author: Okby, C. J.

text:
    Neil v. Neil.
    1. The jurisdiction exercised in a divorce suit with respect to tlie custody of children is continuing ; the order in that respect may he - modified at any time during the minority of the children, when their interests may require such modification ; and the reservation of such power in the original order is not essential.
    2. An order dismissing a petition in a proceeding to modify a final order with respect to the custody of children in a divorce suit, may he reviewed on error.
    3. Where the district court dismisses a proceeding in error on the erroneous ground that the judgment complained of is not reviewahle, the supreme court is vested with discretion, on reversal of such erroneous - order, to remand the cause to the district court for further proceedings, or render such judgment as that court should have rendered.

      Error to the District Court of Franklin county.
    In 1870, a divorce with custody of children was awarded to the defendant in error, in the court of common pleas of Franklin county, and in 1879 the plaintiff in error filed in that court a petition for a modification of the decree so far as it relates to the children. An answer, a reply thereto, and a demurrer to the reply were filed, and the court, finding the petition and reply to be insufficient, sustained the demurrer to the reply and dismissed the petition. The district court dismissed a petition in error to reverse the order, on the ground that it was not reviewable, and this petition in error was filed to obtain a reversal of the order of the district court.

      G. L. Converse and O. K. Olds, for plaintiff in error.

      Harrison, Olds & Marsh, for defendant in error.
   Okby, C. J.

1. The jurisdiction exercised in divorce eases with respect to children, is continuing, and the power to modify the order in that respect may be exercised, during the minority of the children, whenever their welfare requires such modification. A reservation in the decree of authority to so modify is not essential to the exercise of such power; nor has the statute of limitations any application to such a case. Hoffman v. Hoffman, 15 Ohio St. 427. And see 2 Bishop’s M. & D. § 530.

2. In dismissing the proceeding in error for want of jurisdiction, the district court erred. Formerly such orders were not reviewable on error (Tappan v. Tappan, 6 Ohio St. 64), but the rule has been changed. King v. King, ante, 370; and see Cox v. Cox, 19 Ohio St. 502. Of course, this power does not extend to an order granting a divorce, for, according to the settled policy in this state, such orders are not reviewable. Rev. Stats. § 5706 ; Parish v. Parish, 9 Ohio St. 534; and see 2 Bishop’s M. & D. § 260.

3. We are vested with discretion, on reversing the order of dismissal, to render such judgment as the district court should have rendered, or remand the cause to that court for further proceedings. Rev. Stats: § 6726, note; 29 Ohio St. 326. Where the evidence is set forth and a reversal is sought upon the ground that it does not support the verdict or judgment, and it appears from the record that the district court, for any cause, failed to determine that ^question, we have in case of reversal on other grounds, uniformly remanded the cause to the district, court for further proceedings, without determining as to the weight or effect of such evidence. l¡n view of the peculiar nature of this proceeding, and the fact that the district court has pronounced no judgment as to the sufficiency of the pleadings, we will remand the cause to the district court, without expressing any opinion as to the sufficiency of the grounds of reversal, except as here indicated.

Judgment reversed.


source: Caselaw Access Project

author: McIlvatne, J.

license: Public Domain

text:
    Insurance Company v. Cappellar.
    A fire insurance company made return of its property for taxation to the auditor of the proper county upon a printed blank form furnished to it by the auditor for that purpose as required by law, in which all its property subject to taxation and the value thereof were truly stated. Among other items so returned were “all legal claims and demands for money or other valuable thing, or for labor or service due or to become due ” to it, and the value thereof. There was also stated in said return, in conformity to the requirements of the form so furnished, a list of debts owing by said company, including an item for “Re-insurance,” the amount of which item was 50 per centum of all premiums received on policies not then expired. The amount of debt so returned was deducted from the amount of “ claims and demands and the remainder was placed upon the tax list and duplicate by the auditor, who understood the character of the claim, as the amount of credits due the company subject to taxation. Reid:

      1. The item returned as “re-insurance ” was not “ a legal bona fide debt ” within the meaning of section 2730 of Revised Statutes.
    2. The amount of said item was erroneously deducted by the auditor from the amount of “claims and demands” due the company, when the credits of the company were placed on the tax list and duplicate of the county for taxation.
    3. The return of the company was not false within the meaning of sections 2781 and 2782 of the Revised Statutes.

      4. The county auditor, under section 1038 of the Revised Statutes may correct an error in the amount of taxes upon the current duplicate, result-. ing from such erroneous deduction.
    Error to the Superior Court of Cincinnati.
    In tlie years 1878, 1879, 1880, 1881 and 1882, the plaintiff in error, a fire insurance company incorporated under the laws of this state, upon the stock plan, with its principal office in Hamilton county, made return of its property for taxation to the auditor of Hamilton county, upon a printed blank form furnished to it for that purpose by the auditor as required by law.
    In the manner prescribed by the form so furnished, the company listed all its property subject to taxation, and among other descriptions of property, its “credits.” The credits were returned thus : The amount and value of “ all its legal claims and demands, whether for money or other valuable thing, or for labor or for service due or to become due ” to it, were fully stated. Erom this amount its indebtedness was deducted. The balance was assumed to be the amount of its credits subject to taxation, and was placed on the tax list and duplicate, by the auditor of the county for taxation.
    Among the items of indebtedness so returned and deducted from “ claims and demands ” was one denominated “ re-insurance.” The value of this item, for each year, was stated in money, and its amount was a sum equal to 50 per cent, of all premiums received, on policies unexpired at the time for listing property for taxation. The sums so deducted for said years successively were $76,338, $65,300, $70,724, $71,788 and $75,881.
    On the 10th of August, 1882, the plaintiff in error commenced the original action against the defendant in error, and averred in its petition, that the item so deducted at each of said times of listing was a “ legal Iona fide debt ” of the company, owing on account of what is known in the fire insurance business, and in the laws of Ohio regulating the same, as “ unearned premiums;” that this item is also sometimes spoken of as a liability for “ re-insurance,” and still again as the sum to be paid by the company on account of the cancelTati on of its policies, when cancellation occurs; but plaintiff says, that whether called by the one name or the other, the reference is to one and the same thing.
    ‘£ Plaintiff further says, that these returns were so made. up under the direction and supervision of the auditor of said Hamilton county, that said deductions were shown upon the face of said returns, and that the auditor had full knowledge of the same, their character, amount, and the account on which they were made, and that he received the returns so made as true, just and correct, and in compliance with the law.”
    And it was further alleged in the petition, that “ its tax-returns so made out as stated, for the years 1878, 1879, 1880, 1881 and 1882, were true, just and correct, and not false in any particular whatever, and yet plaintiff says, that notwithstanding the premises, the defendant has notified it that it has been by'the state auditor directed and required, and that in pursuance thereof he is now proceeding, to place upon the current tax-duplicate of Hamilton county, for said years, the amounts so deducted as aforesaid during said years, as ‘ reinsurance,’ from the sum of all claims, demands, deposits, etc., due the company, and to charge against it taxes thereon for each of said years, and that for the year 1882 he intends to add to the taxes thereof a penalty of 50 per cent, of their sum, alleging as the ground of his said action that said returns so made as aforesaid are false within the meaning of sections 2781 and 2782 of the Revised Statutes of Ohio. ”
    The object of the action was to restrain the auditor from so doing.
    By the decree of the superior court, the auditor was restrained from levying taxes on account of the deductions from credits made in the years 1878, 1879,1880 and 1881, and also from imposing a penalty for the year 1882 ; but the petition was dismissed as to the matter of levying taxes on the amouni so deducted in the year 1882.
    As to so much of the decree as granted relief to the plaintiff, defendant excepted,.and to so much of the decree as refused relief, the plaintiff excepted.

