author: Price, J.

text:
    Stanfeal v. The State of Ohio.

      Barbering on Sunday — Payment of costs and fine for violation of Section 7033-1, Revised Statutes — Section 1536-793, Revised Statutes — Confinement of offender — Writ .of habeas corpus— Leave to amend mittimus — Validity of lazv prohibiting labor on Sunday.

    1. S. was tried and convicted by the mayor of an incorporated village, who had jurisdiction over the offense, for violating Section 7033-1, Revised Statutes, which prohibits the business of barbering on Sunday. He was sentenced to pay a fine of fifteen dollars and the costs of prosecution, and upon his refusal to pay the same, the mayor issued to the marshal of said village a mittimus, therein commanding that the prisoner be committed to the county jail until said fine and costs be paid, without including the words, “or secured to be paid,” as provided in Section 1536-793, Revised Statutes. Thereupon S. applied to a judge of the court of common pleas of the proper county for a writ of habeas corpus, and one was issued. As the authority for holding S. the said mittimus was submitted to the judge, who, being of opinion that the mittimus was defective because of the absence of said words, on application for that purpose, gave leave to the mayor to amend the writ so as to include said omitted words. The amendment was made accordingly, whereupon the petition for the writ of habeas corpus was dismissed.

      Held: It was not error to permit the amendment.
    2. Section 7033-1, Revised Statutes, is not in conflict with any provision of the constitution of this state.
    (No. 10805
    Decided March 3, 1908.)
    Error to the Circuit Court of Hamilton county.
    The history and facts of the case are stated in the opinion.

      Messrs. Kinkead, Rogers & Ellis and Messrs. Cogan & Williamsfor plaintiff in error.
    Our contention is that Section 7033-1, Revised Statutes, which makes it a misdemeanor to engage in the business of barbering on Sunday, and fixes a particular penalty for engaging in such business on such day, is violative of Section 2, Article I, of the constitution, in that it singles out a particular class of persons, without any reason for such selection, and regulates that particular class in the conduct of their business.
    We do not deny the power of the legislature to pass laws for the peace, safety, health and general welfare .of the state. Such laws have been classed as within what is called the “Police Power” of the state.
    We do not claim that a law applying to all alike and forbidding common labor on Sunday would be violative of any provisions of the constitution, but we do claim that this law singling out those who engage in the business of barbering, and providing a special penalty for them, as distinguished from all other persons in the state who engage in business, is violative of the principle set forth in the Bill of Rights. Coal Co. v. Rosser, 53 Ohio St., 12; State v. Gravett, 65 Ohio St., 289.
    The power of the legislature to enact laws for the peace, safety, health and morals of the community is undoubted, and its right to enact what is called “class legislation” in pursuance of the police power is conceded, but such law, to be valid must be based upon some existing distinction or reason not applicable to others not included within its provisions; distinctions in these respects must rest upon some reasons upon which they can be defended. Darcy v. San Jose, 104 Cal., 642; State v. Granneman, 132 Mo., 326; Coal Co. v. People, 147 Ill., 66; State v. Iron Co., 51 Ohio St., 632.
    In accordance with these principles the following cases have held that laws limited to barber shops and providing a penalty for those persons conducting them on Sundays are unconstitutional. Ex parte Jentzsch, 112 Cal., 468; Eden v. People, 161 Ill., 296; Tacoma v. Krech, 15 Wash., 296.
    By a reference to the law, Section 7033-1, it will be seen that it provides that a person violating the law shall, upon conviction, be fined not less than fifteen dollars. No maximum penalty is fixed. Under such a law as this any penalty over fifteen dollars is allowed. Drake v. State, 5 Tex. App., 649; Chiles v. State, 2 Tex. App., 36.
    The statute, therefore, is to be considered just as though it directed the court to impose a fine of from fifteen dollars to any sum that might be suggested. Such a law is unconstitutional because it violates that provision of the constitution (Section 9 of the Bill of Rights) which provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
    The mayor of Hartwell had no jurisdiction to make the commitment to jail “until the fine and costs should be paid.”
    The only authority of the mayor was to sentence the prisoner to pay a fine and to be imprisoned until the fine should be paid, or secured to be paid. Section 1536-793, Revised Statutes.
    It was error for the common pleas court in the habeas corpus proceeding to permit any change in the commitment under which the petitioner for the writ was held, or consider the commitment in any other form than as it stood at the time of the application for the writ of habeas corpus.

    The only question before the court on the habeas

      corpus proceeding was whether the prisoner was properly held under the commitment as it stood at the time the application for the writ was made. The court was of the opinion that as the writ then stood, the prisoner should be discharged, and this opinion was certainly correct. This being the case, there was nothing further for the court to do but order the prisoner to be discharged. The court could consider only those entries which were made before the case was presented on the application for the writ of habeas corpus. In re Tims on, L. R., 5 Exch., 257; Rex v. Catteral, Fitz-Gibbons, 266, 6 Maule’s & Selwyn’s, 83; Ex parte Kearby, 35 Tex. Crim. App., 634; Ex parte Page, 49 Mo., 291.
    The sentence or commitment can be altered or modified after the return of the writ is filed. Hathcock v. State, 88 Ga., 91; State v. Framness, 43 Minn., 490.

      Messrs. Bates & Meyer, for defendant in error.
    The following cases show how perfectly our supreme court is in accord with the accepted rule, sustaining the constitutional power of the legislature to pass a Sunday statute directed against a particular occupation. Pettit v. Minnesota, 177 U. S., 164; People v. Bellef, 99 Mich., 151, 22 L. R. A., 696, 41 Am. St. Rep., 589, 57 N. W. Rep., 1094; State v. Petit, 74 Minn., 376, 77 N. W. Rep., 225; Ex parte Lucas, 16 Mo., 218; People v. Havnor, 149 N. Y., 195, 31 L. R. A., 689, 52 Am. St. Rep., 707, 43 N. E. Rep., 541; Ex parte Northrup, 41 Ore., 489, 69 Pac., 445; Breyer v. State, 102 Tenn., 103, 50 S. W. Rep., 769; State v. Sopher, 25 Utah, 318, 60 L. R. A., 468, 71 Pac., 482;
      State v. Bergfeldt, 41 Wash., 234, 83 Pac., 177; State v. Powell, 58 Ohio St., 324, 41 L. R. A., 854; Brown v. State, 38 Ohio St., 374; State v. Hogan, 63 Ohio St., 202.
    All the above are on barbering statutes, deciding not only the particular law to be valid, but also directly or impliedly the right to enact that barbering is not a work of necessity, as does also Commonwealth v. Waldman, 140 Pa. St., 89, 11 L. R. A., 563, 21 Atl., 248. Also State v. Frederick, 45 Ark., 347, 55 Am. Rep., 555, holding that the court will judicially notice that it is not a work of necessity, and hence the negative averment was properly omitted from the indictment.
    In the same line, though not so specifically in point, are the following: State, ex rel., v. Justus, 91 Minn., 447, 98 N. W. Rep., 325; Liberman v. State, 26 Neb., 464, 18 Am. St. Rep., 791, 42 N. W. Rep., 419.
    A statute which enacts that an offense shall be punished by fine is not rendered unconstitutional by the fact that it does not prescribe the maximum amount of fine'which may be imposed.
    Acts failing to fix a maximum penalty were sustained in the following cases: Frese v. State, 23 Fla., 267; Cornelison v. Commonwealth, 84 Ky., 583; In re Yell, 107 Mich., 228; Atchison v. State, 13 Lea (Tenn.), 275; Pressly v. State, 114 Tenn., 534; Express Co. v. Commonwealth, ex rel., 92 Va., 59, 41 L. R. A., 436, 22 S. E. Rep., 809.
    In no case is an unqualified release granted for improper sentence after a proper conviction, courts merely differing in their mode of getting at the correction; some by allowing, resort pnly to error and not to habeas corpus, others by sustaining the habeas corpus, but ordering the prisoner held for a new and proper sentence; and others themselves making the correction which the trial court should have made. In re Bonner, 151 U. S., 242; Ex parte Van Hagan, 25 Ohio St., 426; In re Bishop, 172 Mass., 35; In re Butler, 138 Mich., 453, 101 N. W. Rep., 630; In re Nolan, 68 Kan., 796, 75 Pac., 1025; Seller’s Case, 186 Mass., 301; Burns v. Tarbox, 76 Ohio St., 520; Ex parte Evans, 42 W. Va., 242; State, ex rel., v. Miesen, 98 Minn., 19, 106 N. W. Rep., 1134, 108 N. W. Rep., 513; People, ex rel., v. Kelly, 97 N. Y., 212; In re Harris, 68 Vt., 243; Eaton v. State, 15 Lea (Tenn.), 200; In re Sullivan, 5 R. I., 27; In re Gibson, 31 Cal., 620; Ex parte Branigan, 19 Cal., 133; In re Fil Ki, 80 Cal., 201; State, ex rel., v. Foster, 109 La., 587; Coleman v. Nelms, 119 Ga., 307.
   Price, J.

