text:
    Clinton v. The State of Ohio.
    1. Under an indictment charging a violation of section four of “ An act to-provide against the evils,” etc., (S. & C. 1431,) it is not necessary to show that the nuisance existed at the time proceedings were commenced... It will be sufficient to show that it existed, in fact, at some time during-the period named in the indictment.
    2. Uo one is rendered incompetent to be a witness on account of re-ligious belief, nevertheless, every one offered as a witness in a court-must take an oath or affirmation before giving testimony.
    3. A person who believes in the existence of a Supreme Being, who will,. either in this life or the life to come, inflict punishment for false swearing, may be sworn as a witness. ■
    4. A witness can not be cross-examined as to any fact, which is collateral and not material to the issue, merely for the purpose of contradicting-him.
    6. Answers, elicited from a witness on cross-e^mination, as to bis religious-belief, or his previous declarations in relation thereto, being collateral and not material to the issue, will not serve as a foundation to call witnesses to contradict him.
    Error to tbe Court of Common Pleas of Highland county.
    At the May term of the Court of Common Pleas of Highland county, Samuel K. Clinton, plaintiff in-error, was indicted, charged with having been the keeper of a room of public resort, from April 1, 1871, to March 20, 1874 (at which time, proceedings were commenced against him before a justice of the peace), where intoxicating liquors other than wine, etc., were sold by him in violation of “An act,” etc., to the common nuisance of the citizens, etc.
    Clinton pleaded, “ not guilty.”
    A trial resulted in a verdict of guilty, and defendant made a motion for a new trial which was overruled. The-case came into this court on petition in error, wherein it is-claimed the court of common pleas erred,

      First. In refusing to rule out certain testimony on motion of defendant.

      Second. In admitting certain testimony over defendant’s objection.

      Third. In refusing to give to the jury certain instructions requested by defendant.

      Fourth. In the instructions given to the jury.

      Fifth. In overruling the motion for a new trial.
    The facts and statements necessary to an understanding ■of the questions determined, will sufficiently appear in the opinion.

      JS. S. Dickey, and W. H. Safford, for plaintiffs in error.

      J. M. Dumenil, for defendant in error.
   Ashburn, J.

I. The first question arises upon the refusal of the court to exclude certain evidence offered by the state — the refusal to charge the jury as requested by ■defendant, and the instructions given on the same point in the general charge.

Among other things, the evidence introduced by the state, tended to prove that defendant was the keeper of a saloon, in violation of the provisions of the fourth section of the Ohio Liquor Law, as charged in the indictment, from April 1, 1871, to January 1, 1873, when he made some •changes in the room and building, bought, and put in it a lot of drugs, including whisky, and abandoned the business •of keeping a saloon. Erom the time he commenced the drug business up to the commencement of .these proceedings, he sold intoxicating liquors to a number of persons, and in various quantities, but none to be drank on the premises where sold. There was evidence tending to prove he sold intoxicating liquors, during the latter period, to persons in the habit of setting intoxicated, to his knowledge.

The state having closed its testimony, defendant moved and requested the court to rule out all evidence offered by the state to prove illegal sales by defendant from April 1, 1871, to January 1, 1873, the last date being the time when he ceased to keep a saloon. The court refused to so rule, and defendant excepted. Touching the same subject-matter, defendant requested the court to specially charge the jury “ That it is necessary to a conviction, under this indictment, that the defendant should have been proven to be unlawfully the keeper of a room of public resort, where intoxicating liquors (other than wine, etc.) were then, and had been theretofore, habitually sold by defendant in violation of law at the time of the commencement or institution of the proceedings against him upon which the indictment was founded.” This instruction the court refused to give,, and defendant excepted. Thereupon the court instructed the jury, “ To convict the defendant, under this indictment, you must be satisfied, beyond a reasonable doubt 1. That the room where the intoxicating liquors are charged to have been sold was a place of public resort. 2. That the-defendant, by agent or otherwise, at some time within the period of time named in the indictment, habitually sold intoxicating liquors (other than ale, beer, cider, and native-wine) in such room contrary to law.” To this instruction defendant excepted.

Defendant claims these rulings to be unsound, because-he was not the keeper of a room of public resort, where intoxicating liquors were habitually sold, in violation of law at the time criminal proceedings were instituted against him; there being then no existing nuisance, he claims he-was not amenable to punishment.

Proceedings against defendant were under the provisions: of the 4th section of the Ohio liquor law. It is as follows “ That all places where intoxicating liquors are sold in violation of this act, shall be taken, held, and declared common nuisances, and all rooms, etc., or other places of public resort where intoxicating liquors are sold in violation of this act, shall be shut up and abated as public nuisances, upon the conviction of the keeper thereof, who shall be punished as hereinafter provided.” S. & C. 1432.

By this act, the keeping of a room of public resort where-intoxicating liquors are habitually sold in violation of law, creates such place of public resort a common nuisance,, which public policy requires should be abated, and that the-keeper thereof should be punished. Punishment to the extent of abating the unlawful business, by closing up the premises, is provided in the section, but punishment for creating and maintaining the nuisance, for any period of time, is provided for in section 8 of the act. It is therein provided: “ And for every violation of the provisions of the 4th section of this act, every person convicted as the keeper of any places therein declared to be nuisances shall forfeit and pay a fine,” etc.

The order to abate the nuisance is not the punishment provided for the offense, but the removal of a thing or -closing up a business obnoxious to the public. This order will be made and enforced when necessary, on conviction ■of the offender, under the restrictions as indicated in Miller § Gibson v. The State, 3 Ohio St. 475. The punishment for the criminal act of creating such nuisance is personal, as provided.in section 8. His abating the nuisance will not relieve the defendant from liability of punishment for the ■criminal act committed, while he maintained the offensive place of public resort. The offender remains personally liable until the right to prosecute is barred by the statute of limitations, or the violated law is satisfied in some other manner. The way provided in the statute is, the offender must be personally punished as an atonement to the law which he has violated.

We think the court ruled correctly on each point in this ■respect excepted to.

II. A question is made as to the right of the adverse party, after interrogating the witness on his present state •of belief as to the existence of a God, and a state of future rewards and punishments, to ask the witness if he had not ■made other and different statements in relation thereto at •other times, for the purpose of calling witnesses to discredit him.

Defendant, Clinton, was examined as a witness in his own behalf, and upon cross-examination by the state’s counsel, was asked, “ Whether he believed in the existence of a •God.” He answered, “I do.” He was further asked, •“ Whether he believed in a state of future rewards and punishment,” and he replied, 1 do.” By this course of examination, we think the state made Clinton her own witness, and was bound and concluded by his answers.

Counsel for the state then asked the witness, “ What he had stated on the preliminary trial (giving time, place, and circumstance) as to his belief in the existence of a God and .a future state of existence.”

Defendant objected to the question. The court overruled the objection and defendant excepted.

The witness answered, “ I do not distinctly recollect.” Counsel for the state then asked this further question, “ Whether he did not on that occasion, in answer to the ■question put to him as a witness, state that he did not believe in the existence of a personal God, to whom he was .accountable, and that the only God in which he did believe was that within himself, and of which he was a part.” To this question the defendant objected. The court overruled the objection and defendant excepted. The witness answered, “ I do not distinctly recollect what my answer was' •on that occasion.”

When the defendant had closed his testimony, the state ■called a number of witnesses, to prove what the defendant^ when a witness on the preliminary examination, had said as to his religious belief, who testified that defendant stated his religious belief to be substantially as suggested to him in the last two questions put to him above by the state. Defendant objected to the answers of the witnesses, claiming the matter sought by such examination was incompetent, irrelevant, and not material to the issue, and could not •serve as a foundation on which to discredit him. Objection overruled. Defendant excepted.

Did the court err in this respect to the prejudice of the defendant ?

Sec. 7 of the bill of rights declares, among other things: “No religious test shall be required as a qualification for •office; nor shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall he construed to dispense with oaths and affirmations.”

This provision of the constitution recognizes and guarantees unqualified liberty of religious faith. But in doing so recognizes the necessity, to the proper administration of law and justice, that all witnesses must testify under the obligations of an oath or affirmation. It then becomes proper to inquire what moral and religious condition will quality a person to take the oath obligation of a witness ; for, since oaths and affirmations can not be dispensed with in the due administration of law, the recognized legal, moral, and religious qualifications of the person to take the-necessary oath, when qualified in that manner, can no more be dispensed with than the oath itself. The obligation is-to be so administered as to most certainly bind the conscience. An oath is no more a part of Christianity than of every other religion in the world. “ Yet,” says Lord Stair, in his institutes of the laws of Scotland, “ it is the duty of the judges, in taking the oaths of witnesses, to do it in those forms that will most reach the consciences of the swearers,, according to their persuasion and custom.” And this,, though the God of the witness’ faith is, according to Christian belief, a false God. If the witness believes in some superior being, whom he recognizes -as a God, who will punish for false swearing, an oath maybe administered according to his belief, and such obligation will satisfy the-requirements of the law, for the reason that it binds his-conscience so as to influence him to speak the truth.