      Foraker & Black, for plaintiff in error:
    I. The return of the plaintiff in error to the auditor was not false within the meaning of sections 2781 and 2782 Revised Statutes. There was no concealment or intentionally false statements. The returns showed every item on their face. The auditor had full knowledge of their character, and they were made upon blanks furnished by him.
    II. What we have claimed and now insist upon, is that this re-insurance fund was provided for by law to meet and provide against an actual, existing and determined liability, which was and is a “legal tona fide debt owing” by these companies within the meaning of section 2730, of the Revised Statu tes, and which they, therefore, had a right to deduct, not from their assets generally, but from “ the sum of all claims and demands,” etc., due them in determining the amount of “ credits,” as defined by said section on which they should pay taxes; and that this liability exists wholly independent of probable losses on policies. It has nothing to do with anything of the sort. The allegations of the petition show the character'of the liability. And for the purpose of showing the character of this liability, and also to show that the statute law of our state recognizes it as an actual, existing indebtedness we call attention to the provisions of the Revised Statutes contained in sections 274, 3648, 3664, 3665, 3654. We think the words “ legal, tona fide ” and “ owing,” mere surplusage, except in so far as they may show the intention of the legislature. In that respect we think these words important, and, as bearing on the question of intention, we call attention to them. They are of no force in any other sense, for the reason that the word “debt” alone, would mean a “legal sum,” owing, in good faith. Why then did the legislature use the apparently unnecessary words ? The answer is manifest. It wanted to make sure that only (not debts in the strict legal technical sense of the word) but tona fide should be deducted. The words “tonafide” were more important than the words “ debts.” It meant that no room should be left for trumping up false notes, fictitious accounts, and obligations, improvised for the purpose of defrauding the state of its taxes. That this is what is meant, and that no more was intended, and that no more should now be asked, is evident from the context. The word “ debt,” as. here in question, should receive a construction liberal, and broad enough to embrace every kind of an actual, existing obligation which equity and justice would require to be taken into the account in determining “ the excess of the sum of all claims and demands,” étc., which only, is to be listed as the amount of credits to be taxed. Such a construction is warranted by authority. Franklin Life Ins. Co. v. Plaff, 11 Ins. L. J. 708, Lewis v. Railroad Co., 49 Barb. 330. Still, if the word “ debt” is used in its more technical sense, we are clearly within the terms of of the statute. Walker’s Am. Law. (7th ed.) 577; Stockwell v. United States, 13 Wall. 542. And see People ex rel. v. Ferguson, 38 N. Y. 89; Insurance Co. v. Lott, 54 Ala. 499.
    III. The auditor had no right to correct the deductions and charge up the amounts so deducted, for any year. ' The court below agreed with us in this claim to the extent of holding that he had no such authority, under sections 2781 and 2782, but differed from us as to the amount deducted for 1882, holding that the auditor had the right to do what he was proposing as to this year by virtue of section 1038. We claim that lie had no such power under this section; that if he does not have authority to make the change under sections 2781 and 2782, he does not have it under any section. He does not have it at all. We invite a close reading of section 1038.
    Now, how can this section be said to apply to authorize what the auditor is threatening in this case ? He is not threatening to proceed under this section at all. He threatens to proceed under 2781, for false returns. To do what? To add to the amount of our credits returned for taxation, by disallowing a deduction therefrom, which we have made. In other words, he is proposing to charge us on the tax-duplicate with an amount of credits greater than we returned, and to levy taxes against us on account thereof. Now, can this be said to be the correction of an error in the tax-list or duplicate ? We think not. But if so, it cannot be said to be the correction of an error in the name of the person charged, nor in the description of lands or other property. Nor is it the correction of an error in the taxing of exempted property. All this is clear. If this were the entire provision, then certainly there would be no such authority as claimed. If, therefore, the auditor has the authority at all, it must be by virtue of the last clause we have quoted, viz.: that he may correct errors in the particulars mentioned, “or in the amount of such taxes or assessments.” ¥e think it manifest, that no such authority is given by this provision. It is evident that what the legislature aimed to do by this section was to empower the auditor to make coiTeetions of only clerical errors. And not clerical errors generally, but only specified kinds. It is a well settled rule that when powers are enumerated, there is an exclusion as to all matters' not named. Hence, when the legislature said, the auditor might correct errors in names of persons charged with taxes and assessments, and in the description of lands or other property, and in the amount of such taxes or assessments, it excluded the power from him of correcting anything else. We see, therefore, that the power here given is of the most limited character. It is nothing more than clerical in the most simple sense.

      George K. Wash, attorney general, and J. T. Holmes, for defendant in error:
    I. The first question to be determined by the court is, whether the obligation of fire insurance companies, under certain circumstances, to re-insure outstanding risks, or to return, upon proper demand, unearned premiums, is a legal Iona fide debt owing within the meaning of section 2730 of the Revised Statutes. We claim that it is not. A debt owing is a certain •fixed sum, whether due or not, the amount of which does not depend upon the happening of any future event. “The distinguishing and necessary feature is, that a fixed and specific quantity is owing, and no future valuation is required to settle it.” 3 Black. Comm. 154; 2 Hill (N. Y.) 220. If A. has a policy of insurance issued by the Amazon Insurance Company, that company does not owe A. anything upon that agreement, so far as premiums may be concerned, until A. has notified it that he desires to have such policy canceled. Whether it will ever owe A. anything upon that account depends upon the determination of A. to have his policy canceled. How much it will owe A. depends upon the time when A. reaches this conclusion, if ever. Whether the Amazon Insurance Company-will ever have its policy-holders re-insured, and how much money it will require, depends entirely upon future events. The most that can be said of these obligations is, that they are contingent liabilities — such liabilities as are incurred by persons who attach their names, as sureties, to official bonds and promissory notes. In section 2730 it is provided that in deducting liabilities from credits, no “ greater amount or portion of any liability, as surety, than the person required to make the statement believes that such surety is in equity bound, and will be compelled to pay, or to contribute, in case there be no securities,” shall be considered. There is no fixed liability as surety, until there has been a default on the part of the principal. There is a contingent liability, which may become an actual liability upon the happening of a future event. The above provision, after 'the liability has become a certainty, only permits the jjerson listing his credits to deduct no greater amount .than what he is in equity bound, and will be compelled to pay. Counsel, for the purpose of showing that this thing which they seek to deduct from liabilities is an actual existing indebtedness, quote from section 274 of the Revised Statutes. For their theory we think this reference is unfortunate.' Therein there is a clear-cut distinction between debts — “ actual liabilities,” and “ re-insurance fund.” The language is not “ actual liabilities,” including a re-insurance fund, or a sum to meet reinsurance liability, or a re-insurance liability. “ Actual liabilities ” are one thing, “ re-insurance liability ” is another. But when we look to section 2744, every shadow of doubt or question vanishes. That is the section upon which counsel should have based their argument on the subject of the definition of “ credits: ” “ Every insurance company in Ohio, whether incorporated by any law of this State or not, shall list for taxation .... all the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, money and credits of such company or corporation within the state, at the actual value in'money.” If we are correct in this point, the argument on the other side touching it must be pointless.
    II. The second question is whether, under sections 2781 and 2782, the auditor of Hamilton county has the power to place the “re-insurance reserve fund” of these companies upon the duplicate for the years 1878, 1879, 1880 and 1881, and a penalty for 1882. A return, to be false within the meaning of section 2781, Revised Statutes, does not necessarily involve any moral turpitude upon the part of the maker thereof. If it is made through ignorance, or under a false construction of the law, it is not a true return, and therefore false. If what the court below held to be law is true, one must conceal his ignorance for but a single year to escape taxation, especially if the assessor or county auditor happens to be as ignorant as the person attempting to list tire property. If this be the law, what a door is opened to fraud ! It would be very easy for one who has willfully gone astray to successfully plead ignorance of the law. This is one of the cases in which ignorance of the law will not excuse. If these companies are now required to pay taxes upon property, unlawfully withheld from the tax-duplicate in the years 1878, 1879, 1880 and 1881, no wrong will be done to them. They will simply be required to pay money which was rightfully due to the government years ago. They will be the gainers, for they have had the use of the money during the time it lias been withheld from the treasury.
    We suppose that the word “ false,” as used in these sections, has its plain and obvious meaning, “ not true.” Section 2744, R. S., provides what the companies shall do in order to make true returns. These companies did not comply with this section in making their returns, therefore they are “ not true.” They are false. Genin v. Belmont County, 18 Ohio St. 534.
   McIlvatne, J.

At the time of listing its property for taxation, did any obligation or duty rest on the plaintiff in error, in respect to re-insurance or otherwise, whereby, under the tax laws of the state, it became entitled to deduct from its “ claims and demands ” a sum equal to 50 per cent, of all premiums on unexpired policies, and designated as “ re-insurance fund” in section 274, and as “unearned premiums” in section 3648 of the Revised Statutes %

Section 274 reads as follows:

“ When it appears to the Superintendent (of insurance) . . . . that the assets of any joint stock insurance company other than life, . . . after deducting therefrom all actual liabilities and a re-insurance fwid equal to fifty per cent, of the whole amount of the premiums on unexpired risks and policies, are reduced twenty per cent, or more below the capital stock required by law, he shall require the officers thereof to direct the stockholders to pay in the amount of such deficiency, etc.”

Section 3648 is as follows:

“No insurance company, organized under any law of this state, shall make any dividend except from the surplus profits arising from its business ; and in estimating its profits there shall be reserved therefrom :
First. A sum equal to fifty per cent, of the whole amount of premiums on unexpired risks and policies, which is hereby declared to be unearned premiums.”

The portion of an insurance company’s assets thus designated is not set apart, or appropriated by law, for any particular-use; but it remains a part of the general assets of the company for general uses, save only the payment of dividends.

All money received by an insurance company on account of premiums, whether earned or “ unearned,” remaining the property of the company, in the form of money, or in any other form at the time of listing, is subject to taxation under section 2744 of Revised Statutes, which reads as follows:

“ Every insurance company in Ohio, whether incorporated by any law of this state or not, shall list for taxation. . . . all the personal property, which shall be held to include all such real estate as is necessary to the daily operations of the company, money and credits of such company or corporation within the state at the actual value in money.”