The plaintiff in error was arrested on a warrant issued by the mayor of the village of Hartwell, on a charge of having unlawfully engaged in the business of barbering in the city of Cincinnati, on Sunday, the 29th day of July, 1906. He was arraigned, and on his application the case was continued to a future day, and by consent other continuances were granted, so that November 26, 1906, was fixed as the day of trial. The defendant then moved for a dismissal of the charge for want of jurisdiction in the mayor, which was overruled. He then moved to quash the affidavit and warrant because the affidavit did not state facts sufficient to constitute a crime. When this motion was overruled, he filed a demurrer, which was also overruled. Exceptions were taken to these several rulings. Trial was had and the accused was found guilty and sentenced to pay a fine of fifteen dollars and the costs of prosecution.

Refusing to pay, the mayor issued a mittimus directed to the marshal of said village, commanding him to commit Stanfeal to the jail of said Hamilton county until said fine and costs were paid. Thereupon Stanfeal applied to one of the judges of the court of common pleas of said county for a writ of habeas corpus, alleging in his application that he was illegally restrained and deprived of his liberty by the said marshal. A writ was allowed to issue, and Stanfeal was taken by the sheriff of said county before another judge of said court, in pursuance of the command of said writ. On production of the mittimus under which the marshal was holding the prisoner, it appeared that he was committed to.the jail of the county “until said fine and costs are paid.” Holding that the order of commitment was in excess of the authority of the mayor, the court allowed the mayor to amend the mittimus so as to commit the prisoner until said fine and costs are paid “or secured to be paid.” This amendment was made. The case was then heard on the petition for the writ, no evidence being offered except the amended mittimus, and the petition was dismissed.

Error was prosecuted by Stanfeal in the circuit court where the judgment of dismissal was affirmed. He now prosecutes error in this court to reverse both judgments.

The plaintiff in error submits four reasons why the plaintiff in error should have been discharged on his petition for habeas corpus, which are, though not in the order he arrays them:

(1) The mayor of the village of Hartwell “had no jurisdiction to make the commitment to jail until the fine and costs should be paid.”

(2) “That is was error for the common pleas court in the habeas corpus proceeding to permit the change in the commitment under which the petitioner for the writ was held; or to consider the commitment in any other form than as it stood at the time of the application for the writ of habeas corp%is.”

(3) “That the statute (Section 7033-1) is unconstitutional because it provides for a minimum fine without providing for a maximum fine.”

(4) “That the statute (Section 7033-1) making it a misdemeanor to engage in the business of barbering on Sunday, is unconstitutional, because it is class legislation.”

(1) That the mayor of Hartwell had jurisdiction over the offense charged against Stanfeal can not be successfully disputed. Hartwell is an incorporated village in Hamilton county, and it was alleged in the affidavit that the offense was committed in Hamilton county, and in case of misdemeanors, the jurisdiction of a mayor of such villages is co-extensive with the county. Section 1536-777, Revised Statutes.

The record discloses that after Stanfeal had been found guilty of violating the Sunday statute, he was fined fifteen dollars and adjudged to pay the costs of prosecution. These he refused to pay, and a mittimus was issued by the mayor and delivered to the marshal, commanding that said Stanfeal be committed to the county jail “until discharged by due course of law.” But in the recitals of the writ it is said that the prisoner had been sentenced “to pay a fine of fifteen ($15) dollars and also eight ($8) dollars and five (5) cents, the costs therein taxed, and to be imprisoned in the jail of said county until said fine and costs are paid.” It was claimed before the judge to whom the petition in habeas corpus was presented, that the prisoner should be discharged because the mayor had no authority to order imprisonment until the fine and costs were paid.

As we have seen, this judgment did not order the imprisonment or the committal until such payment should be made. But the order was contained in the mittimus. When we' look to Section 15 36-793, Revised Statutes, we find it provided that, “when a fine is the whole or part of a sentence, the court, mayor, or president of the board of trustees, may order that the person sentenced shall remain confined in the county jail, work-house, or prison, until the fine and costs be paid, or secu,red to be paid, or the offender be otherwise legally discharged.” The clause, “or secured to be paid,” was not in the mittimus, and its amendment was suggested.

It was amended to conform to the statute last referred to, and oh further hearing the petition for the writ of habeas corpus was dismissed. The proceedings touching the amendment were excepted to. Was error committed in this particular?

Section 5729, Revised Statutes, which is a part of the chapter on habeas corpus, provides: “If it appear, that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or, if the jurisdiction appear after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order.”

In this case, after the writ had been allowed, as we assume from the record, either by amendment of the first mittimus or by a new mittimus, it appeared that the mayor's order was within the law pertaining to his jurisdiction. The prisoner could secure the payment of the fine and costs if not able or willing to pay. In such case we think the prisoner should not be discharged, for it is not the policy of our law to sanction the discharge of prisoners on defects, in the proceeding which occur after sentence, and in an effort to carry it into execution. The amendment, or the new mittimus, as the case may have been, violated no fundamental right of the prisoner, but tended to afford a legitimate means of vindicating the law, which he was found to have violated. The punishment of the guilty rather than their escape, seems to be the purpose of all penal statutes. See In re Bonner, 151 U. S., 242; Ex parte Van Hagan, 25 Ohio St., 426.

In several cases this court has set aside an excessive sentence and remanded the case to 'the trial court for re-sentence, and a judge in habeas corpus proceedings, where a valid judgment exists, may allow correction of the process issued thereon. We find no error on this branch of the case.

(2) What we have already said on the first point fully answers the second and we will not repeat the discussion.

(3) and (4) Inasmuch as points three and four are kindred in character, they will be considered together. It is said that Section 7033-1, Revised Statutes, is unconstitutional because it is class legislation, and because it provided for a minimum without providing for a maximum fine.

The section referred to reads: “Any person who engages in the business of barbering on Sunday shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifteen dollars, and upon a subsequent- conviction for a like offense shall be fined not less than twenty dollars and not more than thirty dollars, or imprisoned in the county jail for a period of not less than twenty days nor more than thirty days, or be both fined and imprisoned at the discretion of the court.”

Serious fault is found in this statute because there is no maximum penalty fixed for the first offense, and it is true that in the exercise of legislative wisdom a maximum penalty for a first offense was not thought of. However, it did come to mind when the next sentence was written fixing both minimum and maximum penalties for a subsequent offense. We are informed the law is bad on this account, because for a first offense there is no limit in the ascending scale of fines to which the court may not go. But we have no case before us where such liberty was taken. The minimum fine was assessed, and we should not overturn a statute and hold it void because it is possible that some time in some other case, a court may impose an excessive or unreasonable penalty. The abuse of judicial discretion should not be anticipated where, for a subsequent offense, the statute fixes reasonable minimum and maximum penalties. The court would not be tempted to inflict a more severe penalty on the first breach of the law than is permitted in case of a subsequent breach of like kind. The law is not bad on that ground.

The more important question is made against it on the ground that it is class legislation and does not except from its operation those who conscientiously observe the seventh day of the week as Sabbath; nor does it except works of necessity and charity. A brief review of so-called Sunday legislation, in its different stages, may aid in determining the controversy in the case before us. From a very early day, it was considered by the general assembly to be necessary to provide for the observance of the Sabbath day. While actuated perhaps by a sense of religious duty on the part of some members of that body in enacting laws upon the subject, this court construed the Sunday law as a police regulation. In Bloom v. Richards, 2 Ohio St., 388, it was held that prohibiting common labor on the Sabbath could not stand for a moment as the law of this state if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty; that it is to be regarded as a mere municipal or police regulation, having no connection with religion, and whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day. The same view was taken in McGatrick v. Was on, 4 Ohio St., 566. These decisions were rendered under the early statute then still in force, being the act passed February 17, 1831. See S. & C, 447. It prohibited any person of the age of fourteen years, or upward, from sporting, rioting, quarreling, hunting, fishing, shooting, or performing common labor on the first day of the week, commonly called Sunday, excepting works of necessity and charity only. And it provided that nothing in the act should be construed to extend to those who conscientiously do observe the seventh day of the week as Sabbath. For a violation .of the act the convicted party should pay a fine not exceeding five dollars nor less'than one dollar.