On this question we think thé common law rule is sound. As defined by Welles, O. J., in the learned and celebrated case of Omichund v. Barker, Welles’ Rep. 538 (approved by the act of 1 and 2 Y., c. 105), where the testimony of a person sworn according to the Gentoo religion was received, it may be stated : All persons are competent to be witnesses who believe in the existence of a God, who will punish him if he swears falsely. This rule in no way conflicts with liberty of conscience in matters of religious faith as secured in the bill of rights. Liability to civil punishment alone for perjury, and the fear of such punishment, are held not to supply that sense of moral and conscientious obligation under -which a witness is required to state facts as evidence, and which enlightened men believe to be secured by the sanctions of an oath, taken by one- entertaining a belief that the God of his faith will punish false swearing. In Brock v. Milligan, 10 Ohio, 121, it was substantially held that “ one who believes in the existence of a God, and that an oath is binding on the conscience, is a competent witness, though he does not believe in a future state of rewards and punishments.”

The purpose of the oath is not to call the attention of God to the witness, but the attention of the witness to God; not to call upon him to punish the false-swearer, but on the witness to remember that He will assuredly do so. By thus laying hold of the conscience of the witness, and appealing to his sense of accountability, the law best insures the utterance of truth.

Taylor, in his work on Evidence, vol. 2, § 1247, says: “ But as the administration of an oath supposes that the witness feels a moral and religious accountability to a supreme being, who will justly punish perjury, and from whom no secrets are hid, persons insensible to the obligations of an oath ought not to be admitted as witnesses. The repetition of the words of an oath would, in their case, be an unmeaning formality. It makes no difference from what cause this insensibility may arise; for whether it be occasioned by irreligious opinions, or by imbecility of understanding ; whether the person be an atheist, an idiot, a madman, a drunkard, or a child, so long as he is incapable of comprehending the nature, or feeling the obligation of an oath, he can not be sworn as a witness. This incapacity, however, is only coextensive with the defect.”

Under our constitution the character of a man’s religious belief is not permitted to affect his competency as a witness ; yet, to render him competent to take an oath as a witness, his moral nature must be strengthened, and his conscientiousness be quickened, by a belief in a supreme being, who will certainly, either in this life or the life to come, punish perjury.

The authorities are numerous on this question, and almost uniform, except in the states where modified by constitution or statute laws. Where, as in this state, the oath or affirmation can not be dispensed with/all concur in the propriety of administering the oath to witness in the mode by the witness believed to be the most binding on his conscience.

On the trial, the state, on cross-examination, inquired for the belief of the witness in the existence of a God, and a state of future rewards and punishments. This was, perhaps, a matter within the sound discretion of the court, to be controlled, as to character and extent of examination for the purposes of right and justice as the court, under the circumstances, might determine, not abusing such discretion. Wrae v. The State, 20 Ohio St. 460; 2 Taylor on Ev. § 1258.

Defendant’s religious belief was not a fact involved in the case, nor material to the issue. It was strictly a collateral matter. The course of examination and rulings of the court clearly indicate that it was thought to be a material fact in the case or matter relevant to the issue, and was a proper question on which to lay the foundation for contradicting the witness. And herein lies the error of the court. In the case of Harrison v. Gordon, 2 Lewin Or. Rep. 156, Alderson, B., said: “You may call a witness to contradict any fact material to the issue, but not to contradict such as goes only to the general credit of the witness, for that is a collateral issue.” Spenceley v. DeWellitt, 2 Lewin Or. Rep. 154; 1 Greenlief’s Ev. § 449; Starkie on Ev. *200; 2 Taylor on Ev. §§ 1292, 1293 ; People v. McKeller (Superior Court of California, April 11, 1868); The Reporter, vol. 5, 685.

The preliminary examination was in March, 1874, and the trial, on which this record was made, wras in October of the same year. Without entering into the discussion of the mooted question, whether á witness may be allowed to testify in relation to his religious belief, when his competency, on that account, is called in question, the course of examination in this case conceded Clinton’s competency.

Whatever might have beeu the result of his examination as to his belief in the existence of a God, ou the preliminary trial, his answers on the final trial clearly showed his qualification to take the necessary oath. Persons change their opinions for reasons satisfactory to themselves ; and when a man changes from a state of disbelief in the existence of a God to that of belief, it should not be set down to his discredit. Nor should such change be open to contradiction. If sacred - history may bo credited, Saul of Tarsus, who believed, as the Jews did, iu a God, added to his faith belief in the divinity of the Son of God in a much shorter space of time. We doubt not profane history would furnish many instances where persons have changed their religious opinions in shorter time than that which intervened between the examinations of Clinton.

The cross-examination could not serve as a foundation to authorize the introduction of other witnesses to discredit Clinton, on the facts of this case, for two reasons: 1. Because the state Avas concluded by his answers; 2. Because the question was collateral and irrelevant to the issue.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    Watson v. Erb.
    1. The fraud against which equity will grant relief, notwithstanding the statute of frauds, consists in the refusal to perform an agreement upon the faith of Avhieh the plaintiff has been misled to his injury, or the defendant has secured an unconscionable advantage, and not in the mere moral wrong involved in a refusal to perform a contract, which, by reason of the statute of frauds, can not be enforced by action.
    2. A., in pursuance of a parol agreement for that purpose with B., who desired to become the owner of a certain tract of land adjoining his, and for personal reasons was not to be known in the transaction, but was to save A. harmless from all loss or trouble, purchased the land, made a cash payment thereon, took the title in fee to himself, as per the agreement, and gave to the seller his own several promissory notes and mortgage back, to secure the deferred payments. After the contracting for the land, but before making the cash payment or receiving the title, A. repudiated his agency, and gave notice lo B. that he would purchase for himself, with his own money, and refused to receive from B. the money to make the cash payment, but consummated the purchase for himself: Held that the breach of the verbal contract to convey to B. is not such a fraud upon him as authorizes a court of equity to decree a trust in the land, and compel its execution.
    3. Even if such contract could be enforced in equity, it could not be done until adequate indemnity was tendered against the notes and mortgage of A. outstanding, as well as an offer to pay or refund the cash payment.
    Error, to the District Court of Union county.
    This action was brought by the plaintiff against Charles Erb, to compel him to convey certain real estate purchased by him of one Jones and wife.
    On appeal, the district court found its conclusions of fact and law separately, as follows:

      In the District Court of Union county, Ohio, March 2Oth, A. d. 1874.
    This day came the parties, by their attorneys, whereupon this cause came on to be heard upon the pleadings and the testimony; and the court having heard the testimony and the agreement of the counsel, do, at the request of the plaintiff, state in writing the court’s conclusions of fact separately from their conclusions of law, as follows :

      First. That the plaintiff, in the year 1871, being the owner of a large farm adjoining the 104-f acres of land described in his petition in this case, to which the same would be of peculiar value, was desirous of purchasing .the said 104f acres of land.

      Second. That the defendant, Erb, having been negotiated with by the attorneys of George W. Jones and his wife, Jane O. N. Jones, the owners of said 104|- acres of land, for the purchase thereof, and having, as the defend ant, Erb, informed the plaintiff, concluded that he would not accept the terms on which the same could be bought, and that he had concluded to abandon the negotiation, the plaintiff, believing he could buy said land on fairer terms through the agency of the defendant, Erb, than by himself, verbally employed the defendant, Erb, to act for him, plaintiff, and to make a purchase of said land for the plaintiff, and that the defendant, Erb, then professing to be a friend of the plaintiff, on the 13th day of December, a. d. 1871, verbally agreed with the plaintiff' to act for him and negotiate for the purchase of said 104f- acres of land for him, the plaintiff, as a friend; that said Ei'b was to be saved from all loss and trouble by the plaintiff; by reason of said purchase; that the plaintiff, at the same time, offered to deliver to the defendant, Erb, a certain horse, then owned by the plaintiff, so soon as Erb made a purchase of said land for the plaintiff, and as compensation for his (Erb’s) service in making the same as plaintiff’s agent, but that said Erb thereupon declared he would not accept compensation for such services to be by him. performed, on account of the favors which the plaintiff had theretofore conferred upon him; that it was understood and agreed by and between the plaintiff" and said Erb that the contract of purchase was to be made in the name of Erb with said Jones, and nothing was said in regard to making the deed to be executed by Jones and wife for said land directly to the plaintiff.

