author: Brinkerhoft, J.,

text:
    The Executors of Thaddeus Andrews, deceased, v. His Administrators.
    An executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees.
    The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.
    Error to the court of common pleas of Portage county.
    Be-served in the district court.
    This case is submitted on the following agreed statement of facts, signed by counsel for the parties :
    On the 5th day of July, a. d. 1844, Thaddeus Andrews, of Portage county, made his last will and testament, substantially disinheriting his children, and bequeathing almost his entire property to the trustees of the Western Eeserve College, the Home Missionary Society, the Foreign Missionary Society, and the American Bible Society. He appointed Samuel B. Spelman and Zera Hinman the executors of his will.
    ^Thaddeus Andrews died on the 27th day of February, a. d. 1845; and on the 13th day of March, of that year, Spelman and Hinman proved said will, gave bond, and entered upon the discharge of their duties as executors thereof. On the 24th day of March, the executors commenced taking an inventory of the decedent’s property, which they returned into court on the 10th day of June, a. d. 1845.
    On the 19th day of April, A. D. 1845, Thaddeus R. Andrews- and others, children and heirs at law of the said Thaddeus Andrews, deceased, filed their bill in chancery against the said legatees-- and executors, to set aside said will, upon the ground of undue influence, fraud, and imposition exercised over said testator, and' of his incapacity to make a will. A feigned- issue was ordered between the parties, which was first tried at the November term,. a. d. 1846, of the Portage common Pleas, and resulted in a verdict in favor of' the validity of the will; but which was subsequently tried at the September term of the Supreme Court in said county, a. n. 1848, and resulted in a verdict against the validity of the will. A motion was made by the defendants for a new trial, which was reserved for decision upon the circuit; and the motion was finally overruled at the November term, a. d. 1848, of the Supreme Court in Franklin county. Thereupon, in pursuance of said verdict, the-court entered a decree, the material part of which, so far as it relates to the question raised in this case, is in the following words: “That the said paper writing in the pleadings mentioned, is not. the valid last will and testament of the said Thaddeus Andrews, deceased, and the same is hereby decreed to be utterly .void; and the court do further order, adjudge, and decree that the said parties, respectively, pay one-half of the costs to be taxed, by the first day of May next, and that, in default of such payment, execution-issue therefor as upon judgments at law.” One-half of the costa taxed to each party was $194.35.
    On the 28th day of March, a. d. 1849, and dui-ing the March term of the court of common pleas of Portage county, Romania N. Andrews and Joshua T. Catlin were duly appointed administrators of the estate of Thaddeus Andrews, deceased, and immediately ^entered upon the duties of their appointment. On the next succeeding day Spelman and Hinman filed their administra•tion account. This account contained several items expended in ¡upholding said will, amounting to the sum of $699.81, and which were charged to the estate of the decedent, and deducted by them from the assets in their hands as executors under said will. On the 29th day of May, a. d. 1849, the aforesaid administrators filed ■exceptions to all said items. These exceptions were continued from time to time, until the matter passed from the jurisdiction of the court of common pleas to that of the probate judge, who, on hearing, sustained said exceptions. From his decision, Spelman and Hinman appealed to the court of common pleas of Portage county, which also sustained said exceptions. From thence it was taken to this (district) court, by petition in error.
    It is agreed, that if the expenses incurred by executors under a will, to uphold the same against the heirs at law, which substantially •disinherits said heirs and bequeaths the estate of the decedent to •strangers, and which was set aside upon the ground of undue influence, fraud,- and imposition exercised over the testator, and of his incapacity to make a will, as hereinbefore set forth, are legally ■chargeable to the estate of the decedent, then said exceptions shall be dismissed; but if said expenses are not legally chargeable to the •estate of said decedent, then said exceptions shall be sustained, and a judgment shall be entered in favor of said Romanía N. Andrews .and Joshua T. Catlin, as administrators of Thaddeus Andrews, deceased, against the said Samuel B. Spelman and Zerah Hinman, for ■said sum of $699.81, with interest thereon from the 29th day of March, A. d. 1849, together with all costs made since the filing of •said settlement account.
    Exception No. 16, to the payment of $350 to Cornelius Austin, is not embraced within the foregoing agreement; but if judgment ■shall be rendered in favor of the foregoing administrators, that payment shall be considered as subject to the decree of the court of ■common pleas made in this case in relation thereto.
    It is agreed that the foregoing statement of facts shall be substituted *for the various records and exhibits referred to in the bill of exceptions filed in this case.

      J. L. Banney, for the plaintiffs in error.
    1. An executor, under the laws of Ohio, derives his authority to act from both the will and the probate of it, for it takes both to make the will valid. In the matter of Last Will of Capman, etc., 6 Ohio, 67; Baily v. Baily et al., 8 Ohio, 239; Moore v. Tanner, 5 Mon. 42; Swazey v. Blackman, 8 Ohio, 5; Hall v. Ashley, 9 Ohio, 96; Wilson v. Tappan, 6 Ohio. Ohio, 80; King v. Bullock, 9 Dana, 41; Herrington v. Herrington, Walker, 322; Tucker v. Starks, Brayt. 99; Cleveland v. Chandler, 3 Stew. 489; Patten v. Tallman, 27 Maine (14 Shep.), 17; Singleton v. Singleton, 8 B. Mon. 340. So also as to capacity, etc., of testator. 8 N. H. 124; Sawyer v. Dozier, 5 Ired. 97; Patton v. Allison, 7 Humph. 320.
    So long then as the probate continues, it is conclusive, and imposes on the executor the position of legal trustee, enforcing upon him the duty of faithfully protecting the trust, and of carrying out the provisions of the will. Executors, upon general principles, are trustees, and necessary parties, when the trust or will is sought to be affected. 1 Story’s Eq. 547, 548, 553; 2 Ib. 1058, 1067; Story’s Eq. Pl. 148, 150, 161.
    If the determination of the court in admitting the will to probate is conclusive, until the will by another proceeding is overturned, it follows that, until decree in such proceedings, it is in law a valid will, and the executor is bound to defend it, for he can not know inadvance what the result of the proceeding will finally be.
    2. In such case, the executor acts as trustee for the testator’s entire estate, as well as for the devisees and legatees; and also as a trustee of the court in respect to all of these several interests, for the executor is liable to all for the manner in which he discharges the trust.
    3. It is by law the duty of trustees to defend the trust when attacked, and they are entitled to be allowed, out of the trust fund, necessary costs and expenses in such defense; and such *eosts and expenses incurred may be retained by them from the trust funds in their hands; and in case of executors, even though the will be subsequently set aside. Campton v. Barnes, 4 Gill (cited in 10 U. S. Ann. Dig. 225, sec. 116); 1 Sup. U. S. Dig. 835, see. 1033; 2 Story’s Eq., sec. 1275; 1 Sup. U. S. Dig. 795, sec. 104; Ib. 794, secs. 96, 97; 2 U. S. Dig. 361, sec. 43; Johns v. Tate, 7 Humph. 388 (cited in 2 U. S. Ann. Dig. 186, sec. 66); Sterrett’s Appeal, 2 Penn. 419; Murray v. De Rottenham, 6 Johns. 52; Moses et al. v. Murgatroid, 1 Johns. 473; Nimmo v. Commonwealth, 4 H. & M. 57; Robert v. Ditmas, 7 Wend. 522; Scott’s Estate, 9 Watts and Serg. 98; Davis v. Rawlins, 2 Harring. 125; Jones v. Stockett, 2 Bland; Attorney-General v. Mayor of Norwich, 2 Myl. & Craig, 446; Taylor v. Glanville, 3 Madd. 176.
    This principle is also recognized in our own state. Ohio v. Guilford et al., 18 Ohio, 500; Gilbert v. Sutliff, 3 Ohio St. 129.
    The case of Noyes v. Blakeman, 2 Seld. 567, would seem to be decisive on these points,

