author: Granger, C. J.

text:
    Veazie v. McGugin.
    A testator, domiciled in Mississippi, devised liis entire estate to C., his heirs and assigns, with full power to dispose of the same and apply the proceeds upon specified trusts. By subsequent clauses he named C. co-executor with two others, limiting the power to sell and convey to C. alone; and provided that if C. should die or should “refuse to take upon himself the execution of the will,” O.’s power should pass to W. O. accepted the trust, was qualified as executor and took upon himself the execution of the will. Afterwards he executed a resignation, both as trustee and as executor, and on an ex parte application, an orphans’ court in Mississippi made an order accepting it, and appointed W. his successor. No law of that state gave power to any court, upon such an application, to divest a trustee, holding title, of his powers or estate. Soon after C. (who did not convey to W.) resumed action as trustee; for value conveyed part of the Ohio land to a bona JUle purchaser; received the purchase money, and placed it in the hands of the chief executor, who duly applied and accounted for it. W. never acted or claimed to act as to the land.

      Held : 1. The resignation was not such a “ refusal to take upon himself the execution of the will ” as transferred title to W.

    2. The action of the orphans’ court did not affect C.’s powers as trustee, and his deed was valid.
    8. The “ open,; continuous, adverse, uninterrupted and peaceable possession” for more than twenty-one years, of a part of the lands devised to O. as aforesaid, by one (and his grantors) who all the time claimed to own the same, is a good defense to an action for the recovery of the land so held, whether the plaintiff be the trustee or his beneficiary.
    Eeeob to tbe District Court of Knox County.

      In A. D. 1828, a tract of land containing 2400 acres stood upon the tax duplicate in Knox county, Ohio, in the name of Isaac Guión. Taxes thereon for the years from 1815 to 1823, both included, were unpaid. At the November term, 1823, of the court of common pleas for the county, the county auditor appeared, and upon his motion judgment was duly rendered, in the name of the state, against Guión for $755 taxes, interest and penalty, and for costs; and the court ordered a sale of all of said tract, or of so much thereof as would satisfy the judgment, pursuant to statutes then in force. Sale of the whole was made on July 5th, 1824, to Elijah Smith. The court confirmed it, and on February 28th, 1827, the auditor’s deed conveying the land to Smith was delivered. On December 21st, 1824, Isaac Guión, by deed, conveyed to said Elijah Smith one thousand acres of the same tract. No convejumce by Smith to Guio.n of the other 1400 acres has been discovered; but on June 27th, 1831, John, George and Walter Guión, heirs of said Isaac Guión, by deed of that date conveyed to John W. Warden the said 1400 acres. Warden, in 1837, conveyed about 132 acres of said tract to John Hawn. The defendant, William Hawn, was in possession of this tract when the action against him was begun, and it is admitted that he, “ and those under whom he claimed title, have been in continuous and uninterrupted and peaceable possession of the lands described in the petition ag'ainst him since July, 1832, claiming to own the same.”
    Elijah Smith died testate in Adams county, Mississippi, on February 23, 1828. He left surviving him, his widow, Mary, who died May 10, 1863, and children whose names and dates of birth and death are as follows:

      His will reads as follows (the italics are ours):
    “In’the name of God, Amen: I, Elijah Smith of the county of Adams, in the state of Mississippi, planter, being in good health of body, and of sound and disposing mind and memory, blessed be God therefor, do make and ordain this my last will and testament, in the manner following, that is to say:
    “Imprimis: — Give and bequeath all my estate, real, personal and mixed, of whatever kind soever, and wheresoever situate, unto my son, Charles Percy Smith, his heirs, executors, administrators and assigns, to have and to hold all my estate, real, personal and mixed, unto him, the said Charles Percy Smith, his heirs, executors, administrators and assigns; in trust, however, for the express uses, intents and .purposes following, expressed in this my last will and testament, and no other, to wit: In trust, that said estate shall be kept together, or disposed of under the sole care and management, improvement and direction of my said son, for the purposes with the proceeds thereof to pay my just debts, support and educate my children; and also upon the further trust that when our children shall respectively and severally arrive at the age of twenty-one years, or in the option of my said trustee, sanctioned by my wife, sooner require a separate establishment, he shall allot to them such part of my estate, at his discretion, with the consent of my wife, as can be spared consistently with the actual condition of the same, keeping in view any debts that may be due, the education and maintenance of our younger children, and an ample support for my wife during her natural life, taking care to charge each one a fair valuation for whatever he or she may receive, and holding them accountable to the younger children, in the event of the residue of the estate not holding out, to give each the same amount by a contribution from the part or parts so allotted.
    “ Secondly: — I hereby nominate, constitute and appoint my beloved wife, Mary, before named, executrix, of this my last will and testament, and guardian of our minor children; I do also nominate, constitute and appoint my sons Charles Percy Smith and William Sidney Smith, executors in aid of my executrix, jointly or severally, as’occasion may require, hoping and trusting that they and all our children will always conduct themselves in a dutiful and affectionate manner towards the best of mothers, and brotherly love to each other.
    “ Thirdly: — It is my express desire and direction that neither my wife, Mary, executrix, as aforesaid, nor my son Charles Percy Smith, executor and trustee as aforesaid, nor William Sidney Smith, executor as aforesaid, shall be required to give any security, by the probate or other courts, for the faithful execution of this my last will and testament, except required thereto by my creditors having right so to do, nor shall the interposition of any court whatever be necessary to authorize the sale of any, or disposal of any part of my estate, real and personal, it being my intention to vest full and complete power in my said son, Charles Percy Smith, as trustee and executor as aforesaid, to sell or dispose of all or any part of my estate during his continuance as trustee and executor, for such sums as in his discretion may seem proper, and for that purpose to sign, seal and deliver all such conveyance or assurance in the law as may be necessary or proper, having always due regard and respect to the friendly counsel and advice of my much esteemed friend, David Hunt, in all important cases where he can be consulted; and it is my will and desire that in case of the death of my said trustee, or refusal to take upon himself the execution of this my will, that my son William Sidney Smith, be vested with the same power and authority as is heretofore given to my said son, Charles Percy Smith; and it is my will and desire that my said executors and trustees, on entering into the execution of this my will, and as soon after raj' decease as convenient, cause to be made a full and perfect inventory and appraisement of all my estate, both real and personal, and place the same on record in the probate court,
    “ fourthly: — I give and bequeath unto my beloved wife, Mary, in lieu of her dower, (in case she thinks to accept the same,) the occupancy and possession of my mansion house and plantation on which I now reside, during her natural life, together with all the furniture therein, the farming utensils thereon, and such servants as she may find necessary to conduct the same to advantage, not exceeding six in number.
    “ Fifthly: — I give and bequeath to my said wife, Mary, absolutely, and in addition to her dower as aforesaid, and whether she accepts the same or not, — a negro woman, slave, named Judy, together with all her children and their increase, to be disposed of as my said wife may think proper, and not to be considered as forming a part of my estate.
    “ Sixthly: — It is my will and desire that my son Charles, trustee as aforesaid, shall receive out of the proceeds of my estate, a reasonable compensation for his services and attention in executing this my will, over and above his equal portion of my estate.
    “ Seventhly: — I do hereby nominate, constitute and appoint my beloved wife Mary, and my son Charles, or either of them, guardians to our minor children.
    “ Eighthly: — After my youngest child shall have attained the age of twenty-one years, I desire that my said execu-. tors will make an equal distribution of such part of my estate as may remain unallotted, amongst the children .and their representatives, if any, charging each of the children with such portion as may have been allotted to them; but it is especially understood that this provision is not intended to affect the property set aside for the maintenance of my wife, and in lieu of her dower.

      ‘■'■Ninthly: — And I do hereby revoke, annul and set aside all former wills, testaments and codicils, hereby declaring this to be my last and only will.
    “ In testimony whereof, I have hereunto set my hand and seal, this seventh day of February in the year of our Lord eighteen hundred and twenty-eight.”
    This will was duly admitted to probate in Mississippi, and, on February 10, 1829, a certified copy of the record and probate was admitted to record in Knox common pleas; that court then having probate jurisdiction under Ohio laws. The executors and executrix accepted their appointments and were duly qualified in Mississippi, and Charles P. duly took upon himself the execution of the' will 5 accepted the devise to him and his heirs in trust, and as trustee and executor entered upon the duties of those respective positions.
    On July 2, 1830, in Davidson county, Tennessee, he signed, sealed and acknowledged a paper reading as follows:
    “ Know all men by these presents:

    “ That I, Charles Percy Smith, of Adams county, state of Mississippi, being first named trustee and executor in tli© last will and testament of Elijah Smith, (my deceased hither), of the above mentioned county and state, do resign all and every trust and trusts placed in me, and by these presents have resigned all and every trust and trusts placed in me as trustee and executor to the above mentioned will; and also do hereby refuse to act, and by these presents have refused to act in the capacity, or upon any other trust that may be required of me and put in my name, by the true letter and spirit of the above mentioned last will and testament of Elijah Smith (my deceased father).
    “ In presence of whom I hereby put my hand and affix my seal, this 2d of July, 1830.
    “(Signed) Charles Percy Smith, [seal.]
    “ Attest: Thomas Atchison.”
    This paper, on August 6,1830, was presented, ex parte, in the orphans’ court, Adams county, Mississippi, and the following journal entry made, to wit: “Charles P. Smith, the acting trustee under the last will and testament of Elijah Smith, deceased, presents the written resignation of his trust under said will. Whereupon, on 'motion -oí said William S. Smith, ordered by the court, that he be and is hereby substituted in his place as said trustee under said will.” A copy of this order of the orphans’ court was, on or about October 25th, 1830, recorded in the records of deeds for Knox county, Ohio, immediately preceding the record of the auditor’s deed to Elijah Smith hereinbefore referred to.
    The constitution of Mississippi, art. 5, sec. 7, reads as follows: “ The legislature shall have power to establish in each county within the state, a court of probate, for the granting of letters testamentary, and of administration of orphans’ business, for the county police and for the trial of slaves.”
    The law passed under and by virtue of the above section, or so much as gives jurisdiction to the orphans’ court, reads as follows: “That a court of probate shall be held within the several counties of this state, to be styled the orphans’ court of the county of-, and there shall be in the manner prescribed by the constitution, an able and learned man in each county of this state, appointed judge of said court for taking the probate of wills and granting letters of administration on the estate of persons deceased, for appointing guardians to minors, idiots, lunatics and persons non compos mentis, for examining and allowing the accounts of executors, administrators or guardians, with full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate in their respective counties.”
    William S. Smith had previously duly qualified as one of the three executors named in the will. It does not appear that he accepted the appointment as trustee, or that he ever, so long as Charles P. Smith was alive, attempted to act in his place. The records of these cases disclose no act, or attempt to act, by William in regard to the lands in controversy.
    On May 26,1831, Charles, styling himself as trustee and assistant executor under his father’s will, sold and conveyed the one thousand acre tract, for value, to Perus Sprague and William E. Davidson, who caused their deed to be duly recorded on June 4, 1831, and took possession' of the tract so conveyed to them. They, and those claiming under them, have ever since been in peaceable possession, claiming to own the same. Charles placed the purchase money in the hands of his mother, the “chief executor,” and she duly accounted for the same in the proper court of Mississippi. All of her brothers having died intestate and without issue, Mary Jane, from June 14, 1868, has been the sole owner of all the estate left by Elijah Smith not theretofore legally disposed of. On April 12, 1843, she married James H. Veazie, and was his wife when, in 1879, these actions were begun. Before suit she had conveyed to David W. Wood the one undivided half of her supposed .title to the Knox county lands of her father. She (her husband being a co-plaintiff) and Wood sought, by several actions against the persons then in possession, to recover said lands. The common pleas refused to set aside verdicts for the defendants in the several suits, overruled motions for new Trials; duly allowed bills of exception setting out all the evidence, and rendered judgments for the defendants in each case. As the district court affirmed these judgments, we are asked to review its action. Numerous questions were made in the record and in argument, but we will notice only a few which are decisive, and render all the others immaterial.

      S. J. Wood, Joseph Watson and Wm. Dunbar, for plaintiffs in error.
    1. By the resignation of Charles P. Smith the trust by the terms of the will became vested in Wm. S. Smith, and thereafter any acts done by Charles as trustee were void. Perry on Trusts, sec. 268, 275, 921.
    2. Time does not, in general, commence to run against a suit to enforce an express trust, until the trustee by word or act denies the trust, and the beneficiary has notice of the denial. Jones v. McDermott, 114 Mass., 400; Poe v. Domic, 54 Mo., 119; Nease v. Capehart, 8 W. Va., 95; Bigelow v. Oatlen, 50 Vt., 408; Crebhard v. Battler, 40 Iowa, 152; Perlcins v. Cartmell, 4 Har. (Del.), 270; Hunter v. Hubbard, 26 Texas, 537; Robson v. Jones, 27 Id., 266;
      Boone v. Chiles, 10 Pet., 177: Seymour v. Freer, 8 Wall., 202; Cunningham v. McKinley, 22 Ind., 149. Time does not begin to run against the cestui que trust until he has knowledge, or may fairly be presumed to have knowledge 'of the existence of the trust. Hill on Trustees, 168, 583; 17 Ohio St., 485; Perry on Trusts, vol. i. § 217.

      Samuel Israel and J. I). Critchfield, for defendants in error.
    1. The attempted resignation of Charles and the appointment of William in the orphans’ court did not divest Charles of the title to the trust property. The orphans’ court had no jurisdiction to" act in such case. Conger v. Holliday, 11 Paige, 314; Cuy on v. Pickett, 42 Miss., 77. '
    2. As to statute of limitations, see Perry on Trusts, 780, 786; Hill on Trustees, 503-4; Wyeh v. The Fast India Co., 3 P. Wms., 309; Lewin on Trusts, marginal pp. 719-20; Angelí on Limitations, 5th ed., p. 452, § 473; Pentland v. Stokes, 2 B. & B., 75; Hovenden v. Lord Annesley, 2 Sch. & Lef., 629; Llewellen v. Mackworth, 2 Eq. Ca. Ab., 579; Croiother v. Crowther, 23 Beav., 305; Herndon v. Pratt, 6 Jones Eq., 327; Fleming v. Cilmore, 35 Ala., 62; Madden v. Allen, 1 Met. (Ky.), 495.
   Granger, C. J.

It is plain that the “ imprimis ” pq^ragraph of the will clothed Charles with a complete estate in fee simple, with full power to “ dispose ” of any part, or of the whole, and 'to apply the proceeds" as directed "by the will. The appointment as executor by paragraph “secondly” and the words in paragraph, “thirdly,” — “it being my intention to vest full and complete power in my said son, Charles Percy Smith, as trustee and executor as aforesaid, to sell or dispose of all or any part of my estate during his continuance as trustee and executor ” do not, in cur opinion, lessen or qualify the estate and power devised by the “ imprimis ” paragraph. As no bond was required, either as trustee or executor, it would be unreasonable to suppose that the fee simple was to be dependent upon the continuance of the devisee in the office of executor. These words do not form a part of either clause granting estate or power; they are a recital of intent. Although the word “ and ” couples “ trustee ” with “ executor ” a fair construction, in view of the clear provisions of the granting paragraph, will read “and” in the sense of “or,” or will insert “respectively” next after “executor”; or will hold that the trusteeship was the office essential to the power. The appointment and qualification as executor might facilitate the collection of claims and the settlement of accounts, but it added nothing to the power to sell and convey devised to the trustee. Circumstances might make it convenient to leave the collection of the estate to the widow and William, while Charles retained the power of disposition.

Holding the. fee simple with power of disposal Charles needed no authority from any court to sell and convey the Ohio lands. The certified copy of the will and probate had been duly admitted to record in Knox county and his title and power as trustee thereby fully vested.

But it is urged that his resignation accepted by the Mississippi court deprived him of power to convey.

Having once accepted the trust the beneficiaries became entitled to his services. If they were all competent to contract he could be released by mutual agreement. A court of general jurisdiction having all parties in interest before it, might discharge him in a proper case. Where the state has by suitable legislation given express power to any court upon an ex parte application to accept a resignation and appoint a successor, and the statute provides for a transfer of title and powers, a trustee may be released by order of such court. Upon this the authorities are agreed. See Perry on Trust, sec. 274, and cases there cited.

No legislation had clothed the orphans’ court of Adams county, Mississippi, with such powers, and we think its order did not affect the title, or power, of Charles as a trustee.

It is further urged that by force of paragraph “ thirdly ” in the will, the title and power passed to William, because the instrument of resignation was a refusal to act under the will. The events whose occurrence would so transfer the trust were 1, death of Charles; 2, his refusal “to take upon, himself the execution of the will.” He continued to live and he did “ take upon himself the execution of the will.” So far as concerned the trusteeship he continued bound by that acceptance so long as he lived. Hence at the time of his sale and conveyance to Sprague and Davidson he had full power and complete title as trustee; his deed was valid. He faithfully transmitted the purchase money to his mother, the “chief executor,” and she properly accounted for it. It follows that the verdict and judgment in favor of McGugin et al. were right.

In the case against Hawn, the plaintiffs claim that so long as the title remained in a trustee the statute of limitations did not begin to run; that Mary Veazie was a married woman when William S. Smith died, and therefore her action is in time. But both principle and authority clearly establish the doctrine that where the legal estate is in a trustee competent to protect it, adverse possession will become a bar against him under the same circumstances that would bar one seized in fee in his own right, and that when an action by such a trustee is barred his beneficiary is also barred. See Llewellyn v. Mackworth, Barnardiston’s Ch. Rep., 449; Melting v. Leake, 32 Eng. Law & Eq., 442; Weaver v. Leiman, 52 Md., 709; Smilie v. Biffle, 2 Barr. (Penn.), 52.

Plaintiffs urge that Warden entered with notice of the auditor’s deed to Elijah Smith; of Smith’s will and of the trust created by it; that Warden (and all claiming under him) became constructively trustees and that the statute could not run in their favor because, although they claimed title, the beneficiaries had no actual notice of the claim. But this claim is unfounded. A similar claim has frequently been denied by the courts. See McClane’s Adm. v. Shepherd’s Ex., 21 New Jersey Eq., 79; Howell v. Howell, 15 Wis., 55; Manion’s Adms. v. Titsworth, 18 B. Monroe, 582. The text books on Trusts and on Limitations of Actions state these doctrines as settled and many other cases support them. In cases of constructive trusts the statute may be pleaded successfully. We do not decide that Warden and his grantees were even constructively trustees. Upon an examination of the cases cited by counsel for the plaintiff in error, we find that they plainly recognize two very different classes of cases: — 1st, as between trustee and cestui que trust; and 2d, as between a third party and the trustee or his beneficiary. In the former the statute will not begin to run until an unmistakable disclaimer of the trust is known to a beneficiary competent to sue. In the latter the statute begins and runs in its ordinary manner. Under the agreed statement of facts Hawn’s defense of the statute was complete.