      Third. That the said Erb, in pursuance of said employment, negotiated for the purchase of said 104f acres of land, with the attorneys of said Jones and wife, and from time to time obtained propositions for the sale by them of said land, and on the 16th day of December, 1871, said Erb having reported to plaintiff that he had a definite offer from said Jones and wife for the sale of said land upon the terms following, to wit: $2,000 on the 15th day of January, 1872 ;' $2,000 on the 1st day of March, 1873 ; and $2,000 on the 1st day of March, 1874; with interest on the two last named installments, from the 1st day of March, 1872 ; the plaintiff expressly authorized and requested said Erb to conclude and make a contract for the pui’chase of said land for him (plaintiff), upon the terms above stated; and agreed to have the money ready to pay the first installment of said purchase-money ; that afterward, on the 16th day of December, a. d. 1872, said Erb accordingly made aud entered into a contract in writing with said Jones and wife for the purchase of said land upon the terms aforesaid ; which contract was reduced to writing, and signed by said Erb, and said Jones and wife, and is in the words and figures following, to wit:
    Article oe agreement. — Article of agreement entered into this 16th day of December, 1871, by and between George W. Jones and Jane O. N. Jones, his wife, of the first part, and Charles Erb, of the second part, witnesseth : That the party of the first part has this day sold, and hereby agreed to convey by deed of general warranty to tho said party of the second part at the time hereinafter mentioned, thefollowing real estate, to wit: Situate inUnion county, and State of Ohio ; being iu survey No. 5,726, and being all of lot No. 1, assigned to said Jane O. N.-Jones, in a partition ease of said Jane O. N. Jones and George W. Jones against Ketura M. Hodge and others, in Union county Common Pleas, and being now in the occupation of David Watson, containing 104f- acres, more or less, including the house and all the appurtenances belonging; in consideration therefor the said pai’ty of the second part agrees and binds himself to pay to the parties of the first part the sum of $6,000, as follows : $2,000 on the 15th day of January next, and the balance, $4,000, is to be paid as follows : $2,000 is to be paid in one year from the 1st day of March next; and $2,000 in two years, from March 1st, next; said deferred payments to draw interest at six per cent, from said date, March 1,1872, until due; and, if not paid when due, then said deferred payments are to draw interest at (8) per cent, per annum until paid; the deed is to be made on said March 1, next. At that time a mortgage is to be executed on said premises back to the party of the first part, to secure said deferred payments, according to the tenor of this article.
    In witness we hereto set our hands, the day and year first above written.
    [seal.] Geo. W. Jones,
    [seal.] Jane O. N. Jones.
    [seal.] Charles Erb.

      Fourth. That between the 25th day of December, 1871, and the 1st day of January, 1872, the plaintiff made a verbal agreement with one James I. Minshall for a loan of money with which to pay the consideration money for said land (said Minshall was then president of the Madison National Bank, of London, Ohio, and a.man of capital and means), according to said contract of purchase; and afterward, that is, between said 8fh of January and the 13th of the same mouth, the plaintiff made a verbal agreement with one Charles Phellis, whereby it was agreed, that upon a deed being executed to said Phellis for said land, he, said Phellis, verbally agreed with the plaintiff to advance the money to pay the two last installments of said consideration, said Phellis to execute to the plaintiff a bond binding him to reconvey said land to the plaintiff when he reimbursed said Phellis for the money so advanced, and no other provision was by the plaintiff’ made to save said Erb from loss and harm by reason of said purchase; that said Phellis was theu, and still is, worth upward of $50,000 ; and that on the 8th of January, 1872, the plaintiff "would have informed said Erb that he had made an arrangement with said Minshall, but he was prevented from so doing by Erb’s harshness of manner and his refusal to hear him ; that the said Erb then declared to the plaintiff that he, said Erb, did not care whether he got the money or not; that the plaintiff should not have said land anyhow ; and then, and ever afterward, refused to recognize any right of the plaintiff under said contract, or any interest in or to said land in him, but then, and always afterward, utterly renounced said contract, and denied any obligation on his part under the same; and the agreement between the plaintiff and the said Phellis was not communicated to said Erb.

      Fifth. That on the 13th day of January, 1872, the plaintiff duly tendered to the said Erb the sum of $2,000, with which to pay to said Jones and wife the first installment of the consideration money'- for said land, according to the the tenor of said written contract; that said Erb refused to accept said sum of $2,000, or any part thereof, and declared he would pay for said land with his own money, and the title to the same, as his own exclusive and absolute property.

      Sixth. That on the 13th day of January, 1872, after said tender had been made to him, a deed, executed by said Jones and wife, in accordance with said contract, was delivered by their attorneys to said Erb, conveying to him, Erb, in fee-simple absolutely, the said 104|- acres of land; that, at the same time, said Erb paid out his own money to said attorneys of said Jones and wife, the first installment of said consideration money, and made and delivered to said Jones and wife his (Erb’s) promissory notes and a mortgage on said land to secure the payment of said second aud third installments of said consideration money for said land, according to the terms of said written contract; that on the 15th day of January, 1872, the plaintiff again tendered to said Erb the said sum of $2,000, the first of said installments, but the said Erb refused to accept the same, or any part thereof; that at that time nor at any other, the plaintiff did not tender actual indemnity to said Erb against his (Erb’s) liability on said notes; that prior to said employment of said Erb by the plaintiff, the latter had himself made a contract with said Jones for the purchase of said land which he (plaintiff) failed to perform on his part by not paying a part of the purchase price, and thereupon the same was rescinded by a decree of the Court of Common Pleas of Union county, sometime prior to said employment, and that said Jones would, after that, have refused to have contract with the plaintiff', or to have had any dealings with him: thereupon the court are of the opinion that the said contract whereby the said plaintiff employed the said Erb to purchase said land of said Jones and wife for him (plaintiff) was a valid and biudiug contract, although the said Erb was not to receive compensation for his services, and said contract was not reduced to writing, and no note or memorandum thereof was made in writing, but that the plaintiff’ is not entitled to any relief in this cause for the reason that the plaintiff did not tender to said Erb adequate indemnity against his liability upon said promissory notes and mortgage, and because the renunciation by said Erb of said contract of agency and of all rights of the plaintiff’ under the same, and of any interest or right in him to said land, did not dispense with the necessity of an actual tender by the plaintiff of said indemnity; to which conclusion of the court, that the plaintiff is not entitled to any relief in this cause the plaintiff excepts. It is therefore ordered and adjudged that the injunction hereinbefore granted be, and the same is, hereby dissolved, and that the plaintiff’s petition stand dismissed with costs, and that in default of the payment of the costs of this suit within sixty days, an execution issue for the same. To which order and judgment the plaintiff excepts.
    "W e approve the foregoing entry.
    James Maokemzie, \ r , „ E. M. Phelps, }Ju^es’
    The petition charges that, in making this purchase, the. defendant verbally undertook to, and did in fact, act as the agent of the plaintiff, and that the title which he received he holds in trust for the plaintiff.
    These allegations are denied by the answer.

      Harrison, Olds Marsh, and M. C. Lawrence, for plaintiff in error:
    1. The defendant did not plead the statute of frauds, and hence waived the bar of the statute. Minns v. Morse, 15 Ohio, 568; Browne on Frauds, § 508; Vose v. Woodford, 29 Ohio St. 245; Swan’s Pl. under the Code, 254, note A.

      2. Trusts of real estate are not embraced in the statute of frauds of Ohio, and may be proved, as at common law, by parol.
    The seventh section of the statute of frauds of 29 Charles II, which required the declaration of an express trust to be in writing, has never been adopted in Ohio. Fleming v. Donahoe, 5 Ohio, 256; Miller v. Stokeley, 5 Ohio St. 194; Stall v. Cincinnati, 16 Ohio St. 139; Hubbell v. Hubbell, 22 Ohio St. 208; Mathews v. Seaman, 24 Ohio St. 615 ; 22 Ohio St. 62 ; 24 Ohio St. 28. So also, in Virginia, 7 Leigh, 566; 2 Patton & Heath, 547.
    In Pennsylvania, under the first act enacted in that state, in 1799, it was held that trusts in real estate might be created by parol. Wallaces. Duffield, 2 Ser. & R. 521; German v. Gabbald, 3 Binney, 302; Blyholder v. Gilson, 18 Penn. St. 134; Money v. Herrick, Ib. 128; Tritt v. Cootzer, 13 Ib. 452; Wetherel v. Hamilton, Ib. 191; Slaymaker v. St. Johns, 5 Watts, 27; Murphy v. Hubert, 7 Barr, 420.
    In 1851 the original act was amended.
    So held, also, in Tennessee. Thompson v. Thompson, 1 Yerger, 100; Wilburn v. Spofford, 4 Sneed; McLanahan v. McLanahan, 6 Humphrey, 99; Haywood v. Ensley, 8 Humphrey, 460.
    Also in North Carolina. Shelton v. Shelton, 5 Jones (Eq.), 292; Fay v. Fay, 2 Haywood, 131.
    Also in Texas. James v. Fulcrod, 5 Texas, 512; Mead v. Randolph, 8 Ib.; Hale v. Layton, 16 lb. 262; Miller v. Thatcher, 9 Ib. 484 ; Osterman v. Baldwin, 6 Wallace (U. S.), 116.
    And see 21 Mich. 374 ; Fry on S. P. § 354; 4 Mylne & C. 139.
    A tender of indemnity was not necessary. Brock v. Hily, 13 Ohio St. 306.
    No principles of law are better settled than these :
    A distinct and unconditional refusal to perform a conditional covenant and promise will be a waiver of performance of the condition; for the law will not compel the performance of a nugatory act. Jones v. Barkley, Douglass, 684.