      W. S. G. Otis, for defendants in error:
    An executor derives his power from the will of the decedent, and' not from the probate. Hence there are many acts, by the common-law, which an executor may do before probate of the will.
    In short, an executor at common law, is as completo executor before, as. after, probate of the will, so far as relatos to tho extent of his power over the estate of the testator.
    The administrator derives his power solely from the letters of administration, and, as a consequence, ho can do no act until the-letters are granted him.
    The very obvious distinction, then, between the probate of a will, and the granting of letters of administration, is briefly this: The-probate authenticates a power previously conferred; the grant of letters confers a power not previously possessed.
    Acts done under a, void authority are themselyes void. Still it has long been the law in England, in order to prevent circuity of ^actions, to allow an administrator, who has acted under a void authority, when sued by the executor or rightful administrator, to recoup the funeral expenses and debts which he has paid in the damages which may be recovered against him. This recoupment extends to such items as the executor or rightful administrator would be compelled to pay, and to none others.
    A forged will, the will of a person who is incompetent by law to make a will, and a will procured by fraud and imposition exercised over a person competent by law to make a will, are void" instruments; and the probate of such wills confers no curative power upon them. It is the office of the probate, as before stated, to authenticate valid acts, not to heal void ones. All acts done under such wills are also void; still an executor who has acted under a void will, like an administrator who has acted under a void administration, is allowed, in a suit against hing to recoup the funeral expenses and debts paid by him, and for the same reason.
    Acts of administration, technically speaking, are the payment -of funeral expenses and the collection and payment of debts. All these acts are upheld whether done under a void will or a void administration, for the reason that they are the very acts which the rightful executor and administrator are reguired to do, and the •parties who are entitled to the estate of the decedent receive the benefit of them. But the payment of the distributive shares to the heirs at. law, and of legacies to legatees, and the sale and conveyance of real estate, are not, technically speaking, acts of administration, and are not upheld at common law. These acts depend for their validity upon .the validity of the power or authority under which they are done, and become void on the revocation of that power or authority, unless upheld by legislative enactment. . It is only necessary to state the proposition, in order to give it an immediate assent, that the payment of legacies under a forged or •otherwise void will to the legatees named therein to the exclusion of the heirs at law, is not only a fraud upon the heirs, but an act which the rightful administrator could not perform. How much more fraudulent and unauthorized is it, to setup such a will against the heirs who are struggling *to set it aside, and then, after •defeat, attempt to charge the expense of such effort over to those against whom the fraud was directed? The proposition is monstrous, and can not be tolerated; for it is nothing less than compelling a person to pay the expense of an unjust attack upon his rights of property.
    The foregoing positions rest not only upon the solid basis of reason, but also upon an unbroken series of English authorities from .an early period down to the present time. A few of these authoi’ities we cite: 2 Coke (Thomas & Eraser’s ed.), 55, n A and B.; 57, n. A; 5 Ib. 66, n. C, 68; 3 Bac. Abr., art. “Executors and Administrators,” letter “ E,” 477, sec. 14; 475, secs. 12, 13; 467, sec. 9; 2 Bla. Com. 507; 7 E. C. L. 249; Bailey, J., 6 E. C. L. 316; Toller’s Executors, book 1, ch. 2, secs. 4, 10; ch. 3, secs. 3, 8; Lovelass on Wills, 25 Law Library, 2, 19, 20, 21, 54, 204, 205.
    The rules of the common law relative to executors and administrators have always obtained in Ohio and her sister states, except so far as they may have been abrogated or modified by legislative enactment; and the material points raised in this case, and decisive of the entire controversy in favor of the defendants in error, have been directly passed upon by some of the courts of our sister ■states. Brown v. Vinyard, 1 Bail. Ch. 460; Mumper’s Appeal, 3 Watts & Serg. 441; Scott’s Estate, 9 Watts & Serg. 98; Roger’s Appeal, 13 Penn. St. 569; Wood v. Nelson, 10 B. Mon. 229; Heister’s Appeal, 7 Penn. St. 455; Villard v. Robert, 1 Strobh. Eq. 369; Deitrick’s Appeal, 2 Watts, 332; Koppenheffer v. Isaacs, 7 Watts, 170; Poag v. Carroll, 1 Dudley (S. C.), 1; Garrett v. Garrett, 2 Strobh. Eq. 272.
    Notwithstanding the numerous modifications wrought in the law by the legislation of this state, the precise rule involved in the question submitted to the court in this case remains wholly unchanged. Unless the twenty-seventh section of the act of March-23, 1840, shall be held to reach it — which has hithei’to never been claimed, even by the counsel for the plaintiffs in error — no legislation has impaired this rule, and no reported decision has ever questioned its wisdom or its justice; and if it be ^claimed that there are circuit decisions of an opposite character, such decisions are ill advised and not law.
    The plaintiffs in error were mere formal parties to the contest, without any interest whatever in the event of the suit; nor do we-suppose it at all necessary that they should have been made parties to the record. Into such a controversy the plaintiffs in error were under no obligations, either legal Or moral, to enter, unless the legatees, who alone were interested in upholding the disputed will, would indemnify them against the costs and expenses of the contest.
   Brinkerhoft, J.,

delivered the opinion of the court.

The question presented in this agreed statement, depends, it seems to us, on the answer to be given to a further inquiry, to wit: Is an executor or administrator with the will annexed, ex officio in duty hound to maintain against the heirs at law a contest as to the validity of the will which he has undertaken to execute? If he be thus bound; if it be a duty which the law casts upon him in the administration of his trust: then it follows that the expenses fairly incurred by him in such contest must be payable out of the trust estate, whatever may be the consequences to the successful contestant. The idea that the law should imperiously thrust an onerous duty upon a trustee having, in general, no personal interest in the existence of the trust, and make him personally responsible for the expenses necessarily accruing in the discharge of that duty, is wholly inadmissible. Considerations of public policy suffi-cient to overbear all incidental private inconvenience and private-interest, would forbid it; for if it were otherwise, a prudent man-would seldom consent to undertake the office of executor, where-there was the remotest prospect of a contest of the will; and the statutory right to dispose of property by will would become, to a great extent, a dead letter for the want of suitable persons willing to assume the risks of its execution.

But, is there any such duty resting on an executor? Certainly no such duty is imposed by express statute, for our statutes are silent on the subject.

*The statute under which the will in this case was contested, provides that the mode of contesting a will shall be by bill in chancery, in which an issue shall be made up, whether the writing produced be the last will of the testator or not, which shall be tried by a jury. The statute does not prescribe who shall be made parties defendant to the bill in chancery; but, proceeding in analogy to ordinary eases in chancery, wo believe it has been the general, and perhaps uniform practice, to make the executors, as well as legatees and devisees, and heirs at law who are not complainants, parties defendant. And granting the propriety, and even the necessity, of this practice, it does not follow, so far as we are able to discover, that the executor is therefore bound to take upon himself the burden of the contest.

True, an executor is a trustee ; and it seems to be well settled that a trustee who has accepted a trust, is bound to defend the trust estate, and may, in consequence, charge upon it the proper expenses of such defense. 2 Story’s Eq., sec. 1275; Noyes v. Blakeman, 2 Seld. 567. But with the exception of an obiter dictum in John v. Tate, 7 Humph. 388, we find no authority to sustain the position that a party acting as trustee is bound to defend the relation of trustee whenever the rightful existence of that relation is assailed or called in question: although, should he do so, and do it succosssfully, it it seems he would, in that case, be entitled to charge his proper expenses against the trust estate; and this for the reason that his expenditure inures to the benefit of the cestui que trust. Scott’s Estate, 9 Watts & Serg. 98.

