaintiff says: On the fourth day of September, A. d. 1875, he made a verbal contract with the defendants, acting through their agent, S. N. Iligby, whereby plaintiff bound himself to deliver to defendants the corn crops of the year 1874, then belonging to plaintiff and his tenants, being then on hand, and to deliver said corn to defendants, on board their boats on the Ohio canal, at a point where plaintiff was accustomed to deliver corn from his farm, about half a mile above the mouth of Stony creek, at such reasonable time thereafter as the defendants should furnish boats for the purpose of receiving said corn; and defendants bound themselves, by said contract, to receive said corn at said point within a reasonable time after the making of said contract, and to furnish boats sufficient for the purpose, and to pay the plaintiff for said corn, at the time of delivery, at the price of seventy cents per bushel of sixty-eight pounds. At the time said contract \yas made, the number of bushels of corn thereby bought and sold was not ascertained, but the quantity has since been ascertained, and that the number of bushels was eight thousand nine hundred and fifty-seven and fifty-one pounds.
    “ Plaintiff says he duly performed all the conditions of sayl contract on his part; that he was ready and willing to deliver said corn during the whole of said reasonable time; that he tendered to the defendants performance of said contract and offered to deliver said corn ; but defendants failed and refused to furnish boats to receive said corn or any part thereof, within such reasonable time and at all times, and failed and refused to pay the price, or any part of the price, agreed to be paid for the same. After the making of said contract and before the expiration of said reasonable time, the market price of corn fell, and plaintiff was damaged by. the aforesaid failure and refusal of defendants in the sum of nineteen hundred dollars. Wherefore plaintiff asks judgment against defendants for said sum of nineteen hundred dollars.”
    To this petition the following answer was filed:
    “Now come the said defendants, and as a first defense to said petition say : They deny that the said S. N. Higby was, at the time mentioned in said petition, or at any other time, the agent of the defendants, authorized to purchase the quantity of corn averred by said plaintiff to have been contracted to these defendants, through the agency of said Higby. They say that the said S. N. Higby was, at the time, authorized to purchase for them a limited quantity of corn, such quantity not to exceed four thousand bushels; and the said Higby, in contractingjvitli the plaintiff on behalf of the defendants for sixteen thousand bushels of corn, exceeded his authority as such agent of the defendants.
    ■ “ And as a second defense to said petition they say: They deny that said plaintiff duly performed all the conditions of said contract on his part; they deny that the plaintiff was ready and willing to deliver said corn during the whole of said reasonable time. They aver that the plaintiff was not the owner of said 8,957 51 68 bushels of corn at the making of said contract, and that at no period within said reasonable time was he the owner of 8,957 51-68 bushels of corn, and ready to be delivered to the defendants. They deny that the plaintiff, within a reasonable time, offered to deliver the whole or any part of said corn. They deny that after making of said alleged contract and before the expiration of a reasonable time for the delivery, the market price of corn fell. -And they deny that the plaintiff has suffered any damage whatever.”
    On the trial, the plaintiff, to maintain the issue on his part, introduced as a witness S.N. Higby, who testified, that George Davis, one of the defendants, being at his house on August 31, 1875, told him, “if he did not hear from him by letter the first mail, directing him not to purchase, to pitch in, and buy corn for the said Davis & Co., at seventy cents per bushel.” That, not hearing from said Davis by first mail, he bought the plaintiffs’ corn, at seventy cents per bushel.
    The defendants then introduced George Davis as a witness in their behalf, who denied that he had authorized Higby, to purchase corn, but testified, that he did say to Higby, “ that they had purchased about all the corn they wanted, but they might want a little more, and that, upon reaching home, he would write him by the first mail, and let him know, should they want any more.”
    The bill of exceptions also shows, that “ it was proved, that the plaintiff, at the time of making said contract, had in his cribs, belonging to himself and tenants, on his farm and under his control, for the purposes of sale, the number of bushels alleged in the petition, raised on said farm.”
    The defendants asked the court to charge the jury, among other things, as follows: — “ 4th. Plaintiff in this action, if entitled to recover at all, is not entitled to recover for corn that, at the time of the making of the contract, did not belong to him, but didjoelong to tenants living on his farm. 6th. If, at the making of the alleged contract, nothing was said about including any com belonging to other parties, but it was the agreement, that the plaintiff sold his crop of corn, or his corn in his cribs, the same to be afterwards weighed and the quantity ascertained, then the plaintiff cannot recover for any other corn than his own,” which the court refused, but did charge, among other things, as follows:
    “That it did not matter, whether the plaintiff was the owner of all the corn for which he sues at the time the contract was made or not. If part of it belonged to him and part to tenants living on his farm, the plaintiff had a right to recover damages for the whole amount, if plaintiff had such right to sell the corn as would enable him to confer upon the purchaser a good title to the corn by delivering it to him.”
    An exception was taken to the refusal to charge as asked, and to the charge as given.
    Yerdict for the plaintiff, and judgment on the verdict.
    On error the district court affirmed the judgment.