      So will a notice from the covanantee or promisee, given before performance is due, that he will not perform, if persisted in, i. e., if not retracted. Withers v. Reynolds, 2 Barnewell & Adolphus, 882; Ripley v. McGlare, 4 Exchequer, 345; Cort v. The Ambergate Railway Co., 17 Queen’s Bench, 127.
    And after receiving such a notice, the covenantee or promisee is not bound to provide the means to perform the condition. Cort v. The Ambergate Railway Co., 17 Queen’s Bench, 127.

      West, Walker § West, for defendant in error:
    This was a parol agreement to grant or convey an interest or estate in lands, and is therefore clearly within the statute of frauds. Burden v. Sheridan, 36 Iowa, 125; 2 Story Eq. Jur. § 1201.
    The defendant, by his answer, denies all agency and trust, as alleged in the petition. This, according to Judge Story, and also 'according to Hooker v. Gentry (3 Metcalfe; 463), makes the statute of frauds available in defense, although not specially pleaded.
    The following authorities are cited by Justice Miller in support of the doctrine laid down in Burden v. Sheridan, supra: Perry on Trusts, §§ 133-135; Willard v. .Willard, 56 Penn. St. 119; Pollard v. Kinner, 6 Ohio St. 528 ; Bartlet v. Pickersgill, 1 Eden, 515, and 4 East, 577 note; Botsford v. Burr, 2 Johns. Ch. 405; Steere v. Steere, et al., 5 Johns. Ch. 1; Pinnock v. Clough, 16 Vern. 500; Perry v. McHenry, 13 Ill. 227 ; Walker v. Klock, 55 Ill. 362 ; 2 Sugden on Vendors (9th ed.), 163.
    Did the transaction raise a trust in the defendant ? The “ doctrine of resulting trusts ” is strictly limited to cases where the purchase has been made in the name of one pier-son, and the purchase-money has been paid by another. 2 Story’s Eq. Jur. § 1201a; 36 Iowa, 125.
   Johnson, Chief Judge.

From the finding of facts it appears :

1. That the agreement upon which this action is founded rested in parol — that by the terms of that agreement the purchase was to be made by defendant, and in his own name, and not in that of plaintiff, and the reason for this was, that owing to difficulty with Jones, the owner, he would not deal with plaintiff.

This undertaking was founded on no consideration, but was purely voluntary, though plaintiff was willing, and offered, to pay a reasonable compensation, which defendant refused, alleging as a reason, prior favors received.

2. The plaintiff was to save defendant harmless from all loss and trouble in making the purchase.

3. On the 16th of December, 1872, defendant reported to plaintiff, as the result of his negotiations for a purchase, that Jones and wife had offered to sell to him the land for $6,000 — $2,000 cash January 15, 1872; $2,000 March 1, 1873 ; and $2,000 March 1, 1874, with interest on deferred payments from March 1,1872.

Plaintiff authorized him to accept, and on the same day Jones and wife and the defendant entered into the written contract of sale and purchase set out in the statement of facts, by which a deed was to be made in fee to defendant, March next, he to execute notes, and mortgage back for the ■ deferred payments.

Before the time arrived for consummating the contract, plaintiff arranged to borrow the money to meet the cash payment, and also verbally agreed with one Phillis, by which he, on receiving a deed for the land, as security, was to advance the amount to pay the deferred payments as they matured.

4. On the 8th day of January, 1872, seven days before the cash payment was to be made, plaintiff undertook to inform defendant that he had arranged for the cash payment, but was prevented by the harshness of defendant, and by his refusal to hear him. At that time the defendant declared that plaintiff should not have the land; that he would purchase, pay, and keep it himself; and then, and ever after, refused to recognize plaintiff’s rights.

5. A tender of the $2,000 was duly made, but refused, but at no time did the plaintiff' ever offer indemnity to defendant for his liability to pay the deferred payments.

6. In accordance with the terms of the verbal agreement between the parties, and in performance of his written contract of purchase, the defendant took the title in fee in his own name, and executed to Jones, notes and amortgage for the deferred payments.

The district court, upon this state of fact, was of opinion that this verbal agreement was valid and binding, but re fused the relief sought on the ground that no indemnify was tendered to the defendant against the obligations he had incurred for the payment of the purchase money.

Two questions arise:

1. Was this verbal agreement valid and binding, and does it and the facts and circumstances shown create a trust of the legal title in favor of the plaintiffs, such as equity will enforce as against the defendant ?

2. Assuming that it does, has the plaintiff performed all the conditions to entitle him to have the trust enforced; or does his failure to tender indemnity to defendant against his liability on the notes and mortgage, defeat his right to such enforcement ?

1. As to the first question :

A careful analysis of this verbal contract shows that it is not the case of the employment of an agent to purchase property, and take the title in the name of his principal, and a breach of his undertaking, by taking the title in his own name. Nor is it the case of a purchase with the means of the principal.

The defendant was to, and did, purchase in his own name, according to the terms of his contract, and with his own means. The owner of the land would not deal with plaintiff, and he was not to be known in the purchase.

Defendant’s purchase in his own name was no breach of contract even, much less a breach of trust, properly speaking. He only broke his agreement to convey to the plaintiff the title so acquired. In fact, before he consummated the purchase, ho notified plaintiff that he would not purchase for him, but for himself — that he would not accept plaintiff’s money, but would use his own. He held no money or property of the plaintiff in trust to make the purchase, but bought with his own means, and gave his own obligations for the deferred payments. Neither did he, by deceit, prevent the plaintiff from becoming a purchaser. There was no mala fieles in taking the deed in defendant’s own name, as that was the agreement, nor in misappropriating plaintiff’s property or money for he had none, nor in deceiving and misleading the plaintiffj so as to prevent him from acting for himself, as he was not thereby prevented from competing in the purchase. Whatever bad faith existed, consisted in repudiating his agreement to convey the land so purchased.

This action is to specifically enforce that agreement. It is an action on the contract, to acquire lands. Our statute of frauds prohibits an actio if on such a verbal contract.

Equity only relieves when, by means of such contract, a fraud is perpetrated.

The equitable action is not on the verbal contract, but grows out of fraudulent acts committed under it. In such case, the parol agreement is admissible in connection with the fraudulent acts out of which the right to relief arises.

In Lloyd v. Spillet, 2 Atk. 148, Lord Hardwicke classified resulting trusts as follows:

First. Where an estate is purchased in the name of one person, but the consideration is given by another, and a trust in the estate results to him who gave the consideration.

Second. When a trust is declared as to part only of an estate, and nothing is said as to the rest. 'In such case, what remains results to the heir at law.

Third. Where the transactions have been carried on mala fide; where there has been a fraud in gaining the conveyance from another, that may be a reason for making the grantee in that conveyance to be considered merely as a trustee.

In this ease, the plaintiff did not furnish-the purchase money, and, hence, it does not come within the first class named by Lord Hardwieke.

If there is a resulting trust at all it belongs to the third class, where there has been a fraud in gaining a conveyance in his name from another, whereby he becomes a trustee, and holds the property for another, to whom, in equity and good conscience, it belongs.

In such cases, parol evidence is always admissible to show the real consideration of a conveyance, and by whom it was actually paid, for the purpose of raising a trust where the deed is absolute on its face. The trust reverts to the source and origiu of the consideration, whatever may be its character or nature.

Equity will relieve against a fraudulent purchaser, by converting him into a trustee for the person injured, and parol evidence of the facts is admissible to show that he is such fraudulent purchaser. This doctrine rests upon the ground, that where a party has parted with his money or property, and an attempt is made to rob him of the fruits of it, equity will decree a trust in such fruits. If, however, he has made no payment, he can not, as a general rule, be permitted to show by parol, that the purchase was made for his benefit; nor would a subsequent advance of the money to the purchaser, after the title is vested, alter the ease. Botsford v. Burr, 2 Johns. Ch. 405; Hollida v. Shoup, 4 Md. 465. The trust must attach, if at all, at the time of the conveyance, for it is the money which has gone to the vendor, as the inducement of the title with which he parts, that creates the equity in favor of him who advances it. White v. Carpenter, 2 Paige, 238; Botsford v. Burr, 2 Johns. Ch. 405; Walter v Klock, 55 Ill. 362.

In resulting trusts of this class, the real foundation is, that the ownership of the consideration money determines the equitable ownership of the estate.

Thus, if the actual purchaser agreed to buy and hold for the real purchaser, with money loaned by him to the latter for that purpose, he is a trustee of the title for the borrower. McDonough v. O’Neil, 113 Mass. 92; Kendall v. Mann, 11 Allen, 15; Blodget v. Hildrieth, 103 Mass. 484; Jackson v. Stephen, 108 Mass. 94.

Upon the same principle, a deed absolute on its face, may be converted into a mortgage, by showing that it was in consideration of a loan, and equity will treat the grantee as a trustee of the title, and compel a reconveyance on payment of the debt. This is so, whether there was a verbal defeasance, or not. But the mere breach of a parol agreement, is not such a fraud as takes the case out of the statute. Rodgers v. Simmons, 55 Ill. 76; Merrit v. Brown, 6 C. E. Green, 401.

If this were not so, the consequence would be, that the common law rule, that parol contemporaneous evidence can not be admitted to vary the terms of a written agreement, and also the provisions of the statute of frauds, would be abrogated.