The same may be said of the “ re-insurance - fund,” which consists of property in any form, and confessedly is not distinguishable from tlie assets which represent “ unearned premiums.” Not only so, but it is admitted, that the plaintiff in error has uniformly stated in its return of property for taxation, all its assets, whether personal property (which under this section includes real estate) money or credits.

The contention now is as to the right of the company to deduct, in its return, from its credits, as a “legal bona fide debt,” a sum equal to 50 per cent, of all premiums on unexpired policies, under section 2730 of the Revised Statutes, which reads as follows :

The term credit,’ shall be held to mean the excess of the sum of all legal claims and demands, whether for money or other valuable thing, or for labor or service due or to become due to the person liable to pay taxes thereon, including deposits in banks, or with persons in or out of this state, other than such as are held to be money, as hereinbefore defined, •when added together (estimating every claim or demand at its true value in money,) over and above the sum of legal bona fide debts owing by such persons; but in making up the sum of such debts owing, there shall be taken into account no obligation to any mutual insurance company, nor any unpaid subscription to the capital stock of any joint stock company, nor any subscription for any religious, scientific, literary or charitable purpose, nor any acknowledgment of any indebtedness unless founded on some consideration actually received, and believed at the time of making such acknowledgment to be a full consideration therefor: nor any acknowledgment made for the purpose of diminishing the amount of credits to be listed for taxation; nor any greater amount or portion of any liability as surety / than the person reguired to- malee the statement of such credits believes that such surety is in eguity bound, and will be compelled to pay, or to contribute, in case there be no securities ; provided, that pensions receivable from the United States shall not be held to be credits; and no person shall be required to take into account, in making up the amount of credits, a greater portion of any credits than he believes will be received or can be collected, or any greater portion of any obligation given to secure the payment of rent, than the amount that shall have accrued on any lease and remain unpaid.”

Upon what ground can the item returned as “ re-insurance ” be regarded as a “ legal bona fide debt ” owing by the company %

Unless the context requires some other construction surely the phrase legal bona fide debts owing by such persons ” can mean nothing more than a fixed liability to pay a sum or sums certain, due or to become due at all events, to some other person or persons — it being understood, of course, that that is certain which can be made certain. Does such liability-rest upon the plaintiff in error in respect to the sum in controversy, either by virtue of the statute, or its own contracts ?

An insurance company is liable to the full extent of all its assets for losses covered by its policies. This liability is fixed by the contract of insurance. The amount of this liability is certain ; and where the loss has occurred, no doubt a legal bona fide debt exist. But where the loss has not happened, and may never happen, there exists no debt within the meaning of this statute. This is conceded, by plaintiff in error, and no claim is made on the ground of such liability.

It is claimed, however, that the company is authorized to re-insure its unexpired risks ; the expense of which would be at least 50 per cent, of all premiums on its unexpired policies, and that the statute requires it to keep in reserve that amount of assets. Let it be granted. Still,' the company is under no obligation to re-insure; nor is it claimed that it has re-insured any of its risks. And until it does re-insure, it is impossible to say that it owes debts on account of re-insurance. True, the statute requires it to keep in reserve assets equal to eighty per cent, of its capital stock over and above all its actual liabilities, and a re-insurance fund equal to fifty per cent, of all premiums on unexpired policies; yet this re-insurance fund is not a debt, or in the nature of a debt.

It is also claimed that the company, under certain circumstances, is bound to l’edeem its policies. Section 3664, Revised Statutes, requires insurance companies to insert in their policies an obligation to cancel the same upon the written request of the person insured; and section 3665 provides: “ When a policy issued on the cash 'plan is cancelled, in accordance with the preceding section, the companies so issuing may retain customary short rates, as now established and charged by companies doing a cash business, for the time the policy has been in force, and return to the insured the unearned premium on the policy for the unexpired time.” Surely, this obligation, before request to cancel by the person insured, is no more “ a legal bona fide debt” than is the liability to pay losses covered by the policy before a fire insured against has taken place. Under this provision, a debt may or may not accrue; but, whether any such debt existed at the time of listing, we are not informed. On this point it may be further remarked, that if every policy were cancelled (an improbable event), the amount due policy holders would be less than the amount sought to be withdrawn from taxation, as the company, in such case, is authorized to retain “ customary short rates.”

It is further claimed, on behalf of the plaintiff in error, that, if neither reinsurance nor cancellation is effected, a duty rests on the company to carry its risks until the expiration of its policies, which is a service of agreed and fixed value, to wit: the amount of unearned premiums; and therefore a legal bona fide debt within the meaning of the statute.

This claim is based, as we understand it, upon the statutory definition of credits, to wit: “ all legal claims and demands, whether for money or other valuable thing, or for labor or service due or to become due,” etc.

The theory of the claim is, that for every credit there must be a corresponding debt; and if a claim for service be a credit, the owing of service is a debt. This point is urged with much, ingenuity and ability by counsel, and while we are willing to adopt his theory, we are not ready to adopt his conclusions.

Assuming that creditor and debtor are relative terms, we are not now required to determine the full meaning of the phrase, “legal claim or demand for labor or service,” but only, whether a contract for insurance is a contract for “labor or service,” within the meaning of the statute, whereby the relation of debtor and creditor is created. If such relation exists, the insurex- becomes the debtor by reason of his obligation to continue the risk until the expiration of the policy, and it is self-evident that the insured is a creditor on the same account. And it follows, if the insurer may deduct from his claims and demands ” the amount of “ unearned premiums ” as a “ legal bona fide debt ” on account of service owing,” that the person insured must list for taxation a like amount, on account of “ service due ” to him. That every person holding a policy of insurance should list for taxation the value of his right to have the risk carried until the expiration of the policy, is, to say the least, a novel proposition.

What is the right of the assured under his contract ? To have indemnity in case of loss. Nothing more. What is the obligation of the insurer in his contract ? To indemnify the assured in case of loss. Nothing more. If no loss occurs during- the life of the policy, the assured takes nothing by his contract, arid the insurer loses nothing. It is therefore plain, that until a loss occurs, the relation of creditor and debtor does not exist between the parties.

It is said, that a policy is a valuable thing,” before a loss covered by it takes place. How so ? Clearly, it does not add to the value of the property insured. It is not a thing valuable in its use. It is not an article valuable in trade. But it is said the holder may, at any time, demand its cancellation and recover the “ unearned premium,” so called. True, the statute secures to the holder such a privilege; but he cannot exercise the privilege and hold the indemnity also. The object in obtaining insurance is to secure indemnity against loss —not the investment of money; hence the right to demand cancellation, until exercised, is of no taxable value. After the right to demand cancellation is exercised, and the right to indemnity is thereby abandoned, of course the taxable property of the assured is increased, and that of the insurer diminished, to the extent of the premium returned, or liable to be returned, as above shown.

Upon full consideration of all the facts and the law, we are of opinion, that a policy of insurance, issued upon a paid-up premium, before condition broken, does not constitute a contract for service, which can be construed as creating a credit on the part of the assured, or a debt on the part of the insurer, within the meaning of the statute.

2. The next question is, Did the court below err in restraining the auditor from charging taxes against the plaintiff in error on account of re-insurance deducted from “ claims and demands” in the years 1878, 1879, 1880 and 1881, and a penalty on the like deduction in 1882? The solution of this question depends on the extent of power conferred upon the auditor by sections 2781 and 2782 of Devised Statutes. The decision of the court will be apparent by quoting section 2781, which is as follows : •

“ See. 2781. If any person whose duty it is to list property or make a return thereof for taxation, either to the assessor or to the county auditor, shall make a false return or statement, or shall evade making a return or statement, the county auditor shall ascertain, as near as practicable, the true amount of personal property, moneys, credits, and investments, that such person ought to have returned or listed, to which amount he shall add fifty per centum, and place the same on the tax-list ; and the inquiry and corrections provided for in this and the next sections may go as far back as the same can be traced, not exceeding the four years next prior to the year in which the inquiries and corrections are made, but as to former years, no ■ penalty shall be added, and only simple taxes shall be claimed.”

The point is, were these returns or statements false ? They were made upon printed blanks furnished by the auditor, and in conformity thereto. The law required the auditor to furnish blanks for that purpose. The value of all property of the company subject to taxation was truly returned. The amount of re-insurance was also returned among the debts of the company, in conformity to the requirement of the blank form. No doubt the auditor at the time the blank was'furnished, believed that this item, with full knowledge of its character, was a debt which could properly be deducted from the credits of the company ,• and that the company, when it returned the item, was of the same opinion. But, however that may be, we are of opinion that the returns as made, under the circumstances shown, were not false within the meaning of these sections. This point is further elucidated by the decision upon the next question made in this case, as we do not think that the remedy provided by sections 2781 and 2782 was intended to apply in cases where section 1038 is applicable.