Thus the law stood until March 30, 1864, when the act was amended in some respects. See 61 O. L., 104. The amending act made the penalty for sporting, rioting, quarreling, hunting, fishing, or shooting on Sunday a fine not exceeding twenty dollars, or confinement in the county jail not exceeding twenty days, or both. The fine for common labor was left the same, and the same exceptions as to works of necessity and charity, etc., were incorporated. Afterwards a part of said statute became Section 7032, Revised Statutes, and April 9, 1881, Section 7032a was enacted and present Section 7033 is now a separate provision, but all of them have a common root. 93 O. L., 358.

It is to be noted that the amendment enlarges the penalties which may be inflicted and extends the field of. its operation, which is apparent from its language. The same exceptions are found here that were made in former provisions. This is sufficient as summary of the general law enacted to regulate the observance of the Sabbath day.

We now come to a -consideration of Section 7033-1, which appears earlier in this opinion, and which relates to the business of barbering on Sunday. The first act on the subject was passed April 12, 1892, and its title was: “An act to prohibit barbering on Sunday.” A violation of the act was made punishable by a fine of not more than five dollars, and on conviction for a like offense, the fine should be not less than ten or more than twenty-five dollars, or imprisonment in the county jail for not less than five days nor more than ten days, or both fine and imprisonment might be imposed. See 89 O. L., 252. This was amended March 14, 1893, so as to produce the present Section 7033-1. See 90 O. L., 79. An increase in the penalties is the distinct feature of the amendment.

While the statutes making the business of barbering on Sunday illegal appear, not as amendments to the general laws theretofore existing, but in the form of independent enactments, still they relate to the same subject, to-wit, the observance of Sunday, and are to be regarded as in pari materia with the general laws' upon the same subject, and it is worthy of note that both classes of the Sunday laws we have quoted or given in substance, seemed to recognize that their violation was becoming more frequent and persistent, and that heavier penalties must be imposed. This fact is disclosed in every amendment made in the general Sunday law, and also in the amendment to the law against barbering. The lax observance of the day has been growing apace during past years, notwithstanding more stringent regulation and more severe penalties. Therefore, the legislature in the exercise of its police-powers, has not only specified common labor as prohibited, but particular conduct on that day has been penalized, and when it became common for barbers to be a law unto themselves and keep open shop on Sunday, the legislature, by Section 7033-I, supra, declared that particular business illegal on that day, so that barbers might understand that their work was not one of necessity or charity, but within the list of things prohibited. Hence, we must consider all the Sunday legislation when we decide the claim of class legislation.

It is more than probable that before the first statute, the business of barbering on Sunday was regarded as, or was claimed to be a work of necessity, if not charity, and was within the exemption provided in the Sunday law. It may have been urged when one was charged with performing common labor by shaving persons as a business on that day, that such labor was a work of necessity as society was then constituted and business conducted. By the act here involved, in its first and present form, that question is put beyond dispute, and the legislature, in place of recognizing that business as a work of necessity or charity, has declared it to be a misdemeanor, and what was before a question of fact to be determined, is now settled and the law says it is neither. To settle all disputes on the facts was the purpose of this act and the same observation can be made of Section 7032, supra, and 7032a, supra. In one of these sections the legislature has specified certain sports and other acts as illegal on Sunday; and in the other section is quite a list of amusements and occupations which are prohibited on the Sabbath. Anyone engaged in such amusements or sports might complain that the laws against them are class legislation, because they are selected among the occupations of men in general, and made the target of penal legislation. But under the police powers necessarily vested in the legislature, no one has yet shaken their constitutional validity.

Similar legislation in other states has been assailed and tested in the courts of last resort. Some of the adjudications are cited in brief of defendant in error. We select one case as a fair representative of many others. In State v. Petit, 74 Minn., 376, it is shown that Petit was tried and convicted on a charge of keeping open a barber shop on Sunday. He objected to the introduction of any testimony under the charge, because it alleged no crime under the laws of Minnesota, and that the law upon which the charge was made contravened the state and federal constitutions. The statute of that state provided that, “all labor on Sunday is prohibited, excepting the works of necessity or charity. In works of necessity or charity is included whatever is needful during the day for good order, health or comfort of the community; provided, however, that keeping open a barber shop on Sunday for the purpose of cutting hair and shaving beards shall not be deemed a work of necessity, or charity/’ As a summary of the decision the syllabus says: “The state may, as a police regulation for the promotion of the physical, mental and moral welfare of its citizens, establish as a civil and political institution, the first day of the week as a day of rest, and prohibit the performance upon it of all labor or business except works of necessity or charity.”

It was further held that the statute was not obnoxious to the objection of being “class legislation,” because it declares that as a matter of law, keeping open a barber shop on Sunday, for the purpose of hair-cutting and shaving, is not a work of necessity or charity, while as to other kinds of labor or business, it leaves that question to be determined as one of fact.” In the opinion, by Mitchell, J., it is said in substance, that the legislation proceeds upon the theory, entertained by most of those who have investigated the subject, that the physical, intellectual and moral welfare of mankind requires a periodical day of rest from labor, and as some particular day 'must be fixed, the one most naturally selected is that which is regarded as sacred by the greatest number of citizens, and which by custom is generally devoted to religious worship, or rest and recreation, as this causes the least interference with business or existing customs.

The above case was taken to the supreme court of the United States and its decision is found in 177 U. S., 164, where the judgment of the supreme court of Minnesota was affirmed in a learned opinion by Chief Justice Fuller.

We have examined the following cases, and find them supporting the preceding adjudications: Breyer v. State, 102 Tenn., 103; People v. Haynor, 149 N. Y., 195; People v. Bellet, 99 Mich., 151; Ex parte Northrup, 41 Ore., 489; State v. Bergfeldt; 41 Wash., 234. There are many like cases not necessary to be cited.

If anything is urged against the law because it does not except the rights of those who conscientiously observe the seventh day of the week as Sunday, it is suggested that Section 7033-1 is a part of the general legislative scheme to regulate the observance of Sunday, in which such exception is provided. Besides, the plaintiff in error has not asserted that he belongs to the class who observe the seventh day of the week as Sunday, and therefore is not in position to assert the invalidity of the statute because of a lack of such exception.

We conclude that the judgment of the lower court should be and it is affirmed.

Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Shauck, C. J.

license: Public Domain

text:
    The City of Ironton v. Wiehle.

      Demurrer to amended petition — Petition considered as though no ■ former petition filed, when — Time allowed before beginning suit for damages — Section 2326, Revised StaUites — Restricted to action for damages from street improvennents — Does not include damages for nuisances.

      1. An amended petition, neither purporting to be an amendment of the original petition nor containing any reference to its allegations, should, on demurrer, be regarded as though no former petition had been filed in the case. (Raymond v. Railway Co., 57 Ohio St., 271, approved and followed.)
    2. The provision of Section 2326, Revised Statutes, that, “No person who claims damages, arising from any cause, shall v commence a suit therefor against the corporation until he files a claim for the same with the clerk of the corporation,” etc., must be restricted to the subject-matter of the legislation and regarded as including such damages only as will obviously result from a street improvement. It does not include damages for a nuisance created and maintained by a municipality.
    (No. 10465
    Decided March 3, 1908.)

      Error to the Circuit Court of Lawrence county.
    The defendant in error brought suit in the court of common pleas to recover from the city of Ironton on account of injuries to his real estate in said city, resulting from the construction by the city of a defective and inadequate water-way for the passage of water of a flowing stream under Pine and Sixth streets in said city, near whose intersection his lots were situated. In his amended and supplemental petition he alleged that the city had interrupted the natural flow of said stream by constructing such artificial channel, that it thereby assumed and exercised control over the waters of the stream and by reason of the inadequacy of said water-way and its improper and negligent construction and maintenance, the city permitting it to become obstructed by sand and gravel, said waters were in times of freshets thrown upon the property of the plaintiff damaging it to the extent of five thousand dollars, for which he prayed judgment. In a former petition filed in the same cause, plaintiff had alleged that the city had constructed said artificial waterway as a part of a plan which it had adopted for the improvement of Sixth street, for which it had taken the preliminary steps required by law, as well as the steps for the assessment of the costs of said improvement upon the property abutting upon the street. These averments were omitted from the amended and supplemental petition. To the amended and supplemental petition the city demurred and its demurrer was sustained, and a final judgment was rendered in its favor. On petition in error the circuit court reversed the judgment of the court of common pleas and remanded the cause to that court for further proceedings.