Evidence of fraud opens the terms of a written agreement to proof of a parol contemporaneous agreement which has been broken by the opposite party; or in other words parol evidence is only admissible upon proof of fraud.

It must appear that the promise was used as a means of imposition and deceit. If the case taken as a whole is one of fraud, the verbal promise may be received in evidence as one of the steps by which the fraud was accomplished. To deduce the fraud from the contract and then give effect to the contract on the score of fraud, is reasoning in'a circle. The fraud which will give jurisdiction to compel a performance of the parol trust, must consist in something more than a mere breach of parol undertaking. Bigelow on Frauds, 118, 119, and cases; 2 Leading Oases in Equity, 1015.

A parol agreement that another shall be interested in the purchase of lands, or the declaration that he buys for another, where no money is advanced, comes directly under the statute of fraud. Irvin v. Ivers, 7 Ind. 308. So-when it is orally agreed by a purchase!’, at sheriff’s-sale, to hold the land for defendant in execution, in the ab-sense of proof showingthatthedefendantwaspreventedfrom keeping his land from sale, will not render the purchaser a trustee. Mincott v. Mitchell, 30 Ind. 228; Kisler v. Kisler, 2 Watts. 323. And if one takes a conveyance of land in his own name and pays for it with his own money, parol evidence is not admissible to show that he was employed as agent for another. Barnett v. Dougherty, 8 Carey, 272.

In Burden v. Sheridan, 36 Iowa, 125, the cases are ably reviewed, and it was held, that where A. hires B., by parol, as agent to buy au estate for him, and B. makes the purchase in his own name, and gives his own notes for the purchase money, and denies the trust; A. can not compel a conveyance of the estate to him — that the fraud against which a court of equity gives relief, consists in the repudiation of a contract, upon the faith of which an innocent party has been misled to his injury, and not in the mere-moral wrong involved in the repudiation of a contract which, by reason of the statute of frauds, can not be enforced. 2 Story Eq. § 1201a; 2 Sugden on Vendors, 163;. Bartlet v. Pickersgill, 1 Eden, 515 ; Botsford v. Burr, 2 Johns. Ch. 405 ; Steere v. Steere, 5 Johns. Ch. 1; Pinnock v. Clough,. 16 Vern. 500.

In Perry v. McHenry, 13 Ill. 227, it was held that noparo] agreement, made at the time or prior, that the purchase is to be made for the benefit of some other person,, will raise a trust in such person’s favor, in the absence of any other than that which arises from a violation of the purchaser’s parol agreement, when he takes the title in his-own name, and pays the consideration out of his own. funds. Brown on Frauds, § 441, and notes. But where-the fraud consists, not merely in refusing to do what he-agreed to do, but in deceiving the plaintiff out of his property, equity will grant the relief. When the parol agreement is the instrument or means by which one deceives and defrauds another, to his injury, it is unconscionable that he should retain the fruits of his acts, which in equity belong to another.

The claim here is, that an express trust arose out of the verbal agreement, which may be proved and enforced in Ohio, as this state has never adopted the provisions of the statute of frauds of 29 Car. 11, chap. 3, relating to declarations of trusts.

Without undertaking to define and limit the power of courts of equity to grant relief when fraud is alleged, or the extent to which a court will allow a parol contract to establish a trust in a deed absolute, we think it safe to say that, in all such cases, something more must appear than the mere breach of such parol agreement and the damages consequent on such breach. The facts disclosed should make it clear and convincing, that by the breach of such contract the party has acquired an unconscionable advantage, or that the parol agreement has been employed to deprive the other party of his property.

By our statute of frauds no action shall be brought to charge the defendant upon any contract concerning lands, unless the agreement upon which such action is brought, or some note or memorandum thereof, shall be in writing. This statute operates in equity as well as at law. But as this is a statute to prevent frauds, equity will grant relief — not allow it to be used as an instrument to promote fraud.

Fraud is so multifarious in its forms that it would be dangerous to attempt a definition of the powers of a court of equity in such eases. Each case depends upon its own facts and circumstances. It may be said, however, that in all such actions, the action is brought, not on the verbal agreement, but because of the bad faith, fraud, and injury in refusing to perform it. As in the case of a verbal -contract to sell land, equity only intervenes when it would be a fraud and injury not to enforce it. In such ease the chancellor will not permit a party to shield himself behind the statute.

Matthews v. Learner, 24 Ohio St. 615, is strongly relied on by plaintiffs in support of the claim that the parol agreement can be engrafted on the absolute deed, in this case.'

It was there held, that it was competent to establish by parol evidence, that an absolute deed was executed on the ■consideration, that the property conveyed was to be held in trust for the grantor and reconveyed on demand.

That was the case of a resulting trust coming within Lord Hardwicke’s third class, and the opinion so treats it.

The case was not placed on the mere ground of a breaeh •of an agreement to convey land, but on the fact that plaintiff had conveyed his property, and the trust assumed to hold and reconvey was the sole consideration.

It is said: x The trust does not arise on the mere agreement, but on the conveyance of the property for which the trust assumed was the sole consideration. The trust is not raised so much because of the fraud in the original acquisition of the property as in the subsequent refusal to execute the trust.”

In that ease the land belonged to the -plaintiff. He placed the legal title in defendant, and by verbal contract she was to recouvey on demand. She assumed the trust, .and it would have been unconscionable to allow her to retain the title thus acquired. Eor a breach of trust resulting in such injury to the plaintiff, when the defendant paid no consideration, the right to invoke equitable relief was ■clear. In that case the same equity arose as if the plaintiff had furnished the money to buy the land instead of furnishing the land itself.

In the case before us, as has been said, the only breach of the verbal contract consists in refusing to convey land bought with his own money. In such case, no resulting or ■constructive trust arises by operation of law, and there are no such acts of fraud as takes the case out of the 5th section of the statute of frauds. The agreement was to buy land in his own name, and convey it to plaintiff. Before consummating the purchase, he repudiated his agency, and. refused to act as a trustee for plaintiff^ by refusing to receive his money or to act for him. Wherein does this differ from a verbal agreement to convey land already purchased ?

In coming to this conclusion, w-e assume that parol evidence is admissible to establish an express trust in case,of a deed absolute, wherever to refuse it would operate to-deprive the party of his property in the land, to which by law or equity, he is justly entitled.

In the present case, while the defendant has been guilty of a moral wrong, a breach of faith' in not conveying the land, yet it is but the repudiation of a parol contract, which has misled no one to his injury, nor defrauded any one out. of his money or property. Eor this reason the judgment should be affirmed.

II. Assuming that we are in error in this, still the judgment must be affirmed for the reason that no adequate indemnity was offered the defendant against his notes and. mortgage. By the terms of the agreement he was not entitled to a conveyance until this was done.

Judgment affirmed.


author: Scott, J.