3. Did the superior court err in holding that the auditor had power under section 1038 of Revised Statutes to correct the amount of plaintiffs’ taxes for the year 1882 ?

This section provides:

The auditor shall, from time to time, correct all errors which he discovers in the tax-list and duplicate, either in the name or the person charged with taxes or assessments, the description of lands or other property, or when ¡oroperty exempt from taxation has been charged with tax, or in the amount of such taxes or assessments.” . . .

True, it was held in State v. Com. of Montgomery County, 31 Ohio St. 271, that the corrections which the auditor may make under this section are merely clerical. The error to be corrected in relation to the plaintiff’s taxes was the deduction of the re-insurance item from its credits. No fact is to be inquired into. Every necessary fact appeal’s on the face of the return. Charge the proper rate of taxes upon the amount of credits returned without any deduction on account of the,reinsurance item, and the error in the amount of plaintiff’s taxes will be corrected — clerical work merely. Corrections authorized by this section are limited, however, to the current tax-list and duplicate.

Judgment affirmed.


author: Johnson, J.

text:
    Hydraulic Co. vs. Chatfield.
    While the act of March 14, 1850, allowing parties to contract for a rate of interest not exceeding ten per cent, was in force, the plaintiff in error, issued and sold bonds in the following form :

      “ The Hamilton and Hydraulic Company acknowledge themselves to owe John H. Shuey or bearer five hundred dollars, which sum they promise to pay to the holder hereof at their office in the city of Hamilton, Ohio, on the first day of February, 1869, and also interest thereon, at the rate of ten per cent, per annum, semi-annually, on the first day of each August and February ensuing the date hereof, until the principal sum shall be paid on the presentation of the annexed interest warrants at their said office, and the said company further agree that this obligation may be transferred by general or special indorsement, or by delivery, as if the same were a note in hand.”
    The defendants in error purchased some of these bonds after the interest warrants had been detached.

      Held: 1. That these bonds contain a stipulation for the payment of interest on the principal sum at the rate of ten per cent.
    2. That after they become due they bear the agreed rate until paid, or until judgment thereon, and the judgment will, under the statute, bear the same rate of interest. Monett v. Sturges, 25 Ohio St. 384, and Marietta Iron Works v. Lottimer, Ibid. 621 approved and followed, Mueller & Grogreve v. McGregor, 28 Ohio St. 265, distinguished.
    Error to the District Court of Butler county.
    The plaintiff in error, on February 1, 1859, issued and sold one hundred bonds of $500 each, secured by mortgage on its property. Each of these bonds was in the terms following:
    “ Stockholders individually liable.
    “ $500. THE STATE OE OHIO.
    “ The Hamilton and Rossville Hydraulic Company acknowledge themselves to owe John H. Shuey or bearer $500, which sum they promise to pay to the holder hereof at their office in the city of Hamilton, Ohio, on the first day of February, 1869, and also interest thereon at the rate of ten per cent, per annum semi-annually, on the first day of each August and February ensuing the date hereof, until the principal sum shall be paid on the presentation of the annexed interest warrants at their said office, and the said company further agree that this obligation may be transferred by general or special indorsement, or by delivery, as if the same were a note of hand.”
    Chatfield and Woods, the owners of sixty of these bonds,^ brought suit thereon, and to foreclose the mortgage. Their petition contains the usual allegations, with a statement of payments made since the bonds became due, and a prayer for an ascertainment of the amount due, also for foreclosure and for general relief.
    The answer discloses the fact that when Chatfield and Woods purchased these bonds, the interest warrants belonging thereto had been detached, and were npver owned by them. Their right rests upon the terms of the bond unaided by the interest warrants.
    On final hearing it was adjudged that Chatfield and Woods recover “ the amount due to them upon the bonds set forth in the petition, with interest at ten per cent, per annum upon the principle thereof, and six per centum upon the intereso accrued and unpaid thereon, amounting to the sum of $40,273.87, upon the first day of the present term, after crediting all the payments thereon, including such as have been made since the commencement of this action.”
    And the decree contained these words :

      “ It is the true intent and meaning of this decree that the same shall bear interest at the rate of ten per centum per annum.”
    This judgment was affirmed in the district court; and, to reverse the same, it is here assigned: 1st. The court erred in computing and allowing interest on said bonds, after maturity, at ten per cent. 2d. It erred in allowing interest at six per cent, on accrued interest after maturity.
    Iloadley, Jolmson & Colston, for plaintiff m error.

      Ramsey cfi Matthews, and Stallo, Kittredge <& Shoemaker, for defendants in error.
   Johnson, J.

I. The act of March 14, 1850 (2 Curwen, 1659), under which these bonds were issued and sold, reads as follows :

“Sec. 1. — That the parties to any bond, bill, promissory note, or other instrument of writing, for the payment or forbearance of money, may stipulate therein for interest receivable upon the amount of such bond, bill, note, or other instrument, at any rate not exceeding ten per centum yearly.
“Sec. 2. — That upon all judgments or decrees rendered upon any bond, bill, or promissory note, or other instrument aforesaid, interest shall be computed until payment at the rate specified in such bond, bill, note, or other instrument, not exceeding ten per centum, as aforesaid, or in case no rate of interest be specified, at six per centum yearly.”

Chatfield and Woods purchased these bonds with the interest warrants or coupons detached. These coupons related to the semi-annual installments of interest, payable before the bonds became due. As these were never owned by Chat-field and Woods, they were entitled to interest on the bonds they owned after they matured — i. e., after February 1, 1869. The question is, at what rate? — is it the legal rate, as where there is no stipulation for a greater rate not exceeding ten per cent., or is it for the greater rate ?

Assuming that these bonds are silent as to the rate of interest they shall bear, after maturity, if they contain a stipulation for ten per cent, before maturity, then the principal, after maturity until judgment, and the judgment rendered thereon, will bear ten per cent, interest. Monett v. Sturges, 25 Ohio St. 384; Marietta Iron Works v. Lottimer, 25 Ohio St. 681.

These decisions rest upon the terms of the act of 1850. It is true they are not in harmony with the construction placed upon certain statutes by the supreme court of the United States. In the latest of these, Holden v. Trust Co., 100 U. S. 72, which ai’ose under the law in force in the District of Columbia, after citing the cases where that court has held, that when the instrument contains no stipulation as to the rate after maturity, the legal rate governs, it is said: “ Where a different rule has been established, it governs, of course, in that locality. The question is always one of local law.”

The rule adopted in these cases is: that when the agreement extends no farther than to the time fixed for the payment of the principal, then, upon default of payment, the legal rate of interest is allowed as damages. It is said, that if the parties intended a higher rate after due, it would have been easy to say so.

In Monett v. Sturges, it was held, under the act of 1850, that a note payable at a future day, “ with interest from date at ten per cent.,” carried the agreed rate, after due, as well as during the time before due. The same rule was adhered to in Marietta Iron Works v. Lottimer, 25 Ohio St. 621, under the eight per cent, law of 1869.

In Samyn v. Phillips, 15 Ohio St. 218, there was a loan of money, payable at a future day, to bear interest at ten per cent., payable quarterly; and separate notes were taken — one for the principal due at the time agreed on, and sundry interest notes for the interest accruing up to maturity of the loan; but there was no stipulation in either of the notes, for any rate of interest before or after the maturity of the debt. It was held, that, as there was no stipulation as to the special rate of interest contained in the notes, interest could only be computed after maturity at six per cent.

In view of the foregoing decisions, the question here presented is, do these bonds contain a stipulation for ten per cent.? If they do, that rate governs, although the bond is silent as to the rate after due. It is not necessary that this stipulation should, in terms, apply after due, if it is expressly agreed in the instrument that up to maturity it bears a higher rate, not exceeding ten per cent. That stipulation is sufficient to carry the same rate until paid. These bonds, in express terms, contain two stipulations — 1st. “ To pay the holder, on the first of February, 1869, $500 ;” 2d. “And also interest thereon at the rate of ten per cent, per annum, semi-annually, on the first August and February ensuing the date hereof, until the principal sum shall be paid on the presentation of the annexed interest warrants.” Here is an express promise to pay interest before the bonds become due at the special rate.

The manner in which this interest is to be paid — that is, on presentation of the annexed interest warrants, does not eliminate this express promise as to the rate from the body of the bond. These bonds contain a stipulation of the higher rate,

“ until the principal sum be paid on the presentation of the annexed interest warrants at their said office.” Some of /us think this is a stipulation for the payment of the higher rate after maturity; but, assuming that this is not so, still it cannot be denied that it is, at least, a clear and distinct stipulation in the bond that, up to the time the principal sum becomes due, the company agrees to pay interest at ten per cent, per annum, payable semi-annually. The promisor used this language relating to interest on the assumption that the principal would be paid at maturity; hence the stipulation as to the higher rate in terms related only to the same period, and the words, “ on the presentation of the annexed interest warrants,” related to the steps to be taken, by the holder of the interest warrants, to collect this semi-annual interest, accruing before due. There being a stipulation in the bond for the special rate of interest before due, the principal sum bears a like rate after due, according to holding of this court in 25 Ohio St. supra.