We think this case presents an example of the beneficial operation of the statute. We can well believe that when Elijah Smith acccepted a deed from Guión for 1,000 acres of the 2,400 conveyed to him by the auditor, he in some way re-conveyed to Guión the other 1,400 acres. Neither he, nor any of his heirs, who were old enough to know the facts, during the interval of forty years laid claim to that tract. We are satisfied with the judgments below, and they are affirmed.

Judgments below affirmed.


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Street Railroad Co. v. Nolthenius.
    1. In an action for an injury alleged to have been caused by the negligence of the defendant, it is not necessary to allege in the petition that the injury was caused without the fault or negligence of the plaintiff, unless the other averments necessary to state a cause of action suggest the inference that the plaintiff may have been guilty of contributory negligence.
    2. Where an action was brought for an injury received by falling into a trench which had been dug in a public street for the purpose of laying or repairing the track of a street railroad, the opinion of a witness for •the plaintiff that the condition of the trench and track was dangerous, was not competent. But after the defendant, on cross-examination, had called out the opinion of the witness, that the condition, as he claimed it to be, of the trench and track was not dangerous, it was not error to permit the witness on re-examination to state his opinion that the condition, as claimed by the plaintiff, of the trench and track was dangerous.
    Error to the District Court of- -Hamilton County.
    The defendant in error filed his petition in the common pleas, in which he charged: “ That on or about the 28th day of February, A. D. 1877, the said defendant did, by its agents and servants, dig and open a ditch or trench on Elm street and McMicken avenue, at the point where they intersect, both being public streets, in the city of Cincinnati, Hamilton county, Ohio, and did then carelessly and negligently permit said ditch or trench to remain open and uncovered, and without fixing any light of warning or barrier at or near the same. And plaintiff further says that in consequence of the negligence and carelessness aforesaid of the defendant, in passing along said streets in the early evening of said day, he accidentally fell into the said ditch or trench and broke his right leg, and was badly hurt, whereby he became lame and diseased, and so remained up to the present time, and still is and will be permanently lame and weakened. That he ,1m been ever since said injury, and still is prevented from attending to his necessary and ordinary business and labor, to his loss and damage to the present time in the sum of $1500, and has been put to and incurred great expense, to-wit: to the sum of $1,000 for medical services and attendance in and about trying to get healed and cured of his said injury, and that he has been put to great pain and suffering, and has received permanent injury from said fall, and that he has thereby suffered further damages in premises in the sum of $5,000.
    To this petition the defendant answered by a general denial.
    On the trial the plaintiff called one John Bradley as a witness, and on cross-examination the defendant asked him this question:
    Q. Is there any custom or usage as to the manner of protecting against excavations when left during the day time, and if so, what is ordinarily done ?
    To which the witness answered:
    A. If it is a dangerous place, either put up a fence around it or keep watch.
    The defendant then asked the question:
    Q. Now, explain what you mean by dangerous obstructions — that you set a watchman to watch in the day time even; suppose it consisted of such a place where they had taken up a pavement for the purpose of relaying it, anything of that kind' — preparing by taking the pavement wholly up and laying the old paving block on the side of the street, and for some reason or other, going to dinner, anything of that kind, in the day time, leaving the place where they had cut out the width of the boulder or blocks, what would you say about that being a dangerous excavation, that you would leave a watchman or put a fence around it in the day time ?
    A. No; I would not leave a man there, excepting to protect the street from being torn up.
    Q. You would not regard that as a dangerous excavation requiring a watchman or a fence ?
    A. No, sir.
    The plaintiff then on re-examination asked the question:
    Q. Supposing that the street is left in a condition to put boulders in and there are two tracks upon the road bearing the same relation to each other as this, now state whether or not, in your judgment, it would be dangerous to leave it open there, with the tracks in that way — leave it open in the way, say it is open for the purpose of putting in boulders.
    To which the witness answered:
    A. Yes, that would be dangerous; anything of that kind we would put a fence or timber across it, and stop the travel there.
    All of the examination of this witness was objected to and objections overruled, and exceptions.
    Upon the trial the plaintiff recovered a judgment, which was affirmed by the district court.

      Stallo Kittredge and Paxton Warrington, for plaintiff in error.
    1. As to the admission of incompetent testimony, see St. P. R. Co-, v. Shires, 18 Ohio St., 225; St. R. P. Co. y. Stallmen, 22 Ohio St., 1; Turnpike Co y. Coover, 26 Ohio St., 520; Ins. Co. v. Hearmer, 2 Ohio St., 452; Wharton on Ev., §§ 436, 509-513; Crane v. Northfield, 33 Yt., 124; Hoivell v. Wright, 3 Allen, 166; Montgomery v. Scott, 34 Wis. 327; Oleson v. Talford, 37 Id., 327; Hughes v. Muscatine, 44 Iowa, 672 ; Chicago v. McCiven, 78 Ills., 347; Patterson v. Colebroolc, 29 N. H., 94; Winters y.' P. R., 39 Mo., 468.
    2. As to whether the petition should aver that the plaintiff was not guilty of negligence, see 2 Thompson on Neg., 1175, 1253. Railroad Co. v. Peters, 80 Ind., 168 ; Railroad Co. v. Barber, 5 Ohio St., 571; Railroad Co. v. Blliott, 28 Ohio St., 340.

      Me Cuffey, Morrill Strunk and Ph. Bolle, for defendant in error.
    1. As to the question of pleading, see Shear. & Red. on Neg., § 44, and cases there cited: Shefy. City, 16 W. Ya., 307; Thompson v. Railroad Co., 51 Mo., 190; Railroad Co. v. Heorst, 93 U. S., 291; Hart v. Peters (Wis.) 14 Reporter, 542; Robinson v. Cary, 28 Ohio St., 241; Railroad Co. y. Whitacre, 35 Ohio St., 627.
    As to admissibility of evidence, see Commonwealth v. Borsey, 103 Mass., 412; Com. v. Sturtivant, 117 Id., 122; Clipper v. Logan, 18 Ohio, 375; Railroad Co. y. Whitacre, 35 Ohio St., 627; Raymond v. City, 6 Cush., 624; Grreenleaf on Ev., § 468; Taylor y. Boggs, 20 Ohio St., 516.
   McCauley, J.

This case presents two questions. First, was it necessary that the plaintiff should have alleged in his. petition that he received the injuries complained of without fault or negligence on his part, and second, was it error to admit the opinion of the witness Bradley on his re-examination that the condition of the street and railroad track was dangerous. The general rule is that contributory-negligence is matter of defense. This is a rule of pleading as well as of evidence. It has been frequently held that where the evidence of the plaintiff raises a presumption of his negligence contributing to the injury, the burden is upon him to remove the presumption before he can recover. Railroad Co. v. Whitacre, 35 Ohio St., 627; Hays v. Gallagher, 72 Pa. St., 140; Robinson v. Gary, 28 Ohio St., 241.

If the plaintiff in the averments of his petition necessary to state his cause of action, by reason of his relation to the defendant as agent, employee or otherwise, suggests the implication of negligence on his part, that implication mu'st be negatived by an allegation that he was without fault. Railroad Co. v. Barber, 5 Ohio St., 541. But where the relation between the parties does not require of the plaintiff any duty toward the means from which the injury resulted beyond ordinary care to avoid injury, no sueh averment is necessary. Where nothing more than ordinary care is required that degree of care will be presumed.

In this case the plaintiff was passing along a street and had no relation with the defendant requiring him to observe more than that ordinary care that is at all times required to avoid injury. The averment, therefore, that he was without fault, would be an averment of that which would be presumed and was not necessary.

As to the other question that the witness Bradley in answer to a question by counsel for plaintiff, gave it as his .opinion that the street in a condition supposed to exist when the injury occurred, was dangerous. If this opinion had been given by the witness in his testimony in making the case of the plaintiff, it would have been improper and its admission would have- been error. But the opinion was given in re-examination after the defendant had asked the witness whether the street was dangerous in a condition which he claimed to have existed at the time of the injury, and the witness had answered that it was not. After the rvitness had thus ansAVered, counsel for plaintiff asked him Avhether or not the street Avas dangerous in a condition claimed by the plaintiff at the time of the injury, to which he answered that in that condition it would be dangerous. The witness in his examination in chief had said -that if the street was in a dangerous condition, it should have been fenced up or guarded; but had not said whether it was dangerous or not, until he was asked by the defendant, and then only stated that in the condition supposed by the defendant it would not be dangerous.

After the defendant had gone beyond the proper limits of a cross-examination, and had called out an opinion of the witness favorable to his claims in the case, it was not error to permit the plaintiff to re-examine on the same matters. 1 Greenleafs Evidence, sec. 468; Clipper v. Logan, 18 Ohio, 375; Taylor v. Boggs, 20 Ohio St., 516.

Judgment affirmed.


author: Dickman, J.

text:
    Wamelink v. City of Cleveland.
    In a municipal corporation, three-fourths in interest, represented by the feet front of the owners of property abutting upon a street, petitioned for the improvement of the street by paving the same with wood and stone. Two petitions were presented to the citj- government — one, sjjjned by a majority in such interest of the petitioning owners, asked, that the street should be “ paved with eight feet of stone on each side, and twenty-four feet of wood between the stone; ” and one, signed by a minority in such interest of the petitioning owners, asked, that the street should be “paved with not less than thirty-two feet of wood center, treated with the Thilmany process, and balance stone.” The street was paved with stone and wood treated with the designated process, but not in the proportions of material asked by the minority petition.