      Mr. A. J. Layne, City Solicitor, and Mr. R. B. Miller, for plaintiff in error.

      Mr. P. 'C. Booth and Mr. J. O. Yates, for defendant in error.
   Shauck, C. J.

It is said that the petition failed to state a cause of action because the plaintiff's claim was for damages resulting from the making of a street improvement, and it was not alleged that the plaintiff had, before the bringing of the suit, filed his claim with the proper officers of the city as required by the law governing such cases. But the amended petition was complete within itself. ‘ It did not purport to be an amendment to the former petition, nor did it by reference’ adopt any of its allegations or aver that the claim was for damages resulting from a street improvement. The former petition having been abandoned, it can not be referred to in determining the character of the action. Raymond, v. Railway Company, 57 Ohio St., 271.

But it appears that in the further progress of the case the effect of the facts alleged in the original petition must be determined. Those facts are, that the city took the prescribed steps for the improvement of Sixth street by grading and paving, and the construction of drains and sewer according to plans, specifications and profiles which had been prepared and approved, and for assessing the cost of the improvement upon the abutting property which included the property of the plaintiff. As an incident to said improvement, the city at a point near to, but not in front of the plaintiffs premises, changed the natural channel of a flowing stream of water by constructing an underground way therefor'and constructed the same with insufficient space for the passage of the stream, and thereafter permitted the space provided to become and remain obstructed, by reason whereof the water of the stream overflowed his premises occasioning injury thereto, on account of which he seeks to recover. It is not alleged that a claim on account of such injury was filed with the city before the bringing of the suit, and that omission, counsel for the city say, is fatal to the petition, because of the provisions of Section 2326, Revised Statutes. The pertinent provision of the section is, “No person who claims damages, arising from any cause, shall commence a suit therefor against the corporation until he files a claim for the same with the clerk of the corporation, and sixty days elapse thereafter, to enable the corporation to take such steps as it may deem proper to settle or adjust the claim * * This provision in words not materially different was introduced into the legislation of the state by .the act of May 7, 1869, it being Section 575 of that act (66 O. L., 247). It provides that: “No claimant for damages shall commence any suit until he shall have filed a claim therefor with the clerk of the corporation, and sixty days have elapsed thereafter * * /As was shown in the case of ■ the City of Warren v. Davis, 43 Ohio St., 447, the different language employed in the revision does not change the meaning or scope of the original section. This conclusion resulted from the application to the case of the doctrine previously announced in the State, ex rel., v. The Commissioners of Shelby County, 36 Ohio St., 326, that changes in the words employed in the revision of statutes will not justify a change in their interpretation, unless it is plainly required to conform to the manifest intention of the legislature in making the revision. It can not be supposed that either in the original enactment or in its revision there was in contemplation all the numerous duties of municipalities or the liabilities which, in all conceivable contingencies, might arise from their defaults; and it follows that the damages in contemplation must be deemed to be such only as arise from the subject-matter of the legislation. The subject-matter of the legislation is street improvements. The ultimate point decided in Warren v. Davis was that this legislation did not include damages for a personal injury resulting from the negligent construction of a street. The injury for which the plaintiff below in the present case sought to recover, did not arise from' a change of grade in front of his property so as to interfere with his means of ingress and egress thereto, nor for any other result that would obviously and naturally follow the making of the improvement. The plaintiff’s action is to recover damages from the city for a nuisance occasioned by it. According to the allegations of the pleadings it not only failed to make adequate provision for the carrying away of the water, whose natural flow it had obstructed and diverted, but the inadequate provisions which it did make were permitted, by its continued neglect, to become obstructed and still more inadequate by reason of accumulations of sand and gravel. The plaintiff's action is, therefore, simply for a continuing nuisance, and that can not be regarded as included in the legislation referred to any more than could an action for a personal injury.

The circuit court properly determined that the petition states a cause of action and its judgment will be

Affirmed.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Bloor v. Platt et al.

      Any person interested, may contest will — Judgment creditor obtaining lien on property — Coming to defendant heir in absence of will — May contest validity of will under Section 5858, Revised Statutes — Probating substance of alleged lost will — Question of evidence — Nature of interrogatories — What court may charge jury — Law of wills.

    x. A judgment creditor of an heir, who has obtained a lien by levy on property, which in the absence of a will would be the property of the debtor heir by descent, is a person interested in a will or codicil, within the meaning of Section 5858, Revised Statutes, and therefore has legal capacity to prosecute an action to contest the validity of an alleged will disposing of such property to a person other than such heir.
    2. Where, upon application to the probate court, it was alleged that a will was in existence after the death of the testatrix and was lost, and a paper alleged to contain the substance of the lost will was admitted to probate, and in proceedings to set aside such probate the jury returned a verdict that the paper was not the last will and testament of the testatrix, and, at the same time, returned answers to special interrogatories as follows: “Was the paper writing claimed by defendant to be the last will and testament of C. signed by her? Answer: . Don’t know. Was it signed in her presence by two subscribing witnesses? Answer: Don’t know”; such answers are not inconsistent with the general verdict.
    3. In such case it was not error to charge the jury that, “If no other or further proof were given in respect to the will or its contents, it being shown that the original will was lost after the death of the testatrix without fault of the defendants as beneficiaries, and at the time of the death of the testatrix it had not been revoked, the defendants would be entitled to your verdict,” especially when such instruction is considered with the context.
    (No. 10514
    Decided March 24, 1908.)
    Error to the Circuit Court of Richland county.
    The material facts are stated in the opinion.

      Mr. C. H. Workman, for plaintiff in error, and Messrs. Cummings, McBride & Wolfe, on the same side, for defendant in error, The Mt. Clemens Savings Bank.
    Plaintiff had capacity to sue, he being a judgment creditor of B. F. Platt, although he is not an heir at law of said Charlotte Spice, or a legatee or devisee under her alleged will. Section 5858, Revised Statutes; Page on Wills, Section 325; Smith v. Bradstreet, Exr., 16 Pick., 264; In re Lagevin, 45 Minn., 429; Watson v. Alderson, 146 Mo., 333.

      Messrs. Donnell, Marriott & Bissman, for defendants in error.
    The plaintiff has no right to contest, although he has procured a judgment against B. F. Platt and levied on the real estate of Charlotte Spice prior to the probating ot her will. Montgomery v. Foster, 91 Ala., 613; Shepard’s Estate, 170 Pa. St., 323; Stapler v. Hoffman, 1 Dem. Surr., 63; Heilman v. Jones, 5 Redf. Surr., 398; In re Brown, 47 Hun, 360.
   Davis, J.

It will appear from the record in this case that Benjamin F. Platt, one of the defendants, is the son and only heir at law of Charlotte Spice; that Charlotte Spice died by her own hand on the 15th day of July, 1904; that on March 24, 1905, the defendant, Almira E. Platt, wife of Benjamin F. Platt, made application for the probate of an alleged lost will of Charlotte Spice; and that on May 31, 1905, said lost will was admitted to probate, establishing the contents thereof to the effect that all of the property of the testatrix was devised and bequeathed to Almira E. Platt, with direction that Benjamin F. Platt should receive a kind and liberal support during his natural life. After the death of Charlotte Spice and before the will was admitted to probate, the plaintiff, who was already a judgment creditor of Benjamin F. Platt, caused a levy to be made on the real estate of which Charlotte Spice died seized, as the property of Benjamin F. Platt; and likewise did another judgment creditor of Benjamin F. Platt, The Mt. Clemens Savings Bank. In an action to marshal the liens and sell the real estate so levied upon, the court of common pleas found the priorities and decreed the sale' of the property, and an order of sale was issued to carry the decree into effect. The sheriff had caused the lands to be duly appraised, when he was stopped from further proceedings under the writ by an injunction and the probate of this will. Thereupon the'plaintiff brought this action to set aside the will.