We are, however, asked to review and reverse the decisions of this court in Monett v. Sturges and Marietta Iron Works v. Lottimer, on the ground that Mueller v. McGregor, 28 Ohio St. 265, is said to have held differently, and to have followed the cases decided by the supreme court of the United States on this point. This is a misapprehension, which is apparent from a statement of facts in that case. There, Fortman, a mortgagor, sold real estate to Mueller & Grogreve, they assuming to pay certain notes to Dunlop, secured by mortgage, all of which were due September 1, 1855, and amounted, at that date, with unpaid interest, to $11,340.05. In consideration of an extension of time, by the mortgagee, until September 1, 1856, the purchasers agreed, in writing, with Dunlop and Fortman, by a tripartite agreement, that they would pay interest on the amount due ($11,340.05) for that year at ten per cent., semiannually, and gave their two notes to Dunlop for the ámount of such interest. These notes were afterwards paid. It was expressly agreed that, on payment of these interest notes for that year, these would be due on the mortgage notes, at the end of the extended time, said sum of $11,340.05, a/nd no more. The question was, did the debt, after September 1, 1856, bear six or ten per cent.? If the face of the notes, held by Dunlop, was to determine the rate, then only six per cent, could be charged ; but if the tripartite contract for forbearance, made by Mueller & Grogreve for the year ending September 1, •1856, operated as an agreement for the forbearance generally, then the principal would bear the higher rate after that date.

The construction placed upon this tripartite agreement was that, though a separate instrument from the notes and mortgage, it was valid but for one year only; and that, after the expiration of that year, the only stipulation as to interest was that contained in the notes themselves. The case turned on the construction of the tripartite agreement, and it was held, according to its manifest meaning, to be limited to the extended time and no longer; and that it did not change the obligation of the notes after that time, from Rix to ten per cent. Mueller and Grogreve had fully performed their special contract to pay ten per cent, for that year, and their further obligation rested upon their prior agreement to pay the notes, which contained no stipulation as to a rate of interest.

II. The second error assigned is that the court erred in allowing six per cent, interest due on the semi-annual installments of interest falling due after maturity of the bonds.

This error is not apparent on the record. The judgment entry seems to imply that such interest was allowed, but whether it was so in fact, depends upon a question of fact not disclosed.

On September 26, 1877, the court ordered the receiver in charge to pay the plaintiffs below $7,000 on their claim, but whether it was in fact paid before final judgment, the record is silent. On February 15, 1878, final judgment was rendered finding for the plaintiff $40,273.87, after crediting all payments thereof}, including such as have been made since the commencement of this action. Whether this $7,000 was among tñese credits, we cannot assume.

The answer, which was filed September 26, 1877, made no claim for credits other than those stated in the petition. We are, therefore, not called on decide the question raised by this assignment, and express no opinion on the proper construction of these bonds in that respect.

Judgment affirmed.


author: Longworth, J.

text:
    Tarbox v. The State.
    1. Where one by means of false pretences induces another to buy from him property, and in payment therefor obtains a check upon funds owned by the drawer in bank, a criminal prosecution may be properly brought under the first clause of section 7076 of the Eevised Statutes.
    2. A variance between the charges of the indictment and the proof offered, which in the opinion of the judge presiding at the trial, did not affect the rights of the prisoner or prejudice his case, is not ground for reversal in a court of error, where it does not appear that discretion has been abused.
    3. Where in a trial upon an indictment it becomes material to prove, upon the part of the state, that a conspiracy existed between persons jointly indicted, evidence that the same persons were, shortly prior to the time of the alleged crime, engaged in a conspiracy to commit crimes of a like character, is competent.
    Motion for leave to file a petition in error to the Court of Common Pleas of Cuyaboga county.
    The plaintiff in error, who seeks leave to file his petition in error in this court, was convicted in the common pleas court of Cuyahoga CQjmty upon an indictment charging that he, jointly with Henry Jackson, Thomas Allen and Charles Smith, by making certain false and fraudulent statements concerning the speed, pedigree, breeding, performance and ownership of two horses, which they were attempting to sell to one Xenophon C. Scott, feloniously obtained from him his “ certain check dated July 7, 1882, for the sum of eleven hundred dollars, of the value of eleven hundred dollars,” payable to the order of Tarbox, and drawn upon a banking ho.use in Cleveland, payable out of the money of Scott in the hands of said banking house.
    Defendant was tried separately, the trial resulting in his conviction and sentence; and he claims that error to his prejudice intervened in the following respects, viz.:—
    1st. Because the indictment is insufficient in that it charges the accused with obtaining a check by fraud, of the value of $1,100 — when the statute upon which the indictment is based makes the crime consist in obtaining a signature to a check.

    2d. The indictment does not charge that the check was “ given for the payment of money.”
    3d. The indictment charges that the check so obtained was signed by Xenophon C. Scott, whereas the check offered in evidence bore the signature “ X. C. Scott, M. D.” This is claimed to be a fatal variance.
    4th. Because evidence was wrongly allowed to go to the jury to show that the accused, and those jointly indicted with him, ■ had shortly theretofore perpetrated a like offense in Detroit. This evidence is claimed to have been inadmissible for any purpose.

      S. M. Eddy and TI. B. Be Wolff, for plaintiff in error.

      O. M. Stone, prosecuting attorney, for defendant in error.
   Longworth, J.

Section 7076 of the. Bevised Statutes, under which this indictment is framed, provides for three distinct classes of crime: 1st. The obtai/nvng from another anything of value by means of false pretense. “Anything of value ” is declared by section 6794 to include a “ check or bond given for the payment of money.”

2d. Procwrmg the signature of any person to a check or like instrument by false pretense; and, 3d. Selling or disposing, or offering to sell or dispose, of such a paper, knowing the signature thereto to have been fraudulently obtained.

It is true that the indictment under consideration does not allege in so many words that the check was “given for the payment of money,” but it does charge that the check was “for the sum of $1,100, of the value of $1,100,” and “ drawn by said Xenophon C. Scott, of the personal goods, etc., moneys, etc., of the said Xenophon C. Scott,” then in the bank upon which the check was drawn. ¥e have no hesitation in holding that this is substantially a charge that the check was given for the payment of money.”

But it is contended that in this case a valid indictment could only be framed under the second class of offenses, to wit, for procuring the signature of Scott to the check, and Kennedy v. State, 34 Ohio St. 310, is said to sustain this idea. We cannot agree to this. In that case the indictment was held to be fatally defective, not for the reason that it alleged the cheek to have been obtained by false pretenses, but because it failed to allege that the check had ever been obtained at all; the charge that House delivered the check to Kennedy not being equivalent to saying that Kennedy obtained the check from House. In other words, there was no false pretense made for the purpose of obtaining a check, but, on the contrary, with intent to obtain a payment in cash. This is clearly explained in the opinion of Okey, J., p. 313, and from the decision Mcllvaine, J., dissented, on the sole ground that the offense of obtaining a check was sufficiently stated (p. 316). This case, therefore, so far from sustaining the claim of counsel, is, if correctly decided, an authoritative decision against it. I might say that after this decision Kennedy was again indicted and convicted for “ obtaining ” the same cheek, and his motion for leave to file petition in error was overruled in this court, although the case is unreported. We agree with counsel that a paper does not become a check until signed and delivered, but it was upon signature and delivery that this particular check was obtained. The provision of the section concerning the procuring a signature was intended to cover an entirely different class of offenses; a good illustration of which would be the case of one who should present to another, with a request that he should sign it, a paper falsely represented to be a certificate of character, a subscription paper, or the like, whereas the paper is, in reality, a promissory note or check, or bill of sale.

It is next objected that there was a fatal variance between the charge and the proof: the indictment alleging that the check was drawn by Xenophon C. Scott and the check offered bearing the signature “X. C. Scott, M. D.” Without saying what would have formerly been the effect of this variance, it is enough to remark that under section 7216 of Revised Statutes it cannot be considered reason for reversal in a court of error— since it is not sufficient ground for an acquittal in the court below.

Did the court err in admitting evidence of similar offenses by the same parties, shortly prior to this time, in Detroit ? We think not. If admissible for any purpose there was no error in refusing to exclude it. We think it was competent for the purpose of showing a conspiracy between the defendants, and also to show knowledge of the falsity of the representations at the time when made. The court in its charge instructed the jury to consider it for no other purpose, and no exception was taken to the instruction.

It was incumbent upon the State to make out a conspiracy before'certain sayings and doings of his co-defendants could be received as evidence against Tarbox; and for that purpose it was clearly competent to show that about the same time the defendants jointly had conspired to commit and had together committed like offenses at other places and under similar circumstances.