In the particular case of acting executor, we can see no good reason, on principle, why he should be held bound to assume the burden of defense in the contest of the will under which he acts. If the will so far divert the estate from the line of descent as to make it the interest of -the heir at law to contest the will, it follows that the legatees or devisees will, generally, have sufficient motive to induce them to assume the burdens of the other side of the contest. If the legatee or devisee be a minor, or feme covert, the husband or parent, or persons in loco parentis, will generally be willing to as-sumo the risks of litigation, where *such litigation would be proper in behalf .of their friends under disability. And finally, as an ultimate safeguard to persons interested in such contest and under disability, their rights are, by the terms of the statute, saved until the expiration of two years after the removal of such disability.

It seems to us, therefore, that the executor, in case of a contest of the will, may properly throw the burden of sustaining the contest on his co-defendants, the legatees or devisees; or if they require his active participation in the contest, he may exact from them such guaranties as will insure his safety. Such a course will always throw the expenses of the contest upon those for whose benefit it is to be maintained; while, on the other hand, to hold the executor bound to maintain the contest, and, therefore, to allow him to charge its expenses against the estate in cases where the will is found to be invalid, results in the obvious and gross injustice of exonerating from the burdens of the contest those who alone had an interest in maintaining it, and who are adjudged to have been in the wrong, and casting the whole expense of a proceeding, alike against their rights and their interests, upon the innocent heirs at law.

And it would unwisely encourage the setting up of pretended wills, if the expenses of the attempt could, in case of failure, bo cast upon the heir at law. The game, in the hands of the pretended legatee or devisee, would be one which, while it afforded a chance of winning; would involve no possibility of loss.

It would, it seems to us, so operate as frequently to despoil the estate for the sake of the relation, and sacrifice the substance of the thing to its incident; nevertheless, it was .so held on the circuit by Washington, J., in Bradford v. Boudinot, 3 Wash. C. C. 122, and in Compton v. Barnes, 4 Gill, 55; while the view which we have taken of the case is supported by Brown v. Vinyard, Bailey's Eq. 460; Mumper’s Appeal, 3 Watts & Serg. 441; and Royer’s Appeal, 13 Penn. St. 569; and the reasoning of the court in th'e two •cases last cited, and both of which are strictly in point 10 that under consideration, seems to us unanswerable and conclusive.

Against the authority of these cases in Pennsylvania, it is ^contended by counsel for plaintiff in error, that in Ohio the probate of the will'and the grant of letters testamentary are judicial acts, which remain valid and binding until they arc invalidated by the formal and successful contest of the will by bill in chancery; that in Pennsylvania, after probate of the will and the grant of letters testamentary in the register’s court, the further contest of the wiH must be by aj>peal to the Supreme Court; and that this appeal has the effect to vacate the probate, and letters had and granted in the register’s court; thus leaving the executor, pending the appeal, without authority to act.

To this position there seem to us to be two answers. 1. If, as we hold, the executor is not bound to assume the burden of maintaining the contest of the will, it can make no difference, as to the question in this case, whether the authority of the executor derived from the probate and letters testamentary remains in full force, or is suspended, during the pendency of the contest; and, 2. The •counsel, we think, is mistaken as to the law of Pennsylvania. The probate of a will and the grant of letters testamentary seem to be judicial acts there as well as here; and the statute of Pennsylvania provides that the appeal “ shall not suspend the power or prejudice the acts of the executor.” Purdon’s Dig. 865.

Judgment affirmed.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


source: Caselaw Access Project

author: J. R. Swan, J.

license: Public Domain

text:
    The State of Ohio, ex rel. Ralph Hills, Superintendent of the Central Ohio Lunatic Asylum, v. John Burgoyne, Probate Judge of Hamilton County.
    j£he pi-obaie judge of a county, who is notified of the order for the discharge of a patient from the asylum, under the 9th and 27th sections of the act of April 7, 1856 (53 Stat. 81), has no judicial discretion in issuing a warrant for the removal of a patient. The power of the officers of the asylum to •discharge, is plenary, and when made, the duty of the probate judge to issue the warrant is entirely ministerial, and if he refuse, he may he compelled by mandamus to issue the warrant.
    ^Motion for a peremptory mandamus.

      O. N. Olds, for the relator.

      Ferguson & Long, and Collins & Herron, for defendant.
   J. R. Swan, J.

Proceedings in due form were had by the superintendent of the asylum and trustees for the discharge of patients-belonging to Hamilton coitnty, and the probate judge was duly notified thereof and required to issue his warrant for the removal of the patients. He refused to do so, and this proceeding was had to-compel him to do it.

Sections 9 and 27 of the act of April 7, 1856, “to provide for the-uniform government and better regulation of the lunatic asylums of the state,” give to a single trustee of either asylum, on the application of its superintendent, and also to the board' of trustees-thereof, without such application, plenary power to discharge therefrom any patient or number of patients, whenever he or they shall deem it expedient. The power thus given is purely discretionary, and the exercise of that discretion can not be questioned by the probate judge.

Whenever an order for the discharge of a patient has been made,, either by a single trustee, on the application of the superintendent-,, or by the board of trustees, the probato judge of the county “from which such patient was sent,” on being notified of the order by the superintendent, under the seal of the asylum, is bound by the express language of the act before mentioned to issue “forthwith ” to-some suitable person, or to the sheriff of his county, his warrant for the removal of such patient, and his return to the township “of which he is an inhabitant.” Sec. 27.

The dutes of a probate judge, in this respect, are entirely ministerial. No judicial function is called into exercise; and he has no-power to question the validity and efficacy of an order so made and so notified to him.

Peremptory mandamus awarded. -

Bartley, C. X, and Brinkerhoee, Bowen, and Scott, XT., concurred.


author: Sutliff, J.

text:
    *The Cleveland, Painesville and Ashtabula Railroad Company v. James H. Stanley.
    A struck jury, impaneled in conformity with the act of March 12, 1853, is not subject to peremptory challenge.
    A jury composed of seven of the sixteen persons selected under the provisions of said act, and of five talesman, is not a struck jury within the meaning of said act, and is subject to peremptory challenge as to any of the panel.
    Petition in error to reverse the judgment of the district court of Cuyahoga county.
    The original action was brought in the court of common pleas of Cuyahoga county by Stanley against the railroad company, to-recover damages for a personal injury alleged to have been sustained by him from the carelessness of the company in running a train of cars along its railroad. Stanley recovered a judgment, from which the company appealed.
    While the case was at issue in the district court a special jury was struck, at the instance of the railroad company, according to> the provisions of the statute, and was regularly summoned to appear at the next term of the court to try the cause.
    Upon the day of the trial only seven of the sixteen jurors summoned appeared; and by direction of the court the sheriff filled the panel, making the jury to consist of seven struck jurors and five talesmen.
    Stanley expressed himself satisfied with the jury as thus organized. But the railroad company peremptorily challenged one of the seven, who had been so summoned as special jurors. To which, challenge Stanley objected, and the court sustained his objection ; and the railroad company excepted. Upon the trial Stanley obtained a verdict. The company moved for a new trial, which was-overruled, and judgment entered.
    The railroad company, plaintiff in error, insists that the district court erred in sustaining the objection to their peremptory challenge.

      *Ranney, Backus & Noble, for plaintiff in error.

      Tilden, Paine & Wade, for defendant in error.
   Sutliff, J.

The general provision of the statute regulating jury trials establishes the general rule that each party, upon a jury trial, is entitled to two peremptory challenges.

As an exception to this rule the act of March 12, 1853, “ to provide for struck jurors in the district courts and courts of common pleas in Ohio,” provides, in relation to the sixteen struck jurors, “that upon the trial of a cause the jury so struck shall be called as they stand upon the panel, and the first twelve of them Avho shall appear, and are not challenged for cause, or set aside by the court, shall be the jury, and shall be sworn to try said issue.”

But to take a case out of the general rule, it must be within the special provision constituting the exception to the rule.

In the act to provide for struck juries, there is no provision for calling talesmen, as in the case of a petit jury, to supply a deficiency in their number ; but the provision for the struck jury is imperative, that it shall consist of the first twelve of the sixteen struck jurors, who shall appear, and are not challenged for cause, or set aside by the court. A peremptory challenge would be inconsistent with the provision of the statute in relation to such a jury.