text:
    Fries v. Mack.
    1. The limitation of ten years prescribed by the 18th section of the code of' civil procedure, is not applicable to an action brought on a judgment rendered in another state or territory.
    2. Where an issue of fact is submitted to a jury, and, by their verdict, they find for the plaintiff or defendant, such verdict is to be regarded as a finding upon the issue joined between the parties.
    8. In an action for the recovery of money, if the verdict finds for the plaint- . iff, but its language is such that, when read in connection with the record, the amount assessed for the plaintiff can not be ascertained without reference to the evidence offered on the trial, no judgment can properly be entered on such uncertain verdict.
    Error to the Superior Court of Cincinnati.
    The original action was brought in the court below, in March, 1872, by defendant in error, upon the transcript of a judgment purporting to have been rendered by the district court of the first judicial district of the State of Kansas, on the 6th of February, 1860, against the plaintiff in ■error, and in favor of certain parties therein named, for the sum of $10,542.19; on which he avers in his petition that the sum of $3,314.15 was paid on the 20th of May, 1866; that this payment was only sufficient to pay the interest accruing on the judgment to the 1st day of May, 1865 ; that no further payments have been made thereon. Plaintiff further states that on the 17th day of February, i860, the said •judgment was, for a valuable consideration, assigned and transferred to Henry Mack; and that afterward, on the. 22d day of February, 1872, the said judgment was, for a valuable consideration, assigned to the plaintiff' by the said Henry Mack.
    For the principal of said judgment, with interest thereon from the 1st day of May, 1865, he thereupon asks judgment. The defendant below answered to this petition, as follows:
    “ I. The defendant, for a first defense to the petition of the plaintiff, denies that on the 17th day of February, 1860, or at any other time, the judgment sued upon by the plaintiff' was assigned and transferred to the said Henry Mack, and he denies that the said Heni’y Mack, or the plaintiff, has any interest in said judgment.
    “ II. And, for a second defense, the defendant denies that on the 26th day of May, 1866, or at any time, there was ■paid on said judgment by the defendant, the sum of $3,-314.15, or any other sum, and says that the cause of action set forth in the plaintiff’s petition, and for which relief is ■demanded therein, did not accrue within ten (10) years prior to the commencement of this action, wherefore he asks to-be hence dismissed with his costs.”
    The plaintiff demurred to the second defense, on the ground that the same was not sufficient in law, and the-court sustained his demurrer, leaving the issue to be tried as made by the first defense.
    At the March term, 1874, the case was tried by a jury, who returned the following verdict:
    “We, the jury, do find for the plaintiff the amount, $7,000, and interest from the date of the maturity of the seven notes of $1,000 each, given February 2, 1860, up to March 2, 1874.”
    Whereupon the defendant moved for a new trial, upon the following grounds:
    1. Because the verdict is not sustained by sufficient evidence.
    2. Because the verdict is contrary to law.
    3. Because the verdict is illegal in form, and uncertain and indefinite.
    4. Because the court erred in giving, upon the request' of the plaintiff, the second, third, and sixth written charges- or instructions to the jury on points of law.
    5. Because the court erred in its charge to the jury.
    This motion was reserved by the judge at special term for the consideration of the court in general term. At the-October general term, 1874, the case came on to be heard,, and the following entry was made:
    “ This day this cause came on to be heard upon the motion for a new trial, reserved on the law and the evidence-adduced at the trial, duly certified to this court, and was argued by counsel. On consideration whereof, the court doth overrule the said motion for a new trial; and the court, coming now to render judgment on the verdict of' the j ary rendered in the cause, find from the certified testimony that the seven promissory notes of $1,000 each, given February 2, 1860, and interest from the date of the maturity thereof, referred to by the jury in their verdict, and the amount of which said jury found for the plaintiff, the-same being the only promissory notes in evidence on the trial, are as follows :
    (10
    “ Cincinnati, February 2,1860.
    “ Four months after date, we promise to pay to the order of Henry Mack one thousand dollars, value received, payable at the Commercial Bank.
    “Friedenrich & Duerbeck.
    “ $1,000. Due June 2, 1860.
    “ Indorsed : Henry Mack, Leonard W. Mack.”
    (Then follow copies of six other promissory notes, each calling for $1,000, and of the same date and tenor as the foregoing, from which they differ only in this, that they are made payable, respectively, in five, six, seven, eight, nine, and ten months after date.) The entry then proceeds :
    “And that the said notes respectively matured June 5, 1860; July 5, 1860; August 4, 1860; September 5, 1860; October 5, 1860; November 5,1860, and December 5,1860 ; and that the amount thereof, including interest to the 2d day of May, 1874, is $12,666.18.
    “ It is therefore considered by the court that the plaintiff recover of the defendant the sum of $12,666.18, and interest from the 2d day of March, 1874, and his costs by him in this behalf expended, taxed at $-, and execution is awarded therefor.
    “ To which ruling, and to the making of said finding, or of any finding whatever by the court, and to said finding as made and to the entering of said judgment thereon, or of any judgment on said verdict, the said defendant, by his counsel, excepted, and caused his exception to be entered at the foot of said entry at the time the same was made; and, on motion, the execution awarded herein is stayed for thirty days.”
    The defendant below seeks to reverse this judgment, and assigns the following errors :

      First. That the court, at special term, erred in sustaining the plaintiff’s demurrer to the second defense

      Second. That the court, in general term, erred in overruling the motion for a new trial.

      Third. In making a new finding of fact.

      Fourth. In entering judgment.

      Harrison, Olds $ Marsh, for plaintiff in error:
    A judgment of a court of another state is not a specialty, and, by section eighteen of the code, an action thereon is barred in ten years. Tyler v. Winslow, 15 Ohio St. 364; Blackstone, 465; Chitty on Contracts, 2; Story on Contracts, 2; Todd v. Crumb, 5 McLean, 172.
    The verdict is bad, in that it does not respond to the issue. Moody v. Keener, 7 Port, 218; Steans v. Burrell, 1 Mason, 153, 170; Jewett v. Davis, 6 N. H. 518; Com. Dig. (Pleader) § 22; 11 Pick. 45; 3 Pick. 124; 2 Wheat. 221; 4 Howard (U. S.), 131.
    It is void for uncertainty. 1 Mason, 153; 4 Texas, 38; 25 Texas, 594; 18 Texas, 68 ; 1 Cush. 559 ; 4 Cal. 522.
    As to when a verdict may be refox’med by the court, see 13 Iowa, 474; 1 Peters, 626; 4 Porter, 198.

      E. A. Ferguson, also for plaintiff in ex’ror.

      David M. Hyman, for defendant in error :
    As to the statxxte of limitations, see Stockman v. Coleman, 10 Ohio St. 38.
    Is an action for debt upon a judgment an action for relief under section eighteen of the code ? See Neal v. Nash, 23 Ohio St. 483; 16 Ohio St. 552; 49 N. Y. 362.
    As to amendment of verdict, see 2 Tidd’s Pr. 901; 3 Bing. 334; 8 Pick. 415; 7 Mass. 358; 15 Mass. 374; 11 Pick. 125; 7 Howard’s Pr. 25 ; 3 Ohio, 384; 5 Ohio, 228; 9 Ohio, 131; 7 Wall. 565 ; 2 Abbott, 22; 52 Me. 33; 63 N. Y. 361; 48 Penn. St. 445; 1 Duval, 92; 38 Ind. 341; 2 G. & H. 206, § 338; 12 B. Mon. 506 ; 13 Iowa, 482 ; 12 Plow. (U. S.) 39; 16 Peters, 321; 10 Allen, 537; 12 Ohio St. 60 ; 19 Ohio St. 529.

      Hagans, Broad,well § Hyman, also for defendant in error.
   Scott, J.

The assignment of errors, in this case, presents two questions:

1. Did the court below err in sustaining the demurrer to the defense set up under the statute of limitations ?

2. Did the court err in entering judgment upon the verdict of the jury ?

"We shall consider these questions in their order.

The cause of action upon which suit was brought by ■plaintiff below was a judgment rendered by a court of record, of the State of Kansas. By way of defense, the •defendant pleaded that this cause of action did not accrue within ten years prior to the commencement of the action. The question, then, is, does the statute of limitations of this state limit the period within which an action may be brought upon a judgment rendered in a sister state to ten years ?

By the thirteenth section of the civil code, the limitation ■prescribed for an action upon a specialty, or any agreement, -contract, or promise in writing, is fifteen years. Sections fourteen, fifteen, sixteen and seventeen prescribe different ■periods of limitation for the various causes of action therein -enumerated, but in none of them is an action upon a judgment, or matters of record, specifically mentioned. Section -eighteen provides, in general terms, that: “ An action for relief, not hereinbefore provided for, can only be brought within ten years after the cause of action shall have accrued.”

The statute of limitations of 1881, like the statute now in force, limited actions upon a specialty, or any agreement, contract, or promise in writing, to fifteen years.” And, in the same section, it was provided, that: “ Actions not herein enumerated must be brought within four years after such right of action shall have accrued.” Under that statute, it was held by Judge McLean, that whilst a judgment is not a specialty, in the legal sense of that term, yet that an action upon a judgment of a sister state did not come within the bar of the general provision which limited -unenumerated actions to four years. He, therefore, held that the act of 1831 created no bar to an action on a judgment. Todd v. Crumb, 5 McLean, 172. In that case, the limitation of fifteen years, and that of four years, were both pleaded.

The supreme court of this state, in Stockwell v. Coleman, 10 Ohio St. 33, decided that a judgment of a justice of the peáee of another state “ is to be regarded as a specialty under the statute of limitations of this state.” That decision has never been overruled. The question in that case was, as in the case before us, whether the limitation of the general clause, providing for causes of action not enumerated, was-applicable to an action on such a judgment. The legislature of the state has acquiesced in that construction of the statute, for nearly twenty year’s, and it should not now be-overruled, without grave consideration. In Tyler’s Ex’rs v. Winslow, 15 Ohio St. 364, it was held that a judgment of a court of this state, is not a specialty within the meaning-of that term as used in the statute of limitations of 1831. But it was also held in that case, that the rendition of such a judgment, is not the accruing of a cause of action within the meaning of the statute; and, therefore, that none of the limitations of the statute were applicable to an action bi’ought on a domestic judgment.

The decision in this ease is notin direct conflict with the holding in Stockwell v. Coleman. The two cases may well stand together, although it must he conceded that the-reasons upon which the latter decision are placed by the-judge delivering the opinion, are not in harmony with the-views expressed in the former case, and strongly tend to-weaken its authority. But we think it unnecessary in this-case to reconsider the question whether or not a judgment rendered in another state is to be regarded as a specialty within the meaning of our statute of limitations. Eor, since the policy of the statute gives fifteen years, within which to bring an action on a simple contract in writing, it can not be supposed that it was intended to bar an action upon a judgment in a shorter time. Were we, therefore,, to hold that a judgment rendered in another state is not a-specialty, within the meaning of the statute, we would further hold that the rendition of a judgment, whether foreign or domestic, is not, in contemplation of the statute, the accruing of a cause of action; as was held in 1 odd v. Crumb,, supra, and in Tyler v. Winslow, with reference to domestic judgments. It is sufficient for this case, to say that we think that the court below did not err in holding that the-generaL limitation of ten years prescribed by the 18th section of the code, was not applicable to the case.