The defendant Almira E. Platt demurred to the petition on several grounds, one of which was that the plaintiff had no legal capacity to sue; and although the circuit court found no error in this respect, she ■ still insists upon it here, as she has a right to do.

In an act defining the jurisdiction of the probate court (51 O. L., 167; 2 S. & C., 1216), it was provided that “when a will is admitted to probate in the probate court, or court of common pleas on appeal, any person interested shall have a right to contest its validity.” In the revision of the statutes of 1880, the language used to express the same privilege is as follows: “Sec. 5858. A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest the validity thereof,” and so it remains to the present time. Section 5859, Revised Statutes, provides: “All the devisees, legatees and heirs of thek testator, and other interested persons, including the executor or administrator, must be made parties to the action.” Construing all these enactments together it seems clear to us that the expressions, “any person interested,” “a person interested in a will or codicil” and “other interested persons” are equivalent and may include persons other than- the devisees, legatees, heirs, executors and administrators of the testator. Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is “a person interested.” In this case the plaintiff had obtained a valid lien by levy on the property of the heir, at a time when the testatrix was supposed to have died intestate. There can be no doubt that such lien will prevail if this alleged lost will is set aside and found not to be the last will and testament of Charlotte Spice; and it is equally clear that if the probate of the will shall stand the plaintiff’s lien will be defeated. The conclusion necessarily follows, that the plaintiff is a person interested and therefore has legal capacity to prosecute this action.

But it is objected here, that the plaintiff’s claim is not against the estate of the testatrix, but against the heir, who takes nothing under the will; and that the testatrix had the legal right to leave her property to whom she pleased, even to the extent of intentionally defeating the creditors of her only heir. Let all of this contention be granted; yet, if this paper, the probate of which is contested, is not the last will of the decedent, the plaintiff is interested and must prevail, because the title is then cast upon the heir by operation of law, and subject to the lien which attaches by relation to the time of the levy. Can it, therefore, be said with any show of justice or reason, that when a paper purporting to be a will, and obviously designed with the purpose of defeating creditors of the heir, is offered for probate, a lien creditor can not have his day in court to show that the paper is not a valid last will and testament? We think not.

The jury found that “the paper writing set forth in the petition purporting to be the last will and testament of Charlotte Spice is not the last will and testament of Charlotte Spice”; and at the same time they made answers to certain special interrogatories which had been propounded to them, as follows: “Was the paper writing claimed by defendant to be the last will of Charlotte Spice signed by her?” Answer. “Don’t know.” “Was it signed in her presence by two subscribing witnesses?” Answer. “Don’t know.” The jury was not required to make more specific answers to the interrogatories. The circuit court held that inasmuch as the record from' the probate court was prima facie evidence in favor of the will, these answers did not overcome the presumption that the deceased did sign the paper in the presence of two subscribing witnesses and hence that the answers are irreconcilable with the general verdict. The interrogatories are not as broad as the case. There are other issues in the case besides those involved in these questions, for example, mental capacity, undue influence, fraud, the existence of the will unrevoked at and after the death of the testatrix and its loss, any one of which, if established in favor of the plaintiff’s contention would set aside the probate of the will and justify the verdict. Hence, even if we give to the answers by the jury the utmost possible effect, and assume that they found that the will was properly signed and witnessed, there were still other grounds upon which the jury might have been, and doubtless was, satisfied that this paper was not the last, will and testament of Charlotte Spice. We are warranted in assuming that on at least some of the issues, the general verdict was supported by the weight of the evidence; for that question was presented to the common pleas court on a motion for new trial and to the circuit court on petition in error, and neither court found any error in that respect.

It is urged upon us that there was error in the charg'e to the jury, and especially that the court so worded the charge that the jury might have been misled into the belief that the burden of proof rested upon the contestees as to certain points. We can not so construe the charge. It is explicit not only at one place but in several places, that the order of the probate court admitting the will to probate is prima facie evidence of the due attestation, execution and validity of the will; and that to authorize a verdict that it is not the last will and testament of the deceased, the plaintiff must prove by a preponderance of the evidence either the want of mental capacity to make a will, or that the testatrix was unduly influenced or that the alleged paper writing was not her will. The circuit court appears to have thought that the following sentence in the charge imposed upon the defendants the burden of showing something additional to the record of the probate court, indeed the court is represented as saying that this was clearly error: “If no other or further proof were given in respect to the will or its contents, it being shown that the original will was lost after the death of the testatrix with-' out fault of the defendants as beneficiaries, and at the time of the death of the testatrix it had not been revoked, the defendants would be entitled to your verdict.” That is not the whole sentence nor the whole paragraph in which it is found; and when taken with the context it is neither ambiguous nor erroneous. The words “it being shown,” etc., were manifestly used by the court in the same sense as if it had been said, “since it already appears from the record of the probate court,” etc. Substitute the latter expression for the one actually used and you have an exact paraphrase of that which the court did say. It is an adaptation of the language of the charge in Banning et al. v. Banning et al., 12 Ohio St., 437, 447, 448, and while somewhat clumsy, it is nevertheless not erroneous.

Entertaining the views already expressed in regard to this case, we- have not been able to discover any error in the admission of testimony prejudicial -to the defendants.

The judgment of the circuit court is therefore reversed and .the judgment of the court of common pleas is

Affirmed.

Shauck, C. J., Price, Grew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    The George Wiedemann Brewing Company v. Maxwell et al.

      Written agreements known as options — Not void for lack of mutuality, when — Acceptance may be verbal — And proven by parol — Rule of specific performance — Party seeking enforcement must show readiness to perform.

    I. Written agreements known as options are not necessarily void for lack of mutuality, and where accepted within the time specified may become valid and enforceable contracts. Nor are they rendered invalid by the fact that the acceptance by the promisee is verbal and not in writing. Such assent may be shown by parol.
    3. The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.
    (No. 10521
    Decided March 24, 1908.)
    Error to the Circuit Court of Clark county.
    Action was brought in the common pleas of Clark by the George Wiedemann Brewing Company, a Kentucky corporation, against Rachel Maxwell, James L.' Maxwell, and The Springfield Breweries, Limited, an English corporation, to enforce specific performance of a- certain written agreement for a lease of premises situate in the city of Springfield, said agreement being in the form of an option, a copy of which follows:

      “Springfield, Ohio, September 28, 1905.
    “In consideration of one dollar, to us paid, the receipt whereof is hereby acknowledged, we do hereby agree to give to The Wiedemann Brewing Company an option of ten days from this date for the leasing of the building owned by us and known as No. 9 West Main street, this city, said building to be leased for five years from date of lease and at a rental of one hundred dollars per month, rent to be paid at the first day of each month, and also a bond of indemnity to be given. All alterations and inside repairs to be made by The Wiedemann Brewing Company at their expense. Possession to be given on or before November 10, 1905.
    “[Signed] Mrs. Rachel Maxwell.
    “James L. Maxwell.
    “Attest: A. J. Baker.”
    Also to have declared void a certain lease executed October 6, 1905, by Rachel and James L. Maxwell to The Springfield Breweries, Limited, the same having been taken with full knowledge of the rights of plaintiff in the premises.
    The answer of the Maxwells admitted the execution of the written option, but denied that the plaintiff accepted the option; denied that they agreed to execute a lease for the premises, and admitted that they had executed a lease of the premises to the defendant The Springfield Breweries, Limited.
    The answer of The Springfield Breweries, Limited, averred the execution and delivery to it, October 6, 1905, by the Maxwells, of a lease of the premises in dispute for five years which lease was duly filed for record and is a valid and existing lien. It also denied that Rachel and James L. Maxwell entered into the agreement with the plaintiff described in the petition.
    The cause, having been appealed to the circuit court, was there tried on its merits. A finding of facts separate from conclusions of law was found by the court from which it is shown that the Maxwells executed and delivered the option to the plaintiff as averred in the petition; that plaintiff elected to accept the option and notified the Maxwells October 5, 1905, of such election; that the Maxwells, October 6, 1905, executed and delivered to The Springfield Breweries, Limited, a lease of the premises for the term of five years commencing- November 1, 1905, at a rental of twelve hundred and fifty dollars per annum, which lease was filed for record October 7, 1905, in the office of the county recorder; that at the' time of taking this lease the lessee had knowledge and notice of all the foregoing facts; that the plaintiff by its agents and attorneys, on October 7, 1905, at 9 o’clock a. m., was present at the office of Keifer & Keifer, in Springfield, at which time and place it had been agreed by the plaintiff and the Maxwells that they would meet for the execution of the things provided for in the option, and the plaintiff was then and has ever since said date been ready and willing to so perform its part; that plaintiff did not at any time tender to the Maxwells a bond of indemnity as provided in the option, but plaintiff, by its attorneys, did prepare, though it did not execute, a written instrument pursuant to the option agreeing to hold the Maxwells harmless on account of any liquor tax, and on account of any damage that may grow out of the liquor business being carried on in the premises, or on account of any business of any nature that may be carried on in the premises; that October 5, 1905, and again on October 7, 1905, the willingness and readiness of the plaintiff to perform upon its part all the terms and requirements of the option and the acceptance thereof were communicated to the Maxwells; that at the before mentioned time and place agreed upon for the completion of the contract the Max-wells failed to appear and the plaintiff was then notified of their refusal to execute the lease to plaintiff, and was then notified that they had upon the day before such appointed time, and after the acceptance by plaintiff of the option, executed the above mentioned lease to The Springfield Breweries, Limited; that plaintiff was at all times mentioned and ever since has been authorized to do business in Ohio and is financially able to give the bond mentioned in the option.
    And as conclusions of law the court found that the option and acceptance constituted a valid obligation upon the Maxwells to execute a lease to plaintiff for the premises upon the tender of the bond specified in the option; that The Springfield Breweries, Limited, took its lease subject to all the rights of plaintiff against the Maxwells under the option and acceptance thereof; but that plaintiff is not entitled to maintain this suit for specific performance because plaintiff did not execute and tender a bond of indemnity, said agreement to furnish a bond being one of the mutual obligations of the option. Judgment dismissing the petition and for costs was thereupon rendered, and the plaintiff brings error.