      W. A. Hutchins, for plaintiff in error.
    Harrison, Olds & Ma/rsh, for defendant in error.
   "White, J".

The contract sued on being entered into by Harness, in his own name, he was authorized to sue, and was liable to be sued upon it. The fact that part of the corn embraced in the contract was the property of his tenants did not affect his right to sue for its breach, provided he was able, ready and willing to comply ■with it on his part.

The only issue raised by the first defense is the denial that ITigby was authorized to make the contract described in the petition on behalf of the defendants. The jury found that he had such authority. The authority was not limited to the purchase of corn owned by Harness, or by any particular person, but extended to the purchase of corn generally. The averment, therefore, in the second defense, that the plaintiff did not own all the corn sold, is immaterial, if the defendants, by accepting it, would have acquired a good title. The bill of exceptions shows that “it was proved that the plaintiff, at the time of making said contract, had in his cribs, belonging to himself and tenants on his farm, and under his control, for the purposes of sale, the number of bushels alleged in the petition, raised on said farm.” This being so, the fact that part of the corn was owned by the - tenants constituted neither a defense, nor did it operate to diminish the damages. Nixon v. Nixon, 21 Ohio St. 114; Bell v. Offutt, 10 Bush, 632.

The sixth charge asked, as applied to the case, was calculated to mislead the jury. It is a plain proposition, that if the agreement had been for the sale of corn owned by the plaintiff, Harness, the defendants would have been bound to take no other corn than was thus owned. But such was not the intent of the agreement. The agreement contemplated the sale of the corn owned by Harness, as well as that of the tenants, and of which he had control and was authorized to sell. There was, therefore, no error in the charge as given.

Other points are made in the case which the court deem it unnecessary to notice, further than to say that there was no error in the ruling of the courts below.

Judgment affirmed.


author: Okey, C. J.