But the jury called in this case was not composed of “the first twelve,” or of any twelve jurors 'so struck and summoned to try the case; and therefore did not come within the exception to the general statutory rule allowing peremptory challenges.

But it is insisted that inasmuch as the seven struck jurors had appeared and formed part of the jury, they at least should be exempt from peremptory challenges. To this it may be replied that the seven struck jurors no more constituted the special jury of “twelve” struck jurors described by the statute, and excepted thereby from peremptory challenges, when associated with five talesmen, than they would by themselves, without any addition to their numbers.

*Nor do we think the case to be within the spirit of the statute making the exception to the general right of peremptory challenge in jury trials. ^

In cases of a struck jury, peremptory challenges would seem to have been taken away by the legislature in consideration of each party having already exercised the right of striking twelve jurors from the list of forty. But this is not a selection of individual jurors by the parties; nor is it an agreement by the parties to let cither of the sixteen remaining upon the panel, sit as a juror with any others than eleven of the sixteen struck jurors. A party might very reasonably have confidence in a man to sit as a juror in a case with certain associates, when if the same individual were associated with a different class of jurors, that confidence in him, as a juror, would be utterly wanting. But it is sufficient to say, that the jury constituted for the trial of the case in a district court was not such a jury as is excepted from the general provision of the statute giving each party the right of two peremptory challenges.

We think, therefore, that the district court erred in sustaining the objection of the defendant in error to the peremptory challenge made by the plaintiff in error.

And for this cause the judgment must be reversed, and the case remanded.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.


author: Scott, J.

text:
    Benjamin Grant v. John C. Ramsey.
    "Where a question of fact has once been tried and adjudicated by a court of' competent jurisdiction, it can not be re-opened in a subsequent suit between the same parties. They are concluded by the former judgment.
    A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds.
    In such a case the tenant can not, by a voluntary abandonment of the premises '-'during the term, terminate his further liability to pay rent, although the landlord may have neglected to execute a written lease according to the agreement of the parties, unless the abandonment appears to have been on account of such neglect.
    In error.
    Reserved in the district court of Knox county.
    Ramsey sued Grant before a justice of the peace, to recover two months’ rent, at six dollars per month, for a house and lot in Mount Yernon. He recovered before the justice, and an appeal was taken to the court of common pleas. His petition in that court alleged, that on the 12th of December, 1853, he rented to the defendant a house and lot in Mount Yernon, from that date until the 1st of April, 1855, at, six dollars per month, payable monthly, and that -the rent for the two months ending July 12, 1854, was due and .unpaid.
    Grant in his answer admitted, that on the 12th of December, A. d. 1853, he rented a house and lot of Ramsey, at six dollars per month, payable monthly, but denied that the contract extended to April 1, 1855 ; on the contrary, he alleged that it was to terminate ■on the 1st of April, 1854. He also alleged, that he rendered up possession to Ramsey on the last day of March, 1854 ; that he had fully paid him all rent due, and was not indebted-to him, and that the contract was by parol.
    To this answer Ramsey put in a reply, alleging, that on the 30th ■of May, 1854, he sued Grant before a justice of the peace, on the same contract alleged in his petition, to recover rent for the month ending May 12, 1854; that a jury trial was had, and that he recovered a verdict and judgment against Grant for six dollars and forty cents ; that this judgment was paid by Grant, and that by reason thereof he was estopped from denying that the contract was as Ramsey claimed.
    To this reply Grant demurred, and the demurrer was overruled.
    An agreed case was made by the parties. In this agreed case, it was admitted that there was such a former recovery, as stated in the reply ; that the contract was by parol; that Grant went into possession on the 12th of December, 1853, under said *contract, and remained in possession until the last day of March, 1854, when he left the property, and tendered the key to Ramsey, which he refused to receive; that Grant, before this suit was commenced, had paid Ramsey in full for all the time that he occupied the premises, at the rate of six dollars per month, payable monthly; that the contract was to be reduced to writing; .that Grant would testify, that he twice called upon Ramsey for the written contract, which Ramsey neglected to furnish ; that Ramsey will swear that he has no recollection of this ; that it was the custom at Mt. Yer-nod for all leases, made at intermediate periods between the 1st days of April of two different years, to terminate on the 1st day ■of April following the time of making the lease, by express contract ; and that on the trial before the justice, in the case mentioned in Ramsey’s reply, no objection was made on account of the contract being within the statute of frauds.

      The case was submitted to the court without the intervention of a jury.
    Grant objected to a recovery — first, because the contract was for an interest in lands, and not in writing, and therefore was void; and second, because it could not be performed within a year, and therefore was void under the statute of frauds.
    The court of common pleas gave judgment for Ramsey. A bill of exceptions was taken, embodying all the evidence.
    Grant filed a petition in error in the district court, and claimed that the court of common pleas erred :
    1. In overruling the demurrer to the reply; and
    2. In rendei’ing judgment against him.
    The district court reserved the case for decision in this court.

      W. H. Smith and W. F. Sapp, for plaintiff in error:
    1. The court erred in overruling the demurrer to the reply.
    We readily accede to the general doctrine that where a question has once been litigated in a court having jurisdiction of the parties and the subject-matter, it can not again be called in question in another suit between the same parties.
    *But it seems to us that the present is not exactly that case. See Shepherd v. Willis, 19 Ohio, 142.
    2. The court erred in rendering judgment for Ramsey, because the contract was not to be performed within a year. It was to commence on the 12th of December, a. d. 1853, and end on the 1st of April, 1855. Such a contract is void. Swan’s Stat. 435; Chitty on Cont. 67; Lower v. Winter, 7 Cowen, 263; Drummond v. Burrill, 13 Wend. 307; Boydell v. Drummond, 11 East, 155; Alcom v. Harmonson, 2 Blackf. 235; Wilson v. Martin, 1 Denio, 602; Lapham v. Whipple, 8 Met. 59; Herrin v. Buttles, 20 Maine, 119; Comes v. Lamson, 16 Conn. 246; 10 Vt. 338; 2 Harrington, 27; 5 Mo. 47.
    These authorities settle the doctrine that the contract in question was void, unless a lease is not within that clause of the statute which makes agreements that are not to be performed within a year void.
    In the first place, leases are within the words of the statute. The language is, “ any agreement,” etc. The words are express, plain, and clear, and they are to be understood according to their genuine and natural signification and import. Bac. Abr. Statute H. 2; Rockfort v. Fitzmaurice, 2 D. & W. 19; Jones v. Jones, 18 Maine, 308; Smith v. Bell, 10 Mees. & Weis. 378; The Survey Peerage, 11 Cl. & Fin. 86.
    In the second place, contracts of loase are within the spirit and' reason of the statute as much as any other contracts. Broadwell v. Getman, 2 Denio, 87; Wain v. Waters, 5 East, 10; Sears v. Brink, 3 Johns. 210; Sherburne v. Shaw, 1 N. H. 157; Champion v. Plummer, 1 New Rep. 252; Cornwell v. Crane, 7 Barb. S. C. 191; Pitkin v. Long Island Railroad Co., 2 Barb. Ch. 232; Roberts v. TenTennell, 3 Mon. 251; Delano v. Montage, 4 Cush. 42.
    It is no answer to this position that going into possession takes the case out of the statute. The statute declares the contract void for two reasons — first, it is for an interest in land; and second, it is not to be performed within a year. Now it does not follow that because possession has been held to remove the first objection, it will the second also. Both causes of objection must be Removed. It is like a ease saved from the operation of the statute of limitations by infancy and coverture.- Take away the infancy and leave the coverture, and the statute does not run. Both disabilities must be removed before the statute can run.
    Again, if going into possession will save the statute from operating when the contract is for two years, then it will for five or ten; and if this statute of frauds can be satisfied by taking possession, so can the other statute, which requires a lease for more than three years to be acknowledged and recorded.
    And where is to be the limit ? The statute of frauds has been trifled with long enough. It is a useful and beneficial statute, and ought to be carefully enforced. Chaplin v. Rogers, 1 East, 194; Baldy v. Parker, 2 Barn. & Cress. 37; Comes v. Lawson, supra.
    Where the lessee goes into possession under a void agreement to pay rent monthly, the tenancy created is one from month to-month.. Peacock v. Buffen, 6 Esp. 4; Knight v. Bennett, 3 Bing. 361; Prindlo v. Anderson, 23 Wend. 616; Taylor Landlord and Tenant, 36, sec. 60; Warren v. Fernside, 1 Wils. 176.
    In the light of these authorities, Hrant was certainly either a tenant from month to month, or a tenant at will.
    But if we were left, without any authority, to infer the nature of the tenancy in the present case from the custom of the place where the contract was made, then’ it must have terminated on the 1st of April, 1854.