2d. It remains to consider whether the court erred in. entering judgment upon the verdict of the jury.

It is claimed by counsel for plaintiff in error, that the-verdict does not respond to the issue made by the pleadings. The main, if not the sole, issue joined between the parties, was upon the plaintiff’s ownership of the judgment upon which suit was brought. The language of the verdict is “we the jury do find for the plaintiff'” — and then it proceeds to state the amount to which they find him entitled. We think this must be understood as a finding for the plaintiff upon the issues joined between the parties. Even if there had been several distinct issues made by the pleadings, such a verdict would be regarded as a substantial finding upon all the issues. Calvin et al. v. The State, 12: Ohio St. 60.

But it is further objected to the verdict that it is too indefinite and uncertain to justify the rendition of the judgment which was entered upon it. And this objection we find it.difficult to answer to our own satisfaction.

If the meaning of the jury in their verdict is certain from its terms, or becomes so when read in the light afforded by the pleadings, of which it is the duty of the court to take judicial notice, and if the judgment is in conformity with their finding, it ought not to be set aside. The Supreme-Court of Kentucky has laid down the rule that: “ In considering the verdict itself, with a view to its sufficiency, the-first object is to ascertain what the jury intended to find, and this is to be done by construing the verdict liberally, with .the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings.” Miller v. Shackleford, 4 Dana, 271 And it has been said that every i*easonable construction is to be adopted in support of a verdict. There can also be no doubt that the maxim: “ Id certum, est, quod certum reddi potest,” is applicable to a verdict. Eor example, in a suit upon a promissory note, a verdict in favor of the plaintiff for the amount of the note in suit, with interest from its maturity, would be certain, because it could be made certain in amount, by any competent accountant. Burton v. Anderson, 1 Texas, 98; Stewart v. Campbell, 6 Iowa, 538.

There is no uncertainty in the verdict of the jury in this •case, except in the assessment of the amount to be recovered. The code requires that, “ when, by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of the recovery.” (Sec. 278.) The question, then, is: Do the terms of the verdict in this case render the amount assessed by the jury ascertainable with certainty ? The verdict is quite certain and definite as to the principal sum found due to the plaintiff. That is $7,000, on which the verdict gives interest up to March 2, 1874. The only uncertainty is as to the date or dates at which the computation of interest is to commence. The verdict awards “interest from the date of the maturity of the seven notes of $1,000 each, given February 2, 1860.” Seven promissory notes are here referred to and described by a statement of their respective amounts and date. The jury find, substantially, that there is due to the plaintiff $7,000, the aggregate principal of these notes, and interest on them from the time when they •respectively mature.

Rut the action was not brought upon promissory notes, nor were any such notes referred to in the pleadings, and •the verdict neither gives copies of them nor states the times at which they are respectively payable. "Was it then within the province of the court to identify the notes referred to by the jury, and ascertain the times when they severally matured, by reference to the evidence offered qn tbe trial ?

We are constrained to answer this question in the negative. The facts found by the court formed no part of the record, and were found only from the memory or minutes of the judge who tried the case. Without a knowledge of these facts, no one could tell from the verdict, considered. ftr se, or in connection with the record, from what time the jury intended the computation of interest to be made..

The court found, from facts outside of the record, that the jury intended by their verdict to refer to certain notes, which had been offered in evidence upon the trial. Perhaps they did so intend, though the verdict does not say so. The facts found in regard to it are neither expressed nor necessarily implied in its language. But, even if it had. been expressly stated in the verdict that the notes’therein referred to were the same which had been offered in evidence^ would it have been competent for the court to look to the evidence, or to any matter dehors the record, for the' purpose of fixing that which it was the sole province of thejuiy to determine ? We think not.

The judgment should follow as a logical sequence, from the issues of fact disclosed by the pleadings and the findings of the jury thereon. If the judgment is warranted, by the pleadings and verdict, it should be sustained; but if it has no such basis it can not be supported. In several cases cited by counsel for plaintiff in error, the very question now under consideration has been determined, in accordance with this principle.

In Smith v. Tucker, 25 Texas, 594, a part of the syllabus is a follows : “Where, in an action of trespass to try title,, the verdict of the jury found for the plaintiff, ‘ the laud described in the petition, less seven hundred and sixty-seven and a half acres, as described in the deed read in evidence from B. E. Hooper to C. M. Adams,’ and the-pleadings contained no description of the land conveyed, by that deed; Held, that the court could render no judgment upon such finding of the jury, because it could only ■do so by looking out of the record to the evidence given on the trial.”

So in May v. Lewis, 4 Texas, 38, it was held that a verdict which is not so certain that the court can give judgment upon it without looking out of the record to the ■evidence given upon the trial, will not support a judgment.

The same rule is laid down in Claiborne v. Tanner, 18 Texas, 68 (syllabus): “ There can be no clearer principle than that, where a jury has intervened, and all the issues have been submitted to their decision, their verdict must ■constitute the basis of the judgment. The court can not look to the evidence on which the verdict is found, in order to determine what judgment to render, but must look .alone to the verdict.”

In Fromme v. Jones, 13 Iowa, 474, it was held that, “ A verdict, defective in form, may be reformed by the court when the intention of the jury can be ascertained from ■data given in the verdict, or referred to in the pleadings; but the court can not supply an omission to name the .amount of the finding by reference to the evidence outside the record.”

See, also, McArthur v. Porter’s Lessee, 1 Peters, 626, and Lee v. Campbell’s Heirs, 4 Porter, 198.

These authorities, and the principle on which they rest, ■constrain us to say, that the verdict of the jury was too uncertain, as to the amount assessed in favor of the plaintiff below, to form a legitimate basis for the judgment entered upon it. And that it was not within the province of .a court to make it certain by reference to the evidence offered in the case.

Judgment reversed, and cause remanded.


text:
    Hodgson v. Barrett.
    1. In the case of an assignment hy an insolvent debtor for the benefit of creditors, the rights of the assignee in the property assigned are no greater than those of the debtor prior tó the assignment.
    2. Where goods are sold for cash, delivery and payment are concurrent conditions of the sale; and a delivery made in expectation of immediate payment is conditional only; so that if payment be refused, the vendor may reclaim the goods.
    ■3. Where payment is made by a check, drawn by the purchaser on his banker, this is a mere mode of making a cash payment, and not the acceptance of a security. Such payment is conditional only, and if the check upon due presentation is dishonored, the vendor’s right to retake . the goods from the purchaser remains in full force.

      4. Nov will such right be affected by a delay in presentment for four days, where the drawer has not sufficient funds in the hands of the drawee for the payment of the check, and no injury arises to the drawer from such delay.
    f>. Under such circumstances, the right of the vendor to rescind the contract will not be lost, as between the parties, by a delay in its exercise, which is not indicative of an election not to rescind, and is not to the injury of the other party.
    Error to tbe Superior Court of Cincinnati.
    Plaintiffs in error brought their action in replevin in the ■Superior Court of Cincinnati, against George W. Zeigler, ■sheriff of Hamilton county, to recover the possession of a barge load of coal, which had been levied upon by said sheriff, as the property of Haubold & Son, by virtue of an ■execution against them in favor of one William H. Brown.
    After the execution of the writ of replevin, Haubold & Son made an assignment under the state law. Subsequently, they were adjudicated bankrupts, under the act provi ding for a uniform system of bankruptcy throughout the United States, and John Barrett was elected their assignee.
    Ziegler never answered in the case. Barrett, assignee, by an order of the court, caused himself to be substituted as party defendant, and filed his answer, and Brown, the execution creditor, who had also been made a defendant was, by consent of parties, dismissed from the case before trial.
    The cause came on for trial at the March term, 1874, of the Superior Court of Cincinnati, on the following agreed statement of facts:
    “ It is agreed that the case shall be submitted upon the following statement of facts :
    “The plaintiffs were dealers in'coal, residing at Pitts-burg, Penn. On the 19th day of March, 1873, they sold and delivered, through their agents, Joseph Walton & Co., then in Cincinnati, to Haubold & Son, coal dealers in the latter-city, tbe barge load of coal, amounting in value to $1,-615.04, described in the petition, terms of sale being one-half cash, balance by promissory note at sixty days. On the day of the sale, Haubold & Son executed and delivered,, for the time payment, their note as follows :
    “ $807.52. Cincinnati, March 19,1873.
    “ Sixty days after date, we promise to pay to the order 'of Hodgson & Mort, eight hundred and seven and fifty-two-one hundredths dollars, at German Savings Institution of Cincinnati, 0., value received-.
    “ No. —. Due-. [Signed.]
    “ Haubold & Son.”
    And on the following day, for the balance of the purchase money, gave their check as follows :
    “ No. —. Cincinnati, March 20, 1873.
    “ German Savings Institution : Pay to Joseph Walton & Co., or order, eight hundred and seven and fifty-two one hundredths dollars.
    $807 52-100. [Signed.]
    “ 16,709. “ Haubold & Son.”
    “ Indorsed as follows : ‘ Joseph Walton & Co/ ‘ Pay H. Peachey, cashier, or order, for account of Farmers’ Deposit National Bank of Pittsburg, Pa. S. George, Jr., cashier/' Which check was accepted by the agents, the payees of the check, and forwarded same day to Pittsburg, which, on the day of its arrival, they placed in their (the agents’) bank for collection, and said bank, on the day of its deposit, forwarded same to its correspondent in Cincinnati, the Lafayette Bank, and on the 24th day of March, 1873, the day of its receipt by the Lafayette Bank, was presented for payment to the payer, the ‘ German Savings Institution,’ and! payment refused, and thereupon the check was protested for non-payment, and no part thereof has since, or ever,, been paid.'
    “ At the time the check was given, and at the date of its; presentation, Haubold & Son had in the German Savings; Institution the sum of $659.38-100, and no more, and nc further deposits were ever made by them, for the reason, that on the morning of the 21st day of March, 1873, che sheriff, by virtue of an execution against them, in favor of ~W. II. Brown, the defendant herein, levied upon all Of their personal property in trade, completely breaking up their business, and compelling them to make an assignment for the benefit of creditors, which was done on the 25th of March, 1873, by proceedings under the state laws, but the assignment was superseded by creditors filing, on the 1st of April, a petition in involuntary bankruptcy against Iiaubold & Son, and they were, on the eighth day of that month, adjudicated bankrupts, and the defendant, John Barrett, herein, was elected and qualified, and still is the assignee in bankruptcy. The assignee has never collected the said $659.38-100, the sum in bank to the credit of Haubold & Son at the date of the check, and at the date of the presentation of the check, nor any part thereof; hut the bank, after the proceedings in bankruptcy were commenced,, appropriated the amount towards satisfaction of a debt of its own from Haubold & Son.
    “ On the day preceding the filing of the petition in this cause, plaintiffs tendered to Haubold & Son the check and note, and requested delivery of the barge and coal, which was refused, as the latter was already in possession of the sheriff, under the execution and levy aforesaid.
    “ If the court shall be of opinion that the plaintiffs are entitled to judgment, the amount shall be for one cent and costs; if the defendant shall be entitled to judgment, the amount shall be sixteen hundred and fifteen and four hundredths dollars, and interest from the 29th day of March, 1873, and the cause shall be retained to determine which of defendants are entitled to the money.
    “ Hoadly & Johnson,