text:
    Mortley v. Flanagan.
    Where the members of a firm, acting in good faith, dissolve the partnership, and one member sells his interest in the partnership property to the other, the latter will not be deprived of the right to hold such property exempt from the payment of a debt thereafter asserted against him, on the ground that such debt was a partnership debt due at the time of the dissolution ; nor will the fact that the partners knew the firm to be insolvent, at the time of such dissolution, make any difference. Gaylord v. lmlioff, 26 Ohio St. 317, distinguished.
    Error to the District Court of Guernsey county.
    A. C. Flanagan, engaged in a small retail business, formed a partnership with E. S. Flanagan, under the firm name of A. C. Flanagan & Bro. E. S. Flanagan was without capital, and executed to A. C. Flanagan his note for $400, being equal to one half of the whole stock which A. C. Flanagan then had on hand. In 1877, the partnership was dissolved; by the terms of the dissolution A. C. Flanagan becoming the owner of the partnership property and assets, except the account for the individual debt of E. S. Flanagan to the firm, surrendering to E. S. Flanagan his note for $400, and agreeing to pay the partnership debts. The partnership, at the time of the dissolution, was insolvent. On November 9, 1877, shortly after the dissolution, A. C. Flanagan executed a deed of assignment for the benefit of creditors, which was filed in the probate court of Guernsey county, Ohio, and George W. Taylor was thereafter substituted by the probate court as such assignee in place of the person named in the deed. Taylor reduced the property and assets, all of which belonged to the firm at the dissolution, into money, and the sum realized exceeded $500, but was less than the aggregate of the firm debts. A. O. Flanagan was a resident of Ohio, the head of a family, and not the owner of a homestead. In the deed of assignment he reserved such rights as he might have under the exemption laws; but Taylor, the assignee, before and after he reduced the property and assets into money, refused to permit A. O. Flanagan to have such exemption, and thereupon Flanagan brought suit in the court of common pleas of Guernsey county against Taylor, and issue was joined in the action. In his answer Taylor says he holds the proceeds of such trust subject to the order of the court, and he states the names of the creditors of the firm, and the fact that those creditors deny the right of A. O. Flanagan to such exemption. Mortley & Pinkerton, creditors of the firm, were admitted as defendants, and their answer and cross-petition contains, among other things, the following:
    “ These defendants aver that but a few days prior to the assignment of said A. C. Flanagan, and while said firm of A. O. Flanagan & Bro. was insolvent and unable to pay more than thirty per cent, of their then existing indebtedness, all of which was well known to them, the said A. O. Flanagan and Edward S. Flanagan, in fraud of said partnership creditors, and conspiring to cheat and defraud their said creditors, and for that purpose alone, did agree to, and did then and there dissolve or pretend to dissolve said partnership, and the said Edward S. Flanagan left said county of Guernsey, wherein they had been doing business, and continues to remain absent therefrom.
    “ These defendants further aver that said A. C. Flanagan and Edward S. Flanagan did not have at the time of said dissolution, nor have they now, any individual assets, and that said pretended dissolution was simply made and had for the purpose of thereby enabling said A. O. Flanagan to claim and hold the sum of five hundred dollars exempt, &c., out of said partnership assets. And these defendants say that said A. O. Flanagan, immediately after said pretended dissolution and in furtherance of said conspiracy to defraud as aforesaid, took steps to assign the property afterwards assigned, and all of which was the property of said firm of A. O. Flanagan & Bro.”
    To this answer and cross-petition A. O. Flanagan replied, among other things, as follows : “It is not true, and he denies, that he entered into any conspiracy with Edward S. Flanagan, or any other person, to cheat or defraud said defendants, or any other person. Nor is it true that the partnership referred to between plaintiff and Edward S. Flanagan was dissolved for the express purpose of enabling the plaintiff to claim the benefit of a homestead exemption. Nor is it true that he made the assignment of his property for the benefit of his creditors in furtherance of any such conspiracy, or for any other fraudulent purpose. And said plaintiff avers that some time prior to the time he made the assignment for the benefit of his creditors, as set forth in the petition herein, he and said Edward S. Flanagan agreed to dissolve, and did in good faith dissolve, said partnership.” And then follows a statement of the terms of sale, substantially as herein before set forth. A demurrer to the reply was overruled. On the trial the court decreed that Taylor should pay to A. O. Flanagan $500 and interest, as exempt from the payment of debts, and the district court affirmed the judgment. The record contains no part of the evidence. This petition in error is filed by Mortley and Pinkerton to reverse as well the judgment of affirmance as the order of the court of common pleas.

      J. T. Grew, for plaintiff in error.

      Mathews c& Heade, for defendants in error.
   Okey, C. J.