      .Mr. Louis J. Dolle and Messrs. Keifer & Keifer, .for plaintiff in error.
    Of course, until an option is accepted, there is no mutuality upon any contract to lease, but this option was itself a contract upon sufficient consideration and therefore mutual because the minds of the parties met and a legal obligation resulted. However, as soon as the option is accepted, there is mutuality upon the contract to lease, because there is then a contract upon that subject binding bpth parties.
    The option was accepted within the time, the contract for lease was then complete and the consideration for the promise to lease on the part of the Maxwells was the promise of the plaintiff to accept the lease upon the terms stated in the option. Brown et al. v. Fowler et al., 65 Ohio St., 507; Oil Co. v. Crawford, 55 Ohio St., 161; Cummins v. Beaver, 103 Va., 230; Ide v. Leiser, 10 Mont., 5; Raymond v. Land & Water Co., 4 C. C. A., 89, 53 Fed. Rep., 883; Black v. Maddox, 104 Ga., 157, 20 S. E. Rep., 723; 3 Page on Contracts, Section 1619; Pomeroy on Specific Performance, Section 169; Waterman on Specific Performance, Section 200; Ross v. Parks, 11 L. R. A., 148, 93 Ala. 153; Watts v. Keller, 56 Fed. Rep., 1.
    The fact that such acceptance is not in writing does not affect the right to enforce the contract against the party who signed the written option. Specific performance is enforced where defendant has signed contract, but plaintiff has not. 3 Page on Contracts, Section 1620; Section 4199, Revised Statutes; Pomeroy on Specific Performance, Section 170; Waterman on Specific Performance, Section 201; Thayer v. Luce & Fuller, 22 Ohio St., 63; Jones v. Lewis, 7 W. L. B., 211; Bickett v. White, 1 C. S. C. R., 170.
    The latter case was reversed in 27 Ohio St., 405, but on other grounds than the above proposition.
    From the early days of equity jurisprudence it has been settled that in a suit for specific performance a strict and literal tender of performance on the part of plaintiff was not required.
    In equity where a defendant repudiates or denies his obligation or liability under the contract, a tender or offer to perform by the plaintiff before suit is brought was unnecessary because such a tender or offer would have been a vain thing, and a readiness and ability to perform communicated to the defendant before the suit is brought, is sufficient. 26 Am. & Eng. Ency. Law, (2 ed.), 43, 114, 116, 117, 118; 28 Am. & Eng. Ency. Law, (2 ed.), 8, 9; Brock v. Hidy, Jr., 13 Ohio St., 306; Irvin v. Gregory, 13 Gray, 215; Lowe v. Flarwood, 139 Mass., 133; Farwell, Admx., v. Solomon, 170 Mass., 457; Shattuck v. Cunningham, 166 Pa. St., 368; Mattocks v. Young, 66 Me., 4S9; Maxwell v. Pittinger, 2 Green Ch. (N. J.), 156.
    An offer of plaintiff in his bill to perform is sufficient, without previous offer. Waterman on Specific Performance, Section 447; Beach on Contracts, Sections 899, 912; Bispham’s Equity, Section 392; 3 Page on Contracts, Section 1424; Bruce v. Tils on 25 N. Y., 194; Freeson v. Bissellj 63 N. Y., 168; Lewis' v. Prendergast, 39 Minn., 301; Railway Co. v. Chisholm, 55 Minn., 374; Maughlin v. Perry, 35 Md., 352; Dustin v. Newcomer, 8 Ohio, 51; Hager v. Reed, 11 Ohio St., 626; Insurance Co. v. Smith, 44 Ohio St., 156; I sham v. Greenham, 1 Handy, 357; Moore v. Moulton, 2 W. L. B., 323; Watson v. Dun, Wright, 741; Railway Co. v. Stewart, Treas., 13 C. C, 359; Church v. Pennington, 18 C. C., 409; Andrews v. Watson, 12 O. C. D., 692, 51 Ohio St., 619.
    An offer to perform at time and place agreed upon is sufficient. Tullos v. Rodgers, 5 O. D., 745; Daily v. Litchfield, 10 Mich., 29; 28 Am. & Eng. Ency. Law, (2 ed.), 22; Cheney v. Libby, 134 U. S., 68; Smith v. Lewis, 24 Conn., 624.
    The opinion in the latter case is a full discussion of the exact question here as to whether a defendant’s absence from a place and at a time verbally agreed upon for completing a contract is not a complete repudiation so that no further tender or offer by plaintiff is necessary. This case, was cited and approved in Raudabaugh v. Hart, 61 Ohio St, 88; Smith v. Lewis, 26 Conn., no.

      Messrs. Martin & Martin, for defendants in error.
    The objection which has been found by the courts to the exercise of the rights of specific performance- upon an option is that it lacked mutuality, both as to the obligation and the remedy. It has been classed as belonging to that branch of contracts known as unilateral in that all benefits are enjoyed by the one party holding the option, without a corresponding advantage to the other side.
    The party who signs the option cannot enforce its execution by specific performance, because the holder expressly reserves the right to accept or not the provisions of the option at his pleasure, and, therefore, while the holder o£ the option could compel the other party to specifically perform, the corresponding legal right would not exist in favor of the latter.
    This is simply a transfer on the one hand of the right to do or not .to do a certain thing, without a corresponding obligation upon the other side. It is therefore unilateral, and lacking in the essentials of a contract, which provide that there must be a mutual obligation between the parties in order to render the same effective.
    In many cases and in varying forms, the courts have held that specific performance will be denied where mutuality is lacking. 3 Page on Contracts, Section 1615; Marble Co. v. Ripley, 10 Wall., 339; Rogers v. Saunders, Jr., 16 Me., 92; Glass v. Rowe, 103 Mo., 513; Bodine v. Glading, 21 Pa. St., 50; DeCordova, Admr., v. Smith’s Admx., 9 Tex., 129; Moore’s Admrs. v. Randolph, 6 Leigh (Va.), 175; 21 Am. & Eng. Ency. Law, 928; Hawralty v. Warren, 18 N. J. Eq.; 124.
    Where there is no performance, and no promise to perform on one side, a promise to. perform on the other side is without consideration and with-' out mutuality, and such contract can be held void upon either or both grounds. Brown et al. v. Fowler et al., 65 Ohio St., 525.
    But it is insisted that as the plaintiff accepted the option that thereupon the mutuality theretofore lacking created a binding contract. This does not follow. If there was an adecjuate consideration, as distinguished from a nominal one, and if there was no performance as required under the terms of the option, then the lack of mutuality continues. 3 Page on Contracts, Section 1619; Pomeroy on Specific Performance, Section 169; Waterman on Specific Performance, Section 200.
    ITere it appears that it was not mere election which was sufficient to entitle a specific performance, but there must have been a performance on the part of the person holding the option; the mutuality is created by election and performance, for the authority cited by counsel clearly maintained that a performance is a sine qua non. A performance in this case would have necessarily required a compliance with all the terms of the option which would have included the furnishing of a bond. 21 Am. & Eng. Ency. Law, 930.
    In the case at bar, the plaintiff was under obligations to furnish a bond of indemnity, which was as much a part of the consideration as the purchase money in Brock v. Hidy. There was no tender of it, or any effort to execute it, or to present it as a bond of indemnity in exchange for the lease.
    The lease and the bond were concurrent acts, mutually dependent upon each other, and each void without the others — just as the purchase money and the deed are concurrent acts. Brock v. Hidy, Jr., 13 Ohio St., 310.
    It is sufficient for our argument that the bond was not in existence at the time and was not there at the place where and when the demand for the lease was made, and could not have been executed-The plaintiff was not in a position to demand the lease as it could not deliver the bond.
    There is no averment that it was able to perform all the conditions of the option, and the mere allegation of readiness and willingness is insufficient. Raudabaugh v. Hart, 61 Ohio St., 73.
   Spear, J.