It would not have been sufficient to authorize a conviction in the present case to prove simply that the check had been obtained upon representations which were false, unless it appeared that Tarbox Ttnew them to be false. The decisions are uniform to the effect that, where scienter is an element of the crime charged, previous offenses, necessarily involving such guilty knowledge, are admissible. Thus, where one is indicted for passing counterfeit coin, proof that he had previously passed similar coin, has always been held admissible to show that he had guilty knowledge of its character. See remarks of Thurman, J., in Farrer v. State, 2 Ohio St. 54, 73.

“ Upon the trial of an indictment for knowingly delivering skimmed milk to a factory to be manufactured into cheese, with intent to defraud, evidence of transactions of the same kind, other than that relied upon for a conviction, near the same time, is admissible for the purpose of showing guilty knowledge, on the part of the accused, that the milk, for delivering which a conviction is sought, was skimmed milk.” Bainbridge v. State, 34 Ohio St. 264.

In like manner upon a charge of receiving property, knowing it to be stolen, evidence that the accused, at other times, received other stolen property from the same thief is admissible. Shriedley v. State, 23 O. S. 130.

The distinction between this principle and that prevailing in Coble v. State, 31 Ohio St. 100, is obvious.

If the evidence admitted tended to establish a conspiracy, or to show guilty knowledge on the part of Tarbox of dhe falsity of the representations made by him, it is certainly no objection to its admission that such guilty knowledge may have been also proved by other facts and circumstances in the case.

Motion overruled.


text:
    Jackson v. State.
    Motion for leave to file petition in error to the Common Pleas Court of Cuyahoga county.
    The questions for decision in this case are precisely the same as those in the preceding case of Tarbox, with whom these plaintiffs were jointly indicted, except that in this case the court below allowed evidence to go to the jury tending to show that the accused had, shortly after the commission of the offense charged, been jointly engaged in a conspiracy to commit crimes of a similar character in Pittsburg.

      W. A. Babcock and S. M. Eddy, for plaintiff in error.

      O. M. Stone, prosecuting attorney, for defendant in error.
   Longworth, J.

The same reasons which render evidence of acts committed shortly prior to the time of the offense charged competent for the purpose of showing a conspiracy, apply with equal force to acts committed shortly thereafter. The test is that the acts should appear to be so connected as to authorize the inference that they were all part and parcel of a single conspiracy to commit several crimes.

Motion overruled.


author: Okey, C. J.

text:
    Dillon v. The State.
    When the accused is properly convicted, it is the duty of the court to “ pronounce the judgment provided by law,” and a judgment imposing a greater or less fine or imprisonment than the statute prescribes, may be reversed ; but where a statute provides for both fine and imprisonment, and one of the penalties is omitted, the error will not afford ground of reversal, if the punishment imposed is authorized by the act.
    Motion for leave to file a petition in error.

      B. F. Stahl, in support of the motion.

      S. A. Court, prosecuting attorney, and Q. K. Nash, attorney general, eont/ra.

   Okey, C. J.

Dillon was convicted in the court of common pleas of Marion county of the offense of throwing stones at a railroad car, and sentenced to imprisonment in the penitentiary for one year, and to pay costs. No fine was assessed. The statute provides that a person convicted of such offense “ shall be fined not exceeding five hundred dollars, and imprisoned in the penitentiary not more than three years, or in the county jail not more than six months.” Revised Statutes, § 6862.

Where the accused is properly convicted, it is the duty of the presiding judge to pronounce the judgment provided by law.” (Revised Statutes, § 7319.) ■ If the statute provides fine and imprisonment, he is as clearly without discretion to omit either as he is to fine for a less or larger sum, or imprison for a shorter or longer term, than that provided in the act. Rut it does not follow that the failure of a judge to discharge his duty in that regard, will afiord, in all cases, ground of reversal. No one in this state can be convicted or punished for crime except in pursuance of a statute; and hence, it was held, that if the fine or imprisonment be either less (Ex parte Shaw, 7 Ohio St. 81), or greater (Ex parte Van Hagan, 25 Ohio St. 426), than that prescribed in the statute, the sentence was not void, but erroneous,” and, therefore, that habeas carpus is not, but “ error to reverse the proceeding or sentence is the remedy.” But where the sentence imposed, whether of fine or imprisonment, is authorized by the statute, the failure of the judge to discharge his whole duty by imposing both the fine and imprisonment provided by law, will not warrant a reversal. The sentence in such case being warranted, the defendant is not prejudiced by the error of the court in failing to inflict upon him the additional punishment. We are aware that the cases upon this subject are not in harmony (1 Bishop’s Or. L. §§ 930-932;1 Bishop’s Or. Pro. § 1374; Wharton’s Or. PI. and Pr. § 918), but the views here expressed accord with the course of legislation and decision in this state.

Motion overruled.


text:
    Quarry Co. v. Clements.
    In an action on a written contract to furnish stone for a county bridge, to be paid for “at $4.50 per.pm:7t,”the contract was silent as to the number of cubic feet in a perch, and the evidence of the usage of the trade failed to show there was any uniform rule on the subject, such evidence being conflicting as to whether or 25 cubic feet made a perch.

      Héki: That upon this state of proof, and in the absence of a statutory provision defining the quantity in a perch of masonry, the negotiations of the parties, in which it was verbally agreed that the stone was to be furnished at 18 cents per cubic foot, and that the attorney who wrote the contract, of his own motion, expressed this agreement in the written contract, by converting the feet into perch of 25 feet each, at the agreed rate per foot, are admissible. Such evidence does not vary the terms of the written contract, but enables the court to construe it in the sense intended by the parties.

      Error to the District Court of Cuyahoga county.
    So far as necessary to present the point reserved for decision, the following is a statement of the facts:
    The action below was brought by The Baldwin Quarry Co., the present plaintiff, against Robert J. Clements, defendant, to recover a balance due for stone furnished for and used in the construction of a bridge by defendant for Cuyahoga county. The contract was in writing, and stipulated “ That said party of the second part agrees to furnish to the said party of the first part, good bridge stone at $4.50 per perch, to be measured m the wall. And said party of the second part agrees to furnish to said party of the first part, perch stone at $1.50 per perch, to be measured m the wall. The above described stone is to be used in the erection and building of a bridge or culvert to be built on Columbus street, at or over the stream known as Big Creek, and said stone is to be delivered on the ground where said bridge or culvert is to be built, at the above price.” The defendant pleaded that he did not owe, &c. The case was tried to a jury and resulted in a verdict and judgment for plaintiff. The district court reversed the judgment for error in rejecting certain evidence offered by defendant. The amount due plaintiff turned on the meaning of the word perch, as used in said contract. The plaintiff, on the trial, for the purpose of making good his claim, offered evidence tending to show that by the usage of the business, 16-J cubic feet was a perch, while the defendant, for a like purpose, offered evidence that by such usage 25 feet made a perch. The weight of this evidence was, in substance, that in small jobs, such as cellar walls and foundations, in Cleveland and vicinity, the usage was to count 161-feet to the perch, while in all railroad masonry it took 25 feet. As to bridge masonry, such as this was, the evidence failed to show that there was any fixed or definite meaning io the word, or any uniform usage as to the quantity of stone it took to make a perch.- The effect of this testimony was that the term perch was ambiguous, and, as applied to this kind of work, might mean 16£ feet or 25 feet indifferently. In this state of the proof, and for the purpose of showing what the parties really intended by tbe nse of this terna, the defendant offered to prove the conversation of the parties at and before the contract was reduced to writing and signed, which resulted in a verbal agreement as to the terms of the contract, and their instructions to the attorney, who, at their instance, reduced the same to writing, in which of the two senses the word perch was used. He offered to show that the verbal agreement was for 18 cents per cubic foot, and that Graves, the attorney by whom it was reduced to writing, of his own motion, and without instructions from either party, inserted “ $4.50 per perch ” instead of 18 cents per cubic foot, which is the same price if 25 feet be counted as a perch.
    This testimony was rejected. The district court held this was error.

      Estep dt Squire, for plaintiff in error,
    cited Thurston v. Hays, 6 Ohio St. 1; 2 Wharton’s Ev. § 1014; Thompson v. Sloan, 23 Wend. 71; Pollen v. Le Roy, 10 Bosw. 38; Pilmer v. State Bank, 16 Iowa, 321; Field v. Schricker, 14 Iowa, 119; Martin v. Trasher, 40 Vt. 461; Cubberly v. Cubberly, 12 N. J. 309; Lowe v. Leyman, 15 Ohio St. 179.