In Gaylord v. Imhoff, 26 Ohio St. 317, the question was presented whether the members of an insolvent firm were entitled to the statutory exemptions out of the partnership property, after it had been seized in execution by partnership creditors, all the members joining in demanding the exemptions. The cases upon the question were found to be in conflict, but this court, for reasons clearly stated by Gilmore, J., and entirely satisfactory to us, answered the question in the negative. The question now before us, however, is different. It is whether the joint interest was severed — whether the title to the property was vested in A. C. Flanagan alone — before the partnership creditors asserted, in any form, alien upon or maim to such property. And this question we answer in the affirmative. The denial in the reply seems to be as broad as the averments in the answer; but if we construe the reply as admitting that one of the reasons which induced the dissolution and the sale to A. C. Flanagan was to enable him to claim an exemption from execution, the result would be the same. A sale fairly and honestly made by one member of a firm, of his interest in the partnership property and effects to the other partner, will not be rendered invalid by the fact that it was expected such partner would thereafter avail himself of the provisions of the statute to hold such property exempt from execution. Such a purpose, where the purchase is Iona fide, is not the subject of averment or proof. Worman v. Giddey, 30 Mich. 151; Russell v. Lennen, 39 Wis. 570; Fick v. Mulholland, 48 Wis. 413; Thompson on Horn. & Ex. § 211, et seq.

Judgment affirmed.


text:
    Jones v. Booth.
    1. A party will not he deprived of his appeal to the district court by a refusal of the court of common pleas to fix the amount of the undertaking therefor. Hubble v. Renick, 1 Ohio St. 171, followed.
    2. The court of common pleas having erroneously held that a case was not one for appeal to the district court, and refused to fix the amount of the undertaking for such appeal, fixed the amount of an undertaking for a second trial, at the request of the party who had demanded the appeal, which undertaking was given, and on the second trial judgment was rendered against the party who had taken such second trial. Held, that the right of appeal was waived, and that the judgment rendered on such second trial was not invalid for want of jurisdiction of the subject matter or parties.
    3. A contract under seal for the purchase of real estate, where possession has not been delivered, may be rescinded by verbal agreement; but if the rescission is obtained by the fraudulent representation of the purchaser no effect will be given to it; and it will make no difference that such fraudulent representation was a verbal proposition to purchase lands not enforceable under the statute of frauds.
    Error to the District Court of Guernsey county.
    On April 18, 1872, James L. Jones, by written contract, signed and sealed by the parties, sold to James Booth, and; agreed to convey to him, September 1, 1872, a tract of land in; Guernsey county, on payment of $6,000, $3,000 being payable.' June 1, 1872, and the balance September 1, 1872. Booth, paid in April and June, $300, and on August 20, 1872, $700, making $1,000 of the specified sum, but refused to pay the-balance, and Jones brought suit in the court of common, pleas of Guernsey county, setting forth these facts, asking for specific performance, and bringing into court a deed from, him to» Booth for the premises. Booth answered, that after payment of sums, amounting to $300, it was, on August 20, 1872, agreed between the parties that Booth should pay to-Jones the further sum of $700, in consideration of which the* contract of sale should be delivered up and canceled; that said sum of $700 was then paid, in addition to said sum of $300, making; $1,000 j and that the instrument evidencingthesalewas.then.de.*livered up and canceled. To this answer there was a reply, in which it was alleged that the rescission was obtained by fraud, the facts showing the fraud being set forth in the reply.
    At the January term, 1874, the cause was tried, and judgment was rendered in favor of Jones for $5,000. Booth gave notice of appeal to the district court, but the court being of opinion that the case was one for second trial, under the statute, and not for appeal, refused to fix the amount of the undertaking for appeal; and thereupon Booth, having excepted to the order fixing the amount of such undertaking, demanded such second trial; and the court having fixed the amount of an undertaking for the second trial, Booth filed such undertaking.' Subsequently the following amended reply was filed :
    “ The release and agreement in relation thereto, mentioned in said defense, is void and of no effect, for the reason that it was'procured by the fraud of the defendant, in this, that the said defendant employed one John Walters, agreeing to pay him therefor the sum of $500, to go to plaintiff and represent to him that the said Walters was engaged in the purchase of iron ore lands, and would like to purchase the land plaintiff had previously sold to defendant, and would do so if plaintiff would secure the rescission of his contract of sale to defendant of said land, and pay him therefor the sum of $8,000 as soon after such rescission could be effected as he could make his arrangements to do so, which the said John Walters did, as he was directed and instructed by defendant; that the plaintiff was ignorant of the- conspiracy and collusion which was then being employed to deceive and mislead him, and relied on the statements and representations made to him by said Walters, believing them to be true, though, as a matter of fact, they were false, and were intended by said defendant and said Walters to deceive plaintiff and induce him to rescind said contract, which he would not have done had he not been thus ■deceived and misled by said false and fraudulent representa-1 tions and promises of the said Walters, made at the instance of said defendant, and pursuant to a secret agreement and understanding between them; that' the defendant, pursuant to said fraudulent understanding between him and said Walters, subsequently called upon plaintiff and proposed to rescind the said contract of sale mentioned in plaintiff’s petition and in said defense, to which plaintiff agreed, relying on the representation and promises of the said Walters, the substance of which is herein and before stated, and not knowing that said representations were false or fraudulent, or that there was any understanding or agreement between said Walters and defendant to deceive and mislead plaintiff; that the said Walters did not comply with his said promises and agreements, nor was it ever intended by him or defendant that he should do so, they having been made for the sole purpose of deceiving and defrauding plaintiff ; and that the said rescission of said contract of sale of said land to said defendant was procured by the aforesaid fraudulent and false representations made to plaintiff by said Walters, in accordance with a previous understanding between him and defendant, entered into by them for the purpose of defrauding this plaintiff, through and by means of which fraudulent and false representations, promises and concealments, of the said defendant, the said plaintiff was induced to agree thereto, which he would not otherwise have done, and from which consent thus given plaintiff is wholly discharged, as much as if said agreement to rescind had never been made or entered into.”
    A demurrer to this amended reply was overruled, and on a trial in February, 1875, the issues were found in favor of Jones, and judgment was rendered in his favor for $5,000 and interest and costs; and it was ordered that the deed be delivered to Booth. The record does not contain any part of the evidence.
    On April 17, 1875, Booth filed a petition in error in the district court, in which he asked for a reversal of the judgment on the grounds:
    1. That the cause was one for appeal and not for second trial, and hence the cpurt erred in refusing to fix the amount of the undertaking for appeal, and the proceedings on the second trial were void for want of jurisdiction.