Two questions are presented by the record. One relates to the sufficiency of the option as a binding obligation; the other to the matter of performance on the part of the plaintiff. It is the contention of defendant in error that the contract is invalid because of a lack of mutuality and because there was no valid acceptance of the option. But the circuit court held that the consideration expressed was a sufficient consideration to support the promise on the part of the promisors, and the acceptance by the promisee within the time prescribed supplied lack of mutuality, if any before existed, and was sufficient to constitute a binding obligation. With this conclusion we agree. Such instruments are merely contracts by which one party in consideration of the payment of a certain sum to the other party, acquires the privilege of buying from or otherwise acquiring, or selling to such other party an interest in specified property at a fixed price within a stated time. This form of contract has become of general use in the business world, and if there ever was any ground for denying the legal validity of such contracts they have, we think, been too often recognized as valid to justify serious doubt now. Bacon v. Daniels, 37 Ohio St., 279; Oil Co. v. Crawford, 55 Ohio St., 161, 178; Brown v. Fowler, 65 Ohio St., 507. The amount of the money consideration in such an instrument is not of importance as bearing upon its sufficiency as a consideration to support the promise. The requirement of mutuality is entirely satisfied when the acceptance within the proper time has been made. Nor does the fact that the acceptance by plaintiff in the present case was verbal destroy its right to enforce the contract against the party who signed the option. Our statute of frauds (section 4199, Revised Statutes,) denies the right to maintain an action upon any contract for the sale of any interest in lands unless the agreement is in writing signed by the party to be charged, or by some authorized person. This contract is so signed by the party to be charged. The assent of the other party may be shown by parol. Pom. on Con., sections 169, 170; Waterman on Spec. Per., section 201; Cummins v. Beavers et al, 103 Va., 230; Bickett v. White, 1 C. S. C. R., 170; Thayer v. Luce, 22 Ohio St., 62; Ide v. Leiser, 10 Mont., 5; Black v. Maddox, 105 Ga., 157.

But the circuit court found as further conclusion of law that plaintiff is not entitled to relief because no bond of indemnity was furnished or tendered to the other parties to the option contract. With this conclusion we do not agree. The facts show that the parties had made an agreement to meet at a certain defined place at a certain specified time for the purpose of executing and delivering the necessary papers to effectuate and complete the contract, the Maxwells to be accompanied by their attorney. The evidence further shows that as part of this arrangement the plaintiff was to have a lease prepared for execution at the time and place agreed and a bond of indemnity as provided in the contract.. These papers had been prepared by the attorney for the plaintiff' and were ready for execution. In conformity with this arrangement the plaintiff by its agent accompanied by its attorney was at the place at the time assigned with the foregoing papers; it was ready and anxious to execute that or any proper lease on its part, and having then and there also the bond of indemnity which it was also ready to execute and deliver. The contract is somewhat indefinite as to the character of the bond, but when the use to which the property was to be put is considered it is apparent that the paper prepared as a bond, and which the plaintiff was then and there ready and able to execute and deliver, sufficiently covered the requirements of the contract. But the Maxwells both failed to appear, and no one appeared for them at the time or at any time that day. Not content to leave the matter in a state of uncertainty, and anxious to complete the contract, the agent of the plaintiff, within the next hour, went out upon the street to find the other parties. He found the husband (who it is proven represented the wife) at or near the offce of the attorney who it had been and then was expected would be present with the Maxwells and assist in the execution of the papers, and said to him that The Wiedemann Brewing Company was ready to execute the lease. He was then informed by Maxwell that they did not propose to comply with the option; that they had, the day before, executed a lease to the other company. Maxwell and the agent then went up-stairs into the office of Maxwell’s at- ■ torney. The attorney advised Maxwell not to execute any lease to the plaintiff; he had signed one lease and he had better not sign another one and get into further trouble. Maxwell then said he was protected with a bond and showed the bond; protected against any damage from the Wiedemann Company. At no time, then or afterward, did the Maxwells show any disposition to comply with the option contract, but stood by their refusal.

Under such circumstances it could not be reasonably held that the plaintiff was bound to execute and manually tender the bond any more than it was necessary for it to execute and tender the lease, or tender payment of rent. The conduct of the other parties was such as to render any offer of the kind a mere idle ceremony. While they had not technically put it beyond their power to execute a lease to the plaintiff’ it was entirely plain that their purpose not to do so was fixed. It was manifest that an execution of these papers and a delivery of them to the Maxwells would have been utterly vain, and the law does not require the doing of vain things. While the general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions, and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with demand of compliance by such other party, is sufficient compliance without an actual formal tender. It is argued that the conclusion of the circuit court is supported by the holding in Raudabaugh v. Hart, 61 Ohio St., 73. We think not. That case is authority for the proposition that a party cannot maintain an action in this class of cases “without averring a‘ performance, or an offer to perform on his part. Mere willingness and readiness to perform, uncommunicated to the other party, will not avail.” And a petition “which contains neither an allegation of performance nor of tender of performance, will be held bad on general demurrer.” In the case at bar there is abundantly shown readiness, willingness and ability, all communicated to the other party, and a tender of performance by complying with its part • of the contract so far as it was practicable to do so at the time and place agreed upon for the completion.

We are of opinion that the plaintiff in error is entitled to a reversal of the judgment below and a final decree for specific performance.

Reversed.

Shauck, C. J., Price, Crew and Summers, JJ-, concur.


author: Summers, J.

text:
    Marsh v. Koons.

      Certain animals not to run at large — Owner of animal liable in damages, when — Sections 4202 and 4206■ Revised Statutes— Liability does not attach merely because of statute — Law of damages.

    1. The object of Sections 4202 and 4206, Revised Statutes, making it unlawful for the owner of certain animals, including cattle, to suffer them to run at large in any public highway, and making him liable for all damages done by such animals on the premises of another, is not the safety of travelers on the highway, but the prevention of trespasses, and the owner of such an animal is not, merely because of the existence of the statute, liable in damages to a person injured by her horse taking fright at such an animal at large in the highway contrary to the statute.
    2. The owner of a cow at large in the public highway is not liable in damages to a person injured by being thrown from her vehicle through her horse taking fright at the cow getting up when she attempted to drive around it.
    (No. 10161
    Decided March 24, 1908.)
    Error to the Circuit Court of Logan county.

      Messrs. Hamilton Brothers and Mr. John A. Price, for plaintiff in error.

      Messrs. West & West and Mr. Samuel H. West, for defendant in error.
   Summers, J.

This is an action to recover damages for personal injuries. The plaintiff was driving a white horse which frightened at a red cow, at large on the public highway, and upset the buggy in which she was riding. The accident happened in the day time. The cow was lying cater-cornered across the traveled way in front of the defendant’s farm. The plaintiff, a widow lady 77 years of age, says that it was a very bright, pretty day and that she was driving east, on the Sidney pike, to the city of Bellefontaine; that she saw the cow lying in the road, some distance ahead, that, “The horse was walking and I was humming along, just alone.” “I had to drive around her; just went to drive around her, but I didn’t. When I got just to her head, she made a lunge to get up and my horse reared on his hind feet, reared around and took up the side of the bank and threw me out on the side and cut my head, as you can see.”