      J. K. <& A. O. Sord, for defendant in error,
    cited Harper v. Gray, 1 Story, 574; Ohitty on Contracts, 73, 74, 82, 83, 89, 104, 105, 106; Lowe v. Leyman, 15 Ohio St. 179; 1 Green. Ev. §§ 278, 280, note 4; Hart v. Hammett, 18 Vt. 127; Baker v. Jordan, 3 Ohio St. 438; McDonald v. Longbottom, 1 Ellis, 977, 983; 1 Phillips Ev. 531, and Cow. & H. Notes; 13 Wall. 363; Walls v. Baily, 49 N. Y. 464; Price v. Eckles, Tappan, 242, 243.
   Johnson, J.

The evidence of usage failed to show that either sixteen and one-half or twenty-five cubic feet made a perch, in this class of work. It left the meaning of the term perch ambiguous and uncertain. In this state of the proof, the defendant offered to prove that the word perch was not used by either of them, and that the parties verbally agreed on 18 cents per cubic foot as the price of the stone, and that the attorney employed to reduce the contract to writing, of his own motion, and without instructions from either party, made the change from feet to perch, and the price from 18 cents per cubic foot to $4-.50 per perch, this being at the same rate, if twenty-five feet is a perch, but if sixteen and one-half feet is a perch, then the price per cubic foot would be over twenty-seven cents.

In determining the question presented, we can derive little or no aid from the cases where custom or usage is shown, to enable the court to interpret the meaning of doubtful or ambiguous words, or of words or terms that have a special, technical or peculiar meaning, as applied to particular kinds of trade or business. Hence it is not necessary to cite or comment on this class of cases. The rule which admits this bind of testimony is not at variance with the other general rule, that parol contemporaneous evidence is not competent to modify or contradict the terms of a written contract. The object of evidence of such usage is not to vary or modify the writing, but to ascertain its meaning, when words and terms are used which are ambiguous, or have a technical or particular signification when applied to the subject matter.

In the present case, the claim is, that the rejected evidence was not offered to vary, modify or contradict, the terms of the contract, but, as the evidence of usage in the business left the word used ambiguous, it was proper to show in what sense the parties used it. When that is ascertained, the contract has a definite meaning, and its terms, as construed in the light of this evidence, constitute the measure of obligation. The reason why usage is resorted to is to ascertain, not to vary, the intention of the parties, inasmuch as they are presumed to have contracted with reference to the known usage of the business. For the purpose for which this rejected evidence was offered, we think it was competent. The parties used a. word employed in the kir 1 of business in which they were engaged. As applied to this kind of work, it had no general meaning nor any fixed technical meaning.

The object was not to vary, but to develop the meaning of the contract, by ascertaining the sense in which this word was intended to be used. Numerous text-books and cases could be cited illustrating this rule and its proper limitations. Thus, where the defendant’s agent, by letter, offered to purchase plaintiff’s wool. In the correspondence the offer was in terms to purchase “ your wool.” Evidence of previous conversations between the parties was admitted, showing that the plaintiff had some wool, of his own clip, and some he had purchased, which he was offering for sale. The object of this evidence was to show in what sense the defendant used the term “ your wool,” by showing, by their previous negotiations, that at the time the offer by letter was made, he did not refer to the wool from plaintiff’s clip merely, but to all the seller had on hand. Lord Campbell says: “ There cannot be the slightest objection to the admission of evidence of previous conversations, which neither alters nor adds to the written contract, but merely enables us to ascertain what was the subject matter referred to therein.” There the subject matter, as was shown by extrinsic evidence, was uncertain, and oral evidence was admitted to fix or ascertain the meaning of the term your wool.” McDonald v. Longbottom, 102 Eng. Com. Law, 977.

So where there was a sale, by written contract, of winter strained lamp oil,” equal to a sample exhibited, the proof showed there were two kinds of such oil: one sperm oil, the other whale oil, the latter of which was inferior in quality. Evidence was held admissible to show that, in conversation at the time the contract was made, this was explained to the purchaser, and that he was then informed that it was not sperm oil he was selling. Hart v. Hammett, 18 Vt. 127.

In a contract made in Alabama during the rebellion, to pay “ dollars,” parol evidence was admitted showing the circumstances under which the contract was made, and that, in fact, at the time and place, the only dollars in use were Confederate dollars. Thorington v. Smith, 8 Wall. 1.

In the charter of the whole tonnage of a vessel, except necessary quarters for the officers and crew and storage of provisions, water and fuel, proof of conversations between the parties, when in negotiation in relation to the excepted parts required for use by the officers and crew was properly admitted, as it did not tend to vary or contradict the written contract, but only to point out the subject to which it applied. Almgren v. Dulith, 1 N. Y. 28. Without extending quotations, we add a few authorities where this [principle is adhered to: Shore v. Wilson, 9 Cl. & F. 555; Barret v. Stow, 15 Ill. 423; Grap v. Harper, 1 Story 574; Brown v. Brown, 8 Met. 576; Attorney General v. Shore, 11 Sim. 592-632; Wharton on Evidence, §§ 938-943; Stoops v. Smith, 100 Mass. 63; Miller v. Stevens, Ibid. 518; Sweet v. Shumway, 102 Mass. 367.

Webster v. Paul, 10 Ohio St. 531, illustrates one of the limitations of this rule, as to the admission of parol evidence. By written contract Paul had agreed to -ship from Ohio to New York a lot of hogs, and to sell them for the owner, who claimed damages for breach of the contract. On the trial it was shown that there were two routes to New York — one by the lake, the other all rail — that the latter, which was more expensive, was adopted. The owner of the hogs offered to show, by parol, that, at the time the contract was executed, it was verbally agreed that the lake route should be adopted. It was held, that this evidence was properly rejected. The foundation on which this opinion rests is, that by the terms of the writing, Paul had an option to adopt either of the two routes, and that the parol contract, if proved, would vary the terms of the written contract, by limiting him to a single route when the written contract left a discretion in him.

So in a contract for “ ware potatoes,” where on the trial it appeared there were two kinds of “ware potatoes ” known in the market, one inferior to the other, parol evidence to show that the contract was in fact, for the best, was inadmissible, for the reason, as we suppose, that by the terms of the contract the seller was not limited to a delivery of that kind, which was of best quality, if the inferior kind was within the term ware potatoes,” and therefore the evidence went to vary the written contract. Smith v. Jeffries, 15 Mees. & W. 561.

Since the adoption of the Revised Statutes (§ 4433), a perch of mason work is fixed at twenty-five feet. Prior to that time, and when this contract was executed, the term was ambiguous as applied to mason work, other than cellar walls and railroad work.

If books are referred to, they furnish no certain guide. Webster says 16-J- feet make a a perch. Worcester gives no definition in cubic measure. The New American Encyclopaedia says 25 feet. In some arithmetics 16^- feet, in others 25, while in others again 24f feet, are given as a perch. In Haswell’s Engineers & Mechanics’ Book — a leading authority on the subject, and one in general use — 24f feet are given as a perch of stone. In this state of doubt and uncertainty, and in the absence of an express statutory definition, we hold that the rejected testimony was admissible, to show in what sense the word was used in the written contract. It does not tend to vary the terms of the writing. It simply enables the court to ascertain what its terms mean, and to construe and enforce it as the parties intended. It is proper to add that it does not appear that the error, in rejecting this evidence, was cured by the verdict.

The judgment of the district court is affirmed.


author: McIlvaine, J.