      S. B. Curtis & Scribner, for defendant in error:
    1. Where a question has once been tried and adjudicated by a court of competent jurisdiction, neither of the parties are at liberty to again litigate it. Broom’s Leg. Max. *131, cites 7 Term, 269, 456; Co. Lit. 303b; 5 B. & C. 235; 6 Rep. 9. This precise question was made and determined in the case of Gardner v. Buckall, 3 Cowen, 120, where several authorities are referred to. See also Doty v. Brown, 4 Comst. 71, and the cases there cited; and Timmons v. Dunn, 4 Ohio St. 680.
    2. Part performance of a parol lease for more than one year,. *and less than three, takes such contract out of the statute of frauds. See 1 Ohio, 251.
    That provision of the statute of frauds -which makes void all-contracts not to be performed within one year, has no application to contracts relating to realty, but is confined exclusively to those-relating to personalty; and it has been universally so regarded. See 1 Sugd. Vend. 95; Hollis v. Edwards, 1 Vern. 159; Brace-bridge v. Heald, 1 Barn. & Ald. 722; Eaton v. Whitaker, 18 Conn. 222; Jones v. Peterman, 3 Serg. & Rawle, 543; Butcher v. Stapely & Butcher, 1 Vern. 363; Pike v. Williams, 2 Vern. 455; Lockey v. Lockey, Prec. in Ch. 518; Locan v. Mertins, 3 Atk. 4; The Earl of Aylesford’s Case, 2 Strange, 783; and Ebert v. Wood, 1 Binn. 216.
   Scott, J.

The assignment of errors in this case presents two-questions.

1. Where a question has once been tried and adjudicated by a court of competent jurisdiction, can the same question be-again litigated between the same parties ?

2. Does part performance of a parol contract of lease for more than one year, and less than three years, take such contract out. of the statute of frauds ?

As to the first of these questions, the authorities are quite uniform in giving a negative answer. The principle is thus stated in-Broom’s Legal Maxims, *243 : “We may remark, in the words of Lord Kenyon, that ‘ if an action be brought, and the merits of the question be discussed between the partios, and a final judgment obtained by either, the parties are concluded, and can not canvass the same question again in another action, although perhaps some objection or argument might have been urged upon the first trial which would have le4 to a different judgment.’ In such a case, the matter in dispute having passed in rem judicatam, the former decision is conclusive between the parties, if either attempts, by commencing another action, to reopen the question.” 7 Term,456.

The counsel for plaintiff' in error do not deny that such is the rule, for they say: “We readily accede to the general doctrine, *that where a question has once been litigated in a court having jurisdiction of the parties and the subject-matter, it can not again be called in question in another suit between the same parties.” Now, if the correctness of this doctrine be admitted, the court of common pleas properly overruled the demurrer to the reply of the plaintiff, below. For that demurrer admitted that there had been a former suit between the same parties, upon the same contract of lease, in which it became a material question, whether the contract between the parties was for a leasing of the premises till the 1st day of April, 1855, as claimed by the plaintiff below, or till the 1st of April, 1854, as claimed by defendant below; that this •question was determined adversely to the claim of the plaintiff in -error, and final judgment was rendered against him in said suit, for the rent of the premises, until May 12, 1854. But if this same •question as to the duration of the term, after having been once settled between the parties, by the final judgment of a competent •court, may be reopened and reinvestigated, as often as*a further suit may bo instituted for monthly installments of rent, it would be diffi•cult to comprehend the meaning and operation of the rule, which ■counsel admit to be correct.

A similar question arose in the case of Gardner v. Buckall, 3 Cowen, 120. In that case, two promissory notes had been given In purchase of a vessel which proved tobe unseawortby, and the purchaser refused to pay the notes on the ground of fraud. One ■of the notes was sued on in the marine court of the city of New York, and the defense of fraud beiDg interposed, the plaintiff, ■upon the trial of that issue, failed in his action. The plaintiff then brought an action on the other note, in the court of common joleas; .and, on the trial of this action, the defendant offered in evidence, in bar of the suit, the record and judgment in his favor on the other note. The question thus made was taken to the Supreme ■Court of that state, where it was decided in favor of the defendant below. The court say : “ It appears clearly that the question of fraud was,tried between the parties, in the marine court, on one of ;4he notes given in part payment of the vessel. That court had concurrent jurisdiction. The question is, whether the judgment thus obtained is not a conclusive bar to a recovery *in this cause ? The law is well settled, that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea in bar, or evidence, conclusive between the same parties, upon the same matter directly in question in another court. This was the rule laid down by De Grey, chief justice, in delivering judgment in the Duchess of Kingston’s case. 11 State Tri. 261; 1 Phil. Ev. 223; 1 Pet. 202, Cir. Ct. U. S. I am not aware that it has been departed from by our courts.”

But it is claimed that the case of Shepherd v. Willis, 19 Ohio, 142, virtually settles the principle, that such former judgment is not, in this state, conclusive, but only prima facie evidence.

That was an action on the case for a nuisance; and the court held that the record of a former judgment in favor of the plaintiff, in a prior suit between the same parties for the same nuisance, was not conclusive of the plaintiff’s right to a second recovery. But the language and reasoning of the court applies only to that class of cases.

A nuisance may have existed when the first action was brought, but its continuance at the time stated in the second action, would not necessarily follow. The question in the second action was not the same as that which had previously been passed upon.

Upon principle, well settled by uniform authority, we conclude, therefore, that there was no error in overruling the demurrer of the present plaintiff.

We proceed, then, to the consideration of the second question. Was the contract, upon which the plaintiff in the court below brought suit, void by the statute of frauds ? Or, being a parol contract of lease for more than one year, and less than three, would it be taken out of the statute of frauds by part performance ?

The statute provides “ that no action shall be brought whereby to charge . . . any person . . . upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concern-, ing of them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some ^memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him or her lawfully authorized.” ■ Swan’s Stat. 435. The preceding section of the same statute also provides “ that no leases, estates, or interests,” etc., shall at any time hereafter be assigned or granted, unless it be by deed or note in writing signed by the party,” etc.

The plaintiff in error claims that the contract in this case being by parol, was void, first, because it was for an interest in lands, and secondly, because it could not be performed within a year.

It is admitted that the contract was not in writing; the term is shown by the former recovery to have commenced December 12, 1853, and extended till April 1, 1855 (more than one year) ; it is-admitted that the lessee went into possession of the leased premises, under the lease, and enjoyed them for several months, paying rent, according to the contract, as the installments fell due.

Under these circumstances, had the leáse been only for one year,, would it still have been void under the clause of the statute relating to leases and interests in lands ?

If void as to one party, it must have been equally so as to the other. If it would have bound the lessor so that he could not at pleasure eject the tenant, it must also have bound the lessee for the payment of rent. We suppose it to be no longer questionable in this state, that a parol lease for one year, where the tenant is put in possession, is valid, notwithstanding the terms of the statute.