      Held: That within the meaning of the last proviso in section 5á3 of the municipal code, as amended March 20, 1875 (72 Ohio L., 68), three-fourths in interest of the owners of property abutting upon the street, petitioned for the improvement.
    Error to the District Court of Cuyahoga County.
    The original action was commenced in the court of common pleas of Cuyahoga county, by the plaintiffs in, error, J. T. Wamelink and others, against the city of Cleveland and F. W. Pelton, treasurer of Cuyahoga county, the defendants in error. The object of the action was to enjoin the collection of an assessment for grading, paving and draining Woodland avenue between East Madison avenue and Woodland Hills in said city, as being illegal and void.
    For the purpose of paying a portion of the cost and expense of said improvement, the city' council passed an ordinance, on the 29th day of August, 1876, whereby the sum of one dollar and eighty-three cents was levied and assessed upon each and every foot front of the several lots or parcels of land bounding or abutting on said portion of Woodland avenue; and the city caused the assessment to be certified to the county auditor, who delivered the. same to the county treasurer for collection.
    Among other things, the plaintiffs alleged in their petition: “ That the said sum of one dollar and eighty-three cents was assessed by the said council in the year 1876 with the view and intention of assessing the cost and expense of said provement in five'annual installments, and in the follow- ■ sums, viz: For 1876, one dollar and eighty-three cents; 1877, one dollar and sixty-four cents and four mills; for 678,. one dollar and forty-three cents and eight mills; for 187.9, one dollar and thirty-five cents and five mills, and for 1880, one dollar-and twenty-seven cents and one mill per foot front respectively.
    “That said -assessment of one dollar and eighty-three cents already levied and said other assessments which said city intends to levy on said lots of land, are in the aggregate-more than twenty-five per cent, of the value of said lots of land after said improvement was made.
    “That said improvement was not petitioned for by three-fourths in interest of the owners of property abutting on said portion of said Woodland avenue.”
    A temporary injunction was refused, and on final- hearing, the petition was dismissed. An appeal was taken by the plaintiffs to the district court, and the following bill oí exceptions was tendered to the court and allowed:

      “Be it remembered that at the May term, 1879, of said court, the above entitled cause came on to be heard in. said court before one of the judges thereof; and it was conceded by both plaintiffs and defendants that the frontage of the lands abutting on said improvement in the petition described, was eight thousand six hundred and three feet, and that said pavement as made consisted of twenty-four feet in width of wood treated with the Thilmany process and of eight feet in width of stone on either side of said wood,' making a total width of forty feet; that said improvement was made on two petitions to the city government,.one' signed by owners representing four thousand eight hundred and ninety-three feet front on said improvement, and headed as follows, viz.: ‘We, the undersigned property owners on Woodland avenue between Madison avenue and Woodland Hills avenue, respectfully ask your honorable body to. have the roadway of said avenue paved with eight feet of stone on each side and twenty-four feet of wood between the stone ’; and the other of said petitions signed by owners representing two thousand three hundred and seventy-six feet front on said improvement, headed as follows, viz.: ‘We, the undersigned property owners on Woodland avenue between Madison avenue and Woodland Hills avenue,, petition your honorable body to cause said avenue to be; paved with not less than thirty-two (32) feet wood center.treated with the Thilmany process, and balance stone, because it is' very probable that a street-railroad track will be laid iii said avenue, and in that case a less width of wood centre-would destroy the driving on wood, as illustrated on Superior street above Erie street.’ >
    “It was also conceded that at the time said improvement was made, stone pavement was cheaper than that of wood.
    “ And thereupon the plaintiffs produced' witnesses upon whose examination they proposed and offered to prove that the said several lots Avere, after said improvement, each of no greater value than tAventy dollars per foot front, and each of less value than four times the amount of said assessment thereon and of the cost of said improvement. To which the defendants objected that the same was immaterial and incompetent, because taking said two petitions together, owners representing ■ more than three-fourths of the feet front abutting on said improvement had petitioned therefor; and the plaintiff insisted that said petitions could not be considered together as being for the same improvement. And the court sustained said objection, and excluded the testimony, and it was not given. To which the plaintiffs excepted, and asked that this, their bill of exceptions, be allowed and signed in that behalf and made part of the record, which is accordingly done.”
    In the district court the judgment of the court of common pleas was affirmed, and this court is requested to reverse the judgments of the courts below.

      John W. Seisley, for plaintiffs in error.

      Kain, Sherwood §- Bunts, for defendants in error.
   Dickman, J.

By section 543 of the Municipal Code, as amencled March 20, 1875, (72 Ohio Laws, 68,) it was provided, that in all cities of the first class, the special assessment upon any lot or land.for any street improvement may amount to twenty-five per cent, of its value after such improvement is made — the cost exceeding such per'cent, to be paid by the corporation out of its general revenue. The section provided further, “ that in any municipal corporations, when. three fourths in interest represented by the feet front, of the owners of property abutting upon any street or highway of any description, petition for any improvement of such street or highway, none of the foregoing limitations, of this section shall be operative or binding.” The essential question to be. determined in this1 case is, Whether within the meaning of the last proviso in section 543, three fourths in interest of the property owners petitioned for the improvement, as made, of Woodland avenue. Two petitions were presented — one, signed by a majority in interest of the petitioning owners, asking, that t[ie avenue be “paved with eight feet of stone on each side, and twenty-four feet of wood between the stone,” and one, signed by a minority in interest of such petitioning owners, asking, that the avenue be “paved with not less than thirty-two feet of wood center treated with the Thilmany process, and balance of s-tone.”

It is conceded, as appears by the bill of exceptions, that the pavement. of the avenue as completed, consisted of twenty-four feet in width of wood treated with the Thilmany'process, and of éight feet in width of stone on each side of the wood. The relative amounts of' wood and stone, requested in the majority petition, were thus adopted. If those who signed the minority petition are to be counted —and we are of opinion that they should be — three fourths in interest of the property owners petitioned for the pavement as it was actually made. The proviso of the statute having been thus complied with, the limitation of the assessment'to twenty-five per cent. of the value of the abutting land,'after the improvement was made, ceased to be operative or binding. ■ ■

It is contended, in behalf of the plaintiffs in error, that the minority' petition was coupled with an indispensable condition, that 'the pavement should be laid with the designated material in certain quantities, and not otherwise. We do riot so understand the language or intention of the petitioners. The gist of their .petition was, that stone and wood treated with the Thilmany process should be used in paving the avenue; and the petitioners indicated a preference for a pavement with'“not less than thirty-two feet wood centre.” But they certainly did not, either expressly or by implication, design to convey the impression, that if their preference was not followed, they desired to be no longer regarded in the light of petitioners for a wood and stone pavement of any kind. Their language was addressed to the council rather. by way of suggestion than as a condition, as: is manifest from their endeavor to- enforce their choice by> the argument, that a street railroad' track would probably be laid in the avenue, and in that case, the effect of a less width of wood center than thirty-two feet, would be to destroy tbe driving on the wooden part of the road way. The effort to thus lead the judgment of the council, was a-virtual acknowledgment, that it devolved upon that body, in their discretion, to determine between the two methods respectively asked for by the signers of the majority and minority petitions.

Municipal corporations are vested with very ample powers in reference to the care, supervision, and control of streets. It is made the duty of the city council, to cause all public highways and streets to be kept open and in repair, and free from nuisance. When it is deemed necessary to make a street improvement, the council must declare by resolution the necessity of such improvement; and cause plans and profiles of the same to be prepared, and kept on file for the inspection of interested parties; and pass an ordinance for the purpose. The municipal corporation may improve streets, without obtaining the consent of property owners along the line, and after the completion of the improvement, may assess the cost and expense of the same upon the abutting lots, to the limit of twenty-five per cent, of their value after the improvement is made. But these powers are to be exercised, and these duties discharged, not with reference to the sole benefit of the owners of the abutting property, but in view of accommodating the public at large.

It is evident, therefore, that there is much room for the exercise of a large discretion, on the part of the city government. If the council, upon their own volition, take no steps to improve a street, but the initiative, by petition, is taken by the owners of abutting property, their action would indicate a reliance upon the council to exercise an honest and reasonable discretion, in granting or refusing their request. If petitioners representing different interests, ask for substantially the same improvement, but do not concur as to some subordinate requirements ; and if as to the main features of the work, the wishes of all the petitioners are carried out, it cannot be urged with reason, that the improvement was made without the property owners having petitioned for the same. The petitioners would be presumed to be cognizant of the discretionary powers of the council, and to have asked for the improvement in the desired mode, subject to such modifications, as in the judgment of that body, might be deemed suitable. In the present case, while Woodland avenue was not paved with a wood center of thirty-two feet, it was paved with stone and wood treated by the Thilmany proeesss. The main point of both petitions was, that wood and stone were to be used. While the majority petition was adopted, as to the quantities of the constituent materials to be used, the minority petition was followed in using wood treated with the Thilmany process. The two classes of petitioners did not agree as to the proportions of the component materials; but all parties were united, in seeking the one desirable object — a pavement of wood and stone.

The underlying principle of local assessments is, that the owner of abutting property, is remunerated by the special benefit which his property receives from the improvement of the street. If for their own special convenience, and to increase the value of their property, three fourths in interest of the owners of abutting lots prefer the street to be paved with an expensive material, superior to that of many other streets, and which the city council would not select except upon special application, they should not be unwilling to bear the extra cost above the statutory limitation of twenty-five per cent. And, when a portion of the property owners petition for one kind of pavement, and the remainder ask for a pavement substantially though not identically the same; and when, upon due consideration, the city government makes the improvement in accordance with the wishes of all parties as far as practicable, the owners, after such substantial compliance with their wishes, should not be permitted to evade a liability created by their own act, and shift the main burden of the cost upon the general revenue, on the ground, that they did not all petition for exactly the same thing, or that the improvement varied in some slight particular from the express terms of one of their petitions.