text:
    Dickey v. Greenleaf.
    1. In an action against a guarantor to recover a certain amount as compensation for services alleged to have been guaranteed in a contract to serve for a certain percentage of tbe profits of the business, wherein the guaranty is denied, testimony in chief as to the customary price of such services is not admissible.
    3. But where a substantial conflict arises in a case as to the amount agreed upon, whereby such testimony becomes admissible, it must be confined to such price at or about the time the contract was made.
    Error to the District Court of Eranklin county.
    The petition in the original action was filed by Greenleaf & Co. against John Dickey, and contained two causes of action : 1. Upon an account current between the parties during the year 1876, wherein a balance of $293.61 was claimed to be due to plaintiffs. 2. Upon an account alleged to have been stated between the parties on tbe 1st day of January, 1876, for the sxxm of $1,486.50.
    To each of these causes of action defendant interposed an answer in which the facts therein stated wex’e denied generally; and by way of cross petition alleged, in substance, that the matters complained of in the petition originated in an expi’ess contract between the parties, whereby the plaintiffs, as wholesale merchants, employed the defendaxxt, as a traveling salesman, for the years 1874, 1875 and 1876, and for his services agreed and px’omised to pay hixn one-eighth of the net px-ofits of their business, and guaranteed that such compensation should eqxxal, at least, the sum of twenty-two hundred and fifty dollax-s per year. He also alleged that he had perfonned said contx-act on his part, and that his salary for said yeai's amounted to the sum of $6,750.00. He also alleged that during said period he had deposited with the plaintiff a further sum of $946.47, and that he had received on account of said salary and deposits the sum of $5,163.76, and no more. Wherefore he prayed for a judgment against the plaintiffs for $2,526.68.
    The plaintiffs, by way of reply, admitting the employment and service of the defendant, denied the contract as, alleged in the cx’oss-petition, and denied that the compensation to the defendant for his services, to arise from said one-eighth of the profits, should, at least, equal the suxn of $2,250.00 per annxxm. They also alleged, that all matters and dealings between the parties, including his compensation for 1874 and 1875, and all deposits made by him, were fully settled at the end of the year 1875, x’esulting ixx finding a balance in their favor of $1,486.50, as stated in their second cause of action.
    The trial x-esxxlted, in the coxxrt of common pleas, in a verdict and jxxdgmeixt in favor of plaintiffs for $1,497.55.
    On the trial the followixxg bill of exceptions was filed by the defendant:
    “ Be it remembered, that on the trial of this case to the juiy, the plaintiffs, to maintaiix the issue on their part, introduced evidence tending to prove the facts alleged ixx their petition and rested their case; and thex’eupon the defendant introduced .evidence tending to prove the issues on his part, and to prove the facts stated in his answer and cross-petition and amongst other things introduced evidence tending to prove: That the plaintiffs were wholesale dealers in dry-goods and notions, in the city of Columbus, Ohio, for a number of years prior to January, 1874, and have since continued and still continue in said business.
    “ That the defendant had been employed by the plaintiffs as a traveling salesman for several years prior to January, 1874, and had been paid for such services, stated yearly salaries, which had been increased from time to time, and that the defendant received for his services in that behalf for the year 1873, $2,250 ; that on January 1, 1874, the plaintiffs, by John Greenleaf, who was the member of the firm whose business it was to make contracts with its employés, entered into a contract with the defendant, by which it was agreed that the defendant should continue to serve the plaintiffs as a ti’aveling salesman for the year 1874, as formerly, and that the plaintiffs should pay him for such services one-eighth part of the net profits of their business, and guaranteed that such eighth part of profits should equal the sum that the defendant received for his services in 1873, to wit, $2,250, so that in no event should the defendant receive for such service less than $2,250. That the defendant continued in the service of the plaintiffs under that agreement during the years 1874 and 1875, the same arrangement having been renewed in January, 1875 ; that the same arrangement was continued for 1876, except that the defendant was to receive one-sixth of net profits, instead of one-eighth, and was only to draw $1,200 on account during the year, and the defendant, for the purpose of further proving the contract thus entered into between the plaintiffs and himself, January 1, 1874, amongst other things, offered to prove that the market value of the services of the defendant as traveling salesman on January, 1874, was $2,250 per year, and to that end asked the defendant the following questions :
    “Were you acquainted with the market value in Columbus, Ohio, on the 1st of January, 1874, of such service as that rendered by you for plaintiffs ? Whereupon the counsel for the plaintiffs objected; and the court sustained the objection, and refused to allow the question to be put or answered; to which ruling of the court the defendant excepted, and thereupon counsel for defendant asked him the following questions:
    “ What was the market value of your services per year, as traveling salesman in Columbus, Ohio, on January 1, 1874? Whereupon counsel for the plaintiffs objected, and the court sustained the objection, and refused to allow said question to be put or answered ; to which ruling the defendant excepted.
    “And the defendant having rested, the plaintiffs in rebutter introduced testimony tending to show, that on January 1,1874, the plaintiff and defendant entered into a par*ole contract by which it was agreed that the defendant should receive for his services for the year 1874, one-eighth part of the net profits of the plaintiff’s business, to be ascertained in the manner stated in the petition. That the contract was renewed on the same terms for the year 1875, and on January 1, 1876, a new contract was made by which the defendant was to receive for his services for the year 1876, one-sixth part of the profits, which profits, the plaintiffs guaranteed, should amount to $1,200.' And the jury having returned a verdict for the plaintiffs, the defendant, by his counsel, moved the court to set aside the verdict, and grant him a new trial for reasons on file, which motion was overruled by the court, to which ruling the defendant, by his counsel, excepted, and moved the court to sign and seal a bill of exceptions to said ruling and make the same part of the record in this case, which is accordingly here done.”
    The judgment of the common pleas court was affirmed in the district court.

      J. T. Holmes and F. W. Wood, for plaintiff in error :
    That the testimony offered and rejected was pertinent and competent, is apparent from the nature of the controversy, and as the contract price agreed upon January 1, 1874, became a matter to be established by evidence, and as there was a dispute in the premises touching its terms, the value of the defendant’s services in the market at the time, was material to be shown, as reflecting upon the reasonableness of the contract, as claimed by him. That the court erred in refusing such testimony, is apparent from authority, as. well as reason. See Allison v. Horning, 22 Ohio St. 138; Kidder v. Smith, 34 Vt. 294; Kimball v. Lock, 31 Vt. 683; Bradbury v. Dwight, 3 Met. 31; Swaim v. Cheney, 41 N. H. 232; Harrington v. Baker, 15 Gray, 538, 540; Moore v. Davis, 49 N. H. 45; Darling v. Westmoreland, 52 N. H. 401.

      Lorenzo English, for defendant in error,
    claimed that the testimony rejected, was properly rejected, for the reason that the reasonableness of the contract was not in issue, but the question was, was there a contract at all ? And, further, the market value of the services of defendant did not, and in the nature of things could not, tend to prove the specific guaranty of the plaintiffs, as alleged by the defendant, and insisted that Allison v. Horning, 22 Ohio St. has no application.
   McIlvaine, J.

The rejection of testimony offered by defendant below, as shown by the bill of exceptions, is the principal matter relied on for error.

This testimony was offered to prove the express agreement alleged by the defendant to have been made between the parties on the 1st of January, 1874, in which, as he claimed, it was stipulated that his salary, to wit — one-eighth of the profits of the business — should equal, at least, twenty-two hundred and fifty dollars per annum. This stipulation was denied by the reply. The issue made by the pleadings was not as to the amount guaranteed, but as to any guaranty at all.

TJpon such an issue, is testimony as to the “ market value” or usual price of such services admissible in chief ? Such testimony, in our opinion, does not tend, in the remotest degree, to prove the existence of an express agreement. It is said that such testimony shows the reasonableness of the alleged agreement. The point in issue was not the reasonableness of the alleged agreement, but its existence. That a supposed agreement would be reasonable, does not afford a scintilla of evidence that it was entered into by express stipulations.

We concede that there is a class of cases in which the doctrine as announced by this court in Allison v. Horning, 22 Ohio St. 138, is fully established, namely: “In an action to recover the amount due on a contract for work, where the testimony is conflicting as to the price agreed upon for the work, it is competent to show the value of such work at the time the contract was made, as tending to show what the agreed price, was.”- In that case, such testimony was admitted, but as it did not appear to have been admitted in chief, the judgment was affirmed on the ground that error must appear on the face of the record. Judge Day, in delivering the opinion, said: “ It does not appear that the evidence was given in chief for the purpose of proving the contract price, which would have been inadmissible; but for aught that is shown by the record, it was offered to rebut the evidence introduced by defendant to prove that the contract price was less than that claimed by plaintiff.”

But in the case before us, it does appear from the bill of exceptions that the rejected evidence was offered in chief by defendant below in support of the agreement set out in his cross-petition, and therefore inadmissible according to the rule stated by Judge Day, supra.

But another feature in the case before us appears on the record, which is worthy of remark. The defendant, in offering testimony in chief in support of his cross-petition, gave evidence tending to prove that the contract for his services in the year 1876 differed from the previous contract in this, that his compensation was to be one-sixth of the profits of the business instead of one-eighth, which was guaranteed would be at least $2,250. . And it further appears, that after the testimony of the defendant to prove the value of such services on the 1st of January, 1874, had been rejected, the plaintiff gave testimony-to the effect that “on the 1st of January, 1876, a new contract was made, by which the defendant was to receive for his services for the year 1876, one-sixth of the profits of their business, which the plaintiffs guaranteed should amount to $1,200. Thus a case arose upon the proofs, different from that made by the pleadings, in which the only conflict between the pai’ties was as to the amount of compensation guaranteed to the defendant for his services for the year 1876. The defendant, claiming under his testimony that the amount was $2,250.00— the plaintiffs, that it was only $1,200.00. A case clearly within the doctrine of Allison v. Horning, supra.

It must be observed, however, that the testimony previously offered by defendant, and properly rejected by the court at the time and under the circumstances of the case when offered and rejected, was not again tendered after this new phase of the case was developed by the testimony; hence, the rejection of the testimony, being proper at the time it was ordered, did not become erroneous by reason of the subsequent change in the status of the case.

And again, if the same testimony had been tendered after the controversy was reduced to a mere conflict in testimony as to the amount of the agreed guaranty, it should have been rejected, for the reason that it related solely to the value of such services on the 1st of January, 1874, whereas, under the rule as stated in Allison v. Horning, supra, it should have been confined to the value of such services at the time the contract was made, to wit: at or about the first of January, 1876.

We find no error in the record for which the judgment below should be reversed.

Judgment affirmed.