In Wilber v. Paine, 1 Ohio, 251, where a parol contract was made to clear and fence a lot of ground, the party so clearing and fencing to have the privilege of raising a crop of corn on the premises, the landlord entered and gathered the crop. The assignee of the tenant brought trespass, and a question was made as to whether the contract was within the statute of frauds. The court held that it was taken out of the statute by the part performance. They say: “ It has been frequently held on the circuit, that the delivery of possession on a parol agreement was sufficient to take it out of the statute, and we see no reason to reverse the rule, or to- reject the principle upon which it is founded. *When the existence of a contract is evidenced- by a change of possession which must result from the joint act of the parties, the mischief intended to be remedied by. the statute is scarcely to be apprehended. The fact, as far as it goes, is- as satisfactory evidence of the existence of a contract as a memorandum in writing could be, and it maybe added, thatunder such circumstances to enforce the statute and leave the party who has been put into possession by virtue of an agreement, to be treated as a wrong-doer, would not only be repugnant to justice, but would make the statute a shield and protection for injustice.” “We have ^decided that parol lease of a farm for one year, after the lessee had been put into possession, was valid, and that the tenant might defend his possession against his landlord as well as against a stranger.”

But it is said that the contract in the present case is void, because the lease is for a term longer than one year.

No distinction is made by the terms of the statute, between leases for years, estates for life, or in fee simple; nor between leases for a term not exceeding one year, and those for a longer term. All estates or interests in lands, are placed on the same footing, and •it is certain that contracts for the absolute sale of lands, in fee ■simple, are constantly held by our courts to be taken out of the operation of the statute by part performance, and that a change of possession and part payment will constitute a sufficient part performance for this purpose. The clauses of our statute relied upon in this case, are but a re-enactment of the English statute upon the ■same subject, and the courts of that country have always regarded leases, without regard to their duration, as taken out of the statute by part performance. In the Earl of Aylesford’s case, 2 Strange, 783, there was a parol agreement for a lease of twenty-one years. The lessee had entered and enjoyed for a part of the term, and then the earl brought a bill to oblige him to execute a counterpart for the residue of the term. The lessee pleaded the statute of frauds, which was overruled, the agreement being in part executed. So, ■also, under a similar statute in Pennsylvania, in the case of Jones v. Peterman, where the question was, whether part performance of a parol lease for seven years would take the case out of the statute, *it was held that it would, where the possession relied on as part performance was directly referable to the lease. Judge Gibson, in his opinion in that case, says: “Delivery of possession in pursuance of a parol contract for an interest in land, has uniformly been ■considered such a performance as to take the case out of the statute.” 3 Serg. & Rawle, 543. His opinion is based on the authority of the English decisions, which he cites, and which fully sustain the •doctrine.

But counsel seem to rely, in argument, mainly upon that clause of the statute which relates to agreements not to be performed within one year. ■ Was that clause of the statute intended to embrace agreements respecting an interest in lands ? All such contracts have been-specifically provided for in the prior clause, which, includes all parol leases, as well those to be performed fully within one year, as those of longer duration; of course it includes-all leases which, under any construction, could be comprehended under the latter clause. It is not easy to see, therefore, how a case could be outside of the operation of the prior clause, and yet fall within the prohibition of the latter. It would seem to be a vain thing to enact that an agreement which is declared to be void, no matter when to be performed, shall be void if not to be performed within one year. We might, therefore, reasonably conclude that the clause “ any agreement that is not to be performed within the space of one year from the making thereof,” was not intended to embrace contracts in relation to real estate, but should be construed as referring solely to contracts having personalty for their subject-matter, and which would, therefore, but for this clause, be valid, though not in writing. This is, certainly, the construction which has been uniformly given to the same clause in the English statute.

Sugden, in his work on vendors, takes no notice of this clause as applicable to real contracts, and at page 95, of volume 1, we find this note: “ Or upon any agreement not to be performed within a year, which clause does not extend to any agreement concerning lands. Hollis v. Edwards, 1 Vern. 159. It is quite clear that the contract for the sale of lands must be in writing, although the contract is to. be performed the next day. See Bracebridge *v. Heald, 1 Barn. & Ald. 722.” In the case referred to from 1 Vern. 159, counsel was proceeding in argument to claim that the one year’s clause applied to real contracts, but the court stopped him, saying, that that clause had no such application.

The New York statute of frauds differs from ours, in expressly requiring leases for more than one year to be in writing. It also contains a provision similar to ours, in regard to agreements not to-be performed within one year. Hence it was held in Cornwell v. Crane, 7 Barb. S. C. 191 (cited by counsel for plaintiff in error), that a parol lease made in January, 1845, for the term of one year, to commence the 1st of May thereafter, was void under the statute as an agreement not to be performed within one year from the making thereof. The court said: “We think the section now referred to, includes agreements in respect to real estate which but for it would have been valid, as well as agreements in relation to goods, chattels, and things in action.” They did not regard the clause relating to tie time of performance, as including any leases-but such as would, but for it, have been valid by the terms of the statute. But by the terms of our statute no parol leases are valid,, so that applying to our statute the same principle of construction adopted by the New York court, we should hold that the clause referring to agreements not to be performed within one year, has no1 application to contracts of lease.

Many of the other cases from New York, Kentucky, Massachusetts, and other states, which have been cited by counsel, relate to personal contracts, and establish the doctrine that if they can not be fully performed within one year, they are not taken out of the statute by part performance.

In the other cases referred to, the contracts under consideration were in fact void by the provisions of the statute applying expressly to leases and interests in land, though in several of them an obiter opinion is expressed that they might also be held void as within the provision which relates to agreements not to be performed within a year. In such cases, it could not become necessary to decide whether a parol lease of lands might not be held void under each of the clauses of the statute. The question *eould have no practical importance. For if the contract was void under one clause of the statute, there could be no room for the further operation of the other.

But we have found no case in which it has been held that where a contract for an estate or interest in lands is by part performance taken out of the provision of the statute of frauds which relates in express terms to real contracts, it may still be held void as within the provision of the same statute which relates to agreements not to be performed within a year.

Lands are usually sold by contracts, which are not to be fully performed within one year, and such we apprehend has been the character of most of the real contracts which have been held by courts to be taken out of the statute by part performance. But if it be necessary from considerations of equity, and in order to suppress fraud, that courts should hold parol contracts for real estate, which may be fully performed within one year, to be taken out of the statute by a change of possession and the making of improvements upon the premises, these considerations lose none of their force where the parties have acted still longer on the faith of the contract, and improvements have been continuously made for years.

In the case before us, we hold that the parol contract of lease was, by the change of possession and the payment of rent, taker out of the operation of that clause of the statute of frauds which relates in terms to leases and interests in land, and is not to be regarded as within the provision respecting agreements not to be performed within one year.

To have entitled the lessee in this case to rescind the contract and abandon the premises, because the lessor did not execute a written lease, the abandonment should at least have been placed upon that ground. But, instead of this, he appears to have occupied the premises under the lease, till April 1, 1854, and then left, because, as he claimed, the term had fully expired.

The judgment of the court of common pleas must be affirmed.

Swan, Brinkerhoee, and Sutliee, JJ., concurred.

Bartlev, C. J., dissented.


text:
    *The Steubenville and Indiana Railroad Company v. James Patrick.
    The plaintiff obtained an appropriation of the defendant’s land by proceedings before the probate court, and paid in the amount of the assessment, $1,425. The plaintiff then, by certiorari of the court of common pleas, obtained a reversal of the proceedings of the probate court, and a second assessment was made at $1,612, in the court of common pleas. Without paying the excess, or obtaining final judgment for title, the plaintiff filed a petition in error in this court. Held, that the' petition in error was prematurely prosecuted, the court of common pleas not having finally disposed of the case.
    This is a petition in error to reverse the judgment of the court of common pleas of Tuscarawas county.
    Eeserved in the district court.
    Such proceedings were had by the plaintiff in the probate court of Tuscarawas county, in August, 1853, that certain real estate of the defendant, was condemned to the use of the plaiñtiff for its railroad. The jury assessed the damages at $1,425, and the probate judge confirmed the assessment. Various exceptions were 'taken
      lay the plaintiff to the rulings of the probate judge. The plaintiff paid into court the assessment and costs, and the probate judge rendered a judgment to the effect that the plaintiff hold, for the purposes of constructing a railroad, the property appropriated.
    These proceedings were taken by certiorari to the court of common pleas, and the verdict of the jury and the judgment thereon reversed. A new assessment was had in the court of common pleas, .■and the verdict of the jury was $1,.612.75. The court of common
    pleas rendered a money judgment for $1,612.75, in favor of the defendant, and against the plaintiff. Exceptions were taken by the plaintiff to the rulings of the court of common pleas. It does not .■appear from the record that the plaintiff has paid the excess of the verdict of the common pleas, or otherwise taken steps to obtain title.