      2. The court erred in overruling the demurrer to the amended reply.
    The district court reversed the judgment, and this petition in error is filed by Jones to obtain a reversal of the judgment of the district court and an affirmance of the judgment of the court of common pleas.

      Taylor da Anderson, F. Wood and John Ferguson, for plaintiff in error.

      White d Campbell and F. W. Matthews, for defendant in error.
   Okey, C. J.

The action was in equity, the parties were not entitled to a jury, and hence the case was a proper one for appeal to the district court. Act of 1858, 2 S. & C. 1155, 1157, §. 5. But Booth was not deprived of an appeal by the order of. the court' refusing to fix the amount of an undertaking therefor. Notwithstanding such refusal, he might have prosecuted his appeal. Hubble v. Renick, 1 Ohio St. 171. The order of the court finding that the cause was one for a second trial under that act, and fixing the amount of an undertaking for such second trial, was erroneous; but the second trial was allowed at the request of Booth, and by availing himself of it he effectually waived the error. As said in Bank v. Slemmons, 34 Ohio St. 142, 151, “the plaintiff is estopped to deny that the second trial was taken in pursuance of the statute then in force on the subject.” And see Collins v. Davis, 33 Ohio St. 567; Andrews v. Youngstown, 35 Ohio St. 218. The authorities relied on to show that where there is want of jurisdiction as to the subject matter or parties the judgment is void (Gilliland v. Sellers, 2 Ohio St. 223; Buell v. Long, 18 Ohio St. 533, and for other cases, see 25 Ohio St. 273), have no application to the judgment rendered on that second trial.