In our view of this case, it becomes unnecessary to consider the question of estoppel raised by the defendant in error, viz.: Whether — the city having interpreted the language employed in tbe minority petition as imposing no condition; and the petitioners, with full knowledge of that fact, having acquiesced therein by permitting tbe city to proceed in making the improvement without objection or protest — tbe petitioners are estopped to deny the correctness of sucb interpretation, or to assert a condition. Tbe judgments of tbe courts below must be affirmed.

Judgment accordingly.


author: Nash, J.

text:
    Gerlach v. Redinger.
    A married woman sold and conveyed her separate real estate by warranty deed. She joined her husband in the covenants of the deed, in which the following words were used:
    “And the said Michael Redinger and Eliza Redinger, she covenanting in her own right and as the owner thereof, do hereby covenant that .they have full power to convey the same; that the title so conveyed is clear, free and unincumbered, and further that they will warrant and defend the same against all claim or claims of all persons whomsoever.”
    Two valid liens — taxes and a mechanic’s lien — existed upon the real estate at the time the deed was executed and delivered, which were after-wards paid and discharged by the grantee. Eliza Redinger brought an action to recover a balance of unpaid purchase money, and the grantee sought in the court below to have the amounts which he paid to discharge the liens, deducted from the amount of the purchase money claimed to be due.

      Held: That by the covenants, so worded, she charged her separate estate with the removal of the incumbrances, and the grantee was entitled to have the sums paid by him, to discharge them, deducted from the unpaid purchase money.
    Error to tbe District Court of Scioto county.
    Eliza Reclinger, a married woman, was tbe owner of eertain real estate as her separate property. On the 10th day of August, 1871, she sold the land to Conrad Gerlach for a consideration of $2,400. Of this sum $1,600 was paid in money, and $800 remained to be paid partly in work and the balance due, after, the work was completed, in money. The real estate was conveyed by deed of general warranty, and Eliza joined with her husband, Michael Redinger, in the covenants in the deed, and used the following language :
    “ And the said Michael Redinger and Eliza Redinger, she covenanting in her own right, and as the owner thereof, do hereby covenant that they have full power to convey the same; that the title so conveyed is clear, free and unincumbered, and further, that they will warrant and defend the same against all claim or claims of all persons whomsoever.”
    At the time of the execution of this deed there were two liens upon the property:

      First. A mechanic’s lien in favor of M. Kricker, administrator, against Eliza Redinger, for materials furnished, amounting to $87.16, which Gerlach paid Oct. 5, 1872.

      Second. A lien for the taxes of 1870 and 1871, which, with the penalty, amounted to $51.76, which Gerlach paid in 1873.
    Both these sums were paid by Gerlach to save the property from sale.
    On the 2d of September, 1877, Eliza Redinger brought an action to recover the balance of the $800 due her, after deducting the value of the work done, and the error complained of is that Gerlach was not permitted to deduct, from the balance of the $800, the sums of money paid by him to release the property from these liens.

      J. W. Bannon and T. O. Anderson, for plaintiff in error.
    1. The defendant was liable upon her covenant of warranty contained in her deed. ' Schouler on Husband and Wife, § 270, and authorities there cited; and without regard to whether this is so or not, Gerlach was entitled to a deduction for the amount paid by him to clear the property of liens. Preston v. Brown, 35 Ohio St., 32 : Meily v. Butler, 26 id., 535;- Brewer v. Manser, 38 id., 554.

      Moore $ Newman, for defendant in error.
    A married woman is not liable in damages for the breach of the covenants of her deed. Bill v. West, 8 Ohio, 222; Rosenthal v. Mayburgh, 33 Ohio St., 159; Kelley’s Contracts of Married Women, 103, and cases there cited; 1 Bishop on Married Women, § 603.
    The party who deals with a married woman must be presumed to know her incapacity to bind herself by the covenants in her conveyance. If, therefore, he has reason to doubt her title, or to suspect incumbrances, he should guard against them. He may do as Avas done in this ease, require the covenants of the husband; or as was done in Brewer v'. Manser, 38 Ohio St., 554, require that the incumbrances be paid out of the purchase money. But he did not do the latter, but was content to abide by the covenants of the husband, and with those of the wife that Avere a nullity, and he cannot hoav insist upon terms more favorable.
   Nash, J.

In the contract for the sale and conveyance of her separate real estate, Avitnessed by the deed of conveyance, with its covenants peculiarly Avorded, Eliza Redinger agreed that her separate property should be charged Avith the payment of all liens that Avere upon the real estate at that time. This was just as much a part of the contract as was Gerlach’s promise to pay a part of the purchase money at a future date. When Mrs. Redinger brought an action to enforce Gerlach’s unperformed part of the contract, to Avit: the payment of the balance of the purchase money, Gerlach had the right to have deducted therefrom the amounts Avhicli he had paid to remove the liens subsisting upon the property at the time of the agreement. The recent decisions of the supreme court of Ohio have tended to enlarge the rights of married women in regard to their separate estates, and consequently increased their liabilities. Our conclusion in this case is in harmony with the spirit of these decisions.

Judgment reversed.

Dickman, J., dissented, and Martin, J., did not sit in the ease.


text:
    Kling v. Ballentine.
    B. died testate, leaving land incumbered by a mortgage, for his debt, made by liimself and wife, who survived him. She duly elected to take under the law, and not under the will. The land was sold upon a proper petition of the administrator with the will annexed. The proceeds of the land, added to the personalty, made a sum large enough to pay all debts (including the mortgage), the statutory allowance for one year, the costs of administering the estate, dower in the entire proceeds of the land, and leave a surplus for the devisees.

      Held: The widow, as against the devisees, is entitled to dower in the entire proceeds of the land.
    Error to the District Court of Marion County.
    On the 31st day of January, A. D. 1878, John Ballentine was seized in fee simple of a tract of land in Marion county, Ohio, containing 120 acres. On that day he and his wife Adaline mortgaged it to F. & R. Lazarus & Co., to secure a promissory note of the husband for $3,000, payable three years after date, with interest at eight per cent. John died testate, and his will was admitted to probate in Januaiy, 1879. Adaline survived him, and, in due form of law, declined to take under the will. His daughters, Emma and Julia, were his only other devisees and legatees. Administration, with the will annexed, was granted to A. H. Kling. The debts (including said mortgage note) exceeded the personal estate. The administrator duly filed in the probate court a petition for the sale of the land to pay debts. The mortgagees answered, making all interested parties defendants, setting up their mortgage claim. The widow, by answer, waived the assignment of dower by metes and bounds, claimed dower in the entire tract, averred that she was fifty-four years of age, and ashed the court to “ allow her in money the value, of her dower in the proceeds of a sale of the premises.” The land sold for $8,300. The sum required to pay the mortgage was $3,249.33. The proceeds of the personal estate amounted to $5,029.25. The unsecured debts were $3,212.07. The sum in the administrator’s hands was large enough to pay all the debts (including the mortgage); also all the costs of administration; to give full dower to the widow in the entire proceeds of the land and leave a surplus for the devisees.
    The probate court allowed dower only in the surplus of $50.67, found by deducting the mortgage debt from the proceeds of the land.
    The common plea's, on error, reversed the judgment of the probate court and gave to the widow dower in the entire proceeds of the land.
    The district court affirmed the judgment of the common pleas, and this court is asked to reverse the last two judgments.

      Marriott $ Hughes, for plaintiff in error.
    The widow should only be endowed of the surplus remaining after satisfaction of the mortgage. Swaine v. Perrine, 5 Johns. Ch., 482, 491; Hinehman v. Stiles, 1 Stockton, 361; Benton v. Nanny, 8 Barb., 618; Taylor v. Fowler, 18 Ohio, 567; Hophinson v. Bumpstead, 8 Mass., 491; Bank v. Hinton, 21 Ohio St., 509; Hawley v. Bradford, 9 Paige, 200; Scribner on Dower, 499; Gfibson v. Crehore, 15 Pick, 146.

      W. Z. Bavis, for defendant in error.
    In examining and weighing the decisions it is important to bear in mind the principle, which probably has no exception, that “in order to bar the dower interest of the wife, the proceeding in which the sale is made must be founded directly on the mortgage.” 1 Scribner on Dower, 528, secs. ■50. 51; 18 Ohio. 567.

      This is the explanation of all the cases cited by counsel for the plaintiff in error, as well as many .others which might at first sight seem to conflict with my position. Even Mr. Scribner himself seems a little confused by not attending strictly to this distinction. 1 Scribner on .Dower, 487, 488, secs. 37, 38, et seq.