      Attorneys for Plaintiff.

    “ Moulton & Johnson, and J. Schroder,

      Attorneys for •Barrett.

    “ Since the foregoing was signed, it is agreed that W. H. Brown has been dismissed in this action, and has no further interest herein, so that if judgment is for defendants, it may be entered in favor of Barrett, assignee.
    “Hoadly & Johnson, Attorneys for Plaintiffs.

    “Moulton & Johnson, Attorneys for Barrett.”

    Judgment having been rendered, in special term, in favor of plaintiffs in error, defendants in error prosecuted their writ of error to the general term of the superior court, where the judgment below was reversed, and judgment entered for defendants in error, for the sum of $1,615.04, to reverse which judgment this writ of error is prosecuted.

      Hoadly, Johnson § Golston, for plaintiff in error:
    The delivery of the coal by plaintiffs in error to Haubold & Son was not absolute, but conditioned upon receiving immediate payment, and the title to the coal did not pass to Haubold & Son until payment; and the giving of a note on the day of sale for one-half the purchase-money, and a check representing the cash on the succeeding one, makes no difference. 23 Ohio St. 311; 2 Disney, 127; 24 N. Y. 139; 2 Keys (N. Y.), 646; 53 N. Y. 462; 16 Conn. 71; 2 Sup. Ct. Rep. 116.

      J. Shroeder, and Moulton, Johnson $■ Levy, for defendants in error:
    The title to the coal passed to Haubold & Son. 2 Kent’s Com. 496, 497; Haskins v. Warren, 115 Mass. 537; 3 Duer, 341; 8 Wend. 257; 6 Cowen, 110; 5 T. R. 231; 111 Mass. 453.
   Scott, J.

The question in this case is, whether, under the state of facts shown by the agreed statement, the title to the coal passed unconditionally with the possession to the vendees, in-virtue of the contract of sale and delivery; or whether, as between the parties, the vendors had a right to rescind the contract, and reclaim possession of the coal.

This controversy is virtually between the vendors and the vendees; for the rights of the defendant, Barrett, who is the voluntary assignee in bankruptcy of the vendees, are only those of his assignors. No question arises as to the rights of a bona fide purchaser for value.

The terms of sale were, one-half cash, and the other half by promissory note at sixty days. The delivery of the coal, .and payment therefor, were concurrent conditions of the sale. Plaintiffs could not demand payment till delivery, .and upon delivery they had a right to expect present payment. A delivery, under such circumstances, without more, is, in law, conditional; and if payment be not made, ■the vendor may resume possession of the thing sold. Wabash Elevator Co. v. First Nat. Bk. of Toledo, 23 Ohio St. 311, and authorities there cited; Benj. on Sales, §§ 592, 677.

We must, therefore, regard the delivery mentioned in the agreed statement as conditional only, nothing being stated which would give it a different character. The purchasers proceeded to the execution of the contract, on .their part, by making and delivering their promissory note for the deferred payment. Eor some unexplained reason, the cash payment was not made till the next •day. But we can not infer, from the mere fact that a night intervened before the cash payment was made, that the plaintiffs consented to waive their right to require present payment, or to resume possession of the barge and ■its cargo, if payment should be refused. Such temporary delay is quite consistent with the idea that the parties intended their respective rights to remain in statu quo, until payment should bo made. The burden is on the defendant to show that the plaintiffs waived any of their rights under the contract. On the next day the purchasers gave a check on their banker for the cash payment, and on the-following day became bankrupts. This was only a conditional payment, which would become absolute if the check was paid on presentation, or if presentation was unreasonably delayed to the injury of the drawers. The drawing" of this check was a false representation that the drawers-had funds sufficient to meet it, in the hands of the drawees; and its acceptance by plaintiffs’ agents was not an election to take security instead of cash. The law on this subject is thus stated by Mr. Benjamin, in his Treatise on Sales, § 781: “ But a man who prefers a check on a banker to-payment in money is considered as electing to take a-security instead of cash; for a check is accepted as a particular form of cash payment, and if dishonored the vendor-may resort to his original claim, on the ground that there-has been a defeasance of the condition on which it was-taken. But if a check received in payment is not presented within reasonable time, and the drawer is injured; by the delay, the check will operate as an absolute payment.” This doctrine is abundantly sustained by the authorities. Everett v. Collins, 2 Camp. 515; Smith v. Ferrand, 7 B. & C. 19; Pierce v. Davis, 1 Moody & Rob. 365; Hough v. May, 4 Ad. & Ell. 954; Small v. Franklin Minings Co., 99 Mass. 277; Weddigen v. Boston Flastic Fabric Co.,. 100 Mass. 422. And, on the latter point, Hopkins v. Ware, L. R. 4 Ex. 268; Smith v. Miller, 43 N. Y. 171.

The plaintiffs reside in Pittsburg, and their agents, in-Cincinnati, transmitted the check to that point, whence it was returned to a Cincinnati bank for collection, and thus a delay of four days occurred from the date of the check till its pr-esentation for payment. The drawees, for good cause, refused payment. The drawers had no funds in their hands, and were wholly insolvent. The drawees•were still solvent, and the drawers sustained no loss by the delay. "We can not infer, from the agreed statement, that the check would have been paid if it had been pre•sented on the day of its date. No state of facts is shown which would have justified the drawers in expecting that it would be honored. They had not then provided, and •did not afterward provide, means for its payment, and were otherwise indebted to the drawees. They had as•sumed to appropriate absolutely a sum of money in their banker’s hands, and have no right to complain that the ■plaintiffs’ agents believed in the existence of the fund, and •expected it to lie in the hands of the bankers till called for. Byles on Bills, 20 (6th ed.)

As between the parties then, upon the dishonor of the check, we think the plaintiffs were clearly entitled to re•sume possession of the coal. But, in the mean time, the •coal had passed out of the control of the purchasers, and was in the possession of the sheriff: the purchasers had ■made a voluntary assignment of all their property, and were wholly insolvent. Under these circumstances a delay of three or four days occurred before the dishonored •check and worthless note of the purchasers were tendered ■back, and a return of the coal demanded. Whether the plaintiffs’ agents, Walton & Co., were still in Cincinnati, or had left that place before the protest of the cheek, does not appear. Be this as it may, it would be the duty of the Cin•cinnati bank, which, had received the check for collection, to inform its correspondent, at Pittsburg, of its protest. Information of the fact would naturally reach the plaintiffs ■through a cireuitpus channel, and they would seem to have lost no time in going to Ci n cinnati, and asserting their rights. No such delay is shown as would ^manifest an election not to rescind; nor does it appear that Ilaubold & Son were,in :any way, injured thereby. 'It ought not, therefore, to affect the right of plaintiffs to treat the supposed payment by •chock as a nullity, and wholly to avoid the contract of sale.

The judgment of the court in general term will be re-versed, and that of the court in special term will be affirmed.