The other question is as to the sufficiency of the amended reply. The action, as already stated, was in equity to enforce the written agreement. The answer did not present the case of a mere verbal agreement to rescind by one placed in actual possession, as in Kelley v. Stanbery, 13 Ohio, 408, nor the case of an attempted rescission by the destruction of deeds, as in Dukes v. Spangler, Jeffers v. Philo, 35 Ohio St. 119, 173; but it presented the case of a verbal rescission and the cancellation of a written agreement to purchase lands, where possession had not been delivered, but the purchaser had paid $1,000 to obtain such rescission and cancellation. On the facts alleged in the petition and answer, it is clear specific performance of the agreement set forth in the petition should be denied on the ground of such rescission. Gorman v. Salisbury, 1 Vern. 240; Pryce v. Dyer, 17 Ves. 356; Robinson v. Page, 3 Russ. 114; Stevens v. Cooper, 1 Johns. Ch. 425, 430; Buel v. Miller, 4 N. H. 196; Phelps v. Seely, 22 Grat. 573; Bowman v. Cunningham, 78 Ill. 48; Auer v. Penn, 92 Pa. St. 444.

But the amended reply shows that the alleged rescission was obtained by the fraudulent representations of Booth, acting by his fraudulent instrument, Walters, and the question is, what effect that should have on such agreement to rescind. Dung v. Parker, 52 N. Y. 494, is cited among other cases of a similar character, and relied on by counsel- for Booth, as showing that the proposition of Walters, stated in the amended reply, was within the statute of frauds, and hence the false representations afford no ground for avoiding the rescission. Aside from the fact that the decision has been explained and materially qualified in the same court (Rice v. Manley, 66 N. Y. 82), we are satisfied it has no application here, and that the court of common pleas properly held the chancellor should give no effect to a rescission obtained in the manner stated in the amended reply. That reply is far from being a model of concise pleading, but it is sufficient in substance, and hence the demurrer to it was properly overruled. Watson v. Erb, 33 Ohio St. 35. We have not the evidence before us, and hence are bound to presume that the allegations in the petition and reply were fully proved. And as, in the rendition of the judgment, Booth obtained credit for the sum of $1,000 which he paid, he is, of course, not entitled to have that sum returned to him. Allerton v. Allerton, 50 N. Y. 670. And see Byers v. Chapin, 28 Ohio St. 300.

Binding no error in the court of common pleas which has not been waived, we hold that the judgment of that court was right, and that the district court erred in reversing it.

Judgment reversed.


author: Lon&wortju, J.

text:
    Railway Co. v. Smith.
    1. Under the act oí April 18, 1874 (71 Ohia. L. 85), a railroad company, which has neglected to keep a fence at the side of its track in sufficient repair, is liable to the owner of live stock injured by reason of such neglect; notwithstanding the fact that the owner pastured such live stock on adjacent lands with knowledge of the insufficiency of the fence.
    2. By the terms of the statute, the duty of maintaining the fence in sufficient repair is imposed upon the company, and it cannot escape responsibility by showing that it had no notice of the actual condition of the fence.
    Error to the District Court of Greene county.
    William Smith brought an action in the common pleas court of Greene county, against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover damages for the negligent killing of his horse. He alleged that defendant was by law bound to construct and maintain a good and sufficient fence on both sides of its railroad upcm and across the lands of plaintiff and to keep the same in good repair, sufficient to prevent horses or cattle from endangering themselves by getting on the track; but that instead of so doing, defendant allowed the fence to become dilapidated, by reason of which the horse was enabled to stray upon the railroad track and was killed, without fault on plaintiff’s part. Defendant denied that the fence was in bad condition, and that the horse was killed through any negligence on its part. At the trial the court was asked to charge the jury:
    “ 1. If you find that defendant was bound to maintain a good and sufficient fence along the line of its road at the point where the horse got out of plaintiff’s enclosure, and to keep said fence in repair, then if you also find that with the knowledge of the plaintiff the fence was out of repair and he gave no notice to the agent of the defendant for receiving and shipping freight at the station on the line of its road nearest the place where said fence was out of repair, that said fence or a portion thereof, on the line of its said road was ont of repair, stating where, how, and the probable cost of repairing the same, twenty-four hours before the alleged injury, and did not repair the fence himself, and by reason of the defective condition of the fence the horse of the plaintiff got upon the track and was killed without carelessness or negligence of the agents of the defendant in operating the train, the plaintiff cannot recover.”
    Which was refused.
    “ 2. If you find that the horse was discovered as soon as he reasonably could have been, and the whistle was blown, and the brakes applied, and the train could not probably have been checked, before striking the horse, the plaintiff cannot recover, though the train was not checked.”
    Which was refused.
    “ 3. If you find that the horse, though seen by the engineer, was running upon the track, if he left it and continued to run, not near enough to have been in danger, and the whistle was blown and the horse returning to the track, the brakes were applied and the train was checked, but could not probably then have been chocked before the horse was struck by the train, the plaintiff cannot recover.”
    Which was refused as asked, but was given with the addition, “ on the ground of the negligence or carelessness of the defendant in running the train.”
    4. If the horse, though seen by the engineer, was running at the side of the track, not near enough to have been in danger, and the whistle was blown, but the train could not probably have been checked after he got upon the track before he jumped into the bridge, or was struck by the train, the defendant is not liable.”
    Which was refused as asked, but was given with the addition, “on the ground of the negligence or carelessness of , the defendant in running the train.”