    This case is not a foreclosure of the mortgage, nor in any sense a proceeding on ,the mortgage; it is not an adversary proceeding,, but a proceeding in rem, by the administrator’, to sell property to pay debts, not a particular debt, of the decedent; nor is.it, as I have already shown, a proceeding in which the creditors, or any of them; have any more than a technical-interest; and I undertake to maintain, notwithstanding the remarks of Mr. Scribner just referred to, (1 Scribner on Doiver, 488, sec. 38,) that there are very few decisions, I have found none, in which it is held that as between the heirs and dowress the latter may be defeated of her dower by the neglect or refusal of the husband’s personal representatives to pay his debts out of his estate.
    The debt is primarily the husband’s debt. The mortgage is his mortgage. The wife’s release of dower is to the mortgagee and those entitled under him, not to heirs nor strangers to the contract. Hence, except as to the mortgagee, and those in privity with him, there, never was any release of dower and the husband’s estate is bound for the payment of the debt. 16 Ohio St., 205, 206; Scribner on Dower, 525, 526, §§ 42, 44. And as sustaining the claim of defendant, see 1 Hilliard on Mortg., 411, 412; 2 Jones (N. C. Eq.), 357; 69 North Car., 67; 1 Angelí (R. I.), 22, 25; 8 Rhode Island, 160; 3 Met. (Ky.) R., 578, 581; 12 Serg. and R., 18, 21; 1 Md. Ch. Deeis., 202; 10 Rich. Eq., 285; 2 Hill, S. C., Ch., 250; 15 N. H., 38, 42; 9 Foster, 564,-572; 37 Me., 509, 515; -10 Mass., 364; 3 Pick., 475, 481; 5 Id., 146,150; 16 Ohio St., 205, 206; 28 Id., 503-507; 27 Id., 512; 3 Paige Ch., 363.
   Granger, C. J.

We have carefully examined all the cases cited by counsel, and many others, without finding one in which the precise question here presented was adjudicated. In England a strict technical rule obtained, by which the act of the wife in joining in the execution of the mortgage was held a bar to her entire dower, unless the legal estate in the land had become again vested in the husband, before his death, by proper extinction of the title of the mortgagee. American courts, however, hold the wife entitled to dower in the equity of redemption. See Chancellor Kent in Tabele v. Tabele, 1 Johns. Ch., 45, and Titus v. Neilson, 5 Id., 452. In Hawley v. Bradford, 9 Paige, 200, Chancellor Walworth said: “It is the settled law that where the wife pledges her separate estate, or the reversionary interest in her real property, for the debt of her husband, she is entitled to the ordinary rights and privileges of a surety. If the same principle is to be applied to the case of a wife joining in a mortgage of the real estate of the husband, for the purpose of barring her contingent right of dower therein, the 'claim of the exceptant in this case must be sustained. For the equitable claim of the surety to have the mortgage satisfied out of that estate, or interest in the premises, which belongs to the principal debtor alone, is entitled to a preference over the claims of the subsequent incumbrancers to have their debts satisfied out of the same estate or interest in the premises. I am not aware of any decision, however, in which the principle of suretyship has been applied to a case like the present. ® * * Strictly speaking, the wife has no estate or interest in the lands of her husband, during Ms life, which is capable of being mortgaged or pledged for the payment of his debt. Her joining in the mortgage, therefore, merely, operates by way of release or extinguishment of her future claim to dower us against the mortgagee, if she survives her husband; but without impairing her contingent right of dower in the equity of redemption.”

The italics in the quotation are ours. We quote Chancellor Walworth thus fully, because the case is perhaps the strongest one in implications favorable to the plaintiff in error here. It seems evident that the chancellor was considering the question as between the widow and subsequent incumbrancers, holding liens upon her husband’s interest •acquired in his life time. The holding is based upon the nature of “dower inchoate.” As’against it, incumbrances created in his own estate by the husband, in his life time, were prior in time to her “ dower compléte,” and the holders could successfully resist any effort by the widow to require the owner of the joint mortgage to first consume the husband’s interest, if by so doing he would prejudice their rights. But the widow and the devisees take at the same moment (the death of the testator); she, dower complete; they, estates given by the bounty of the testator. As between her and them the question is very different from the one decided by the chancellor.

A strict construction of the words “ entitled to dower in the equity of redemption ” would, perhaps, make absolute the status found existing at the moment of the husband’s decease; pay the mortgage out of the proceeds of the land and endow the widow in the surplus only. We think the chancellor,,having before him no contest between widow and heirs, or devisees, calling for a study of that construction, very naturally used the language quoted, without expressly limiting its application to the case before him. Yet even he limits the bar of her dower by the words “as against the mortgagee.” The American cases, with one voice, say that a wife, by joining her husband in the mortgage, is barred of her dower in the mortgaged premises as against the mortgage. She can claim nothing that will injuriously affect the rights of the mortgagee, or of any claimants by, through, or under him. ’

In Ohio the legal estate is in the mortgagor until condition broken. After that it is still in the mortgagor as to all the world except the mortgagee. Ely v. McGuire, 2 Ohio, 223.

This Ohio doctrine is as far as possible from the English rule before referred to. In Ohio also the debt is the thing. The mortgage is one of its incidents, and is transferred by an indorsement of the note> to a new holder. We think' it follows, ' logically, that a widow who, as wife. joined in mortgaging her husband’s land to secure the payment of Ms debt, is entitled to dower in all of the land, subject only to the right of the holder of the mortgage debt to full payment. The administrator is required by statute to pay the mortgage debt, if it has been properly presented and allowed. The personal assets in his hands must be applied, actually or constructively, to pay costs of administration, the statutory allowance for one year, and debts, before he can resort to the realty. It is only when he “ shall ascertain that the personal estate will be insufficient to pay all the debts .of the deceased, with the allowance to the widow and children for their support twelve months and the charges of administering the estate,” that he can legally ask for a sale of realty. If the personal estate is large enough to pay all costs, the allowance, and debts, he must so apply it, notwithstanding some of those debts are secured by mortgage. In such a case would it be seriously claimed that the widow should not have dower in the whole land ? But if the heirs’ share of the personalty may be reduced by payment of the mortgage debt, (thereby relieving the widow’s dower,) upon what principle can it be claimed that their share of the realty should not be in like manner applied when the personalty proves insufficient? For, in Ohio, when the personalty will not pay the decedent’s debts his realty is made assets for the administrator to the extent of the need. A dowress takes by purchase and not by testament, or inheritance. The rights of a purchaser are paramount to those of heir, devisee or legatee. By executing such a mortgage she conveyed nothing to her husband, and therefore, because of it, no part of her dow'er could pass from him by descent or will. The mortgagee was Ms creditor, entitled to full payment out of Ms estate, with a right to consume her dower, if it should be necessary so to do in order to obtain full payment of the debt. We hold, therefore, that the court of common pleas did not err in granting to Mrs. Ballantine dower in the entire proceeds of the land. Of course she should bear her proper share of the costs in the probate court incurred in settling her dower. This, that court can require.

Judgments of district court and common fleas affirmed.


text:
    Carran et al. v. Little.
    B., an officer of the city of Cleveland, having a salary payable quarterly, made a draft on E,, the treasurer of the city, for eleven hundred and twenty-five dollars, payable to the order of C., on the eighth day of April, 1874, and directed that the amount of the draft be charged to his salary for the quarter then ending,-and waived demand and protest. The draft was endorsed by C. to D.

      Held: The draft was negotiable and created between B. and C. the relation of drawer and endorser.
    Error to the District Court of Cuyahoga County.
    The action in the common pleas was brought by Little, the defendant in error, against Garran as endorser, Everett as drawee, and the administrator of ¥m. C. Bunts, the drawer of a draft, which is as follows:
    “ $1125. Cleveland, August 13, 1873.
    “ On the 8th day of April, 1874, pay to the order of T. J. Carran, Esq., eleven hundred and twenty-five dollars and charge to my quarter’s salary as city solicitor, due at that time, demand and protest waived. Value received and place to account of “W. C. Bunts
    “ To S. T. Everett, Esq., City Treasurer.

      “Endorsed: Thomas J. Carran.”
    It was averred in the petition that at the date of the draft, the drawer, Wm. C. Bunts, was the city solicitor of the city of Cleveland and the defendant 8. T. Everett was the treasurer of the city; and that eleven hundred and twenty-five dollars would become due to Bunts on April 8th, 1874, as his salary for the quarter then ending; and that his death occurred some time after January 8th and before April 8th, 1874. Judgment was given for the defendants below on demurrer to the petition. This judgment was reversed by the district court, and the demurrer of the defendant Carran to the petition was overruled. To reverse this judgment a petition in error is filed here.

      Thomas J. Garran, for plaintiff in error.
    The paper was not negotiable. The State v. Treasurer of Liberty Township, 22 Ohio St., 144; Porter v. Dunlap, 17 Id., 591; 1 Ohio, 279; Strader v. Batehelder, 8 B. Monroe, 169; Reaside v. Knox, 2 Wharton, 283. To constitute a negotiable bill of exchange or order it must be drawn for a sum of money certain, must be payable at all events and must not be confined to a particular fund. 1 S. and C. Stat., 862; Weidler Carpenter v. Kaufman, 14 Ohio, 455; Cook v. Satterlee, 8 Cow., 108; Gota v. Buck, 7 Mete., 588; Lowery v. Steward, 25 N. Y., 239; Hunger v. Shannon, 61 Id., 251.

      Kain,.Sherwood f Bunts, also for plaintiff in error.

      Samuel K. Williamson, for defendant in error.
    The law is well settled that an order to pay money out of a particular fund' is not a bill of exchange, and it is equally well settled that an order to pay money is a bill of exchange, although it may designate the fund out of which the drawer may reimburse himself. The only trouble consists in the application of these well known rules to the particular case, and in every instance it is a question of intention to be gathered from the language of the instrument. In Hunger v. Shannon cited in plaintiff’s brief the order was to deduct from a certain fund. There is very little difference in meaning between deduct from and out of. But the instances are too numerous to mention where instruments which directed the drawer to charge to a particular fund have been held to be bills of exchange. See Parsons on Notes and Bills, 44 and notes x and y. The order in this case directs 'the payment absolutely and unconditionalljr, and it does not direct payment out of a particular fund. It merely states to the drawer how he may reimburse himself. It therefore has every essential of a bill of exchange. Kelly v. Brooklyn, 4 Hill, 263.
   McCauley, J.