The plaintiff was badly hurt. The trial court directed a verdict for the defendant, for the reason, it is said, that the petition did not state a cause of action, and the circuit court affirmed for the reason that the plaintiff was guilty of contributory negligence.

Counsel for plaintiff in error call attention to the fact that contributory negligence was not set up as a defense and contend that the judgment cannot be sustained on that ground. The defendant. offered no evidence, and if the evidence offered on the part of the plaintiff raised a presumption of negligence on her part contributing directly to her injury then the court properly directed the verdict. A cow, unlike a horse, gets up first on her hind legs, and in doing so appears to lunge forward, and it was to be expected that the horse would, under the circumstances, try to give the cow plenty of room. The circuit court took judicial notice of the fact that one never can tell what an old cow will do, and so concluded that the plaintiff was negligent in driving so closely to her.

At common law it was the duty of the owner of cattle.to fence them in, but in this state it was not his duty to do so, until made so by statute. The burden was upon the occupier of the land to fence them out. The reason for the distinction was that here at an early day but a very small part of the soil was under cultivation and it much better suited the condition of the people and was - a lighter burden on them to enclose the land for the purpose of cultivation and to fence against the animal's running at large. The C. H. & D. R. R. Co. v. Waterson & Kirk, 4 Ohio St., 424; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St., 172; Marietta & Cincinnati R. R. Co. v. Stephenson & Brown, 24 Ohio St., 48. But conditions changed, the larger part of the land having been brought under cultivation the public welfare required that the burden be transferred to the owners of the cattle.

Accordingly in 1865 an act was passed making it unlawful to suffer cattle to run at large. There had been previously to that time, laws respecting animals running at large, estrays, fences and enclosures, but it is not necessary to notice them. The act of 1865 has been carried into the Revised Statutes and for the present it is sufficient to refer to Sections 4202, 4206 and 4251. Section 4202 makes it unlawful for any owner of cattle to suffer the same to run at large in any public road or highway and prescribes a penalty therefpr. Section 4206 provides that the owner shall be liable for all damages done by such animal upon the premises of another without reference to the fence that may enclose the premises, and Section 4251 provides that if any cattle running at large break into or enter any enclosure, other than enclosures of railroads, the owner of any such animal shall be liable to the owner or occupant of such enclosure for all damages occasioned thereby.

At common law the owner of cattle did not owe to travelers on the highway the duty to prevent his cattle from being at large upon the highway, but if that had been his duty the common law would have afforded the traveler a remedy by an action in damages against the owner for the injuries he sustained because of the owner’s negligence- in the performance of that duty; and so it is held in numerous cases that when it is made unlawful for cattle to be at large in the highway that the owner owes such a duty to the traveler, and that he is entitled to the common law remedy in damages although the only remedy given by the statute is a penalty not made payable to the party injured.

It is so held in Shipley v. Colclough, 81 Mich., 624, where one of two cows, that were running at large in the highway contrary to law, hooked and pushed the other against and under , the wheel of a sulky, that was being driven along the highway, over-turning and injuring the vehicle. The decision is based upon the following statement of the law. “The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence, if the other elements of actionable negligence concur, 1 Shear. & R. Neg., § 13.

“These principles apply not only where the statute or ordinance declares that persons violating it shall be liable for any damages sustained by reason of its breach, but also where it contains no such provisions, and simply imposes a penalty, by way of fine or otherwise, for disobedience. Nor is the plaintiff, in such a case, bound to prove that the act required by the law was one which by its nature was essential to the exercise of due care by the defendant. Id.”

A similar case is Jewett v. Gage, 55 Me., 538, where the plaintiffs wagon and minor child were injured by his horse taking fright at a hog lying by the side of the highway. And in Bott v. Pratt, 33 Minn., 323, where a team of horses, that had been left standing unfastened and unguarded in violation of a city ordinance, ran away and caused injury to a traveler on the streets.

The law is stated as follows in Cooley on Torts (3 ed.), 1399, “Where the statute imposes a new duty, where none existed before, and gives a specific remedy for its violation, the presumption is, that this remedy was meant to be exclusive, and the party complaining of a breach is confined to it * * *. So if performance of a duty is enjoined under a penalty, the recovery of this penalty is in general the sole remedy, even when it is not made payable to the party injured. But the rule is not without its exception; for if a plain duty is imposed for the benefit of individuals, and the penalty is obviously inadequate to compel performance, the implication will be strong if not conclusive, that the penalty was meant to be cumulative to such remedy as the common law gives when a duty owing to an individual is neglected.”

The cases above cited seem to make the exception the rule.

In Couch v. Steel, 3 El. & B., 402, Lord Campbell laid down the rule that wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can bring an action for damages against the person on whom the duty is imposed, but in Atkinson v. New Castle & Gateshead Water Works Co., L. R., 2 Ex. Div., 441, the judges, Carins, L. C, Cockburn, C. J., and Brett, L. J., each of them doubted its correctness. They expressed the opinion that the correctness of the rule “must, to a great extent, depend on the purview of the legislature in the particular statute, and the language which they have there employed.”

In Cowley v. The Newmarket Local Board (1892), A. C., 345, Lord Herschell expressly concurs in the opinion expressed by Lord Cairns.

In Gorris v. Scott (1874), 9 Ex., 125, in an action to recover for loss of sheep washed overboard, in consequence of there being no pens and no battens or foot-holds, as required by certain regulations adopted under authority of the Contagious Diseases Act, it is held, “That the object of the statute and the order being to prevent the spread of contagious diseases among animals, and not to protect them against perils of the sea, the plaintiffs could not recover.” And again, “When ' a statute. creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another’s neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an-action in respect of such loss.”

Looking to the statute and the previous legislation in this state it cannot be said that the object was to provide for the safety of travelers upon the highway; the object was to prevent trespasses upon the premises of others. The remedy in damages given by Section 4251, Revised Statutes, was not entirely satisfactory. In many, if not in most, instances of trespass the injury was slight and the amount of damages recovered would not equal the amount expended in recovering it, to say nothing of the inconvenience and the animosities engendered, and so in addition to the liability for the injury done by cattle running at large upon the premises of another, without reference to the fence that enclosed them, it was made unlawful for the owner to suffer them to run at large, and it was made the duty of public officers, on view or information that cattle were running at large, to take them up and confine them, and if an officer wilfully neglected his duty in that respect he was liable to a fine and imprisonment.

In the absence of the statute it is the duty of the owner not to suffer a known vicious animal to run at large upon the highway, or one not vicious under circumstances where he should apprehend that the safety of travelers would be in danger.

In Dickson v. McCoy, 39 N. Y., 400, it is held: “It is such negligence for the owner of a horse to turn him loose, to go from the stable into the street of a city, unattended, as will make him liable for all injuries occasioned thereby.” In Wasmuth v. Butler, 93 N. Y. Su. Ct. Rep., 1, it is held that it is actionable negligence to leave a horse untied and unattended in the streets of a city. In Goodman v. Gay, 15 Pa. St., 188, it is held: ■ “If the owner of a horse suffers it to go at large in the streets of a populous city, he is answerable for a personal injury done by it to an individual without proof that the owner knew that the horse was vicious.”1 In Barnes v. Chapin,. 4 Allen, 444, Chapman, J., states the rule thus: “The general doctrine of the common law as to injuries done by domestic animals seems to be, that the owner is not liable unless he has been in some fault. Pie is liable for their trespasses when it was his duty to confine them, and he has neglected to do so. In Leame v. Bray, 3 East, 595, Lord Ellenborough says, Tf I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue to any person, I am answerable in trespass.'"

Zumstein v. Shrumm, 22 Ont. App. Rep., 263, is a case not unlike the case under consideration and it was there held, “The owner of a turkey cock which without negligence strays upon the highway contrary to a by-law of the municipality, is not liable for damages resulting from a horse taking fright and running away at the sight of the bird acting as turkey cocks usually do.”

The object of the statute not being the safety of travelers on the highway, the petition does not state a cause of action in the absence of an averment of facts implying that the injuries resulted from the negligence of the defendant in the performance of a duty owing to the plaintiff, and the court of common pleas properly directed a verdict.

Judgment affirmed.

Shauck, C. J., Price, Crew, Spear and Davis, JJ-, concur.