      The court thereupon charged the jury in substance that, the company being bound to maintain a sufficient fence, the plaintiff had a right to rely on this, and to turn his horse into the inclosure ; and if he escaped therefrom by reason of the insufficiency of the fence and went upon the track and was killed, the company would be liable.
    The jury found for the plaintiff and judgment was rendered upon the verdict. This judgment was affirmed in the district court.

      Gibadles Rarlmgton, for plaintiff in error.

      Gatoh c& Wilson, for defendant in error.
   Lon&wortju, J.

The act of April 18,1874 (71 Ohio L. 85), imposes upon railway companies the duty of fencing their roads and keeping the fences in repair. In case of default it gives to the land-owner the right to erect or repair the fence himself, after notice to the company, and to recover the cost from the company. It further provides :—

“And every such railroad company shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of such fence, &c., or any carelessness or neglect of said company, their agent or agents in constructing or keeping the same in repair.”

By the terms of the act no duty is imposed upon the land owner; he is invested simply with a right or privilege which he may or may not exercise atjiis election; the duty is upon the company. To hold that where this duty is neglected the land-owner must take the risk of pasturing his stock withoirt the protection of a sufficient fence is simply to nullify the terms of the statute. It is certainly not too much to say that he may fairly presume that the company, having neglected to keep the fence in proper condition, will take care to so run its trains as not to injure stock which may escape and stray upon the railroad track.

It was held in Rogers v. Railroad Co., 1 Allen 16, that a railroad company, which is bound to erect and maintain a sufficient fence, is liable in damages if a horse, feeding in an adjacent pasture, escapes through a defect in the fence and is killed by the cars, without proof of any. care ou the part of the plaintiff to prevent such an escape. In delivering the opinion of the court in that case, Chapman, J., remarked : “ The plaintiff had a right to place his colt in his pasture to feed, and was under no obligation to the defendants to use any care to prevent his escape by reason of their neglect to maintain the fence. It was for them to use the necessary care to prevent such an escape, and their duty would not- be transferred to the plaintiff by giving him notice that the colt had escaped two or three times before and been upon the track, and so evidence of such notice would be immaterial. The plaintiff would still have a right, as between him and the defendants, to use his pasture as before; and the due care to prevent the escape through the defect of the fence would still be the duty of the defendants.”

I have not thought it well to discuss the numerous cases bearing upon this subject as they turn upon the construction of statutes which vary in different states.