The principal question in this ease is whether or not the plaintiff in error, Carran, is liable as endorser of the draft on which the plaintiff seeks to recover. This question is to be determined by the character to be given to the draft itself. The claim of the plaintiff in error is that the draft is merely an assignment of an unearned salary for a certain quarter, and being drawn on the city treasurer was payable out of the salary of the drawer, and being thus payable out of a particular fund was not negotiable.

Whether the drawer made an assignment only of his salary, or a bill of exchange depends upon his intention, as it can be ascertained from the paper itself, to make himself personally liable.

An order to pay money out of a particular fund is not a bill of exchange, but an order to pay with directions to the drawee how he may reimburse himself is a bill of exchange. This distinction has been recognized in many cases. Kelly v. Brooklyn, 4 Hill, 263; Caursin v. Ledlie, 31 Pa. St., 506 ; U. S. v. Bank of the Metropolis, 15 Pet., 377.

Is there enough in this draft to indicate the intention of the drawer to make himself liable? He made his draft upon S. T. Everett, directing him to pay the amount of the draft and charge the same to his quarter’s salary for the quarter then ending and waived demand and protest. It is quite clear from the waiver of demand and protest that the drawer contemplated a continuing liability on his part. The bill is really one drawn on Everett. The designation ‘ city treasurer ” is merely deseriptio personce, and the direction to charge to his quarter’s salary is nothing more than a direction to the drawee how to reimburse himself.

The drawer had no authority to draw on Everett as city treasurer, nor had Everett authority by reason of the draft, to pay to any one the amount stated in the -draft, or any amount as the salary of the drawer. His salary could be paid by the drawee only on the order of the proper officer of the city.

The draft is a different thing from an order of an officer authorized by law to draw orders on a treasurer for moneys held by the treasurer officially, as in- the case of State v. The Treasurer, 22 Ohio St., 144, referred to by -plaintiff in error. In that case it was held that such an Order was not negotiable. It was an order drawn in the form required by statute, by an officer authorized to draw on the treasurer, who was authorized to pay — on his order and oñ no other. Not a matter of dealing, but the form required by law to be observed -in the disbursement of public moneys.

The city would he liable only for any money owing upon the salary of the drawer at the commencement of the action, for the quarter ending- at the maturit3r of the draft, not. because of any notice to it or any of its offices of .the nonpayment of the draft, but because it held the fund, or some part of it, appropriated by the draft to its payment, a,nd the action itself would be notice that the money, if any was so-held, was claimed by the holder of the draft.

Judgment affirmed.


author: Martin, J.

text:
    Withers v. Ewing et al.
    A trustee under a will, wlio was also executor of the same, was empowered to manage and sell trust property, and in the course of the business wrongfully converted trust funds to his own use, and for which he gave his note, secured by a mortgage, to a third party, in trust, for and to the acceptance of his beneficiaries, some of whom are minors , and are benefited thereby.
    His beneficiaries, because of his said default, and for other reasons affecting him personally and rendering him unfit to retain the trust, requested him to resign, which he refused to do. Afterwards he resigned, and was allowed, in settlement of his trust account, all his disbursements, and was, at the request of his beneficiaries, also allowed for his services, a sum in excess of the usual allowance proper for a faithful trustee.
    In an action upon the note and mortgage f Held:

    1. The note and mortgage were valid and enured to the benefit of the beneficiaries on delivery.
    2. It was the duty of the trustee to resign when requested. And a promise by the beneficiaries, in consideration that he would resign, to cause the note and mortgage to be cancelled and surrendered, in ■ addition to procuring him said allowance for his services, is void.
    Error to the District Court of tucas County.
    Plaintiff in error was plaintiff below. The original action was upon a promissory note, made by defendant, William A. Ewing, for the sum of $8,588.62, payable to order of plaintiff one year after date, and dated November 1st, 1875, and also upon a mortgage of same date of certain realty, in Toledo, Ohio, executed by the defendant, Alexander H. Ewing, to secure that note.
    Alexander H. Ewing alone answered. He set up three defenses.
    1. A general denial of consideration.
    2. That the note and mortgage were given to the plaintiff under a claim by him that he represented the beneficiaries of a trust estate arising under the will of George W. Ewing, of which the defendant, William A. Ewing, was trustee, and that there was an indebtedness by the trustee on account of the trust in the amount named in the note. It is further alleged that the trustee had managed the trust under the orders of the circuit court of Cook county, Illinois, in a chancery suit then pending in which the beneficiaries were parties ; and denies that plaintiff was authorized to take the note and mortgage, and avers that the same was not authorized by nor reported to said court, and denies that the full amount of the note was due to the estate.
    3. That on the 12th day of June, 1876, the plaintiff, upon a good and sufficient consideration, agreed to fully release and discharge the note and mortgage.

      The reply alleges that.the trustee Ewing had appropriated to his own use trust funds which he was unable to pay, and for which, upon an accounting between him and the beneficiaries, he gave the note and mortgage to the plaintiff for the use of the beneficiaries; and that the same was reported to and approved by the court, and the trustee credited therewith in his account. And the statements of the third defense are denied.
    On trial in the common pleas the petition was dismissed. Plaintiff appealed. At March term of the district court, 1879, the cause was referred to a special mastér to take and report the testimony, together with his findings of fact and law.
    The report of the master is substantially as follows:—
    That the beneficiaries of the trust estate at the time the note and mortgage were given were Lavinia Holladay, Minnesota E. Tytus, Charlotte E. Thurston and George W. Ewing, Jr. That Charlotte and George were minors, having guardians at their respective homes in Indiana and Ohio. .That the note and mortgage were given for a deficiency in the accounts of the trustee, and in the amountthereof and in discharge of the same. That the taking of the same was approved by the beneficiaries and’guardians, by authority as to some and ratification by the others. That there was then pending in the circuit court of Cook county, Illinois, a suit in equity brought by Lavinia Holladay, and in which all persons interested were parties, the object of which was to subject the administration of the trust to the control of the court. . And that said settlement of the deficiency was not authorized or approved by the court. And his finding of law is that the note and mortgage are invalid.
    And further findings are: ■ That in June, 1876, in Chicago, the beneficiaries and their representatives, through Byrum D. Miner, their - agent, promised the trustee that, in case he should -resign the executorship and trusteeship the mortgage set out in the petition would be'surrendered-and cancelled. That he thereupon resigned, relying on the promise. That Miner exceeded his authority and was not in fact authorized to make that promise; but it was-made under color of authority. That the emoluments of the trusteeship at the time were of the value of $5,000 per annum. And as conclusion of law, the master finds that the resignation was a sufficient consideration for the promise, and that the action should be dismissed.
    At the March term, 1880, trial was had resulting in judgment for defendants. Motion' for new trial was overruled, and a bill of exceptions embodying all the testimony was allowed. The object of this proceeding is to reverse the judgment of the district court. In addition to the facts stated above, and in the opinion, further statements should be made for a proper ' understanding of the questions involved.
    The testator left three children surviving him, viz., Lavinia Holladay, Charlotte F. Ewing and George W. Ewing, Jr., the latter two of whom died before the transactions in controversy occurred, leaving minor children, who were named in the master’s report. At the time of his death,.the testator was a resident of Fort Wayne, Indiana, where in June, 1866, his will was admitted to probate. The defendant William A. Ewing and Byrum D. Miner were named as executors and qualified as such. His estate was large and consisted of real estate in different states. In the fourth item of the will, the principal part in value of his real estate, including lots in • Chicago,' is specifically set apart in trust, to ■ be built upon, improved and leased as should be deemed advisable by his executors, who are directed to pay over semi-annually the net income to his said three children and the survivors' of them each equally during their natural lives; but if either of the three should die leaving issue, the latter should take the ■ deceased parent’s share. He also directed that the property thus set apart should not be sold or encumbered except by lease, nor be divided during the life of any of his said children, and that in The meantime the same should be under the control of his executors.

      In other items power is given to the executors to sell his personal estate and his other real estate, situate in several states, for the purpose of carrying out the objects of the will. Various devises are also made. The residue of his estate is given to his said three children, share and share alike, but not to be partitioned or disposed of by them until the executors shall have determined that it is not needed for improving the trust property named in item four.
    The executors acted jointly in the execution-of the trust until in July, 1869, when Miner resigned. And Ewing thereafter acted as sole executor and trustee until June, 1876, when he resigned. The duties devolved on him seem to have been faithfully and acceptably discharged down to 1875. His office was in Chicago, and the beneficiaries resided at distant points in other states. In 1875 they became apprehensive as to the safety of their interests, and distrustful of their trustee, and discovered that he had become inattentive to his duties and lapsed into habits of intoxication which on occasions disqualified him for business. And thereupon various expedients were resorted to, with ..the trustee’s consent, to curtail his power over the property.

      Pratt $ Wilson, for plaintiff in error.

      O. H. Scribner, for defendant in error.
   Martin, J.

There are two questions here for solution.

1. Are the note and mortgage valid securities?

2. Did the plaintiff promise as alleged to release those securities, and if so, is his promise valid?

The money was due from William A. Ewing. It was a trust fund which he was unable to pay to his beneficiaries, because he had wrongfully appropriated it to his own use. The note was payablé nominally to the plaintiff, but in fact to him in trust for the same beneficiaries. The acceptance of the note and mortgage was an indulgence and special favor to Ewing. The note would not have been accepted without the mortgage. It was accepted with the mortgage by the adult beneficiaries and the guardians of the minors. Alexander H. Ewing (who alone defends) gave the mortgage with full knowledge of all the material facts, and cannot in this action question the validity of either security. Each party did everything' that was agreed to be done and the consideration cannot be disputed.