      *Moody, Beady & Mitchener, for plaintiff in error.

      Bingham & Sanee, for defendant in error.
   J. R. Swan, J.

The statute provides (Swan’s Stat. 235, section 11), that the probate judge shall enter of record a confirmation of ■the verdict, fixing the value of the land, etc., “ and upon the payment of the amount for which the verdict is rendered, and such costs as may be assessed, the probate court shall render a judgment, to the effect, that the said corporation shall hold the property in the proceedings mentioned, for the purpose for which the same was appropriated, and enter the same upon record, and thereupon such •corporation shall hold the same accordingly.” Such is the final judgment of the court of probate, and its effect in these proceedings. Payment must be made before such final judgment.

The same statute also provides (sec. 21), that if the court of ■common pleas shall reverse the judgment of the probate court, “they shall retain the cause for trial and final judgment;” and that if upon certiorari, there shall he a second assessment, which •shall exceed in amount that first made, the corporation shall pay the excess to the owner of such property.”

The second assessment exceeded the first in the present case; but that excess has not been paid by the corporation; and final judgment of the court of common pleas on the assessment made in that court after the reversal of the proceedings of the probate court, can not be rendered, until the excess over that originally made in the probate court has been paid by the corporation. If •this were not so, the corporation would obtain title without having first paid for the land appropriated; which would be a violation-’, of a constitutional provision upon this subject.

In the case before us, the proceedings are still in fieri in the common pleas. It is true the court have ordered the assessment to be-paid by the plaintiff, and rendered a judgment therefor. But tho-final j udgment in these cases is not a money judgment; but a judgment, upon payment of the excess over the amount assessed below,. “ to the effect, that the said corporation shall *hold the property in the proceedings mentioned, for the purposes for which the-same was appropriated.” Until judgment vesting title has been-, rendered by the court of common pleas, or some other final disposition made of the proceedings, a petition in error is premature.

The statute authorizes the corporation, upon payment of the assessment made in the probate court; to enter upon the premises,, notwithstanding a certiorari is prosecuted to tho common pleas. This is well enough, as the assessment, while unreversed, and until a new assessment is affirmed, may be presumed to be the true value-of the premises. But it can afford no protection to the corporation, after the new assessment, if that exceeds the first assessment.. In such case, they should pay the excess, and then take judgment for title in tho court of common pleas. "Whether such final judgment is necessary in the court of common pleas, when the second-assessment does not exceed the one below, it is not necessary in this-case to determine, though such would undoubtedly be the proper and safer practice.

The petition in this case, having been filed before the court of common pleas had finally disposed of the case, must be dismissed-

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.


text:
    Wood & Oliver v. Henry Vallette and Harry Lewis.
    Under a contract between V. and L., providing that V. should advance to L„ $1,000, and draw for the same in merchandise as he may want it for payment of contractors, and that Y. should use his influence to procure for L. the patronage of the contractors; and in consideration thereof, that L. should pay V. half the profits of his store for twelve months thereafter, and’ that, for the purpose of ascertaining the profits, L. should take an account of the stock, and keep books for the time named; and providing that Y. should not be liable for loss to exceed the profits, and that the contract should not constitute a partnership between the parties; Held—
    1. That as to third persons selling goods to L., while carrying on business under the contract, Y. and L. were to be regarded as partners.
    *2. That the provisions in relation to the limitation of losses to be sustained by V., and against 'the contract being construed as constituting a partnership, were provisions inter sese, and could not change their relation, as partners toward third persons.
    3. That a contract between parties to share in the net profits of a business, to the carrying on of which they respectively contribute, necessarily makes-them partners as to third persons dealing with the firm.
    Assumpsit.
    Reserved in the district court of Hamilton county, on a motion for a new trial.
    The facts sufficiently appear in the opinion of the court.

      Johnston & Oarroll, for plaintiffs,
    cited 2 Black. 998; 2 H. Black, 235-247; 1 Black. 43-48; 1 H. Black. 37; 4 Barn. & Ald. 663, or 6 Eng. Com. L., 645; 1 Ohio, 39; 1 Cowen, 282; 5 Pet. 529; Smith’s Mer. Law, 23, 24; Coll. on Part., 13; 2 Greenl. Ev., sec. 482; 20 Ohio, 144; 1 Denio, 340; 10 Met. 303; 20 Wend. 70; 10 John. 228; 4 Sandf. 321; Story on Part., sec. 38-49; 6 Met. 90; 4 Rich. 309.

      Fox & French, for defendants cited 4 East,
    144; 4 Term, 353; 10 Johns. 226; 16 Ohio, 436; 14 Pick. 192; 20 Ohio, 144; Story on Part., sec. 13; 11 Johns. 228; 20 Wend. 70; 1 Denio, 340; 10 Met. 303; 4 Sandf. 321; 16 Ohio, 437; 18 Wend. 185; Coll. on Part., secs, 25, 41, 120, 536, and note to see. 45.
   Sutliff, J.

This is an action of assumpsit commenced at the October term, 1850, in the common pleas of Hamilton county, by Wood & Oliver, against Henry Yallette and Harry Lewis.

The declaration charges, that on the 28th day of March, 1845, the defendants “ were partners in trade under the name of ‘ H. Lewis;”’ and so being partners, on that day executed to the plaintiffs their certain promissory note in writing of the following tenor, to wit:

*“552 62-100.
“Philadelphia, 28th March, 1845. Six months after date, I promise to pay to the order of Wood & Oliver, five hundred and fifty-two dollars 62-100, without defalcation, for value received.
(Signed,) ■ “ H. Lewis.”

Yallette pleaded the general issue, with his affidavit of its verity. Lewis made no defense. The cause was tried at the June term, 1852, of the common pleas, and resulted in a verdict and judgment in favor of the plaintiffs.

Yallette appealed to the district court. At the October term, 1855, of the district court, the cause was again tried to a jury, who returned a verdict against the defendants for the amount due on the note. Thereupon the defendant moved for a new trial for the alleged causes:

1. That the verdict was contrary to the evidence.

2. That the court erred in its charge to the jury.

Eor the determination of this motion the cause was reserved to this court.

Upon the trial in the district court a bill of exceptions was taken by the defendant, from which it appears that the plaintiff, after proof of its execution by the defendants, offered in evidence a written contract of the tenor following:

“ This agreement made this twentieth day of September, 1844, between H. Yallette and Harry Lewis, in Cincinnati, witnesséth— That the said Yallette agrees to loan to the Lewis, one thousand dollars, and draw for the same in merchandise as he may want it for the payment of his contractors on the White Water Yalley Canal in the State of la. The said Yallette agrees to use his influence in procuring for the said Lewis the patronage of his contractors on the said canal, now at work for the said Yallette. In consideration of the foregoing, said Lewis agrees to pay said Yallette in merchandise half of the profits made in his store, or in any -other store that may be established on the line of the canal by said Lewis in the ensuing twelve months after the date of this agreement, said profits to be paid by dividing the most unsalable portion ■of the merchandise said Lewis may have on hand at the end of twelve months from this time; the business to be conducted in the name of said Lewis. Said Lewis agrees to take an account of stock and keep his books from the 5th of October, 1844, so as to be able to .arrive at an exact account of the profits of the concern for twelve months thereafter. It is understood that said Yallette shall not be responsible for any loss connected with the concern more than the profits thereof, and that nothing shall be ^construed, or intended in this agreement to make a partnership between said Lewis and said Yallette.
(Signed,) “ Henry Yallette,
“Harry Lewis.”'