Judgment affirmed.


author: Longworth, J.

text:
    Delaplane v. Smith.
    1. Under section 101 of the “act to provide for the settlement of the estates of deceased persons ” (1 S. & C. 585), an action to charge an executor not required to give bond upon a claim against the estate of his testator can only be brought within four years from the time of his appointment as such executor, where due notice, of such appointment has been published as required by law.
    2. The last will of E. F. was probated in 1869, and letters testamentary issued to the executors named therein. Due notice of their appointment was published within three months, and they entered upon the discharge of their trust. The will provided that no bond should be required of them, and none was given. In a proceeding to contest the validity of the will in the court of common pleas it was declared, in 1876, not to be the will of the testator. Thereupon, the probate court appointed an administrator of the estate, to whom plaintifE, for the first time, presented a claim against the estate for allowance, and, the same being disallowed, brought suit within six months.

      Held: Plaintiffs claim is barred by the provisions of section 101 of the act of March S3, 1840. (1 S. & C. 585.)
    Error to the District Court of Pickaway county.
    On March 17, 1869, the will of Robert A. Foresman was admitted to probate in the probate court of Pickaway countjq and on the same day letters testamentary were issued to Charles S. and Elizabeth C. Foresman, no bond being required of them. Within three months thereafter due notice of their appointment was published as required by law. These executors entered upon the discharge of their duties and continued the execution of the trust until July 9, 1876, when the will was set aside in a proceeding in the common pleas court to contest its validity. Thereupon the Probate court, in September of the same year, appointed Jacob D. Delaplane, the plaintiff in error, administrator of the estate, who took possession of the assets of the estate unadministered up to that time. On October 26, following, the defendant in error duly presented for allowance to the administrator his claim against the estate, upon which the action below was founded, and the same was rejected. Within six months suit was brought.
    The defense made by the answer was that, more than four years having elapsed since this appointment of the executors before the claim was presented for allowance, the action was barred.
    A demurrer to this defense was sustained, and, defendant not pleading further, judgment was rendered for plaintiff for the amount of his claim. Upon proceedings in error the case was reserved in the district court.

      Oha/rles J. Delaplane, for plaintiff in error.

      W. F. Hurst, for defendant in error.
   Longworth, J.

I. Section 101 of the administration act (1 S. & C. 585) was a part of the act providing for the settlement of estates of deceased persons passed March 23,1840, (1 S. & C. 566), under which all executors were required to give bond. It was clearly the intent of the legislature that the limitation of this section should inure to the benefit of every executor and adminstrator; nor do we think that this intent changed with the passage, of the subsequent act of February 5, 1847 (1 S. & C. 614), whereby, in certain specified cases, executors may be excused from giving bond.

We are satisfied that, in cases where no bond is required, or given, the statute begins to run from the time when the executor becomes qualified, notice having been duly given, and the creditor’s right to sue and recover accrues.

The absurd results to which a contrary construction would inevitably, lead are well illustrated .by reference to other portions of the act. All executors and administrators are required to render their first accounts within eighteen months “ after having given bond ” (1 S. & C. 597), and they are allowed eighteen months from the time of giving bond, in ■which to collect assets, until the expiration of which time no suit can be brought against them (1 S. & C. 584). Should we hold that these limitations do not apply in the case of an executor not reguired to give bond, it would be difficult to say when he could be compelled to settle the estate, or whether any suit could ever be brought against him.

II. It is further urged, that, the will having been set aside, Charles and Elizabeth Foresman never were executors in the sense that the creditor was required to present his claim to them for allowance. To this it is a sufficient answer that he might have so presented it, and maintained his action had it been disallowed. It has never been held, in this state, or, as far as 1 have been able to discover, elsewhere, that the rights of a creditor are affected or hindered by the pendency of a proceeding to contest the validity of a will duly probated. His rights exist and are preserved irrespective of the question of the validity or invalidity of the will. The statute begins to run against his claim from the time when he might properly begin an action. See in this connection Bradford v. Boudinot, 3 Wash. C. C. 122.

The judgment of the court of common fleas is reversed, the demurrer to the answer overruled, and the cause remanded.