It is objected that the taking of these securities was not authorized or ratified by the court in Chicago, nor by the several courts that appointed the guardians. The consequence of these omissions, it is claimed, is that the minors may, on attaining majority, repudiate the transaction, and successfully plant a suit on the official bond of the trustee. That is, if the note caiinot be collected and the minors’ share paid their guardians, they have the additional remedy. There is no injustice in this, and we fail to see how it affects the validity of the note. At the utmost the settlement is voidable only at their election. This result is sanctioned by the law solely for their protection. The claim made would distort it to their injury. We are satisfied from the testimony that the taking of these securities was for the benefit of all the. beneficiaries, and that the guardians, in authorizing and ratifying the same, simply did their duty.

2. Was the promise-made out?

The master finds that the promise was made by Miner; and that he was then acting as agent for the plaintiff and some of the beneficiaries; and that he was not authorized to make it, and that the. parties for whom he was acting expressly refused to consent to the release of the securities. He also finds as matter of law that the promise is nevertheless binding on the plaintiff, because it was made under color of authority as agent.

Assuming the facts to be as found by the master, is the promise made out?

The general rule is, that as to third persons the principal is liable for the acts of his agent done within the general scope, of his authority, and that such authority may be general, though limited to a particular business. The promise was to Ewing, the trustee. He alone furnished the alleged consideration. And it is only available to Alexander H. Ewing, the mortgagor, on the theory that it was a valid promise. The fund represented in these securities was originally a purely trust fund under the control of the trustee Ewing. It is still a trust fund belonging to- the same beneficiaries, and payable by the same trustee. The plaintiff intervened'as payee and mortgagee, for convenience, in taking the title and protecting the security from waste by the trustee. Besides it was impracticable for the trustee to take the title. , A similar contrivance was resorted to for the collection and disbursement of the. Chicago rents. The immediate control over them was withdrawn from the trustee with his consent and given to others. Nix collected them and Miner deposited them in his own name, and paid them out precisely as the trustee should have done. If the promise had been to pay the moneys of corresponding amount then on deposit in Miner’s name as agent, it would not have concluded the beneficiaries. An appropriation of trust property to his own use by a trustee is never warranted except under circumstances of absolute fairness. The consent of the beneficiaries must be given, with full knowledge of all the material facts affecting the transaction. Here both knowledge and consent are absent. It was the duty of the trustee, in dealing for his own advantage with this property, to see to it that the subject was ■ understood and assented to by the parties in interest. He was not a stranger or third party in the sense of .the rule that imputes to the principal a consent, when it does not in fact exist, to the act of an agent done within his apparent authority. The creation of the securities in question did not extinguish the claim of the minors, for which, in part, they were given. They are collateral and of benefit to the minors. And the trustee, being a party to them, was clearly bound to make them available as far as practicable. In dealing with them, therefore, he virtually dealt with his original liability and was subject to a trustee’s disabilities.

Again, the only consideration attempted to be shown is the resignation of the trustee. He had wrongfully appropriated trust funds and become inattentive to his duties, and acquired personal habits which rendered him wholly unfit to retain the trust. Under these circumstances his beneficiaries requested him to resign.' It was his duty to have complied forthwith. He refused and insisted on' terms at the expense of the trust estate. On a promise, he resigned. The promise was of bounty to tbe extent of §2,500, in addition to a fair allowance for services and full reimbursement of expenses. This bounty was paid him. He claims' the promise was also to release and surrender the note and mortgage. Assuming that such was the promise, wé think the alleged consideration is not valid.

Waiving the question as to whether such bargain of the mere relation of trustee is invalid as against public policy, we are of opinion that the promise, under the circumstances stated, is void — a nudum pactum. His unconditional resignation was an act which he had no right to withhold. It was purely his duty, and therefore cannot serve as a. consideration for the promise. 1

In Parsons v. Thompson, 1 H. Bl., 322, the plaintiff was late master-joiner of a dock-yard. The defendant was his successor in regular order. The promise sued on was, to allow the defendant during life extra pay from the dockyard books in- addition to his superannuation money. . The consideration was the retiring of-the defendant as superannuated. The case involved the validity of the consideration, and it was treated and decided both with referen.ee to the existence of a consideration. for a simple contract and also as to its validity on grounds of public policy.

Lord Loughborough, in delivering the opinión, said: “ What is the consideration stated here ? That the plaintiff represented himself as unfit for future service and entitled to a pension for the past. This he did at-the request of the defendant - and on the promise from him'o-La certain allowance. Now the representation is either true or false. If true, there was no ground for any bargain with the defendant; the plaintiff did nothing for the defendant; all he did was for his own ease and advantage. If false, the public is deceived, the pension misapplied, and the service injured.”

In Eddy v. Capron, 4 R. I., 394, the suit was on an order for money given by the defendant to a physician of a government hospital. The consideration was the resignation of the physician in favor of the defendant. The defendant received the appointment. As in the Parsons case, the decision turned on the consideration both as to its existence for the contract and also as to its lawfulness on grounds of public policy. In the opinion of the court, it is said:

“At the same time he has either resigned because he was obliged to do so to fulfil his design of removing to California — in which case there would be. no consideration for the defendant’s promise — or he has resigned because of it and because of the money offered to him, and so the promise is void, on the ground that the government is deprived of the services of an officer it had appointed, by his being seduced from an office under it by private and unworthy motives.”

It is elementary that the amount of benefit to the promisor or detriment to the promisee essential to a valuable consideration is immaterial. Any of either is enough. There was neither in this resignation, Jt was a restoration of rights and property unjustly withheld. Advantages accompanied it, but the acknowledged right to them previously existed.

A. promise in consideration of the-payment by the promisee of his undisputed and enforceable debt is quite analogous to the promise under consideration. Nor was there any detriment to the trustee. He had no property in the trust relation; and we must assume that on proper application his removal would have been prompt. In every view his resignation was right of itself, and must be held to have been beneficial to all parties, himself included. ■

Judgment reversed.


text:
    Smith v. Josselyn.
    1. S. had knowledge that his agent, by culpable carelessness, had lost money collected by him in the discharge of his duties, and for that reason required that he should either give bond to pay over all moneys hereafter received or collected by him, or quit his employment. S. did not inform the sureties of his agent’s former culpable carelessness and they had no knowledge thereof. — Held: That the principal can not avail himself of the guaranty thus obtained.
    2. After evidence had been given tending to establish the state of facts set out in the preceding paragraph, it was error for the judge to instruct the jury that it was their duty to return a verdict for S.
    Error to the District Court of Richland County.
    Sylvester Smith was the agent of the B. & O. R. R. Co., at Mansfield, Ohio. E. N. Josselyn had charge of the town freight-house of the railroad company, and received and collected large sums of money for freights. He was appointed by Smith, and S. was responsible to the company for his acts. On the 15th of October, 1878, Josselyn, with W. S. Carroll and John Hoover as sureties, gave a .bond to Smith in the sum of three thousand dollars, conditioned that Josselyn should well and truly pay over to Smith all moneys collected or coming into his hands, belonging to the B. & O. R. R. Co. August 18th, 1877, Smith commenced an action upon this bond against Josselyn as principal, and Carroll and Hoover as sureties, seeking to recover $1,238.23 said to have been wrongfully withheld by Josselyn and belonging to the railroad company.
    As one of their defenses, the sureties alleged that prior to the 15th of October, 1873, Josselyn had sustained the same relations to Smith and the railroad company that he did afterwards. That in such employment Josselyn had collected money, but that he had held and managed the same- so carelessly, negligently and with such want of skill that he had lost the same, and that there was, on the 15th of October, 1873, a deficiency in Josselyn’s accounts and a failure by him to pay over the money received by him. It was claimed that Smith had full knowledge of these things, that on account of them he required a bond from Josselyn; that the sureties had no knowledge of them, and that Smith did not inform the sureties of his agent’s former culpable carelessness.
    The result of the action in the court of common pleas was a verdict and judgment for the plaintiff. This judgment was reversed by the district court.

      Jenner Tracy, for plaintiff in error,
    cited 14.Wall., 448; ‘22 Id'., 116,122; 97 U. S., 319; 24 Ohio St., 83; 35 Id., 194.

      Firlqm Leyman, for. defendants in error.

      Jarengon v. Fleming, 43 Miss., 710; Kerr on Fraud, 123 ; Finsmore v. Tidball, 34 Ohio St., 411.
   Nash, J.

One of the reasons for which the district court .reversed'the judgment of. the. court below, was the action of that court in ■ directing a verdict for the plaintiff. This was - done after the defendants: — the sureties — had offered some evidence tending to show that their principal, without their knowledge,-had been guilty of culpable carelessness while in the employment of the plaintiff, and before the giving of the- bond sued upon by .him; that the plaintiff, Smith, had knowledge of this carelessness when he required Josselyn to give a bond or leave his service, and that this fact he, Smith, withheld from the. sureties. These were matters of-fact which the jury, should have-been left to determine. If once established, they- made a good defense for the sureties. Dinsmore, Trustee, v. Tidball et al., 34 Ohio St., 311.

We therefore agree with the district court in reversing the judgment of the common pleas, and as this error necessitates a reversal, we have not considered other alleged errors.

. Judgment. affirmed.