The defendant objected to the giving of the writing in evidence, but the court overruled the objection and permitted the writing to go in evidence to the jury; and defendant excepted.

The bill of exceptions also shows that the court refused, upon request of defendant, to instruct the jury that said writing did not constitute an agreement of copartnership, and did not make Val lette liable to the plaintiffs as a secret partner, for goods bought by Lewis; but on the contrary, that the court charged the jury that the writing, so given in evidence, did constitute a partnership between Vallette and Lewis as to creditors who sold goods to Lewis, and took his note while said agreement existed.

The motion for a new trial is predicated upon these holdings and charge of the court. If the court erred in permitting said written agreement to be given in evidence, or, if the court erred in their instructions to the jury in regard to the legal effect of that instrument, to the prejudice of the defendant, a' new trial ought to be granted. If, however, the court committed no error in either of these particulars, no other ground for the motion being stated, a new trial ought not to be granted.

The only question, therefore, in this case for our consideration, is the legal effect of this written agreement.

Did it constitute a partnership between the defendants, “ as to creditors who sold goods to Lewis and took his notes, while said agreement existed ?” Does the writing indicate an agreement between Lewis and Vallette, to respectively put their mony, effects, labor, and skill,, or some or all of them together, in lawful commerce or business, with the understanding, express or implied, that there should be a communion of profits thereof between them ? If so, the charge of the court was correct; otherwise, it was not, and a new trial should be granted.

The instrument of writing provides, in express terms, that Val_ lette shall loan Lewis one thousand dollars, and draw for the same in merchandise as he may want it, and shall use his influence to' ^procure certain patronage to the store; and that Lewis shall, on his part, prepare books, take an account of stock, and enter upon the management of the business within about fifteen days thereafter, and conduct the business for one year; and that the parties shall then, upon an account being taken, divide the profits equally between them. Now here is an express agreement that Vallette shall advance $>1,000 on his part; I say advance, for it is a misnomer to term it a loan, when the stipulations of the parties are, that, instead of thereafter receiving back the ®1,000 in kind, in money, Yallette is to draw one thousand dollars worth of goods therefor from the store. Yallette also agrees to contribute his labor, skill, or influence to procure . certain patronage to the store. Lewis,'on his part, puts in his labor and skill in conducting the business. And the writing provides that Yallete, in consideration of his said advancement, and services in procuring patronage, ¡should receive half of the profits made in the enterprise. As between the parties to the agreement, these provisions are sufficient, it can not be doubted, to constitute a partnership inter sese.

But the concluding paragraph provides, that it is understood that said Yallette shall not be responsible for any loss more than the profits in the enterprise; and that the writing shall not be regarded as constituting a partnership between the parties to it.

This concluding paragraph may very essentially qualify the effect •of the instrument as between the^ parties. It can not, however, .affect the character of the contract so as to change the relation of the defendants, otherwise thereby established, toward third persons. 'The provision, that nothing in the agreement shall be construed or intended to make a partnership, and the provision that Yallette ¡shall not be responsible for losses to exceed the profits, are provisions strictly inter sese.

“ It may be laid down as a general rule of the common law,” ¡says Judge Story, “ that in order to constitute a partnership, it is not essential that the parties should equally share the profits and losses. It is sufficient if they are to share in the profits of the business after deduction of the losses; or in other words, that they .should share in the net profits according to their respective proportions. *It is therefore competent for the partners, by their ¡stipulations, to agree that the profits be divided, and if there be no profits, but a loss, that the loss shall be borne by one or more of •the partners exclusively, and that the others shall, inter sese, be •exempt therefrom.”

The elementary writers seem generally to understand the doctrine to be that a community of profits between parties should determine the question of partnership.

Mr. Oollyer, in his treatise upon the subject of partnerships, uses ■the following language: “To constitute a partnership between the partners themselves, there must be a communion of profit between them;” and adds that the communion of profit implies a commuuion of loss. But he, too, admits the right of the parties to stipulate, as between themselves, for the exemption of any member of the partnership from any loss beyond the profit.

It would therefore, we apprehend, be difficult, upon authority, to find that this agreement of the parties has not all the requisites of a partnership contract, as between the parties themselves. It is even questionable if, in this case, there might not be, by virtue of ■this contract, not only the community of profits necessary to entitle each to an account, as provided for by the instrument, but also, by reasonable implication, a community of property between the parties.

Suppose, instead of a provision that Yallette should advance one •thousand dollars, the instrument had contained a provision that he should advance ten thousand, or all the money necessary for the purchase of the entire stock of goods, and to be drawn for in merchandise, the provisions of the contract in all other respects being the same. If Lewis, under such circumstances, had received and invested the money in the purchase of goods, and the goods had been seized in execution for the satisfaction of some former private debt against Lewis, it might be very reasonably expected that Yallette would assert a community of property in the goods, and insist upon his right by virtue of his having so advanced the purchase money. If Yallette could, under such ^circumstances, suecessfully assert a claim in the goods, it would be upon the ground of a partnership, in fact, between themselves.

But it is not necessary, in this case, to find that the writing under consideration constituted a partnership inter sese, between the parties. The question is, does the legal effect of the contract constitute the defendants partners, toward third persons dealing and becoming creditors, within the limits of the enterprise?

There is a well-known distinction between cases in which it has been held that as to third persons there is a partnership, and the eases in which it has been held that there is a partnership between the parties inter sese. The former may arise by more operation of law, and the partnership exist, as to third persons, even against the express intention of the parties. Thus, in the case of Hazard v. Hazard, 1 Story, 371, it was said by the court, that if A and B should agree to carry on business for their joint profits, and to divide the profits equally between them, but B should bear all the losses, and should agree that there should be no partnership between them, as to third persons dealing with the firm, they would "be held to he partners, although inter sese they would be held not. to be partners. This distinction is often taken in the authorities.. It was very fully discussed and recognized in Carver v. Waugh, 2 H. Ela. 235; and many other cases, English and American, are referred to by the court, fully sustaining the doctrine.

There is still another, and more nice distinction between the cases-were a participation in the profits will make a man liable as a partner to third persons, and the cases where it is held that a person, may stipulate to receive as a reward and compensation for his services, a sum of money in proportion to the profits. Mr. Grow, in treating upon the subject, states the distinction to be between an interest in the profits themselves as profits, and the payment of a given sum of money proportioned to the profits. And Lord Eldon, in Ex parte Kowlardson, 1 Rose, 89, said: “ If a man, as a reward for his labor, chooses to stipulate for an interest in the profits of a business, instead of a certain sum proportioned to those profits, he is, as to-third persons, a partner; and no arrangement between the parties-themselves *can prevent it.” Chancellor Kent, in his Commentaries, vol. 3, p. 25, note b, recognizes the same distinction. The following is his language: “ There is a distinction between a stipulation for a compensation* for labor proportioned to the profits, which will not make a person a partner, and a stipulation for an interest in such profits, which entitles the party to an account as a partner.”

Indeed, wo apprehend, the rule is at this time well settled, that, even an agent can not stipulate with his employer to receive an interest in the profits, other than of gross profits, as a remuneration for his services, without thereby becoming a partner as to third persons. -If the contract be, that he shall receive for his compensation a certain portion of the net profits, the agent would thereby become a partner as to third persons.

We think, in this case, there can be no doubt that the contract between the defendants, in its legal effect, constituted them ¡partners-as to third persons dealing with them under the existence and operation of the contract.

The motion for a new trial must therefore be overruled, and judgment entered on the verdict.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.